[Patents] Very basic patent question

[phm@a2e.de (PILCH Hartmut)]

> I just wanted to know whether it is legally possible to "sue first"
> without being sued.

At the EPO, we have only a 9 month opposition period and no
re-examination.

Our patent advocates portray this as an advantage, while it is arguably
not.  Most people do not notice the patents during the first 9 months.

After that period is elapsed, you can still file a lawsuit to have a court
clarify that you are not infringing.  This is however difficult if you
don't have any proof that someone is threatening you with a patent.
Often the only thing to do is to sue for annihilation of the patent.
Such a lawsuit usually costs 250,000 DEM (130,000 EUR) or more.

> Regarding the merit, I think reasonable arguments can be made against
> the validity of -any- patent, but that is another discussion.

But courts may not accept such arguments.  The chambers of the EPO very
rarely revoke a patent.  Even when you have ample evidence of very similar
prior art, they will usually uphold the patent with some modifications.
As long as it is not photographically identical to the prior art, it is
new, and as long as it is not identical in a slightly broader sense
of the word, it is also inventive.

-- 
Hartmut Pilch                                         http://phm.ffii.org/
Protecting Innovation against Patent Inflation      http://swpat.ffii.org/
98000 signatures against software patents       http://www.noepatents.org/