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patent和published paper问题请教

patent和published paper问题请教# Law - 律师事务所

n*n2003-10-22 07:10

1 楼

想做的东西A最早已在杂志上公开发表，但发现在某一专利B里提及了。具体情况是专利B
的重点不是A，是C，但专利B把它的整个系统都描述了，其中包括A，还有图。
请教我可以使用A吗？可不可以给我引述一下相关的条例？谢谢！

o*e2003-10-22 07:10

2 楼

if the paper was published more than one year before the earliest effective
filing date of patent B (you can find this on the front page of the patent),
then very likely what is disclosed in B that's similar to what's pulished in A
is not patentable, and you may use the invention in A.
If the paper was published after the earliest effective filing date of patent
B, you have to look closely at what exactly is being claimed in B. This is
the
last section of the patent, starting with "what is clai

【在 n*********n 的大作中提到】

: 想做的东西A最早已在杂志上公开发表，但发现在某一专利B里提及了。具体情况是专利B
: 的重点不是A，是C，但专利B把它的整个系统都描述了，其中包括A，还有图。
: 请教我可以使用A吗？可不可以给我引述一下相关的条例？谢谢！

s*i2003-10-22 07:10

3 楼

depends on whether A is a claim or claims in the patent.
claims are the real "patents" that are protected by law.

【在 n*********n 的大作中提到】

n*n2003-10-22 07:10

4 楼

Thank you so much.
The invention in A did publish 2-3 years before the FILED date of patent B.
But still patent B claimed that. It actually claimed every parts of its
system. Among them, many technologies are just those said in the textbook.
I also found that for example, patent B has claims B1,B2,B3,..., while patent
C has claims C1,C2,C3,.... Actually only, say, B1 and C1 are different. The
rest are actually the same simply because as a whole system, it needs all the
rest aparts. So can I use

【在 o****e 的大作中提到】

: if the paper was published more than one year before the earliest effective
: filing date of patent B (you can find this on the front page of the patent),
: then very likely what is disclosed in B that's similar to what's pulished in A
: is not patentable, and you may use the invention in A.
: If the paper was published after the earliest effective filing date of patent
: B, you have to look closely at what exactly is being claimed in B. This is
: the
: last section of the patent, starting with "what is clai

s*i2003-10-22 07:10

5 楼

there can't be B2=C2 or B3=C3. previously claims in other
patents can't be claimed again, although sometimes they make
mistakes. if as a whole system, C needs B2 or B3, the patent
must disclose them but can't claim them.
you can't use anything claimed in a current patent, without
authorization.
the laws, codes, and procedures can be found at www.uspto.gov
website. the law is 35 USC, code is 37 CFR.

【在 n*********n 的大作中提到】

: Thank you so much.
: The invention in A did publish 2-3 years before the FILED date of patent B.
: But still patent B claimed that. It actually claimed every parts of its
: system. Among them, many technologies are just those said in the textbook.
: I also found that for example, patent B has claims B1,B2,B3,..., while patent
: C has claims C1,C2,C3,.... Actually only, say, B1 and C1 are different. The
: rest are actually the same simply because as a whole system, it needs all the
: rest aparts. So can I use

o*e2003-10-22 07:10

6 楼

if what you said here is true (i.e., the invention ~claimed~ in patent B here
WAS disclosed by a paper 2-3 years before B's filing date), then it's possible
that patent B's claim of this invention is invalid, and that means you can use
that invention disclosed in A without a problem.
But, you need to pay close attention here to make sure that the invention
claimed in B is exactly, completely anticipated by A. for example, patent B
has claims B1, B2, B3, ... B1 is called independent claim, and

s*i2003-10-22 07:10

7 楼

a patent is valid unless PTO or the courts say it's invalid.
a patent application could claim benefit from early applications,
thus 2-3 years before this application filing date alone doesn't
make it invalid. also, the paper must describe someone else's
work, not the inventors' listed on the patent.

【在 o****e 的大作中提到】

: if what you said here is true (i.e., the invention ~claimed~ in patent B here
: WAS disclosed by a paper 2-3 years before B's filing date), then it's possible
: that patent B's claim of this invention is invalid, and that means you can use
: that invention disclosed in A without a problem.
: But, you need to pay close attention here to make sure that the invention
: claimed in B is exactly, completely anticipated by A. for example, patent B
: has claims B1, B2, B3, ... B1 is called independent claim, and

o*e2003-10-22 07:10

8 楼

1) getting a patent granted does not mean the patent is valid, if the court
later determines that it's invalid, it's invalid from day one, it's not
invalidated because someone takes it to the court, it's invalidated because
it's invalid to begin with.
2) my original post says "earliest effective filing date".
3) most people can tell if the patent and the paper have at least one common
inventer/author.

B.
textbook.
here
possible
use

【在 s**********i 的大作中提到】

:
: a patent is valid unless PTO or the courts say it's invalid.
: a patent application could claim benefit from early applications,
: thus 2-3 years before this application filing date alone doesn't
: make it invalid. also, the paper must describe someone else's
: work, not the inventors' listed on the patent.

s*i2003-10-22 07:10

9 楼

it would be ruled invalid from the beginning.
but until it's ruled so, it's valid and enforceable.
people may not know what the heck is that if you don't explain.
they can doesn't mean they indeed noticed.

【在 o****e 的大作中提到】

: 1) getting a patent granted does not mean the patent is valid, if the court
: later determines that it's invalid, it's invalid from day one, it's not
: invalidated because someone takes it to the court, it's invalidated because
: it's invalid to begin with.
: 2) my original post says "earliest effective filing date".
: 3) most people can tell if the patent and the paper have at least one common
: inventer/author.
:
: B.
: textbook.