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[oddtimeflux]

Here's basically the thing - I'm an inventor, I've established a company based on a very large patent application I've devised, which includes many elements and features as so to cover a great scope. The company's main asset is, and even if I raise capital would still be, the patent (to be, as it is pending, yet received good search and patentability opinion results).

Note that the invention is something very simple which can be effortlessly reverse engineered and copied.

Now, I'm going to face some major market players which I might take to litigation for infringement. They, in contrast, might try to invalidate my patent (if and when I'll receive one), and they probably have many resources to do so. I've heard that such battles may be cruel, where every word is scrutinized. Now I'm writing my second patent application and I'm anxious when placing each word.

What I'm essentially asking for is some perspective as to how hard it is to protect the validity of one's patent, and if indeed a mistake in one word might determine the verdict one way or another. Is it really that the party with the most funds and time wins, or does justice (in this case a clear description and claiming of an invention) have a substantial role in this?

[Robert K S]

What I'm essentially asking for is some perspective as to how hard it is to protect the validity of one's patent...

35 U.S.C. 282: A patent shall be presumed valid.

With regard to reexamination,
35 U.S.C. 304: If... the Director finds that a substantial new question of patentability affecting any claim of a patent is raised, the determination will include an order for reexamination of the patent for resolution of the question.

MPEP 2216: The substantial new question of patentability may be based on art previously considered by the Office if the reference is presented in a new light or a different way that escaped review during earlier examination.

I've established a company based on a very large patent application I've devised

Having a registered agent or attorney who is experienced in patent prosecution assist you in filing and prosecuting your patent will be your best bet in making sure your patent disclosure and claims are fit to withstand whatever examiners and other opponents to its patentability will throw at it.

[oddtimeflux]

With regard to reexamination,
35 U.S.C. 304: If... the Director finds that a substantial new question of patentability affecting any claim of a patent is raised, the determination will include an order for reexamination of the patent for resolution of the question.

...

Having a registered agent or attorney who is experienced in patent prosecution assist you in filing and prosecuting your patent will be your best bet in making sure your patent disclosure and claims are fit to withstand whatever examiners and other opponents to its patentability will throw at it.

As to the substantial new question of patentability, it seems different than litigation in which an accused infringer scrutinizes your patent validity. Does that have to involve the PTO or can an invalidation be decided in court?
Or is the harsh scrutiny I've heard about is only on the phrasing on the infringed upon claims?

As for the attorney - I of course have someone who represents me, yet I do not trust anyone that much. From experience, the best person to describe my inventions is me, albeit my need for counseling. Usually I am the one who writes the description, and have a practitioner go over it, and answer questions that rose while drafting.

[Robert K S]

Patents are held invalid or unenforceable for reasons.  Off the top of my head, these reasons can include anticipation by the prior art; obviousness over the prior art; failure to enable the making and using of the invention by a person having ordinary skill in the art in the disclosure; unreasonable delay before the U.S. Patent Office; certain derelictions (suppressing documents, withholding information, securing misleading affidavits, reversing legal positions in response to new evidence, blocking efforts of competitors to secure documents from the government, proceeding with patent applications despite warnings of infirmities, etc.); willful and intentional fraud on the U.S. Patent Office (can also be a criminal offense for filers); the amount of time the inventors had permitted to elapse before filing the patent following its disclosure in public use, offer for sale, publication of key features, etc.; derivation; unreasonably delayed amendment...

Having gobs of money to throw at uncovering one of these reasons aids a patent validity challenge, but it is not a reason per se.

Unless he or she has spent a few years doing prosecution work, a pro se applicant is foolish to trust himself or herself over experienced registered counsel when it comes to the minutiae of filing a patent application and seeing it through to allowance.  There are too many small mistakes to be made, and the benefit of experience is that one has already made those mistakes and needn't repeat them.

