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I just forwarded the last note to a friend who is post-bar, has worked
at a patent law office for a few years, and has a master's in computer
science. The friend is not yet technically a lawyer, so this is NOT
legal advice; for that reason, this message is being sent to you
anonymously.

I find the note somewhat bizarre; apparently, you need to pay to file a
prior art notification! The US patent system, as others on this thread
have commented, is oriented around the idea that patents are issued
first, and defeated later, rather than the other way around.

Danyel Fisher

--------------------
 From L:

those are hard questions. Regarding whether it would be helpful to send
a letter talking about what obviousness is in your branch of science, it
depends on the clout the letter author has -- if it's someone famous, a
better idea would be to go through the USPTO channels somehow (I don't
know if they do any educational seminars or some such, but if they do,
that would be your best bet), because the letter would likely be
ignored, especially if it's not related to a particular patent -- they
must get thousands of such letters, and, knowing something about the way
their mail room is, they are probably all still being "sorted."

 From what I could see, there was a specific patent that issued that
gave you a pause. There is officially a procedure to send prior art for
the issued patents to the USPTO, and anyone can do it. However, most of
the time, it's not done, and not just because of the cost (which is
somewhere in $1k-$2k, I think), but because, in the long run, it can end
up making the patent stronger rather than weaker (yes, that's the bad
side effect of the current system).

basically, if you send the art, you are not really allowed to comment on
it, and you are most certainly not allowed to comment or even see what
the patentee says about the art you sent. So imagine you send your best
 prior art, the patentee manages to argue around it (hey, they got the
patent in the first place, which means the examiner was not all that
good about distinguishing what's obvious and what's not -- who says
he'll be any better this time?). Then they sue you. You go to court and
try to show this very same art, but it's now already been considered by
the USPTO, and the patent is presumed valid in view of it, so you have a
much higher burden of proof to bear than before. In addition to the
legalities of having the burden of proof on you, rather than on them,
try convincing a jury of twelve men who've only heard of words "network"
as in having to do with Internet, that this article, which was already
considered by the Examiner -- supposedly educated in this branch of
science -- and discarded as irrelevant, really is relevant.

Quite sad, really, but that's how it is now. I suppose if you have
several articles, you can try the tactic of sending some of them while
holding the rest should you ever need them. If they do sue you, your
best bet is to show it to them and say "you better settle now, else
you'll end up with no patent."

If they haven't gotten the patent yet -- if it's only a published
application, you can try letting them know about this prior art
(although they probably do, and, once again, it can only make it stronger).

As always, I'm not a lawyer or even a patent agent, so none of this is a
legal advice.
-----

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