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(Message started by: lemonbar on Oct 2nd, 2007, 8:27pm)

Title: Found Prior-Art To European Patent
Post by lemonbar on Oct 2nd, 2007, 8:27pm
I found what I believe to be prior-art for a patent that was given in Europe.

A - Is it true that European patents dont care about prior-art and thus has no bearing on thte validity of it?

B - The company has applied for a patent in the US. How do I get these materials to that agent?

C - What form does the proof have to be in? How can the agent tell if it was not just created on some website and dated wrong? How do they go about validating the prior-art since they can never tell how some picture or document got into open waters?

D - If they were selling it in Europe, then how can they get a patent here when the product is already known about and pictures are everywhere already of course?

E - How long and after what date, applicatation or granted, do they have to get a application for US in?

Thanks


Title: Re: Found Prior-Art To European Patent
Post by patent_type on Oct 3rd, 2007, 8:38am
A--no.

B--Why do you want to? Is this your application? A competitor's application? Some third party about which you don't care? The answer to that question not asked but underlying should influence what you do and how you do it.

C--depends on what the art is.

D--depends on the application date of the U.S. patent, what it claims priority to, when the art became public, when the sales in Europe occurred, etc.

E--depends. Is there a PCT application? Is the U.S. direct from the EP application? Was the U.S. application already filed first? What "date, application or granted" are you referring to?

There are many required facts that determine answers to the many different directions you are taking here. Sounds like you need to talk to somebody to whom you can give real facts if you really want answers to these questions. There are so many decision tree branches here that it will be unlikely you can get satisfactory answers from your fake internet friends here.

I do not recommend that you provide those facts in this forum. I do recommend that you contact a real attorney if you really want some answers to these questions. These are not difficult questions, just very fact-specific.

Title: Re: Found Prior-Art To European Patent
Post by lemonbar on Oct 3rd, 2007, 9:45pm
A - I read in serveral books that prior-art is not relavent in European pattens with 1 author stating that he wishes the US would catch up on that idea. What am I missing here?

B - The question is simply how would I inform the agent of this material if the product states "patent pending and I ahve no idea how to get ahold of the application to reference when I send in the materials. It does have a WIPO PCT Application number and publish date with the US listed as a state. Not sure if that helps.

Followup:

I have come across proof that this product was used several years (3+) prior to their WIPO PCT application and the current product states "US Patent: Pending" and its a new product out on the market. So far I assume they do not have a US Patent yet.

Question A - Does the Application being published mean they have a patent in IT and if so does the prior-art given thet facts I stated invalidate their patent in IT?

Question B - If they do have a patent in IT and it is granted/published then and since they have US listed on the application do they have rights in the us on infringment and if I found prior-art then does that nix their US infringement rights?

Thanks for the help anyone can provide.

Title: Re: Found Prior-Art To European Patent
Post by patent_type on Oct 4th, 2007, 7:10am
You are misinterpreting what you read.  Europe, as most countries, operates on a first-to-file system instead of the first-to-invent system used by the U.S.  That is likely what is being discussed in what you read.

I repeat my previous admonition that what you do with this information should be influenced by what your motive is.  You could be making a ginormous tactical and strategic mistake by doing anything with this information now, depending on your interest in this whole matter.

From the facts you've presented, at least as this fake internet lawyer can interpret, you are best served by taking these facts (and the myriad omitted facts) to a real patent lawyer to help determine your strategy and tactics, or at least be able to answer your questions based on your specific set of facts.  

You seem to be walking during a moonless night through a field strewn with cow patties.

Title: Re: Found Prior-Art To European Patent
Post by lemonbar on Oct 4th, 2007, 4:07pm
You guys are my moonlight to avoid the cowpatties :D

I research, read here and use an attorney to come up with my plan.

I do not want to infringe on a potential patents rights and am learning how this entire process works as well.

If that helps, then could you attempt to provide some insight into the previous set of questions when time permits.

Thanks for the feedback and help.

Title: Re: Found Prior-Art To European Patent
Post by patent_type on Oct 4th, 2007, 5:35pm
answer to follow up Question A--no. That moots Question B.

Title: Re: Found Prior-Art To European Patent
Post by lemonbar on Oct 4th, 2007, 7:37pm
"Europe, as most countries, operates on a first-to-file system instead of the first-to-invent system used by the U.S.'

Ok so I'm still trying to find out if prior-art 1 year or greater invalidates their patent in IT or most European states? Guess I can't understand what first to file means. To me it means they don't care who invented it first, it only who patented it first and that person is who filed first. Can you explain what part I'm missing.

thx




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