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Encyclopedia > Public participation in patent examination

The involvement of the public in patent examination has been proposed to help identifying relevant prior art and, more generally, to help assessing whether patent applications and inventions meet the requirements of patent law, such as novelty, inventive step or non-obviousness, and sufficiency of disclosure. In most patent laws, prior art or state of the art (the latter term sometimes has other meanings as well) is all information that has been made available to the public in any form before a given date. ... A patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. ... An invention an object, patent, process, or technique which displays an element of novelty. ... A patent is a set of exclusive rights granted by a state to a patentee (the inventor or assignee) for a fixed period of time in exchange for the regulated, public disclosure of certain details of a device, method, process or composition of matter (substance) (known as an invention) which... Novelty is a patentability test, according to which an invention is not patentable if it was already known before the date of filing, or before the date of priority if a priority is claimed, of the patent application. ... The inventive step and non-obviousness reflect a same general patentability requirement present in most patent laws, according to which an invention should be sufficiently inventive, i. ... Sufficiency of disclosure refers to the legal requirement that the description of an invention in a patent contain specific information about the invention. ...

Contents

Rationale

The rationale for public participation in patent application review is that experts in fields relevant to a particular patent application will self-select and provide useful information to patent examiners if the proper forum is provided. One model for such a forum is a wiki model where the public may submit prior art and commentary relevant to a given patent application and patent examiners can consult that forum. The hoped-for effect is that patent examination will be more efficient and thorough thus patents that do issue will be of higher quality than is currently possible. [1] A patent clerk or patent examiner is an employee, usually a civil servant, working within a patent office and whose work is to examine patent applications as to whether they deserve a patent. ... For other uses, see Wiki (disambiguation). ...


History

Observations by third parties

The European Patent Convention (EPC) provides that any person may present observations concerning the patentability of an invention described in a European patent application. [2] This is a form of public participation to patent examination. Filing such observations by third parties at the European Patent Office (EPO) is free of charge, but the observations must include a statement of grounds. [2] The statement of grounds must be in English, French or German according to the Guidelines for Examination at the EPO. [3] The person filing the observations does not become party to the proceedings. [2] The Convention on the Grant of European Patents of 5 October 1973, commonly known as the European Patent Convention (EPC), is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents are granted. ... The European Patent Organisation (EPO or EPOrg in order to distinguish it from the European Patent Office, which is the main organ of the organisation) is a public international organisation set up by the European Patent Convention. ... The English language is a West Germanic language that originates in England. ...


If the observations call into question the patentability of the invention, they must be taken into account in any proceedings pending before a department of the EPO until such proceedings have been terminated, i.e. they must be admitted to the proceedings. [3] However, while considered by some as "a powerful and sharp tool", [4] "in practice, this procedure does not serve as an incentive for third parties to become involved and to provide examiners with possible insights in the inventiveness of an application or less obvious prior art." [5]


In the United States Patent and Trademark Office, third parties may submit prior art relevant to a published patent application within two months of said publication or before a notice of allowance is given, whichever comes first. In contrast to European practice, however, third parties are not allowed to provide any additional explanation of the relevance of the prior art. The USPTO requires a fee.[6] PTO headquarters in Alexandria The United States Patent and Trademark Office (PTO or USPTO) is an agency in the United States Department of Commerce that provides patent and trademark protection to inventors and businesses for their inventions and corporate and product identification. ... In a two-party system a third party is a party other than the two dominant ones. ...


BountyQuest project

The now defunct BountyQuest was an early attempt to recruit members of the public to search for prior art for issued patents. Bounties were offered by companies for any prior art that someone could find that would invalidate the claims of a given US patent. BountyQuest existed from 2000 to 2003.[7] Bounty can refer to different things: The Bounty a 1984 film with Mel Gibson and Anthony Hopkins A bounty is an amount of money or other reward offered by an organization for the capture of a person or thing Bounty is a brand of paper towel manufactured by Procter & Gamble... Patent claims are usually in the form of a series of numbered expressions, or more precisely noun phrases, following the description of the invention in a patent or patent application, and define, in technical terms, the extent of the protection conferred by a patent or by a patent application. ...


