Q: Can one fight a patent for prior art which was NOT patented? And if yes, how to proceed, how much to invest?
A: A patent can be invalidated for many reasons. Prior art which is not part of a patent can be used to invalidate a patent.
The strategy on how to deal with patent issues can be complicated. Consider consulting with a patent attorney to develop a strategy.
The above answer is a generalization and there are many caveats, therefore a full analysis is required when dealing with each unique legal issue.
A: Absolutely. Here are the guidelines for what qualifies a prior art:
Prior art constitutes those references or documents which may be used to determine novelty and/or non-obviousness of claimed subject matter in a patent application
Common Types of Prior Art
•Patents and published patent application (domestic and foreign)
•Non-Patent Literature: magazine articles, newspaper articles, electronic publications, on-line databases, websites, or Internet publications (MPEP 2126-2128)
Public Use or On Sale
–The public use or sale (including offers to sell) must have occurred early enough to qualify as prior art
• A document that does not have a prior art date may provide evidence of a public use or sale that qualifies as prior art
“Otherwise available to the public” is a new catch-all provision of 102(a)(1) that has no explicitcounterpart in pre-AIA law. For example:
•an oral presentation at a scientific meeting
•a demonstration at a trade show
•a lecture or speech
•a statement made on a radio talk show
•a YouTube video, website, or other on-line material (this type of disclosure may also qualify as a printed publication under AIA and pre-AIA law)
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