Errors of technology transfer №2 / "Disclosure errors"
By helping to bring development and business to foreign markets, it is necessary to constantly observe the same mistakes, and as a result - failures and losses.
The losses are all the more offensive, given that these errors are repeatedly described and analyzed in dozens of open and publicly available sources.
Without in any way pretending to be new and exclusive, we will try to collect in this series of posts a dozen of the most frequent, obvious and relatively easily obviated errors, the elimination of which greatly increases the chances of success.
For convenience, error descriptions will sort by increasing their complexity.
========================================
" Disclosure Errors "
One of the simplest and most primitive (because of what we consider it at the beginning of the cycle), but at the same time one of the most severe consequences, and, unfortunately, frequent errors is the disclosure error.
This mistake is the result of a lack of knowledge by the overwhelming majority of the developers of the differences in the regulation of the main informational areas of the surrounding world - industry, commerce, science and art.
The thing is that despite the apparent similarity of these areas, they are arranged, and are accordingly regulated - in completely different ways.
The field of art is governed by international norms on works of art, the area of trade is by trademark conventions, and science is spread over several industries and areas of regulation.
Industry, and more specifically, the national and international technology business is governed by the rules of patent law, which, in relation to the rules on artistic works and the rules on trademarks, despite the apparent similarity, works " exactly the opposite ."
If the principle of " copyright " applies to works of art (and the part of science that joined them) (disclosure / publication gives rise to an exclusive right, and who was the first to publish that exclusive right belongs to), in the patent field, disclosure / publication almost always excludes , and almost always without the possibility of recovery.
If a copyright appears on its own (at the behest of the author), and is automatically valid for the entire life of the author and 70 years after his death, then patents appear only at the behest of an authorized body, require constant renewal and only 20 years are valid.
If trademarks should be unique only in the country of registration, then patents - all over the world.
Etc. etc.
These are all completely different areas, which are arranged and regulated completely differently, there are no analogies here, and those that are - work " exactly the opposite ."
')
Leaving art and commerce alone, we consider industry and the " constructive " part of science (technical sciences).
For decisions and information of this class, there are two, mutually exclusive and directly opposite ways - “ publication ” and “ protection ”.
The choice of a path is made on the basis of the current status, available resources and calculated goals of the author-creator.
For example, if the creator confidently goes to a permanent position in a rich foreign university, and is going to please himself with grants, then he should be worried about the impact factor, the citation index, and the list (and often even the order of instructions) of the co-authors of the publication.
Any games with patents (that is, with a native university) in such a situation can end in disrepair.
If the developer is sitting in an unheated and after six months closing laboratory of the Russian Academy of Sciences in Chernogolovka, then he has only one chance to “ cling to the future ”, and this chance is connected with the foreign sale of the development, which is simply impossible without patenting.
In this case, not only an explicit and open publication, but even an unsuccessful interview may end in tears.
In the texts of primary sources, this is formulated as follows:
Rospatent / "Guidelines for the examination of applications"
5.1.1. An invention is new if it is not known in the art.
The prior art includes any information that has become publicly available in the world before the priority date of the invention.
The information is considered publicly available if it is contained in the source of information with which any person can familiarize himself, or about the content of which he can be legally informed.
European Patent Office / “Convention on the Granting of European Patents”
Article 5441, 42 Novelty
(1) An invention is considered new if it does not belong to the prior art.
(2) The prior art includes everything that has become publicly available, by written or oral description, use, or in any other way.
US Patent Law Section 35, §102 (a), (b), (g), 103
"Under the prior art refers to all the facts of the use of the invention ... and publication in ... any ... country of the world, known before the filing date of the application to the patent office"
Therefore, there are two paths, mutually exclusive and directly opposite, - “ disclosure ” or “ patenting ”.
Unfortunately, often persons choosing protection, due to the ignorance of the details themselves, make an involuntary disclosure.
The key point is the " date " of disclosure.
As stated above, disclosure is generally available in any form, in any form.
In the texts of primary sources, this is formulated as follows:
The date determining the inclusion of the source of information in the prior art is:
- for published patent documents - the date of publication indicated on them;
- for print publications, the date indicated on them for printing;
- for deposited manuscripts of articles, reviews, monographs and other materials - the date of their deposit;
- for research reports, - the date they were received by these bodies;
- for materials of dissertations published on rights of a manuscript, - the date of their receipt in the library;
- for works accepted to the competition - the date of their calculation for review, confirmed by documents relating to the conduct of the competition;
- for visually perceived sources of information (posters, models, products, etc.) - a documented date from which it became possible to view them;
- for exhibits placed at the exhibition, a documented date of commencement of their display;
- for oral reports, lectures, speeches - the date of the report, lectures, speeches, if they are recorded by sound recording equipment or stenographically;
- for messages on radio, television, cinema - the date of such a message, if it is recorded on the appropriate information carrier;
- for information about the technical means, which became known as a result of its use, the documented date from which this information became publicly available;
- for information received in electronic form - via the Internet, via online access, other than the Internet, CD and DVD-ROM disks,
- either the date of publication of the documents, if it is stamped on them and can be documented, or, if this date is absent,
- the date of placing the information in this electronic environment subject to its documented confirmation.
