I used to be a patent examiner and provisional applications were filed to secure a “prior art date” before everything is finalized, and when I was there had to be followed up within a year with a regular application and only the processes described in the provisional get the provisional date.
You could file a new application in addition to older ones to add processes but the new added stuff gets the new filing date while the already described stuff gets the older date.
And it regularly took 2-3 years for an application to become a patent, and that was a relatively quick one without much back and forth, our backlog to even first look at an application was 18months. I was working on applications that had been ongoing for 5+ years after first being picked up by an examiner. It’s not important when the application became a patent, it’s important when it was filed and what it contained.
I haven’t looked at the specifics in this case (I really don’t miss being an examiner), but patent filing date and prior art dates are complicated and of course apple is going to try and make it sound like they didn’t infringe and masimo is going to try to make it sound like they did. Apple playing games with wording and product release dates is not really relevant. If apple developed the technology they can show their notes and get a prior art date before the masimo provisional application, because it didn’t just show up in their watch the day it was released.
our backlog to even first look at an application was 18months. I was working on applications that had been ongoing for 5+ years after first being picked up
That’s insane 😲
I mean, it’s already iffy to assume than “only one person can come up with a given idea at a time”, it gets worse when “whichever gets to patent first is the only possible inventor”, but waiting 5 or 15 years after the fact just to be granted a monopoly on the invention… is insane.
It’s not important when the application became a patent, it’s important when it was filed and what it contained
Maybe I’m missing something, but how can anyone be accused of copying a patented work, if they announce or release their product before a patent gets published?
Sure, they probably should have filed an application themselves, but if the backlog to even look at an application is 18 months, then what happens of person A files an application, then 12 months later person B files a similar application, and they just sit there? Should person B wait until their application gets processed (positively or negatively), before announcing or releasing anything? What about products released with a “Patent pending” notice, are they just a gamble?
What I seem to understand for this case, is that Masimo has been filing multiple provisionals for different patents over 15 years, they may have approached Apple to license some of them, then when Apple announced their own product, Masimo hurried up to fix the wording on a bunch of the provisionals to match Apple’s product, and filed them as finals.
From an external point of view, what I see is the publication of a product using non-patented technology that should be considered prior art and render all those patents invalid.
I used to be a patent examiner and provisional applications were filed to secure a “prior art date” before everything is finalized, and when I was there had to be followed up within a year with a regular application and only the processes described in the provisional get the provisional date.
You could file a new application in addition to older ones to add processes but the new added stuff gets the new filing date while the already described stuff gets the older date.
And it regularly took 2-3 years for an application to become a patent, and that was a relatively quick one without much back and forth, our backlog to even first look at an application was 18months. I was working on applications that had been ongoing for 5+ years after first being picked up by an examiner. It’s not important when the application became a patent, it’s important when it was filed and what it contained.
I haven’t looked at the specifics in this case (I really don’t miss being an examiner), but patent filing date and prior art dates are complicated and of course apple is going to try and make it sound like they didn’t infringe and masimo is going to try to make it sound like they did. Apple playing games with wording and product release dates is not really relevant. If apple developed the technology they can show their notes and get a prior art date before the masimo provisional application, because it didn’t just show up in their watch the day it was released.
That’s insane 😲
I mean, it’s already iffy to assume than “only one person can come up with a given idea at a time”, it gets worse when “whichever gets to patent first is the only possible inventor”, but waiting 5 or 15 years after the fact just to be granted a monopoly on the invention… is insane.
Maybe I’m missing something, but how can anyone be accused of copying a patented work, if they announce or release their product before a patent gets published?
Sure, they probably should have filed an application themselves, but if the backlog to even look at an application is 18 months, then what happens of person A files an application, then 12 months later person B files a similar application, and they just sit there? Should person B wait until their application gets processed (positively or negatively), before announcing or releasing anything? What about products released with a “Patent pending” notice, are they just a gamble?
What I seem to understand for this case, is that Masimo has been filing multiple provisionals for different patents over 15 years, they may have approached Apple to license some of them, then when Apple announced their own product, Masimo hurried up to fix the wording on a bunch of the provisionals to match Apple’s product, and filed them as finals.
From an external point of view, what I see is the publication of a product using non-patented technology that should be considered prior art and render all those patents invalid.