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(Message started by: rocket136 on Oct 31st, 2007, 11:57am)

Title: When is a patent application posted for public vie
Post by rocket136 on Oct 31st, 2007, 11:57am
I'm trying to find an application made by a competitor in a specific time frame in the middle of 07. Is there a time lag as to when it will be posted for view and public comment by the USPTO on its website? A provisional was set to expire around this time.

Title: Re: When is a patent application posted for public
Post by PA on Oct 31st, 2007, 2:20pm

on 10/31/07 at 11:57:35, rocket136 wrote:
I'm trying to find an application made by a competitor in a specific time frame in the middle of 07. Is there a time lag as to when it will be posted for view and public comment by the USPTO on its website? A provisional was set to expire around this time.

Assuming there is no nonpublication request, the application is published 18 months after the effective filing date.  If there is a non-publication request, then the application will not be published until it issues, if at all.  Provisional applications are not published.

Title: Re: When is a patent application posted for public
Post by rocket136 on Oct 31st, 2007, 3:53pm
what would constitute a non publication request? If there is one how would you go about reftuing the application? I have reason to believe there is some "stinkyness"

Title: Re: When is a patent application posted for public
Post by pentazole on Oct 31st, 2007, 7:21pm
35 USC 122(b)(2)(B)(i):

If an applicant makes a request upon filing, certifying that the invention disclosed in the application has not and will not be the subject of an application filed in another country, or under a multilateral international agreement, that requires publication of applications 18 months after filing, the application shall not be published as provided in paragraph (1).

Title: Re: When is a patent application posted for public
Post by PA on Oct 31st, 2007, 7:47pm

on 10/31/07 at 15:53:50, rocket136 wrote:
what would constitute a non publication request? If there is one how would you go about reftuing the application? I have reason to believe there is some "stinkyness"

Until a patent is issued with claims, what exactly would you be refuting?  Why the rush to see the application?

Title: Re: When is a patent application posted for public
Post by rocket136 on Nov 11th, 2007, 3:26pm
If there is something underhaned shouldn't the patent examiner be made aware of it? Otherwise it would be a wast of time effort and money if it is overturned

Title: Re: When is a patent application posted for public
Post by PA on Nov 11th, 2007, 4:23pm

on 11/11/07 at 15:26:24, rocket136 wrote:
If there is something underhaned shouldn't the patent examiner be made aware of it? Otherwise it would be a wast of time effort and money if it is overturned

Care to provide an example of what you would see in a patent application that is "underhanded"?

Title: Re: When is a patent application posted for public
Post by DJoshEsq on Nov 12th, 2007, 11:44am
It is a good idea to monitor the publication of the application, if you worried that you may infringe.   However, you should seek an opinion from counsel, especially if that party has provided notice of the patent publication to you OR if that party has sent you a copy of the patent publication.

Damages may be awarded from the time of publication if there was notice and if the claims issue substantially similar to the claims at the time of publication.

Title: Re: When is a patent application posted for public
Post by Skunk Works on Nov 12th, 2007, 4:14pm
Underhanded stinky things in patent applications:
Inaccurate inventorship identification;
Failure in the duty of disclosure;
Mischaracterization of prior art;
Ridiculous lack of enablement; and ...
I'm sure there's more out there.

The bottom line is, people do do stinky things in patent applications. That's right, I said "do do stinky."

Stinkyness can be battled at the application stage prior to issuance. One may submit art in a published application (see 37 C.F.R. 1.99). One can contact the applicant and attempt to persuade them to correct inventorship (see 37 C.F.R. 1.48). An application may be protested (see 37 C.F.R. 1.191). An applicant may suggest an interference (see 37 C.F.R. 41.202). These are only some of the most obvious things one can do.

A creative and experienced patent attorney may have many ideas toward defending your rights if something underhanded is happening in a patent application that affects you.

There may be little that can be done prior to publication of the application ... but the facts of the situation should be considered ASAP if you think such an application has been filed.

I'm assuming rocket136 is not a patent practitioner so I'm cutting some slack on the terms "reftuing" and "stinkyness" ... but I think that rocket136 is trying to pose a question that goes something like this in patent practitioner terms:
"Might I affect a patent application filed by another toward an invention in which I have an interest?"
To which the answer is:
"Yes!"

I can't tell whether PA is trying to help, learn, or be a smarty pants, but rocket136 should consult a patent attorney with all available facts if this concern is worth the costs that will be incurred in getting legal help.

Good Luck!

and don't let any Smarty Pants hold you back!




Title: Re: When is a patent application posted for public
Post by PA on Nov 12th, 2007, 5:37pm
I wasn't trying to be a "smarty pants."  It's fine to list out possibilities, but guessing is an inefficient approach.

I think the OP can best be helped if he lets us know what he considers to be underhanded in the filed application.

Title: Re: When is a patent application posted for public
Post by rocket136 on Nov 16th, 2007, 2:11pm
Thanks for your reply Skunk Works. Yes, I am not a patent practitioner.  As to your hypothetical question I would agree the answer "yes" is the case or very close to the case.

To answer PA; the stinkyness is that
1) I may have a claim as inventor or co-inventor from information shared to the applicant
2)I don't think the other design works, ie not feasible
3)I am moving on my own with a different design
These being the major points there are others, in accordance with the terms of use of these forums, I can only be somewhat specific.

If the 'public' will see the application once published, does a Lawyer or Patent Attorney/Agent have access to applications, even in some limited way if not full access before publication?

Title: Re: When is a patent application posted for public
Post by rocket136 on Dec 11th, 2007, 2:02pm
Any Takers? :)



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