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2 years ago
§ 322.– The petition for cancellation can only be filed (1) within 12 months of the patent’s issue or reissue (known as the “first window”), or (2) if there is substantial reason to believe that the continued existence of the challenged claim is likely to cause the petitioner significant economic harm, the petitioner has received notice from the patent holder alleging infringement by the petition, or the patent owner consents to the proceeding in writing (known as the “second window”).
Thus, if the reform act of 2007 passed, one could never be sure if an issued patent is valid.
The correct approach is to examine the patent application THOROUGHLY in the first place, and assess prior art/poor wording/etc. at the BEGINNING of the process. Continual "reinspection" of the product flies in the face of the teachings of Deming, and is just simply bad business.
Leaving aside the uncertainty that WOULD be created by a POST-GRANT opposition, consider what can happen in the re-examination procedure ALREADY in place.
See for example:
http://ipbiz.blogspot.com/2007/04/somers-on-bon...
While there is much discussion on techliberation about bad patents being enforced against competitors, there is not so much discussion about the use of bad patents against patentees, as is happening in the Thomson case. Issued US patents are presumptively valid, and Thomson now gets to explain how his (real) "product" is distinct from the non-existent, prophetic "products" of earlier workers who merely guessed about things might be.