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Non-provisional patent application exists but with false data

Non-provisional patent application exists but with false data
« on: February 12, 2015, 07:17:48 AM »
Hi Brad,

I need to file a provisional patent application regarding a method and apparatus for inducing some kind of insect to reproduce. There is a prior art, an international non-provisional patent application which was filled using false data and wrong statements. Do I have to mention it even it is completely false? Or can I ignore that patent application? Or do I have to submit some complaint to the authorities saying that patent is false or is not working at all? What do you think?

BTW I am basic member probably I would like to upgrade to Premium

Thank you!.

Brad

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Re: Non-provisional patent application exists but with false data
« Reply #1 on: February 12, 2015, 08:46:00 AM »
Hi,

That is an interesting situation with several things to consider.  There are people with more experience than me with things like challenging other patents so I would suggest you ask an attorney this.   However, here is my best effort at responding to your question.

Sadly "good data" is not a requirement for a patent so simply arguing that someone with the same exact invention has bad data may not be a strong argument to get their patent thrown out and have yours be allowed, at least I have never seen it done before.

There are some procedures where you can challenge the validity of a patent through the patent office but I don't know if one of the reasons you can challenge is for "bad data" unless you can prove that the inventors lied or misrepresented something to the patent office.  (these proceedings are very expensive and not something I do myself)

A few other thoughts: 

1) Ideally your methods and apparatus is slightly different from the "prior art" and you can focus your application on those differences and improvements instead of trying to argue about bad data vs. good data.

2) Even if their data was bad, if they showed the same device as you have and said that it can be used for the same purpose you may still have a problem.  One way to get around that problem is to submit some data or evidence yourself that says the other device or methods would not work properly or would not achieve the same results as your invention but again this assumes your is slightly different then theirs.   

3) You have the duty to report all closely related patents you know about in a separate document called an "information disclosure statement" or "IDS".  How this usually works is once you file your non-provisional, you should file your IDS at that time or shortly thereafter.  The IDS will list that other patent and other patents and publications that you know about.    The Examiner will probably then use that other patent to reject your patent claims at which point you can make your arguments to the Examiner that the other device/method would not produce the same results that you have done.   

4) I would not talk about that other patent in your application.  There is no duty to do so and any statements you make in your application may and most likely will be used against you so why put those details in the record if you don't have to. 
« Last Edit: February 12, 2015, 11:35:16 AM by Brad »
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Re: Non-provisional patent application exists but with false data
« Reply #2 on: February 12, 2015, 03:58:43 PM »
Thank you Brad, it is not "slightly" different it is completely different  The question is if there is a possibility the examiner will believe their claims and will reject my claims. As their claims, specially the first, is completely false my first claim will be completely different, so we could say that is a question of credibility. We will have some controversy in Entomology Science as both statements/claims cannot coexist. What do you think?

Thank you,

Brad

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Re: Non-provisional patent application exists but with false data
« Reply #3 on: February 13, 2015, 01:48:08 PM »
That is good news.  If your actual invention in different then I don't think you should have any problem.  If the Examiner does not believe your data then you can file statements from experts in the field to help your case but I doubt you will have to get into that here. 
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Disclaimer: The information on this site is not legal advice and is not a substitute for an attorney or a law firm.  You should seek legal counsel for legal questions.

 

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