This was the case in the past. Recently one of my lawyers suggested
that this is not necessarily the case at present. The USPTO appears to
be (slowly) getting its act together.
While USPTO behavior has been rent-seeking in recent years, preferring
to issue stupid patents rather than risk being sued by the applicant,
the frequency of re-examination requests during court proceedings has
increased substantially and is providing more of a counterbalancing
interest.
In this case there are only applications, not actual patent claims.
The applicant is obliged to provide any information received that
might affect the validity of the patent to the USPTO. Failure to do so
can lead to the patent being invalidated. So it is not a question of a
re-exam.
As always, IANAL and this is not legal advice.
On Thu, Nov 19, 2009 at 3:32 PM, <tytso(_at_)mit(_dot_)edu> wrote:
On Thu, Nov 19, 2009 at 10:51:16AM -0800, Stephan Wenger wrote:
The mechanisms to challenge the validity of a patent depend on the
legislation. In the US, one example is a request for re-examination. A
good foundation for such a request would be the presence of Prior Art not
considered during the prosecution phase. The effort and cost involved is
significant and can be compared to the prosecution of a patent. One problem
with re-examination is that one has to show that the patent office was wrong
in issuing the patent originally. That is, one does not only fight the
interests of the rightholder, but also the established opinion of the patent
office. No one likes to be proven wrong, and, therefore, re-examination is
often an uphill battle against an established bureaucracy.
Worse yet, if you don't have all of your expensive patent lawyers
lined up, and the patent office decides it doesn't want to admit that
it screwed up, the patent actually ends up being *stronger* afterwards
--- that is, a patent which survives a re-exam is presumed by the
courts to be more likely valid.
This brings up an interesting strategy by patent trolls to secretly
get a sock-puppet to deliberately launch a incompentent patent
re-examine, just to make the patent appear stronger. As a result,
some patent attorneys, upon examination of the unique facts of a
particular patent, might decide that it's better to not try to
challenge the patent, and wait for the troll to make the first strike.
It's amazing how screwed up the US Patent system is, isn't it?
- Ted
P.S. This is not legal advice, and I don't play a lawyer on TV.
P.P.S. The opinions expressed in this e-mail are my own, and do not
reflect the views or business strategies of my employer.
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