Can I use this as prior art?

[auxbs]

What is the name of your state?What is the name of your state? AZ

A company is applying for a patent on a device that implements X+Y.

Prior to their patent application, there was a device that implemented X. In public online discussions, people talked about making X+Y and were theorizing about ways to do Y. However, none of the proposed designs for doing Y were really good enough to put the effort into actually building X+Y.

Meanwhile, unbeknownst to the people talking about building X+Y, someone else had published documention online that presented the ideal design for doing Y, by itself. This person had no knowledge of X or that people wanted to do X+Y. Similarly, the people that wanted to build X+Y had no knowledge of this ideal design for Y, at the time.

Device X, Device Y, and the discussion about trying to achieve X+Y all pre-dated the patent application filing date.

Is it possible to use Device X, the discussion about trying to get to X+Y, and Device Y as prior art against the patent application for X+Y?

 

[divgradcurl]

Is it possible to use Device X, the discussion about trying to get to X+Y, and Device Y as prior art against the patent application for X+Y?

Potentially. What you are talking about is 35 USC 103, obviousness -- basically, that the patent was obvious to one "skilled in the art."

"To establish a prima facie case of obviousness, three basic criteria must be met. First, there must be some suggestion or motivation, either in the references themselves or in the knowledge generally available to one of ordinary skill in the art, to modify the reference or to combine reference teachings. Second, there must be a reasonable expectation of success. Finally, the prior art reference (or references when combined) must teach or suggest all the claim limitations. The teaching or suggestion to make the claimed combination and the reasonable expectation of success must both be found in the prior art and not based on applicant's disclosure. In re Vaeck, 947 F.2d 488, 20 USPQ2d 1438 (Fed. Cir. 1991)."

If you can show those three things, then it is potentially possible to get the patent rejected under 103.