We strongly recommend printing this official text and periodically reading it.
Unfortunately, often persons who have avoided the error of the primary disclosure, typically make a “female” secondary disclosure error.
The overwhelming pride in their quick-wittedness, expressed in the timely filing of a patent application for a technical solution, they relax and begin to inform about it who should and who does not (nobody needs except his patent lawyer, but he knows about it).
The problem of the situation is that before the official publication of the filed application (which is automatically carried out after 1.5 years), the developer can slightly modify / correct / change the solution described in the application.
While the application is not published, and nobody knows about it, it is quite simple to do this, but as soon as the developer makes a premature disclosure, the solution immediately falls into the “state of the art” , and - ... see above.
Once again we pay attention that nowhere in the materials about the level of technology - there is no indication of authorship.
Who exactly made the disclosure, the author or a completely outsider, has no value in deciding the issue of patentability.
Accordingly, a natural question immediately arises about negligent employees.
It is solved as follows:
(1) The disclosure of the invention is not taken into account if it took place no earlier than six months before the filing of an application for a European patent and was the direct or indirect result of the following:
(a) obvious abuse in relation to the applicant or his predecessor.
Accordingly, in order to take advantage of this opportunity, in the labor and official documents of company employees, there should be a standard rule on NDA.
In conclusion, we mention such a specific form of disclosure as “Prior Art”.
Sometimes there are situations when a developer, for one reason or another, cannot or does not want to follow the path of patenting a solution, but at the same time, he does not want it to go to anyone else.
In this case, the action “So you don’t get to anyone!” Is made in the form of publishing the solution in specialized databases, for example:
*
In this case, the possibility of any patent protection for all is lost.
===============================================
Previously:
- " Individualization errors "
Further:
- " Errors offshore "
- " Mistakes of authorship "
- " IP Security Error "
- " Errors of budget money "
- " Errors of double technologies "
- " Toxic Investment Mistakes "
- " License Errors "
- " Positioning errors "
The losses are all the more offensive, given that these errors are repeatedly described and analyzed in dozens of open and publicly available sources.
Without in any way pretending to be new and exclusive, we will try to collect in this series of posts a dozen of the most frequent, obvious and relatively easily obviated errors, the elimination of which greatly increases the chances of success.
For convenience, error descriptions will sort by increasing their complexity.
========================================
" Disclosure Errors "
One of the simplest and most primitive (because of what we consider it at the beginning of the cycle), but at the same time one of the most severe consequences, and, unfortunately, frequent errors is the disclosure error.
This mistake is the result of a lack of knowledge by the overwhelming majority of the developers of the differences in the regulation of the main informational areas of the surrounding world - industry, commerce, science and art.
The thing is that despite the apparent similarity of these areas, they are arranged, and are accordingly regulated - in completely different ways.
The field of art is governed by international norms on works of art, the area of trade is by trademark conventions, and science is spread over several industries and areas of regulation.
Industry, and more specifically, the national and international technology business is governed by the rules of patent law, which, in relation to the rules on artistic works and the rules on trademarks, despite the apparent similarity, works " exactly the opposite ."
If the principle of " copyright " applies to works of art (and the part of science that joined them) (disclosure / publication gives rise to an exclusive right, and who was the first to publish that exclusive right belongs to), in the patent field, disclosure / publication almost always excludes , and almost always without the possibility of recovery.
If a copyright appears on its own (at the behest of the author), and is automatically valid for the entire life of the author and 70 years after his death, then patents appear only at the behest of an authorized body, require constant renewal and only 20 years are valid.
If trademarks should be unique only in the country of registration, then patents - all over the world.
Etc. etc.
These are all completely different areas, which are arranged and regulated completely differently, there are no analogies here, and those that are - work " exactly the opposite ."
')
Leaving art and commerce alone, we consider industry and the " constructive " part of science (technical sciences).
For decisions and information of this class, there are two, mutually exclusive and directly opposite ways - “ publication ” and “ protection ”.
The choice of a path is made on the basis of the current status, available resources and calculated goals of the author-creator.
For example, if the creator confidently goes to a permanent position in a rich foreign university, and is going to please himself with grants, then he should be worried about the impact factor, the citation index, and the list (and often even the order of instructions) of the co-authors of the publication.
