美國案的問題 - 專利

※ 引述《ides13 (鬼)》之銘言：
: 102(f)的重點在於，誰才是發明人。即使他的發明最後被證實為不具新穎性。
: 102(f)與日期無關，重點在於“出處及來源”。
: 只要abc的發明，是原發明人自己想出來的，即便最後被證實abc為已知的，
: 那麼abc也還是abcd的發明人，他們對abcd還是有智能性的貢獻，要克服習知參考文獻
: ，僅需要一份宣誓書，即足夠克服102(f)的拒絕理由。
: MPEP 2317
: “[a] prior art reference that is not a statutory bar may be overcome by two
: generally recognized methods”: an affidavit under 37 CFR 1.131, or an
: affidavit under 37 CFR 1.132 “showing that the relevant disclosure is a
: description of the applicant’s own work.”
: 35 U.S.C. 102(f) “does not require an inquiry into the relative dates of a
: reference and the application”, and therefore may be applicable where
: subsections (a) and (e) are not available for references.
: The party or parties executing an oath or declaration under 37 CFR 1.63 are
: presumed to be the inventors. Driscoll v. Cebalo, 5 USPQ2d 1477, 1481 (Bd.
: Pat. Inter. 1982); In re DeBaun, 687 F.2d 459, 463, 214 USPQ 933, 936 (CCPA
: 1982)

No, I don't agree with you at this issue.

35 USC 102 (f) and its relavent rules are sections to define "who is the
inventor in reality." If a reference is a description of one party's own work,
said party can submit an affidavit or statement to declare that he is the
real inventor. If a reference is filed or disclosed later than one party's
conception, said party can submit an affidavit or statement to declare he/she
make that conception earlier.

In the case we discuss,however, the one did'nt make ABCD conception but the
attorney did. In theorem, the one shall not overcome the bar by submitting
documents under 37 CFR 1.131/1.132. In practice, however, it's hard to prove
that the one only make ABC conception.

The way overcoming the prior art by submitting said affidavit is based on the
"Good Faith". That is, if one didn't make the invention, in this case, ABCD as
a whole, himself, he should be resposible for his deception.

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