Just because i say that "apples are green" and "apples are red" doesn't make me an expert on apples. Anyone can state basic facts found off the internet. I'm asking if you know anything about this particular case? If you don't, then STFU because you sound like a internet kid quoting a thesaurus or dictionary to make himself look smart.
First of all, there are more than one way to challenge pending patents. What you have referred to is just one option where only the examiner or the party holding the patent can file an interference proceeding. Any patent lawyer with any real world experience would know other options by which to protest. This is where your Googling can only go so far son :laugh:. You do realize that Mervin has patent pending applications in the same space right? Patent owners may alert an examiner to the existence of interfering claims in a pending application. Just because you can't initiate interference proceedings doesn't mean you are not entitled to call the examiners attention to claims in a pending application that interfere with your issued patent.
Secondly, what actually happened in this case is that they initiated a protest proceeding against the pending application. A protest may be filed by "any member of the public" against a pending application, and it will be matched with the application file if it sufficiently identifies the patent application. Protesters are entitled to submit written explanations describing the relevance of all of patents/publications/other information that forms the basis of the protest against a pending application.
How are you going to argue that something can't happen when it already did? that's the most laughable part of your argument. It's like I know Obama was elected and became president and you are sitting here arguing that the US will never elect a black president. Just because your argument seemed plausible does not mean it is true or can't happen.
Finally, now that the patent HAS been granted. Mervin is still fighting it through re-examination proceedings. so you are incorrect in saying that lawsuit is the only next step for both parties to continue because they don't have to go through that litigation process just yet. instead they are challenging the patent through the re-xam statue which grants them more rights and ability to adversarial challenge the patentabilty of the invention. this was amended in '02 to precisely counter what you have mentioned about the lack of ability to challenge.
and yes we all know patent examiners are taxed and in shortage but u r crazy if u think politics don't play a part in this. when enuff $ and power struggle's on the line, resources are put in place to ensure high visibility cases are done more thoroughly.
Third parties are allowed to submit examples of prior art for patent examiners to review. When this occurs, the examiner will look at what was submitted. If they believe it has merit, they will reject the application temporarily, giving the applicant an opportunity to clarify or modify their application regarding the points of concern. The third party which raised the concern is not allowed to counter argue the modified application, giving the applicant a distinct advantage.
The same is true of the reexamination process. A third part may request a review of the patent if they are able to provide newly discovered examples of prior art that were not considered in the original examination process. If they attempt to resubmit the same examples as before, their request will be denied. So again, the applicant has the advantage.
Also, third parties are only allowed to submit prior art in regards to the novelty or originality of the patent request. They are not allowed to argue the obviousness of the design. Their only opportunity to do this will be in a courtroom if they are sued.
Looking at Never Summer's patent request, it was initially rejected then approved after it was modified. In all likelihood, Mervin submitted prior art that the request infringed on and NS modified their request to comply. As of today, no request for reexamination has been accepted. Mervin may have requested one, but if they're simply resubmitting the same prior art, their request will in all likelihood be denied. If NS then attempts to defend their patent against Mervin, this will end up in court.
