When there is a patent application submitted for an idea that has been around for years and is common knowledge what can you do?
2 Answers
When a process or composition has been in the public domain, an inventor can still file an application on what is considered "an improvement patent" that fills an unmet need by todays' users. This is quite common. It may be a less expensive manufacturing process, results which are more precise i.e., look at all the OTC pregnancy tests, a test that can be used at home or in the field, etc. Before considering submitting prior art to the USPTO since what you submit may actually illustrate the need in the industry or "unmet need" proceed with caution an analyze whether a PCT has been filed. I will assume you mean a published provisional, so here are focused steps to follow: 1.Go to Public PAIR and Enter the publication number. 2. Look at the tab "Image File Wrapper" and see if it is currently being examined and what its status is; 3. Next to to the Continuity tab and see if a PCT was filed earlier. If so click on view and you will be directed to the WIPO site. 4. Once there click on the last tab denoting "Documents". 5. Under documents, you will be able to view the search report termed ISR and the Preliminary Examination Report and Written Opinion of the PCT examiner. These items can provide a wealth of information as to whether the application is truly state of the art or an improvement of the art or product by process claim.
Once you get a better idea, then repost your question for ideas on how to proceed.
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From the answer "I will assume you mean a published provisional." Provisional applications do not get published.– George White ♦Commented Apr 23, 2014 at 20:11
One option to consider is a prior art submission to the USPTO under 37 CFR 1.501 and 35 USC 301. See ==> http://www.uspto.gov/web/offices/pac/mpep/s2205.html
This creates a written record of the applicability of the particular patent(s) and/or printed publication(s) submitted. If the patent owner attempts to assert this patent against a third party, the third party may be able to leverage your submission as part of an invalidity defense and/or as part of its own Post Grant Review filing.
