Blog posts and prior art
Anna Kushnir
Tuesday, 15 July 2008 19:32 UTC
I am going to use a slightly frivolous example to illustrate a serious point. In a blog post, Henry Gee outlined his idea for a guinea pig-powered lawn mower. If in a bizarre and unpredictable chain of events, another inventor files a patent for just such a lawn mower, would Henry’s post stand in his way? As in, can a blog post be considered prior art in filing a patent? Would the filing inventor’s idea be considered not original because Henry thought of it first, in a blog post?
-
Replies
-
It could very well.
For an invention to be patentable it must have 3 properties.
First, it must be useful, this is usually the easiest attribute to achieve, Henry’s guinea pig-powered lawn mower is sufficiently useful that it would pass this test.
Second the description (called the specification) must be detailed enough such that a person of “ordinary skill in the art” could understand how to build such a device after having read the description. It must be detailed enough so that "undue experimentation” is not required. Henry’s description is detailed enough that a person of ordinary skill could duplicate it.
Third it must be novel. By novel what is meant that there is no public disclosure of a description of the device in the public literature anywhere in the world that is sufficiently detailed that a person of ordinary skill in the art could look at that publication and decide that the invention was “obvious” and be able to practice that invention.
A blog certainly can be considered a “public disclosure” if it is available to the public. The only way that a blog would not be a “public disclosure” would be if there were limits on who could see it, and/or restrictions on what people could do with the information they derive from it. Information that is shared under a confidentiality agreement isn’t public information.
In US law (at one time, I am not sure if it is still the case), the inventor had a year from time of first disclosure to time of filing the patent application. In the US, only the inventor may file. Henry could then file in the US until a year after his blog was published. However he would be unable to file for a patent anywhere else, and not in the EU or the UK. No one else would be able to file either. Rather they could file, but either a patent would not issue because of the prior art, or if the patent office missed the prior art the patent could issue but it would be an invalid patent.
The only utility of a patent is to bar others from making, using or selling the patented invention. If Henry had a patent on his lawn mower, and if someone else tried to sell them, Henry could block them and receive damages. In the US, once someone violating the patent is notified they are in violation, the violation is considered egregious and one can be awarded triple damages, that is suppose the large US home improvement chain, The Home Depot were to sell Henry’s patented lawn mowing device and made $100,000 on it. Henry could demand $100,000 in damages, and if he could get triple damages could get $300,000. However, if Henry does a more careful search, and finds out that there was a guinea pig powered lawn mower described earlier, his patent would be invalid and he would lose in court. However Home Depot may be willing to license even an invalid patent because it gives them leverage against copy-cats. It isn’t very good leverage so they won’t license it for very much. If they did make $100,000, maybe they would give Henry $1,000 because now they can tout that it is “patented” (even if the patent is invalid), and their bluster against would-be copy-cats is more effective because now they have a patent. A would-be copy-cat has to hire lawyers to look at the prior art and decide if the patent is invalid and what would be the cost of a trial that determines the patent is invalid. They might decide that rather than spend $20,000 on lawyers, they just get a license from Home Depot for $10,000.
-
“In US law (at one time, I am not sure if it is still the case), the inventor had a year from time of first disclosure to time of filing the patent application.”
This is still current law in the US – an inventor is barred from getting a patent if invention was described in a ‘printed publication’ anywhere in the world 1 year prior to application (35 USC 102b) – this is a statutory. Following through on David’s information, since the granting of a patent is an exclusionary right, this does not mean that anyone else can now patent this invention, it means that the inventors time has run out and now this publication (blog posting) works against EVERYONE, including the author/inventor.
Blog posting as prior art – (exerpt from Manual of Patent Examining Procedures):
A reference is proven to be a “printed publication” “upon a satisfactory showing that such document has been disseminated or otherwise made available to the extent that persons interested and ordinarily skilled in the subject matter or art, exercising reasonable diligence,
can locate it.” In re Wyer, 655 F.2d 221,
210 USPQ 790 (CCPA 1981)Henry Gee’s blog posting would most likely be available as prior art (and used against a grant of a patent).
-
I think it could be considered prior art, but I’m not an expert. I recommend doing research to make sure that nothing like that is already a registered patent at a site like WikiPatents.com. That way I would feel secure that the idea was mine alone before I submitted it.
-
It could, but you would want to do some serious http://research and analysis to make sure that there’s distinct differences that make your idea unique. Free tools are available online to help you with your research. Try http://www.patentability.com.
-
