如何應對專利“恐怖”主義(7): 龍虎爭霸,兵貴神速

如果你看到別人就一項技術正在申請一個美國專利或已經已經獲得一個美國專利,而你覺得你才應該拿到那個專利,可以考慮使用一個像龍虎爭霸的程序叫Interference。具體來說,就是你也給美國專利局呈上符合要求的CLAIM(S),說我要那個專利!專利局一看,如果認定你是龍,別人是虎,你倆要爭霸,就會啟動Interference程序。說不定專利最後就是你的了呢。

(a) Whenever an application (龍的) is made for a patent which, in the opinion of the Director, would interfere with any pending application(虎的), or with any unexpired patent(虎的), an interference may be declared and the Director shall give notice of such declaration to the applicants, or applicant and patentee, as the case may be. The Board of Patent Appeals and Interferences shall determine questions of priority of the inventions (誰先發明的) and may determine questions of patentability (可專利性). Any final decision, if adverse to the claim of an applicant, shall constitute the final refusal by the Patent and Trademark Office of the claims involved, and the Director may issue a patent to the applicant who is adjudged the prior inventor. A final judgment adverse to a patentee from which no appeal or other review has been or can be taken or had shall constitute cancellation (撤銷) of the claims involved in the patent, and notice of such cancellation shall be endorsed on copies of the patent distributed after such cancellation by the Patent and Trademark Office.


當龍虎爭霸的內容 same or substantially same,這時候你要特別注意兵貴神速,否則即使你先發明了爭霸內容,也會痛失良機。 (b) (1) A claim which is the same as, or for the same or substantially the same subject matter as, a claim of an issued patent may not be made in any application unless such a claim is made prior to one year from the date on which the patent was granted. (2) A claim which is the same as, or for the same or substantially the same subject matter as, a claim of an application published under section 122(b) of this title may be made in an application filed after the application is published only if the claim is made before 1 year after the date on which the application is published.


有可能龍虎達成協議而結束爭霸,這時候建議你們及時在美國專利局備案。(c) Any agreement or understanding between parties to an interference, including any collateral agreements referred to therein, made in connection with or in contemplation of the termination of the interference, shall be in writing and a true copy thereof filed in the Patent and Trademark Office before the termination of the interference as between the said parties to the agreement or understanding. If any party filing the same so requests, the copy shall be kept separate from the file of the interference, and made available only to Government agencies on written request, or to any person on a showing of good cause. Failure to file the copy of such agreement or understanding shall render permanently unenforceable such agreement or understanding and any patent of such parties involved in the interference or any patent subsequently issued on any application of such parties so involved. The Director may, however, on a showing of good cause for failure to file within the time prescribed, permit the filing of the agreement or understanding during the six-month period subsequent to the termination of the interference as between the parties to the agreement or understanding. The Director shall give notice to the parties or their attorneys of record, a reasonable time prior to said termination, of the filing requirement of this section. If the Director gives such notice at a later time, irrespective of the right to file such agreement or understanding within the six-month period on a showing of good cause, the parties may file such agreement or understanding within sixty days of the receipt of such notice. Any discretionary action of the Director under this subsection shall be reviewable under section 10 of the Administrative Procedure Act.


龍虎爭霸有可能通過仲裁解決,這時候建議你們及時通知美國專利局。(d) Parties to a patent interference, within such time as may be specified by the Director by regulation, may determine such contest or any aspect thereof by arbitration. Such arbitration shall be governed by the provisions of title 9 to the extent such title is not inconsistent with this section. The parties shall give notice of any arbitration award to the Director, and such award shall, as between the parties to the arbitration, be dispositive of the issues to which it relates. The arbitration award shall be unenforceable until such notice is given. (但美國專利局對可專利性有最權威的發言權,仲裁是裁不上的) Nothing in this subsection shall preclude the Director from determining patentability of the invention involved in the interference.

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