4 ms·
Patent lawyers consider the "not obvious to someone skilled in the art" test done by merely looking at prior art. If it's not previously explicitly patented, it
by rlpb 4y ago
Patent lawyers consider the "not obvious to someone skilled in the art" test done by merely looking at prior art. If it's not previously explicitly patented, it's valid.
According to them. This is exactly what a patent lawyer told me when I asked about how they test for that requirement.
- btrettel 4y agoAnything available to the public can be used in a prior art rejection, not just patents. (I'm a former patent examiner and I frequently used "non-patent literature" as it's called.)
- failTide 4y agoThat's very cool. Were you ever obligated to grant one of these ridiculous patents, or were you able to use your discretion?
- btrettel 4y agoI wasn't around long enough for many to get to the point where they could be granted. I think I only granted around 3 or so. And those ones were unlikely to cause anyone trouble. I've heard a second-hand story of one examiner who granted a patent that was later strongly criticized. They specifically requested more time from their supervisor to work on it, but their supervisor denied the request. Since they didn't have any valid reason to reject the application, they allowed it. The examiner suspected that it wasn't valid, but they really didn't have a choice as they have to meet a quota and "docket management" requirements. So it's not a matter of an examiner using their own discretion. The examiner knew it was likely a problem but they couldn't find any evidence which was legally enforceable. Why do patent examiners sometimes grant invalid patents? For the same reason software developers sometimes release buggy software: Management doesn't give them enough time or resources to do a quality job.