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Ways a Patent Can Be Invalidated (Part II)

February 16, 2012 | Comments: 0 | Views: 120

Here are more ways patents can be invalid:

1. Patent Misuse

Patent misuse occurs when the patent holder engages in an illegal conduct that makes it inequitable to allow the him/her to enforce the patent. This may be in a form of:

• False marking- For instance, where the patent holder labels a product as being patented despite knowing the product is not within the scope of his patent rights.

• Illegal licensing practices, such as threatening infringement actions the patent holder knows to be frivolous.

• Antitrust violations

• Committing fraud on the US Patent and Trademark Office, such as by not disclosing a known prior art to the USPTO.

2. The Machine is Inoperable

One of the requirements to have a patent is that the subject matter must be useful. The term useful as it pertains to mechanical or electronic devices has been construed to mean that these devices are operable. If the device does not work to do its intended function, then the device is not operable and therefore fails to meet the usefulness requirement.

3. Claimed Invention is Not Novel

Another requirement for an invention to be patented is that it has to be novel or new. 35 U.S.C. Section 102 generally governs this requirement and states, among other things, that an invention is not novel (and thus not patentable) if:

• the invention was patented or described in a printed publication in the US or any foreign country over a year before the patent application is first filed;

• the invention was publicly used or offered for sale in the US over a year before the application is first filed; and

• the invention was known to the public or used by others before the patent applicant's invention date.

A lack of novelty or 102 rejection typically involves a patent examiner finding a single patent or patent application disclosing all the claim limitations or the claimed features of the invention. Lack of novelty may also come up when a party believes that a patent should not have been issued in light of a prior art that the USPTO may have missed or may have not correctly analyzed. The party may challenge the validity of the patent on grounds of lack of novelty in a re-examination process before the USPTO or during litigation.

Because there are many requirements in obtaining patents, it is important to seek the advice and guidance from a registered patent attorney.

Source: EzineArticles
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