I think this would make it tough to enforce the patent if it’s actually commonly used. If I were somehow granted a patent on tap dancing, its common usage by others before me would probably cause my patent to be invalidated if I then tried to sue a tap dancer.
Not a patent lawyer, but IIRC, US patent law had some protections for things (including non-patented) that are already common practice.
Software patents get away with stupid shit like this all the time. Patent trolls claim they invented a software pattern and then sue everyone who uses it.
They would only be able to get away with this if it had already been determined that they did indeed invent that thing. Many choose not to fight cease and desists when it would be in their best interest to counter claim.
You can’t grant a patent for something that is already in the public domain at the time of filing, regardless of whether or not that thing is currently patent protected.
Edit: this is such a funny comment to want to downvote. “Fuck you with your legitimate factual information!”
Novelty is assessed against all publicly disclosed prior art, not just the stuff that has been patented.
If I publish content on a webpage that could be used as prior art later on assessing novelty.
If I invent a special lawnmower and only show my friends and family and never sell it or patent it, that could still count as public disclosure and be used against anyone wishing to patent a similar lawnmower.
Their novel discovery: They figured out nobody had patented this yet
I think this would make it tough to enforce the patent if it’s actually commonly used. If I were somehow granted a patent on tap dancing, its common usage by others before me would probably cause my patent to be invalidated if I then tried to sue a tap dancer.
Not a patent lawyer, but IIRC, US patent law had some protections for things (including non-patented) that are already common practice.
EDIT: Clarity
Software patents get away with stupid shit like this all the time. Patent trolls claim they invented a software pattern and then sue everyone who uses it.
They would only be able to get away with this if it had already been determined that they did indeed invent that thing. Many choose not to fight cease and desists when it would be in their best interest to counter claim.
You can’t grant a patent for something that is already in the public domain at the time of filing, regardless of whether or not that thing is currently patent protected.
Edit: this is such a funny comment to want to downvote. “Fuck you with your legitimate factual information!”
Novelty is assessed against all publicly disclosed prior art, not just the stuff that has been patented.
If I publish content on a webpage that could be used as prior art later on assessing novelty.
If I invent a special lawnmower and only show my friends and family and never sell it or patent it, that could still count as public disclosure and be used against anyone wishing to patent a similar lawnmower.