Be careful. If you comment on a patent that ends up being granted, and then you violate it, you'll have a hard time claiming that it wasn't willful infringement.
1) Someone comes up with something.
2) I'm doing something similar, and post links to journal articles and whatnot.
3) Given 2, I assume that it's not going to be granted, and carry on.
4) It is granted, now I am infringing.
Is my infringement "willful"? That could make "trying to patent things that shouldn't be patentable" even more lucrative (treble damages!).
If your journal articles predate the invention (or, after we switch to first-to-file next spring, predates the filing), then it's always better to disclose the prior art. However, before you carry on under the assumption that your prior art will kill the application, you have to study the specific claims of the patent. The patent as a whole, and the title in particular, have no legal force. Infringement is determined on the basis of specific claims of the patent. You will have to understand those individual claims in order to assess whether you have prior art that fully anticipates them (in which case, you can carry on in relative safety). If your prior art doesn't fully anticipate the claims of the patent, then you should change what you're doing to be outside the limitations of the patent. Otherwise, you may find yourself having to argue that parts of the patent are obvious in light of the parts that were anticipated by your prior art, and that's a tougher argument to make.
If the USPTO issues an overly-broad patent, then you're in for an expensive legal battle no matter what.
Details of how to look at a patent are useful, but you don't really speak to my actual question. If I look at a the patent and, in my professional opinion as a developer, believe that the prior art I post covers all the claims of the patent, can I get slapped with treble damages for operating under the belief that my prior art will kill it while it is still patent-pending?
You can only get slapped with treble damages if your opinion about your prior art was wrong, but that's no surprise.
I'm not seeing where willfulness has anything to do with it, since it isn't mentioned in the section that allows for treble damages:
"35 USC § 284 - Damages
Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.
When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed. Increased damages under this paragraph shall not apply to provisional rights under section 154 (d) of this title.
The court may receive expert testimony as an aid to the determination of damages or of what royalty would be reasonable under the circumstances."
I don't know why you got downvoted, that seems like a reasonable question to me.
My uneducated opinion is that that would be willful infringement. It would be your responsibility to see if the patent is granted, and if it is to cease whatever you're doing that could infringe. Note: this isn't what I agree with, just my understanding of how it is currently.
IANAL
Edit: I think ceasing any potentially infringing activity after you learn the patent is awarded would quash any notion of you willfully infringing and would allow you to say "I stopped as soon as I had to, but here's why I shouldn't have had to in the first place..." if it ever got to that point.
How can you comment on a patent that hasn't been granted yet? I.e. when it was posted it wasn't a patent. Also, if it was posted/discussed in a public forum before the patent was granted doesn't that violates the validity of the patent?
The USPTO publishes patent applications. When the public comments on them, pointing out obvious prior art (something I have done), the patent office sent a form letter telling them that such input was not permitted. The appropriate way to challenge a patent was to wait for it to be approved, and then spend tens of millions of dollars challenging it in court, assuming you had tens of millions of dollars and many years.
The new system allows random members of the public with an interest to point out prior art.
So a law was passed last year requiring this. Which means that lawmakers made it understood to the Patent Office that the system is considered flawed and needs adjusting.
How many patents were granted in between the passing of this law and them actually stepping up to meet its requirements? Wouldn't that potentially make them all suspect and needing to be reviewed again?
Not exactly. The law simply made it a requirement for the USPTO to accept submissions from the public. It did not require them to set up any coordinated effort to solicit submissions; that was done voluntarily.
> How many patents were granted in between the passing of this law and them actually stepping up to meet its requirements? Wouldn't that potentially make them all suspect and needing to be reviewed again?
All patents are subject to submissions of prior art under this law, not just pending applications. So yes, all patents approved since the law was passed are suspect, as are all patents approved before then, and all patents approved in the future. It's never too late to show prior art.
So it was required to accept submissions from the public but not required to coordinate to solicit submissions from the public? Gotta love government thinking. At least someone stepped up and went beyond the requirement, shows initiative. I'm assuming that guy will get fired any day now.
I see now what you mean about the law applying in this way to previous patents, it seems one can directly submit prior art on a patent with the Patent Office as opposed to suing to get the patent invalidated. If I'm reading things correctly. But I still find it interesting that apparently this was the process: patent is screwed up and we should fix it, here's a law to fix but it'll take a year to get things rolling with the public, what about the patents on the table, grant them and we'll patch it up later.
Did these people work for Microsoft* in a previous life?
* To avoid causing hurt feelings that seems so common these days, please replace said company with whatever company you have misgivings about, serious or otherwise.
How? The term "prior art" already only applies to publicly-disclosed knowledge. Trade secrets don't invalidate patents, since part of the purpose of patents is to dissuade people from keeping inventions secret. If you want to be protected from someone else inventing and patenting your invention, you have to disclose your work, such as in your own patent application.
That doesn't really feel relevant to what I said. People in the comments here have given a few situations in which participating in this could be disadvantageous. I am sure there are more.
I'm not allowed to talk about this kickass technology my company is using, not even to dispute a patent claim my competitor is making.
I'm not allowed to post a question on this site because I can't talk about the technology my company is using.
I'm not allowed to post prior art on this patent because it might reveal how my company is solving problem x, a problem plaguing most of my competition and were they to figure it out, I'd lose some edge in my market.
