Originally Posted by Rapt
But it did render the money, time and effort spent on the patent a waste...
After the lawyers got their share of course....
Not necessarily, if you mean that patenting something in the public domain makes the patent invalid.
I'm not a patent attorney, but I do know that people patent that which is in the public domain. They have, they are currently doing so and will in the future.
I have heard something about prior art, but don't know enough about that to comment.
My girl friend is an engineer and has much more practical experience. She isn't a patent attorney either, but in her experience patenting something in the public domain is as easy as patenting something you originated. Just make out the application in either case, pay the fees and wait for the patent (simplifing a long process
After the patent is issued, if it is invalid because of prior art or something else, the person challenging the patent has to prove the invalidity. The patent office assumes the patent is valid since it was issued. The person challanging has the burden, not the patent holder. This becomes expensive in time and/or money.
Most businesses would just rather obtain a license if they don't already have a cross license agreement (if they do they would rather not challange anyway). A large company will challange a patent only when it really puts a crimp in their profit margin and getting the patent declared invalid is much more profitable than getting a license from the holder.
If you are a small business or an individual, you are essentially at the mercy of the patent holder whether it is valid or not. If the holder was unethical enough to knowingly patent something somebody else developed, then they will probably have no mercy.
In her experience, the easiest time to challange an invalid patent is when the application is being processed and before the patent is issued. After that you would have to be exceptionally dedicated to challange a patent if it is really invalid.
So, if an unethical person applies for a patent for something in public domain, is quiet about the application and just waits for the patent to be issued, they may be very unethical and, in my opinion immoral, but they then have the upper hand.
Of course, not everybody considers such behavior unethical or immoral. JMO.