K
Kurt
Guest
Nachfolgend ein Aufsatz eines US-Patentanwalts namens Samson Helfgott zum Thema Umgang mit unveröffentlichten älteren Anmeldungen aka "Secret Prior Art" als Stand der Technik.
Logical Inconsistencies With Secret Prior Art Approaches
Although each of the European, Japanese, and U.S. approaches [concerning handling of secret prior art] provides a workable system, there are logical inconsistencies with each of these systems producing contradictions and logically difficult results.
By way of example, the European approach fails to provide adequate protection to an applicant who comes up with a basic idea. Since secret prior art will only be utilized against third parties for "photographic novelty" to the extent the first applicant makes a basic contribution, a later applicant can come along and make a very slight or equivalent modification or substitution and get his own patent. Sometimes this can deprive the original applicant of any of the practical, commercial benefits of his first invention.
Especially in a first-to-file system, where there is a rush to get the application on file, there may not be adequate time to include every variation. However, once the first applicant files the application, he locks in his rights. Although he had been the first to file for the invention, someone else may come up with a very minor change and gain independent patent rights of a much more significantly commercial invention.
Furthermore, limiting the applicant to the specific wording of the patent application places his invention as the "sacrificial lamb" to the linguistic capabilities of a patent attorney. Since Europe only precludes "photographic novelty" to the extent the patent attorney used a particular word or phrase rather than a different phrase, someone with a slightly different wording would be able to get an independent patent thwarting the rights of the true first-to-file inventor.
Additionally, while the applicant himself can always file divisionals and claim all aspects of his original disclosure to the extent of the linguistic capabilities of the patent attorney, should he fail to do so until grant of his first application as a result of self-collision, he is precluded from recovering what he originally disclosed should he file a second application. If he filed the divisional shortly before grant, he would be able to cover what he had disclosed. If he files it after grant, he is now precluded, although he was the one who originally disclosed it.
Den letzten Absatz verstehe ich einfach nicht. Welchen Nachteil des europäischen Systems will der Autor hier eigentlich beleuchten? Außerdem kann ich eine Teilanmeldung doch nach Erteilung der Stammanmeldung überhaupt nicht mehr einreichen?
Oder hat sich der Autor hier vertan? Wer hat den letzten Absatz verstanden oder kann den Sinn kurz wiedergeben?
Grüße, Kurt
PS: hier noch der Original-Artikel
http://kuerzer.de/KMZR-Artikel
Logical Inconsistencies With Secret Prior Art Approaches
Although each of the European, Japanese, and U.S. approaches [concerning handling of secret prior art] provides a workable system, there are logical inconsistencies with each of these systems producing contradictions and logically difficult results.
By way of example, the European approach fails to provide adequate protection to an applicant who comes up with a basic idea. Since secret prior art will only be utilized against third parties for "photographic novelty" to the extent the first applicant makes a basic contribution, a later applicant can come along and make a very slight or equivalent modification or substitution and get his own patent. Sometimes this can deprive the original applicant of any of the practical, commercial benefits of his first invention.
Especially in a first-to-file system, where there is a rush to get the application on file, there may not be adequate time to include every variation. However, once the first applicant files the application, he locks in his rights. Although he had been the first to file for the invention, someone else may come up with a very minor change and gain independent patent rights of a much more significantly commercial invention.
Furthermore, limiting the applicant to the specific wording of the patent application places his invention as the "sacrificial lamb" to the linguistic capabilities of a patent attorney. Since Europe only precludes "photographic novelty" to the extent the patent attorney used a particular word or phrase rather than a different phrase, someone with a slightly different wording would be able to get an independent patent thwarting the rights of the true first-to-file inventor.
Additionally, while the applicant himself can always file divisionals and claim all aspects of his original disclosure to the extent of the linguistic capabilities of the patent attorney, should he fail to do so until grant of his first application as a result of self-collision, he is precluded from recovering what he originally disclosed should he file a second application. If he filed the divisional shortly before grant, he would be able to cover what he had disclosed. If he files it after grant, he is now precluded, although he was the one who originally disclosed it.
Den letzten Absatz verstehe ich einfach nicht. Welchen Nachteil des europäischen Systems will der Autor hier eigentlich beleuchten? Außerdem kann ich eine Teilanmeldung doch nach Erteilung der Stammanmeldung überhaupt nicht mehr einreichen?
Oder hat sich der Autor hier vertan? Wer hat den letzten Absatz verstanden oder kann den Sinn kurz wiedergeben?
Grüße, Kurt
PS: hier noch der Original-Artikel
http://kuerzer.de/KMZR-Artikel