GoFuckYourself.com - Adult Webmaster Forum - View Single Post

fiveyes · 08-06-2003, 04:47 PM

Quote:

Originally posted by nyc-212
A word of caution on this. Be careful, talk to a sophisticated attorney

That's always good advice!

Quote:

... and coordinate with with the current defense group.

I'm uncertain whether the current defense group could coordinate such a thing or whether it might be construed as an unfair business tactic on their part (a charge that Acacia seems more than willing to try to level at IMPA). This may, if it happens at all, have to be more of a grass roots thing.

Quote:

If you do a reexam and lose, you then may actually insulate any prior art presented in the reexam from being used to invalidate the patents in litigation.

Almost a good point, except that each and every Reexamination Application can only result in one of three determinations, either the contested claims stand as written, they are narrowed (never broadened) or they are removed entirely from the invention. Though the submitted prior art, argument(s) set forth concerning it and the PTO determination all become part of the file wrapper of the patent, subject to inspection by anyone who cares to look, someone else can still resubmit the exact same prior art with an entirely different argument and set of points that the filer feels should be considered.

But most importantly, you have to keep in mind that at no point can a specific prior art be considered invalid in later examination of the claims of a patent. A single document may be used to present one set of arguments against a specific claim and another set of arguments against either the same claim or a different one. The concept of "insulating" prior art simply because one argument concerning it didn't sway anyone at the moment doesn't exist. There is either prior art out there, or there isn't. Either the inventor fully disclosed and correctly considered the pror art or he didn't. And the PTO is the first to admit that they cannot possibly do an exhaustive search and analysis of prior art with their alloted resources.

In fact, for no cost at all except postage. you can (and should!) enter prior art with your comments and observations into the file wrapper without any determination being made upon it at the moment. These are known as "citations" and are explained here. This is the baggage that a patent accumalates during the time it's enforceable that may never be acted on. That is, until some interested party realizes the significance of your find and does call it to attention.