I’ve had a question that the current thread reminded me of: is there a way to register “prior art” without actually patenting?
What I mean is, say I have some invention that I want to be “open source”. Obviously such a thing isn’t something I want patented, since I don’t desire government-enforced exclusivity, especially given the cost. However, I don’t want somebody else to patent it, either, since I invented it and want it to be free.
Now obviously, if someone does try to register it, I can prove prior art and get the patent blocked. In fact, I think there are search engines exactly to this effect to let you do that. If it goes through without my knowledge and I/someone else gets sued, I can go to court and prove prior art and invalidate the patent. However, the first one requires me to regularly check for new patents just so I can strike them down, and the second one incurs unnecessary legal fees. I’m wondering (idly, I don’t have any invention to do this with) if there’s a way to say to the patent office “hey, I don’t want exclusivity on this, but in case someone tries to patent something similar…”
It used to be that you could just publish the design openly. Anyone who later tried to patent it would find that patent invalidated easily when someone pointed out what you’d published.
I’m not sure how that works any more in the US since we recently changed from first-to-invent to first-to-file and I’m not a patent lawyer.
I don’t think you can directly register the design with the USPTO without filing for a patent, but there do exist crowdsourced prior-art systems to attempt to invalidate patents before they’re granted, so if you publish your invention, it’s more and more likely that someone would find it and block an attempt to patent it.
IIRC “prior art” used to mean published. I suppose in these days of the very changeable internet, you could put the details up on your website with a note about a notarized copy on file if needed.
The trouble, as my father found out, is that if a patent is filed without mentioning your “prior art”, then someone has to go through the trouble of contesting the patent. The legal costs could be prohibitive. In more technical and scientific details, there is a liability that the court may ignore your “prior art” because nobody understands the technical details and how they relate to the patents.
The patent office does a spectacularly bad job of searching for prior art. If the examiner doesn’t already know about it off the top of his/her head, they’re probably going to let it slide.
E.g., I saw a research lab’s listing of newly granted patents once. One of them came down to basically managing a task queue via incrementing a counter when something is added and decrementing it when something is removed. Not just obvious but explicitly shown how to do in OS text books going back decades.
The way prior art comes to the attention of the patent office is when someone notices the patent and files a complaint. Sometimes this is when the patent application appears (but you can hide your patent application for quite a while) and that’s a narrow window. But more generally after the patent is awarded and then you have to go into court. Reversals due to prior art do happen, but not nearly often enough. Plus that costs money.
To establish prior art, just publish it. The more prominently you do it, the better.
However, there are scum out there that look for people publishing interesting things and then quickly filing a patent on it. They’re hoping to win via deeper pockets for lawyers. They also lie and backdate things.
The simplest thing to do if you just want to have something on file at the USTPO is to file a provisional patent application. $280. Just the basics, you can do it yourself. Then let the clock run out on it. It’s in their records then which might help.
Not sure about all the nuances of the first-to-file system. But if something has already appeared publicly, I think the originality aspect is denied.
For software patents, the USPTO long ago gave up on doing anything but automatically approving them. They leave it all to the courts, which makes only the lawyers happy.
AFAIK, there is no formal way to “register” prior art with the USPTO. I like ftg’s idea of filing a provisional application. Although, I have never seen a provisional patent application come up in a patent search. Not that I’ve seen a large number of patent searches yet. A non-provisional patent application might not be cost-prohibitive, especially if you’re a micro-entity. If you’re not worried about prosecuting it, it doesn’t matter how badly it’s written. And it might be more likely to turn up in a prior art search than a provisional.
…but since they seem to still require you to have filed a regular application, they don’t seem all that useful for your situation.
However, any publicly available document with a verifiable date of publication can be used as prior art. The hard part is publishing it in a place that would be easily findable by the patent examiner. There’s some good advice here:
Hell, I have a patent for an exclusive or gate. For a very particular application, but it boils down to a gate.
As we mentioned in the other thread, the IBM Technical Disclosure Bulletin is one way they published prior art. 20 years ago patent examiners were really pretty good about finding some, and every patent someone in my group filed got initially rejected on this basis. Then we demonstrated that the prior art didn’t apply and we got it through. My patents from about 10 years ago sailed right through. My understanding is that the patent office is funded by filing fees, so they have an incentive to grant as many as they can and let the courts figure it out.
I won’t give my opinion about this in GD.
No, that is not possible. if you declare your patent information, it will become prior art an hence will not be considered for patenting. if you have an idea, first work on it to develop it completely, if you need help of people to make it into a product, you can get them to sign a non disclosure agreement so that they will not disclose your idea to anyone. and then you can apply for the patent with proper drafting.
As others have said, all you need to do is publish the invention. It also becomes prior art when you offer for sale a product that incorporates the invention. First-to-file changes none of this, but be sure to publish it before someone files for an invention. The beauty of a defensive publication is that it is free or inexpensive and protects you in virtually any country in the world that offers patents. With patents, you have to file (and incur heavy expenses) in every country in which you want protection.
Unfortunately, as noted above, a defensive publication does not guarantee that no one will patent your invention, and fighting the patent holder can be very expensive.