How to anticipate and attack a patent
Written by Michael Coyle on 13 September 2009« Return to Reading Room
Attacking a patent is not easy. You will need to show two things first that the prior art contains a clear description of or clear instructions to make something that would infringe your patent ( if carried out once the patent is granted) and secondly that the description in the prior art is clear and complete for the person skilled in the art to create it without undue effort. Another form of attack is to claim its obvious.
This involves the following steps:
(1) (a) Identify the notional "person skilled in the art".
(b) Identify the relevant common general knowledge of that person.
(2) Identify the inventive concept of the claim in question or, if that cannot readily be done, construe it.
(3) Identify what, if any, differences exist between the matter cited as forming part of the "state of the art" and the inventive concept of the claim or the claim as construed.
(4) Ask whether, when viewed without any knowledge of the alleged invention as claimed: do those differences constitute steps which would have been obvious to the person skilled in the art or do they require any degree of invention?
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