Invalidating patent claims dating things to ask
The statute also requires that the specification conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his or her invention.
Failure to do so can result in patent claims being held invalid.
With respect to publications and foreign patents, it is necessary to look at the date of actual publication or opening to the public.
While the minimum acceptable date of prior art is a date preceding the filing date of the patent application which became the patent being challenged, it is preferable to seek prior art with a date more than one year earlier than the filing date of such application.
The underlying rationale for this requirement is that the patentee must set forth clearly the line of demarcation between what is protected by the patent and what is not in order that a third party may have a reasonable standard by which to determine whether particular conduct will infringe the patent.
If the patent is invalid, there can be no infringement, regardless of whether the technology is embraced by the claims. A review of the file wrapper frequently enables one to determine what rejections of claims were made by the patent office examiner, on what grounds those rejections were made, and what prior art was made of record.
Novelty in this context means that the invention was not fully disclosed in a single prior-art reference.
The obviousness standard refers to the invention not being obvious to one skilled in the art to which the invention pertains on the basis of a single reference or a combination of references.
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