It's not your job to determine whether or not there is an interference. That is up to the patent office only. If the examiners were aware of this situation and did nothing, then they realized that there was probably no interference. That does not stop you from suing for infringement however. The fact that you did not do that is not the fault of the patent office or the patent system. If there was a determination made during prosecution, then that is the PTO's position, plain and simple. You can't tell the examiners to have an interference. Did you copy his claims? did you write at least one count? If you did not, then it's your fault, not the PTO's.
Please take the rhetoric down a couple of notches guys, and remember the forum rules about posts disrespectful towards other members.
Which was something the patent system was supposed to curtail. Apparently this goal has been lost somewhere along the road.
If you were certain that you had an interference, then you should have filed suit therefore. Interference practice at the PTO was developed as an attempt to lower costs for patentees and applicants. The fact that you don't agree with the PTO's result does not mean they didn't do their job, assuming the issue was brought to the examiner's attention of course. Assuming that someone brought this to the examiner's attention and they decided that no interference existed, then they in fact did do their job regardless of the outcome or whether or not you agree with it.
The Office interprets claims very narrowly when determining whether or not an interference exists. One applicant must be able to either copy claims verbatim or they must be able to produce a count claim that reads on both inventions (though that's usually the job of the examiner as I recall). The inventions also have to have very close filing dates.
None of this really matters now because the Office is examining under FITF in view of the AIA.
The basis for the patent system in the United States comes from Article 1, Section 8, Clause 8 in the Constitution, otherwise known as the Copyright Clause. It reads, in part:
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
No where in there does it describe a Utopian vision where everyone acts nicely after they have received their exclusive right. It is merely a way to make private inventions public in the hopes of stimulating further development. I'm sorry, but that is the reality.
Who pays for that? Why should I be on the hook for hundreds of thousands of dollars because one of your co-workers was sloppy?
That's one of the problems right there- examiners don't have much personal experience in the costs and consequences of litigation. Merely shrugging and saying, "Well, don't play the patent game if you're not rich" is not at all a solution to the problem, especially when you're not the one playing the game, but a rich plaintiff with a BS patent is.
As a side note, where the little guy DOES have an advantage is as a plaintiff. I would love to be in a position where a big company is blithely infringing- attorneys who work on contingency would be beating at my door for the opportunity to litigate at no cost to me. IME, about $1-2MM in, the big company will agree to pay out a nice fat "go away" settlement to avoid another $5MM or more in legal expenses.
BTW, in the matter I mentioned before, it wasn't that I "disagreed" with their result- the examiners never even looked at the other guy's applications. There was no "result" to disagree with. My examiner was slightly apologetic after the fact, but blamed his heavy caseload. He was easily the worst person I ever dealt with at the PTO.
I'm sorry for your experience at the PTO. Most of us are hard working and diligent people and we do try to do a good job with the time available to us.
I wish it was a fair world, but of course it is not. There's nothing I can do about that and there's no reason in my opinion to blame the patent system. People make mistakes, whether it be lawyers, doctors, politicians or patent examiners, and sometimes those mistakes cost a lot of money and sometimes lives.
You've used the right word- "system." I've had a wide spread of examiner competencies, from horrible to superb. None of them were lazy!
But... the problems are in the system, the basic structure. I've suggested one fundamental change that works elsewhere- public comment. This would make the process less dependent on whether I drew a brilliant examiner or a yutz, while making your work more comprehensive without negatively affecting your throughput. There also need to be reforms outside PTO, but that gets us dangerously close to a political discussion, so I won't go into those.
If you've inferred that I am criticizing you personally or your performance as an examiner, please be assured that I have no such intentions. I have no experience with you as an examiner since my patents have been in areas (electronics, haptics, chemistry, plastics) far removed from your specialty.
But... the problems are in the system, the basic structure. I've suggested one fundamental change that works elsewhere- public comment. This would make the process less dependent on whether I drew a brilliant examiner or a yutz, while making your work more comprehensive without negatively affecting your throughput. There also need to be reforms outside PTO, but that gets us dangerously close to a political discussion, so I won't go into those.
If you've inferred that I am criticizing you personally or your performance as an examiner, please be assured that I have no such intentions. I have no experience with you as an examiner since my patents have been in areas (electronics, haptics, chemistry, plastics) far removed from your specialty.
