[Andrew_Russell]

I'm an attorney who litigates patents. I also write about IP litigation at https://ipde.com.

A patent can be invalidated by a court during litigation or through procedures at the U.S. Patent Office, such as inter partes review or an ex partes reexamination.

When asking whether an earlier patent renders a later patent invalid, the fact finder will generally look at anticipation and obviousness. Anticipation means that every element of the claims is literally present (explicitly or inherently) in the earlier patent, under 35 U.S.C. § 102. Obviousness means that the claimed invention as a whole would have been obvious to a person of skill in the art, under 35 U.S.C. § 103.

How do you figure that out? You have to look at each claim individually. If the fact finder determines that the earlier patent discloses or renders obvious every element of the claim, then the claim is invalid.

This comparison is easier said than done, because it is going to depend on claim construction, meaning how the claims are interpreted. In theory, they are interpreted according to how a person of skill in the art would read them, but in practice there is an art to claim construction, and it can be difficult for anyone to predict how a Court or the U.S. Patent Office will construe claims (especially since it is often judge- or examiner-dependent).

I won't get further into burdens of proof and legal standards, but both anticipation and obviousness tend to be a high bar.

From a very quick review of the two patents you posted, it looks like claim 1 the second patent claims, for example, "lowering the vertical axis of the bead height of a bead disposed between a bead on either side thereof." From a quick look at the specification, this may refer to staggering the vertical size of the beads themselves in each row.

It looks like the earlier patent discloses staggering the alignment of the columns of beads, but I don't see (from a quick glance) whether or not it discloses staggering the size of the beads. If it doesn't disclose that element of claim 1 (however the court or PTO interprets it), then it can't anticipate that claim of the second patent. Of course, it could still render it obvious if, for example, there is another prior art patent that discloses varying the beads in the claimed way, and if a person of skill in the art would have been motivated to combine them (assuming the combination also meets all of the other elements).

Each claim in the second patent will need to be looked at individually. Even if claim 1 were invalid, for example, other independent claims may not be.

Keep in mind that everything in this post is hypothetical and I am not your attorney. If you want to try to invalidate the patent, you'll need to get your own attorney involved or otherwise get one to take up the cause, including to take a real look at the patents and prior art and to figure out how best to proceed. It is not a small task.

[fragmede]

Nor would I assume, cheap. If the community wanted to fundraise to get the patent invalidated, what sort of money are we talking about? How much if they decide to contest the invalidation? $10,000,? $100,000? $1,000,000? I'm sure it depends on a lot of factors, but getting an idea of how many zeros we're talking about would be useful.

[Andrew_Russell]

Again speaking generally, attempting to invalidate a patent is going to cost more than $10k, but $100k should be enough to do an ex partes review petition. If you want to do inter partes review, which is much more involved but may also have a higher chance of success, it's more expensive. The total cost will depend on what attorneys you use and how they go about it (which also impacts the likelihood of success).

[robomartin]

> 35 U.S.C. § 102. Obviousness means that the claimed invention as a whole would have been obvious to a person of skill in the art, under 35 U.S.C. § 103.

This is the part that always gets me. Having read through over a couple thousand patents, it is my opinion that the vast majority of them are obvious to anyone skilled in the art. Some of them are so ridiculous that a university student about to finish a relevant degree would consider the claims obvious.

This bothers me deeply because patents that should not have been granted force us to play a patent arms race. If the other side has an axe, you have to have an equal or better axe...and it gets nastier from there.

In some industry sectors you'd be crazy to put out a product without ensuring you have enough legal weapons of IP war to protect yourself from other IP as well as slow down or eliminate copy cats and competitors who will gladly take advantage your your "R" (Research) at zero cost. In "R&D" the "R" is usually the most expensive phase. Once you know what you are building the "D" tends to be simpler, shorter and costs significantly less.

It stands to reason that getting a patent should become more and more difficult over time. As more is invented the "art" and those skilled in it become more sophisticated. Which means the rate of true invention should (not fake invention) should come down to an asymptotic level. We should see less true patents per year, not more fluff patents per year.