Challenging A Competitor's Patent Application To Prevent Grant

If a competitor files a patent application in the patent office on an unpatentable invention, the patent office should do its job and reject the patent application. However, patent examiners are working with limited time and resources for prior art searching and examination. Often, examiners are not aware of all the potentially relevant prior art. It is possible for a third party to assist the patent office to invalidate a competitor's patent application before it becomes a granted patent that could be used to start a nuisance patent infringement lawsuit. In this article, we outline mechanisms for third parties to file prior art while a patent application is pending in Canada, the United States, Europe and internationally. The intention of this article is not to be exhaustive but to provide a high level overview of advantages and disadvantages of such mechanisms.