In this particular situation, your attorney should have recommended that you file a reissue application, copying the claims of the other application/patent, and put in the reissue declaration that you are filing because you realized you claimed less than you had a right to claim. You had two years from the date of patenting of your invention to file a broadening reissue application. Then the examiner would have been forced to consider the interference.
What people do once they receive their exclusive right is not the point. The point is the correct and egalitarian attribution of exclusive right in itself, which is necessary to the stated goal "promote the progress of science and useful arts" or, more directly, assumed in the words "respective [...] discoveries". And this include litigation, which is in practice very much part of the attribution process, as your posts made it abundantly clear.
What I found absolutely appealing, as someone with a law degree, is when the attribution of exclusive rights in itself is cynically conceived and assumed as "a game" and a game for people with big pockets.
Yeah, we treat all inventors the same. Sometimes we go out of our way to help pro se inventors though, but not always. So of course it's egalitarian to grant patents regardless of the inventors status or other association or distinction.
However, the attorneys for some big corporations, whom I will not name, are notoriously greedy and difficult to deal with during prosecution. They often push us into writing examiner's answers to their notice of appeals when they could have resolved it very easily up until that point. There are other games they play as well which I will not go into here.
as you describe the bureaucracy has put in place rules encouraging a "moral hazard" - with no penalty to the patent office revenue or individual examiners for issuing poor patents that require expensive ligation to correct and rewards for the volume of patents
the PTO by counting/rewarding the wrong things causes society as a whole to pay more than it would otherwise
suppose the patent office had to cover the legal costs by the parties being sued for a patent that is found invalid at trial? - seems to be a modest "quality control" measure...
the PTO by counting/rewarding the wrong things causes society as a whole to pay more than it would otherwise
suppose the patent office had to cover the legal costs by the parties being sued for a patent that is found invalid at trial? - seems to be a modest "quality control" measure...
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Yes, and we do not reap the benefits of a successful patent either. We don't receive royalties for patents that make other people wealthy! Not only that, no patent examiners are allowed to obtain any patents, ever! We are barred from obtaining a patent while we are employed, and we are also barred for 2 years after we leave the PTO in our particular field. We are also barred from working on patent applications that are any way related to our, or our immediate relatives, financial investments, as well as many other ethics rules.
We also have a quality review department that can and does pull applications and require us to rework them if they find an error.
I'm sorry if it came out as if I implied the USPTO employees were discriminating among applicants. I certainly don't think such thing. My apologies to you.
The point I was trying to make is that the patent system, the USPTO being only a (important) part of it, isn't working properly (and cannot be said to be) if everyone assumes you can fraud, cheat, troll as long as long as you can cover your litigation costs. But maybe am I reading too much philosophy of law these days.
On this, I'll be out of here.
PS: no comment on the lawyers... I've been witness to how ugly legal tactics can get.
That was discussed at the time. Our attorney advised us not to go that route, especially considering the cost of the inevitable litigation on "first to invent" (the law at that time).
Interestingly, the other company wrote us a year or two later suggesting that our patent was too broad and that we should request it to be re-examined, and they were telling us this out of concern for our patent's validity (not theirs, though, LOL). We thought that was odd, until a year later, when they were issued a continuation that broadened their claims to match the scope of ours. And, of course, they did not disclose our patent as prior art, and (clearly from examination of the file wrapper), their examiner never found it.
My reform solution would fix cases like that as well, though that's $500k that lawyers wouldn't get.
It's fine, thanks.
Patent rules have changed over the years sometimes to prevent some of the things you've mentioned. We tried to enforce the duty to disclose rules, but because the Office does not have subpoena power, we had to stop that. I remember sending one application up many years ago because the applicant had failed to disclose something. I can't remember the details. Another rule change was towards publishing applications after 18 months. This was to prevent surprises (aka "submarine" patents) to other patentees.
I encourage you to contact your elected representatives if you feel that the patent system needs to be changed.
A minor but nonetheless important point I'd like to make concerning this:
An inventor could make his invention public by printing it in a newspaper (or online, in these times). No PTO needed. A patent grants exclusive ownership (should the owner seek court affirmation, of course).
It is not the publicizing but rather the privatizing that encourages further developments. Accomplished by assuring one the fruits of his/her labor.
An inventor could make his invention public by printing it in a newspaper (or online, in these times). No PTO needed. A patent grants exclusive ownership (should the owner seek court affirmation, of course).
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