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| Authored by: Anonymous on Wednesday, June 06 2012 @ 04:14 AM EDT |
Surely Prior art should be based on Publication date of the patent, not the
filing date if the publication date is later - if the patent is unpublished, how
can anyone know what's in it; similarly, if it is unpublished (especially for a
long time), how can anyone be certain it has not be changed in that time
interval to represent inventions made by others totally unaware of its
contents?
A patent is granted for publically disclosing clear, exact instructions to build
the invention. Until it is published there has been no public disclosure and so
it ought to be that anything in the public *before the publication date*, when
the public can then be considered to know of the invention, can be considered
prior art.
However, the protection still runs from the filing date. This way it is not in
the interest of the inventor, especially in fast moving technologies, to delay
publication.
A paper is only considered prior art based on its publication date, not its
writing or submission date, so why should patent prior art only be considered if
it is prior to the patent writing or filing date and not the patent publication
date? (Patent writing would include re-writes and re-filings to a patent which
then keeps its original filing date.)
A simple solution:
* Patent monopoly period lasts from initial filing date.
* Prior art must be before publication date; if the patent is tweaked and
re-published, the latter date is considered as the cut off date for *ALL* prior
art.
* The last publication date is considered as the first date from which
infringement can occur.
* After the monopoly period (ie initial filing date + monopoly period), the
invention is released (published) into the public domain, dated as the initial
filing date, *EVEN* if unpublished during that time or not granted.[ Reply to This | Parent | # ]
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