With a view to ensuring that a patent application is only
granted for an invention that is new and non-obvious, a patent office will carry
out a search. Most inventors understand that, if this search identifies
relevant public disclosures that pre-date the patent application filing date,
patent grant may be denied.
Fewer inventors are aware that some patent offices also
allow the general public to submit details of relevant earlier public
disclosures. Such third party observations can sometimes be made
anonymously.
Environmental Defence Systems Ltd (EDS) fell foul of the
latter. In 2008, the European Patent Office carried out a search on EDS' patent
application for a flood defence barrage unit and identified two earlier
documents of relevance. EDS subsequently amended its application to focus on
those parts of its invention that it believed to be patentable over the two
documents.
However, in 2010, two years after EDS had started marketing
its barrage unit, an anonymous letter was sent to the European Patent Office
listing a further eight documents which, the letter argued, showed that the
invention was completely known or obvious at the patent application filing date
and thus completely unpatentable.
Until the European Patent Office decides whether this is
indeed the case, the application cannot be granted and cannot be
enforced against competitors in the courts.
This is but one of many ways of using intellectual property in engineering business. You should of course seek professional advice on your own particular circumstances.
