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Jon Elson · Guest

Jim Granville wrote:

Guest

In U.S. patent law there are at least two sections that are applicable
in this situation:
35 USC 102:
A person shall be entitled to a patent unless -
(a) the invention was known or used by others in this country, or
patented or described in a printed publication in this or a foreign
country, before the invention thereof by the applicant for patent,
or
(b) the invention was patented or described in a printed
publication in this or a foreign country or in public use or on sale
in this country, more than one year prior to the date of the
application or patent in the United States, or ...

To invalidate a patent a patent under 102(a) requires comparing the
date that the applicant [Lucent] invented the circuit to the date that
John's circuit became publicly known. In this case we don't know
when Lucent invented the circuit unless the Lucent chooses to divulge
the information or they are forced to do so in court. So the patent
may be invalid under 102(a), but we have no way of knowing at this
point.

To invalidate a patent under 102(b) we would need to show that John's
circuit became publicly known more than a year before Lucent's
application. Since we know the date of Lucent's application, that is
an easier task.

In either 102(a) or 102(b) the date that John's invention became
publicly known is important, not the date he invented the circuit.

- Rich

Guest

Hi Rich,
Thank you for your response.

Can you please give me a date example to explain the 102(b). I really
have difficulty understanding the item.

After I joined this discussion, I re-read the patent 6,760,737 again
and found the following several new points that conflict with my
previous views posted in this discussion.

1. The patent 6,760,737 has not repeated what John had written in his
paper. In other words, my point of view is the patent 6,760,737 has
nothing to do with John's paper.

2. It deals with how to find a median data among N data; where N is any
odd number greater than 1. Its implementation and its claims are
described as more a software operations than a hardware operations.

For example, N data is divided into 3 groups and each group should be
sorted before doing any further operations.

3. For N = 9 situation, its implementation is slightly different from
what John had done. John did it in the minimum comparison operation,
but patent 6,760,737 does it like a software operation that is less
optimized than John method, but it can be best done by a software.

Any further comments are welcome.

Weng

Guest

Hi Peter,
Now I understand 102(b) better than before: gives the inventor a
one-year grace period to prove that he/she
invented it first.

With DDP (Document Disclosure Program) program introduced into law, it
gives the DDP holder 2 years grace period to prove. Does it contract
with the one-year grace period claimed in 102(b)?

What is the DDP benefit or disadvantage?

Thank you.

Weng

Tim Wescott · Guest

Peter Alfke wrote:

Guest

The Jiang patent (6,760,737) is based on application 09/760,923, filed
on 16 January 2001. Application 09/760,923 claims priority to
provisional application 60/192,294, filed 27 March 2000. Any claims in
6,760,737 that are supported by the provisional application may take
advantage of the 27 March 2000 priority date.

35 USC 102(b) states that "A person shall be entitled to a patent
UNLESS the invention was patented or described in a printed publication
in this or a foreign country or in public use or on sale in this
country, more than one year prior to the date of the application for
patent in the United States..."

Now - inserting the specifics of the Jiang patent, 102(b) is
essentially:

"Jiang is entitled to a patent UNLESS the invention was publicly
disclosed prior to 27 March 1999."

I'm not going to try to compare John's disclosure to the claims in
6,760,737. My point is simply that if John published his paper on or
after 27 March 1999, it is probably not relevant to the validity of
6,760,737.

Rich

Guest

Hi Rich,
What you said is causing my confusion the most way:
" if John published his paper on or
after 27 March 1999, it is probably not relevant to the validity of
6,760,737. "

If you posted a paper on website today, tomorrow I used your paper
contents to file a patent. Then 102(b) says that your paper is probably
not relevant to the validity of mine???

Weng

Peter Alfke · Guest

There are two different concepts: "First to invent" or "First to file".
Europe uses the simpler "first to file". The US uses "First to invent"
and gives the inventor a one-year grace period to prove that he/she
invented it first. This method is obviously more profitable for the
lawyers...
If you file a US patent application after reading the idea, you would
face the difficult task of proving that you had invented this before
the article was published. Fertile field for endless lawsuits...
Peter Alfke

Guest

Do you know the story about J/Phy particle in physics?

One scientist published the discovery first, another claimed that they
had discover it earlier. Finally a compromise was reached that the
particle got a dual name: J/Phy particle.

The 102(b) is applied just to the same scenario.

Thank you, Peter, you let me understand the complex sentences of
102(b).

Weng

Peter Alfke · Guest

Tim Wescott wrote:

Guest

U.S. patent law is complex. Simply referring to the U.S. system as
"first to invent" rather than "first to file" probably adds
more confusion than elucidation to the discussion.

Assuming that a U.S. patent application satisfies all the other
requirements for a patent, section 102 of the patent code states that a
"person shall be entitled to a patent unless ...." Section 102 has
six subsections, each giving a different reason that a person should
NOT get a patent. Subsections (a), (b), (f) and (g) are most relevant
to this discussion.

102(a) blocks the applicant from getting a patent if the invention was
publicly known* before the applicant invented it. So if I invented
something on July 7, 2003, any publication, public use, etc. before
July 7, 2003 should stop me from getting a patent. Note that since I
didn't develop the invention before July 7, 2003, there is no way I
could have publicly disclosed the invention before July 7, 2003. So
there is nothing the inventor can do that will block there patent based
on 102(a).

102(b) focuses on the date of the patent application** rather than the
date of invention. If my invention was publicly known* more than one
year before I applied for the patent, then I should not get a patent.
So if I applied for a patent on September 1, 2005, but anyone -
including me - publicly disclosed the invention before September 1,
2004, that should block my patent application.

102(f) is easy: "he did not himself invent the subject matter sought
to be patented"

102(g) relates to the situation where two different people apply for a
patent on the same subject matter; in certain situations an
"interference" proceeding may be held. In the interference the
person that first applied** for the patent is generally assumed to be
the first inventor and entitled to the patent. But if the second
person that applied for a patent can prove that he invented first and
meets certain other requirements, the second applicant may get the
patent rather than the first applicant.

* publicly known - is defined somewhat differently for (a) and
(b).
** application date is the earlier of the actual application date or
the date of the U.S. priority application. A provisional application
may provide a priority date; but a document disclosure does not.

I hope this clarified more than it confused

Richard Tanzer
Patent Agent

Guest

Hi Richard,
Thank you for your excellent advice.

After reading this post, I finally understand what you have said in
your previous several postings.

Weng

Guest

It is curious that for years it was assumed that a small inventor would
be totally overwhelmed in court by a large corporation. Then, around
the mid-70's, the courts became alarmed by patent infringement by
FOREIGN companies. I guess it was ok when it was a US corporation that
was screwing the small guy. Patents then became an essential defense
against a foreign technology onslaught. The small guys started getting
more leverage in court, meaning they could actually win cases. I
remember a very large patent case about the original inventor of the
laser. His original lab notebooks were classified, and other companies
started building lasers after the technology was declassified. This
guy, however, was denied a patent because by the time his lab notebooks
were declassified the tecnology was considered to be in the public
domain. Well, he sued the USPTO and won. After getting his patent, he
went on to sue EVERY laser manufacturer that refused to license his
patent, winning every suit AFAIK.

Now, the tables seem to have turned. Nowadays, you hear mostly sympathy
for the large corporations:

http://www.detnews.com/apps/pbcs.dll/article?AID=/20051225/BIZ04/512250301/1001/BIZ

Does anyone have a hanky? Hey, if you don't like the law then change
it.

Tom Seim

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