Wiki review

The review of patent and patent applications through wiki projects was proposed in 2006. The claimed purpose is to improve the quality of patent examination, as well as re-examination, through the involvement of the public, to help identifying relevant prior art. The United States Patent and Trademark Office has endorsed some of these projects. [8] A patent is a set of exclusive rights granted by a state to a patentee (the inventor or assignee) for a fixed period of time in exchange for the regulated, public disclosure of certain details of a device, method, process or composition of matter (substance) (known as an invention) which... A patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. ... For other uses, see Wiki (disambiguation). ... 2006 (MMVI) was a common year starting on Sunday of the Gregorian calendar. ... In most patent laws, prior art or state of the art (the latter term sometimes has other meanings as well) is all information that has been made available to the public in any form before a given date. ... PTO headquarters in Alexandria The United States Patent and Trademark Office (PTO or USPTO) is an agency in the United States Department of Commerce that provides patent and trademark protection to inventors and businesses for their inventions and corporate and product identification. ...


According to Dave Kappos, vice president for intellectual-property law at IBM, "it's a very powerful concept because it leverages the enormous capabilities of the entire world of technical talent." [8] In law, intellectual property (IP) is an umbrella term for various legal entitlements which attach to certain types of information, ideas, or other intangibles in their expressed form. ... International Business Machines Corporation (known as IBM or Big Blue; NYSE: IBM) is a multinational computer technology corporation headquartered in Armonk, New York, USA. The company is one of the few information technology companies with a continuous history dating back to the 19th century. ...


Wikipedia itself is often used by patent examiners as a reference to get an overall feel for a given subject. Citations of Wikipedia as actual prior art are problematic, however, due to the fluid and open nature of its editing. [9] Nonetheless, in the related area of trademark examination, entries from Wikipedia have been cited in precedential opinions by the Trademark Trial and Appeal Board of the USPTO. [10] A patent clerk or patent examiner is an employee, usually a civil servant, working within a patent office and whose work is to examine patent applications as to whether they deserve a patent. ... A trademark, trade mark, ™ or ®[1] is a distinctive sign of some kind which is used by an organization to uniquely identify itself and its products and services to consumers, and to distinguish the organization and its products or services from those of other organizations. ... In law, a precedent or authority is a legal case establishing a principle or rule which a court may need to adopt when deciding subsequent cases with similar issues or facts. ... The Trademark Trial and Appeal Board (or TTAB) is a body within the United States Patent and Trademark Office (USPTO) responsible for hearing and deciding oppositions filed against trademark applications. ... The United States Patent and Trademark Office (PTO or USPTO) is an agency in the United States Department of Commerce that provides patent and trademark protection to inventors and businesses for their inventions and corporate and product identification. ...


References

  1. ^ Schecter, Manny, Open Collaboration Is Medicine for Our Ailing Patent System, BNA's Patent, Trademark & Copyright Journal, Vol. 72, No. 1789, pp. 682-685, Oct. 20, 2006.
  2. ^ a b c Article 115 EPC
  3. ^ a b Guidelines for Examination at the European Patent Office E. VI. 3. Observations by third parties and examination thereof.
  4. ^ Dr Jürgen Kaiser, A great alternative to oppositions, Managing Intellectual Property, Supplement - Germany & EPO IP Focus 2006.
  5. ^ Netherlands delegation to the Administrative Council of The European Patent Organisation, Dutch paper on the strategy debate CA/68/06, Addressees: Administrative Council (for opinion), Munich, February 15, 2006, p.8 (pdf)
  6. ^ 37 CFR § 1.99 Third-party submission in published application.
  7. ^ Internet Archive. http://web.archive.org/web/*/http://www.bountyquest.com
  8. ^ a b Nicholas Varchaver, Patent review goes Wiki, Fortune, VOL. 154, NO. 4 - August 21, 2006
  9. ^ “Just a Patent Examiner” blog, October 1, 2006
  10. ^ In re Grand Forest Holdings Incorporated S/N 78220033, 20 October 2005

The Convention on the Grant of European Patents of 5 October 1973, commonly known as the European Patent Convention (EPC), is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents are granted. ... Managing Intellectual Property (MIP) is a monthly magazine published in English and specialized in intellectual property. ... Internet Archive headquarters. ... Fortune magazine is Americas second longest-running business magazine after Forbes magazine. ...

See also

In administrative rulemaking, public participation refers to the process by which proposed rules are subject to public comment for a specified period of time. ... Public Patent Foundation, or PUBPAT, is a nonprofit organization that seeks to limit perceived abuse of the U.S. Patent system. ... In United States patent law, a reexamination is a process whereby a third party or inventor can have their patent application reexamined by a patent examiner to verify that it is valid. ... The opposition procedure before the European Patent Office (EPO) is a post-grant inter partes procedure intended to allow any European patent to be centrally opposed if it was wrongly granted. ...

External links

  • Examples of wiki projects
    • the Peer to Patent Project
    • Cambia patent lens annotation of patents
    • Wikipatents (see also Broache, Ann, Wiki site aims to boost patent review process, CNET, August 28, 2006)

 
 

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