Patent Revocation: A Significant Risk?
I am often asked by inventors about the risks of having their patent revoked at a later date. The United States Patent and Trademark Office doesn’t make it easy to get a patent. Florida patent attorneys like myself work through excruciating details to secure the approval of our clients’ patent applications. The USPTO also puts a significant amount of time into prior art searching and research prior to granting a patent and is necessarily reluctant to take a patent away once it’s been issued.
I read an article today about the USPTO’s decision to tentatively nullify four patents held by Gilead Sciences, which cover a drug that treats AIDS patients (San Jose Mercury News, January 24, 2008). A consumer advocacy group up the coast from Florida (in New York) called the Public Patent Foundation is the third-party challenger in this case, claiming Gilead’s patents are invalid, because they’d publicly disclosed the technology behind the drug.
This brings up something I consistently counsel Florida patent seekers (and patent seekers everywhere) against. It is vitally important not to publicly disclose your idea–and in fact not to disclose it except under absolute necessity–before filing for a patent. The USPTO can, and certainly will, reject a patent application for an idea already in the public eye.
Now, the chances are small that Gilead, having already secured their four patents, will have their patents revoked. (Even the Public Patent Foundation admits the unlikeliness of this.) And, Gilead, which earned $3.1 Billion in sales based on their patents, says they will "vigorously defend each and every claim." With that big a business riding on it, I’m sure they will.