• last updated : 05 September, 2023

How to Invalidate a Patent?

Category: Blog
How to Invalidate a Patent?

How to Invalidate a Patent?

There are several answers to the question of how to invalidate a patent. The most common answer is to seek prior art.

The most commonly used method to invalidate a patent is to try to find prior art that is more relevant to the patentable subject matter of a claim than the one cited by the examiner. 

The primary focus when deciding whether a composition of matter, apparatus, method, or product can violate a patent is on issues of validity and infringement. In this context, infringement refers to the technology covered by a patent claim. If such a technology exists and is included in the patent’s claims, the next step in the evaluation is to determine the patent’s validity. There is no infringement if the patent is found to be invalid, regardless of whether the technology falls within the claims. 

Although the validity of a patent is presumed, it is rebuttable. Individuals should get a copy of the Patent Office’s file wrapper to check the validity of a patent. 

The Contents of a File Wrapper 

The file wrapper includes copies of the patent application as well as communications between the Patent Office and the applicant that led to the patent’s issuance. By reviewing the file wrapper, you can learn about the type and number of claim rejections made by the examiner, the reasons for such rejections, and the prior art on record. Examining this information will offer insight into the applicant’s representations or concessions, as well as deep insights into what the Patent Office thought was patentable. 

How to Invalidate a Patent? 

Individuals can often invalidate a patent by locating prior art that is more relevant than what is present in the file wrapper. Presenting prior art, such as a publication or prior patent, is an example. 

If such a prior art patent was issued within one year of the application’s filing date, the effective prior art date becomes the prior art patent’s application filing date. In the case of international patents and publications, the date of public availability or actual publication must be checked.

Proof of Sale or Public Use 

Another way to invalidate a patent is to show that the invention was on sale or in public use in the country within the one-year period preceding the applicant’s patent application filing date. If it is confirmed that the invention had been described in a publication, patented in another country, or known to inventors in the country before the applicant “invented” it, the patent is rendered null and void. 

The Rules for Determining Patentability of an Invention 

Inventions must be the following before they can be patented: 

  • Useful: Implying that the invention serves a purpose 
  • Novel: The term “novelty” refers to the fact that the invention has not been disclosed in any prior art reference 
  • Obvious: This means that the invention, based on a reference or combination of references, must not be obvious to another person who is trained in the relevant art 

When making decisions about these rules, the examiner may find it useful to consult with experts in a relevant field. If at all possible, acquire all information about the inventor’s actions in relation to the invention. If it is discovered that the invention was derived from another, the patent becomes null and void. 

Statutes Regulating Patent Applications 

Patent statutes require that specifications disclose all of the information required for another individual in a relatively similar field to construct and use the invention. It also states that the specifications must include the best method for doing so. 

If these conditions are not met, the patent may become null and void. Furthermore, the statutes require that the specifications conclude with at least one claim that expressly states the particular subject matter that the applicant considers the invention to be. If this condition is not met, the patent may be declared invalid. 

These requirements are justified by the fact that applicants must clearly distinguish between the rights that the patent aims to protect and those that it does not. This provides third parties with a clear understanding of what constitutes patent infringement. 

Our Methodology 

Invalidator+ by XLSCOUT is artificial intelligence (AI) enabled app that allows users to quickly conduct a first-pass invalidity search by focusing on specific competitors’ patent claims. Users can supervise the machine by selecting claims of interest and technical variations/keywords after entering the subject patent number. The Invalidator+ tool provides a list of relevant prior art results along with an automated invalidation search report.

This AI-powered patent invalidation search tool combines intelligent patent parameters such as classification, citations, assignees, and so on with Patent Para-BERT technology to generate a quick patent invalidation search that uncovers results based on contextual and expert parameters. Invalidator+ also utilizes Reinforcement to provide accurate prior art or invalidation analysis.

Benefits of using XLSCOUT’s Invalidator+   

  • Easy-to-use interface
  • Quick first pass invalidity search by entering the patent number
  • Fully automated first invalidation search report
  • Analysis concentrating on specific claims
  • High Accuracy with Reinforcement Learning
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