如何应对专利“恐怖”主义(5): 勇于搅局
前面谈过生米熟饭所比喻的专利法意义。在你发现“生米”后，可以考虑在做成熟饭之前，上专利局去搅局，让潜在的恐怖分子拿不到专利。
中国对这种搅局比较开放，自发明专利申请公布之日起至公告授予专利权之日止，任何人均可以对不符合专利法规定的专利申请提出意见，并说明理由。中国专利局会把你的意见存入该申请文档中供审查员在实质审查时考虑。但如果生米在专利局已经接近熟饭或已成熟饭，这招就没啥作用了。如果你的“搅局”意见是在审查员发出授予专利权的通知之后收到的，审查员就不必考虑。
相比之下，美国专利局对这种搅局比较保守。你发现“生米”后去搅局，美国专利局还要被搅局人(即申请人)同意。对潜在的恐怖分子，这有点与虎谋皮之嫌。对广大的好的申请人，这不算什么，人家是真金不怕火炼，有信心拿专利，走到哪里都不怕你搅局。
但如果你的搅局是在18个月公布之前，即你发现“生米”之前，美国专利局则会比较开放。一般人会觉得这在逻辑上难以理解，不知有局，何以搅局？但个别情况下，比如竞争者之间会察觉什么，而不必等到18月公布，就开始采取一些对应措施。
在美国，“生米搅局”涉及 Public Protest 和 Public Use Proceedings。准确细节敬请参下。有问题但不想公开交流，请使用gu.rhonda@yahoo.com
LAW ON PROTEST AND PRE-ISSUANCE OPPOSITION: The Director shall establish appropriate procedures to ensure that no protest or other form of pre-issuance opposition to the grant of a patent on an application may be initiated after publication of the application without the express written consent of the applicant.
37 CFR 1.291 Protests by the public against pending applications.
(a)A protest may be filed by a member of the public against a pending application, and it will be matched with the application file if it adequately identifies the patent application. A protest submitted within the time frame of paragraph (b) of this section, which is not matched in a timely manner to permit review by the examiner during prosecution, due to inadequate identification, may not be entered and may be returned to the protestor where practical, or, if return is not practical, discarded.
(b)The protest will be entered into the record of the application if, in addition to complying with paragraph (c) of this section, the protest has been served upon the applicant in accordance with § 1.248, or filed with the Office in duplicate in the event service is not possible; and, except for paragraph (b)(1) of this section, the protest was filed prior to the date the application was published under § 1.211, or a notice of allowance under § 1.311 was mailed, whichever occurs first:
(1)If a protest is accompanied by the written consent of the applicant, the protest will be considered if the protest is matched with the application in time to permit review during prosecution.
(2)A statement must accompany a protest that it is the first protest submitted in the application by the real party in interest who is submitting the protest; or the protest must comply with paragraph (c)(5) of this section. This section does not apply to the first protest filed in an application. (我的理解，君子搅局不是胡搅蛮缠，不是话过三遍。)
(c)In addition to compliance with paragraphs (a) and (b) of this section, a protest must include.
(1)A listing of the patents, publication, or other information relied upon;
(2)A concise explanation of the relevance of each item listed pursuant to paragraph (c)(1) of this section;
(3)A copy of each listed patent, publication, or other item of information in written form, or at least the pertinent portions thereof;
(4)An English language translation of all the necessary and pertinent parts of any non-English language patent, publication, or other item of information relied upon; and
(5)If it is a second or subsequent protest by the same party in interest, an explanation as to why the issue(s) raised in the second or subsequent protest are significantly different than those raised earlier and why the significantly different issue(s) were not presented earlier, and a processing fee under § 1.17(i) must be submitted. (我的理解，君子搅局不是胡搅蛮缠，不是话过三遍。)
(d)A member of the public filing a protest in an application under this section will not receive any communication from the Office relating to the protest, other than the return of a self-addressed postcard which the member of the public may include with the protest in order to receive an acknowledgement by the Office that the protest has been received. The limited involvement of the member of the public filing a protest pursuant to this section ends with the filing of the protest, and no further submission on behalf of the protestor will be considered, unless the submission is made pursuant to paragraph (c)(5) of this section.
(e)Where a protest raising inequitable conduct issues satisfies the provisions of this section for entry, it will be entered into the application file, generally without comment on the inequitable conduct issues raised in it.
(f)In the absence of a request by the Office, an applicant has no duty to, and need not, reply to a protest.
(g)Protests that fail to comply with paragraphs (b) or (c) of this section may not be entered, and if not entered, will be returned to the protestor, or discarded, at the option of the Office.
37 CFR 1.292 Public use proceedings.
(a)When a petition for the institution of public use proceedings, supported by affidavits or declarations is found, on reference to the examiner, to make a prima facie showing that the invention claimed in an application believed to be on file had been in public use or on sale more than one year before the filing of the application, a hearing may be had before the Director to determine whether a public use proceeding should be instituted. If instituted, the Director may designate an appropriate official to conduct the public use proceeding, including the setting of times for taking testimony, which shall be taken as provided by part 41, subpart D, of this title. The petitioner will be heard in the proceedings but after decision therein will not be heard further in the prosecution of the application for patent.
(b)The petition and accompanying papers, or a notice that such a petition has been filed, shall be entered in the application file if:
(1)The petition is accompanied by the fee set forth in § 1.17(j);
(2)The petition is served on the applicant in accordance with § 1.248, or filed with the Office in duplicate in the event service is not possible; and
(3)The petition is submitted prior to the date the application was published or the mailing of a notice of allowance under § 1.311, whichever occurs first.
(c)A petition for institution of public use proceedings shall not be filed by a party to an interference as to an application involved in the interference. Public use and on sale issues in an interference shall be raised by a motion under § 41.121(a)(1) of this title.