Reply to post: Re: Taketh away

Apple: Samsung ripped off our phone patent! USPTO: What patent?

Camilla Smythe

Re: Taketh away

This one was actually rightfully rejected - and for amusing reasons.

The patent that Apple is asserting in this case was filed using a dubious method - they take an earlier failed patent application and submit a completely different concept as a refiling, so that if it's granted, the patent will receive the filing date of the earlier first filing.

This is where things get interesting. The original filing was made in January 2007 - making it before the iPhone's release. When the USPTO reviewed this patent in the course of the case, they noted that the design patent granted differed substantially from the initial application. Because of this, they changed the filing date to when the refiling was submitted, which was August 2008.

So the two pieces of prior art that invalidate the iPhone's design patent are the iPhone and iPhone 3G! Whoops.

Not sure what you are quoting against here but if the USPTO denied the claimed priority date and then accepted that the new filing was permissible but restricted to priority based on its filing date the design patent would still be valid... assuming no prior art. I think basically you are suggesting Apple tried to wing an earlier priority date based on different prior art but then I get the impression that the new stuff was sufficiently new to warrant a grant.

I make no mention as to the flexibility of the rubber stamp used by the USPTO.

Not wishing to give Tim and Apple a glimmer of hope but if they want my BACS details just reply to this message.

In terms of amusement the 'classic' one is, in the case of 'proper patents', where the applicant makes a filing and, fingers crossed, having lost priority on the prior art that they filed themselves make no mention of it in their most recent application and then get their most recent application rejected on the basis of their own prior art.

If I were to be a 'patent examiner' one of the first things I would be inclined to do during search is to look for prior art from the applicants themselves. Given I am not a 'patent examiner' I do not know what policy is on such matters but I would be in two minds as to whether to string them along for more fees before dumping on them or dumping on them immediately in order to prevent them raking in cash from unsuspecting investors as a result of their 'patent pending' technology.

Having had a little think I would be inclined to impose fines against people who would think about taking the piss in such a manner.

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