[bartmans]

From experience, the best person to describe my inventions is me,

Frankly, I disagree. Undoubtedly you are the most knowledgeable about your invention, but describing it should cover two aspects when drafting patent applications. The first aspect is that you have to comply with all the requirements for a sound patent application. One of the aspects thereof is that you have to describe why your invention is novel and inventive with respect to the closest prior art. This not only would help you in getting your patent granted, but also in later litigation.So, you not only need to know your own invention, but also the state of the prior art in order to describe your invention as distinct from that (and focus on the differences).
Secondly, you ultimately write your application for people that are unfamiliar with your invention (e.g. an Examiner) or even for people who are unfamiliar with the field of your invention (e.g. judges, juries). In such a case I believe that your invention can be better explained and described by someone who knows what the intended readers will know in the field and what aspects should be covered to let them understand the invention.

[oddtimeflux]

While I admit you enlightened me and agree you are generally right, I am versed enough in the patent law, while I have encountered some practitioners who are not so, or act in some negligence, specifically when it comes to the core innovation.

This is, of course, not to say that an experienced practitioner is not a necessity, but I'd rather him part be as small as possible, depending on the parts I'm able to fill in myself.

By the way, just to prove I'm not that versed - What's "anticipated by prior art"? How is that different from obviousness?
Also - can an infringer challenge a patent over grounds of obviousness?

[Robert K S]

I have encountered some practitioners who are not so, or act in some negligence

Don't use those practitioners.

By the way, just to prove I'm not that versed - What's "anticipated by prior art"? How is that different from obviousness?  Also - can an infringer challenge a patent over grounds of obviousness?

Get yourself a good agent or attorney.  A good one will listen to you, incorporate your input, and ensure you are satisfied with the work being done.  If you are concerned about the fees you will pay, any invention worth getting a patent on, and especially any patent worth founding a company on, will be worth the few hundred or few thousand dollars you will owe the practitioner.  And for any good practitioner, these will be one-time fees, unlike, say, an entertainment or publishing agent, who would take 10% off the top of your earnings for the rest of your career.

The answer to your first question, above, can be found in 35 U.S.C sections 102 and 103 and related case law, especially Graham v. John Deere.

[oddtimeflux]

The answer to your first question, above, can be found in 35 U.S.C sections 102 and 103 and related case law, especially Graham v. John Deere.

correct me if I'm wrong, but from my search I've gathered that a publication of one item of prior art which reads on a claim is regarded as anticipation, whereas a combination of prior art items may yield obviousness. Right?

[Robert K S]

Partially correct.  Obviousness rejections may be based on only a single reference, if the claimed invention as a whole is shown to be obvious over the single reference.

[oddtimeflux]

So what's anticipated?

[Robert K S]

Anticipation is where each and every element of a claim is disclosed and enabled in a single prior art reference (in the same order as appears in the claim, where order is important, as in the sequence of steps of a method).  The test for anticipation is identity.

[oddtimeflux]

Anticipation is where each and every element of a claim is disclosed and enabled in a single prior art reference (in the same order as appears in the claim, where order is important, as in the sequence of steps of a method).  The test for anticipation is identity.

Yeah, that is why I was wondering, as it is more suited to be titled identity than anticipation.

[Robert K S]

Except that if a prior art application or patent goes beyond merely enably disclosing your subject matter and actually claims the same subject matter, it goes beyond mere anticipation into interference.  A prima facie case of anticipation may still be overcome with antedating evidence, but that is no longer an option if the reference claims the same invention, and an interference proceeding will be required to determine priority.

[oddtimeflux]

On a similar matter, I was wondering whether one application describing a device (for example) performing a certain function, while not completely enabling the performing of the function by the device - can a later application completely enable it, and claim it?

Should be a positive answer. Just want to make sure.

[Robert K S]

I think such a case would be a tough one for the Patent Office to deal with.  An issued patent is presumed valid, which means that it is presumed to be enabling.  The examiner would demand evidence against the operability of the prior art.  Affidavits or declarations attacking the operability of a patent cited as a reference must rebut the presumption of operability by a preponderance of the evidence. In re Sasse, 629 F.2d 675, 207 USPQ 107 (CCPA 1980).  (See MPEP 2121 and 716.07.)  But I doubt an examiner would accept or even want to deal with such evidence.  More likely, the examiner would maintain a rejection even in light of such evidence, and the case would proceed to the BPAI, where, there still, in all likelihood, the rejection would be affirmed.  Probably, only once the case got into the CAFC or District Court would anyone be willing to take a reasonable look at such an issue.