Tell HN: Got a pending US patent app? Read this.

v4.swapped.cc

9 points·latitude··3 comments

A new USPTO provision for expedited patent application processing creates a real-world race condition. With two competing patent applications, it is possible to get the one filed later - granted and the one filed earlier - rejected. It is really absurd.

If you have a patent app with USPTO, you may want to request a publication as soon as possible (instead of waiting until the patent is granted). This should make your app appear as a prior art when a competing application is getting fast-tracked and cutting in front of yours in an examination queue.

My atty says the race condition isn't real:

Who cares if the other party has their patent erroneously issued? That patent should not be capable of use as prior art against your patent if you actually filed first. And, their patent would become invalid (if asserted) because of your prior art.

USPTO doesn't do anything to the other patent after issuance unless someone requests re-examination. So they would "think" they have a patent, which shouldn't bother you, unless they asserted their rights against you.

In which case, you could invalidate their patent with your earlier filing as prior art.

So it's not so much a race condition as it is lazy, eventual consistency in syncing data. If two values are compared on two nodes, yours is the master and will overwrite the other value. Who cares that the replica is slightly out of date?

The point is to prevent erroneous issuance of others' patents in the first place and to avoid costly and lengthy re-examination process needed to get such patents cancelled.

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