Patent Invalidation Search is used to assess the validity of granted patent. It is also known as patent validity study . It is done by arguing with patent authority that claim of patent is not novel or obvious at the time of filing .The main objective of patent invalidation is to revoke the already registered patent claims or pre-granted opposition of published application claims.
Patent Invalidity as a Defence
Patent infringement of a law suit has two separate battles- one in which plaintiff claims damages from infringement , and the offer in which the defendant attempts to terminate the patent right by proving the invalid. For example-, the polaroid company sued kodak for the infringement of ten instant photograph patents. The court determined that kodak infringed seven polaroid patents but that the other three polaroid patent were invalid.
The defendant must attack based on lack of novelty and non-obviousness for proving the patent invalid. It shows prior art of patent’s claim obvious or prove that sales or disclosure of the invented invention occurred more than one year prior to filing of patent application.
How Long is a Patent Valid?
To hold a patent in certain industries or sectors could mean nothing less than an organization life and death. From its patent priority date, the U.S. utility patent is valid for 20 years. A design patent is generally granted for 14 years. Patent validation fees and renewal fees depends on USPTO filing fees , Lawyer fees and drawing fees.
Validating a Patent
Attempting patent intent invalidation, therefore can be a significant business strategy. Before one can do that, however, it is important to consider what constitutes a valid patent to begin with. According to USPTO, a valid patent in the united states must-
- Have patent Eligible Subject Matter
- Be disclosed.
- Not be already patented.
- Be novel.
- Be non-obvious
Five Approaches to invalidate a Patent
- Prior Art- while there are several ways to invalidate a patent, the most frequent method is to attempt to locate prior art for the claimed invention. Locating prior art is the most common strategy to invalidate an existing patent by suggesting patent is obvious and anticipated.
- Proof of sale or Public use – under the provision of patent law, therefore a patent can be properly invalidated by offering proof of sale or public use.
- Improper Formation- while there are several ways to invalidate a published patent, the easiest check of validity is in actual formation itself.
- Inventor’s Oath – In the application process, the inventor must take a declaration stating they believe the named inventor or inventors are, in fact, the original and first inventor or inventors of the invention in question.
- Break in Priority chain – By filing continuous patent application, patent owner can secure patent protection for the things unexamined and unclaimed previous application. To do advantageous, it is necessary to follow the rules and guidelines regarding linking and joining the claims which are filed earlier. If it is not done properly, so patent can inadvertently become invalidated.
Recommended practices while doing patent invalidation search
- Data Restriction– It is necessary to establish the prior date of the patent before performing the invalidation search. Any disclosure which is available to the public before the filing date of patent is considered prior art.
- Jurisdiction Restriction– none-Novelty and non-obviousness criteria is absolute at the time of filling across the world.
- Document type Restriction– none- It has not any document type restriction. A non-formal reference such as a comic strip can also be used to destroy the patentability of an invention.(reportedly science fiction movie scenes have been used for invalidation of patents)
- There are additional searches like assignee based, inventor based, and citation based . These type of searches help in preparing search strategy for locating prior art.
- Specific feature of the claim is invalidation and to be invalidated. Many broad Invention has covered the concept of invention but not specific aspect of invention may not be considered related .
- To reiterate the point mentioned for patentability , it must be understood that mom patent searches in patentability and invalidation searches.
- The project can be terminated easily , if a single relevant result directly s searched is found , the project can be terminated immediately.
Patent invalidation is a weapon to safeguard the patent and it not only diminish the competitor’s patent but also provide strengthen to the patent by establishing novelty and non- obviousness. It helps in strategy making in order to gain maximum benefit from patent for as long as possible . The organization, individual, company who wishes to stay alive must use invalidity search and watch services.
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