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Once a patent is granted can it be invalid?

Written by Aneela Akbar on 12 July 2011

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The process of registering a patent can be straight forward if the inventor seeks help from the right people and if the invention in itself satisfies the requirements of patentability that are stated in the Patents Act 1977.

Once a Patent is granted, according to the U.S Patent and Trademark Office, 40% of litigated Patents are affirmed as invalid. That is a vast number of people and organisations paying large amounts of money in the process and losing it at the last stage to invalidity.

For a court to affirm a patent as invalid means that the patent (either because the invention of the same nature had been patented before or because it was too obvious for a person to establish the invention in that same field) should not have been granted in the early stages of the registration process.

Some of the reasons why an invention may not be detected as invalid in the first instance could be new evidence being put forward or the highlighting of the fact that the invention is actually understood by persons who work in that field.

Also, considering that the PTO receives approximately 520,000 applications a year and the employees are rewarded for the number of applications they process, it is more than likely that an application will be processed as it is the easiest way to clear an application.

This is a process which has been used for over a century and is labeled "Patent Trolling". A well known example would be a US Patent which was granted to George Selden for placing a gasoline on a chassis to make a car. This idea was far too obvious for someone in that field. George Selden obtained the Patent and received royalties.

Although the patent system is in place to encourage people to come forward with their inventions, there are some disadvantages to it such as “Patent Trolling” which may allow bad inventions through.

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