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A CASE STUDY OF INOPERABLE INVENTIONS: WHY IS THE USPTO PATENTING PSEUDOSCIENCE? - page 38 / 39

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1312

WISCONSIN LAW REVIEW

months after the filing date.297

Even then, several years may pass before

the scientific community becomes aware of an obscure patent. For inoperable inventions that are fraudulently marketed, consumers may not be aware of the invention until after it reaches the market. Thus, it is imperative that a workable system be in place to reject a patent on inoperability grounds long after it has been issued.

In its present state, the law presents numerous hurdles to after-the- fact inoperability rejection of issued patents.298 The reexamination process does not appear to be designed with inoperability rejections in mind.299 One possibility is to amend the law to specifically allow for interested third parties to file a request for reexamination of a patent on the grounds of inoperability. It would also be advisable to allow all currently available information to be used in arguing for rejection, since evidence of inoperability may involve expert testimony and post-market studies of the invention itself. In the case of inoperability, when the essential question is whether the invention works as claimed, the rationale for limiting the inquiry only to prior art is minimal or absent altogether. The most convenient time to determine whether an invention actually works is after it has reached the market, at which point the public may study the invention itself rather than an abstract description

of it.

Unlike the solutions mentioned above,300

eliminating inoperable

patents after they have been issued will necessarily involve additional costs. Currently, much of the cost of reexamining a patent is borne by the interested party through hefty fees.301 For concerned scientists or consumer groups, the fees are prohibitive, particularly since the benefit is to the population as a whole rather than just to the individual requesting the reexamination. It may be possible to allow the Director of the USPTO to initiate reexamination at the urging of the concerned public, but this would shift the costs of removing inoperable patents to the Office. Thus, it may be preferable to prevent the issuance of inoperable patents during the application process rather than waiting until the patent has been issued.

VI. CONCLUSION

The public perception is that patented inventions are superior to unpatented ones, perhaps due to a misconception that the USPTO is

297.

35 U.S.C. § 122(b)(1)(A).

298.

See supra Part III.B.

299.

Id.

300.

See discussion supra Parts V.A-B.

301.

U.S. Patent & Trademark Office, supra note 155.

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