Patent Revocation: A Significant Risk?
I posted the information below in a separate blog I run for people interested in non-medical patents. However, I thought it would be of use to this community as well.
The question being discussed is how ‘at-risk’ patent holders are for having their patents revoked. And the short answer is…very little.
. The United States Patent and Trademark Office doesn’t make it easy to get a patent. Florida patent attorneys like myself work through excruciating details to secure the approval of our clients’ patent applications. The USPTO also expends significant resources in determining an inventor’s eligibility for patent protection and is necessarily reluctant to take a patent away once it’s been issued–absent strong evidence that a mistake was made.
I read an article yesterday about the USPTO’s decision to tentatively nullify four patents held by Gilead Sciences, which cover a drug that treats AIDS patients (San Jose Mercury News, January 24, 2008). A consumer advocacy group up the coast from Florida (in New York) called the Public Patent Foundation is the third-party challenger in this case, claiming Gilead’s patents are invalid, because they’d publicly disclosed the technology behind the drug.
This brings up something I consistently counsel Florida patent seekers (and patent seekers everywhere) against. It is vitally important not to publicly disclose your idea–and in fact not to disclose it except under absolute necessity–before filing for a patent. The USPTO can, and certainly will, reject a patent application for an idea already in the public eye.
Now, I doubt that Gilead, having already secured their four patents, will have their patents revoked. (Even the Public Patent Foundation admits the unlikeliness of this.) And, Gilead, which earned $3.1 Billion in sales based on their patents, says they will "vigorously defend each and every claim." With that big a business riding on it, I’m sure they will.