Any games with patents (that is, with a native university) in such a situation can end in disrepair.
If the developer is sitting in an unheated and after six months closing laboratory of the Russian Academy of Sciences in Chernogolovka, then he has only one chance to “ cling to the future ”, and this chance is connected with the foreign sale of the development, which is simply impossible without patenting.
In this case, not only an explicit and open publication, but even an unsuccessful interview may end in tears.
In the texts of primary sources, this is formulated as follows:
Rospatent / "Guidelines for the examination of applications"
5.1.1. An invention is new if it is not known in the art.
The prior art includes any information that has become publicly available in the world before the priority date of the invention.
The information is considered publicly available if it is contained in the source of information with which any person can familiarize himself, or about the content of which he can be legally informed.
European Patent Office / “Convention on the Granting of European Patents”
Article 5441, 42 Novelty
(1) An invention is considered new if it does not belong to the prior art.
(2) The prior art includes everything that has become publicly available, by written or oral description, use, or in any other way.
US Patent Law Section 35, §102 (a), (b), (g), 103
"Under the prior art refers to all the facts of the use of the invention ... and publication in ... any ... country of the world, known before the filing date of the application to the patent office"
Therefore, there are two paths, mutually exclusive and directly opposite, - “ disclosure ” or “ patenting ”.
Unfortunately, often persons choosing protection, due to the ignorance of the details themselves, make an involuntary disclosure.
The key point is the " date " of disclosure.
As stated above, disclosure is generally available in any form, in any form.
In the texts of primary sources, this is formulated as follows:
The date determining the inclusion of the source of information in the prior art is:
- for published patent documents - the date of publication indicated on them;
- for print publications, the date indicated on them for printing;
- for deposited manuscripts of articles, reviews, monographs and other materials - the date of their deposit;
- for research reports, - the date they were received by these bodies;
- for materials of dissertations published on rights of a manuscript, - the date of their receipt in the library;
- for works accepted to the competition - the date of their calculation for review, confirmed by documents relating to the conduct of the competition;
- for visually perceived sources of information (posters, models, products, etc.) - a documented date from which it became possible to view them;
- for exhibits placed at the exhibition, a documented date of commencement of their display;
- for oral reports, lectures, speeches - the date of the report, lectures, speeches, if they are recorded by sound recording equipment or stenographically;
- for messages on radio, television, cinema - the date of such a message, if it is recorded on the appropriate information carrier;
- for information about the technical means, which became known as a result of its use, the documented date from which this information became publicly available;
- for information received in electronic form - via the Internet, via online access, other than the Internet, CD and DVD-ROM disks,
- either the date of publication of the documents, if it is stamped on them and can be documented, or, if this date is absent,
- the date of placing the information in this electronic environment subject to its documented confirmation.
We strongly recommend printing this official text and periodically reading it.
Unfortunately, often persons who have avoided the error of the primary disclosure, typically make a “female” secondary disclosure error.
The overwhelming pride in their quick-wittedness, expressed in the timely filing of a patent application for a technical solution, they relax and begin to inform about it who should and who does not (nobody needs except his patent lawyer, but he knows about it).
The problem of the situation is that before the official publication of the filed application (which is automatically carried out after 1.5 years), the developer can slightly modify / correct / change the solution described in the application.
While the application is not published, and nobody knows about it, it is quite simple to do this, but as soon as the developer makes a premature disclosure, the solution immediately falls into the “state of the art” , and - ... see above.
Once again we pay attention that nowhere in the materials about the level of technology - there is no indication of authorship.
Who exactly made the disclosure, the author or a completely outsider, has no value in deciding the issue of patentability.
Accordingly, a natural question immediately arises about negligent employees.
It is solved as follows:
(1) The disclosure of the invention is not taken into account if it took place no earlier than six months before the filing of an application for a European patent and was the direct or indirect result of the following:
(a) obvious abuse in relation to the applicant or his predecessor.
Accordingly, in order to take advantage of this opportunity, in the labor and official documents of company employees, there should be a standard rule on NDA.
In conclusion, we mention such a specific form of disclosure as “Prior Art”.
Sometimes there are situations when a developer, for one reason or another, cannot or does not want to follow the path of patenting a solution, but at the same time, he does not want it to go to anyone else.
In this case, the action “So you don’t get to anyone!” Is made in the form of publishing the solution in specialized databases, for example:
*
In this case, the possibility of any patent protection for all is lost.
===============================================
Previously:
- " Individualization errors "
Further:
- " Errors offshore "
- " Mistakes of authorship "
- " IP Security Error "
- " Errors of budget money "
- " Errors of double technologies "
- " Toxic Investment Mistakes "
- " License Errors "
- " Positioning errors "
Source: https://habr.com/ru/post/143290/
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