The ruling in a recent patent dispute will give some comfort to developers of products that are patented after the developer has already ‘let the cat out of the bag’.
The general rule is that a patent cannot be defended if the subject matter of the patent (the ‘art’) has become public knowledge before the patent application is made. In the case in point, a firm sought to fight an action for patent infringement on the basis that the prototype of the subsequently patented design for a folding stair had been shown to at least three members of the public and photographed by them and that a photograph had appeared in the press which showed the prototype in the background.
The defendant firm argued that the disclosure was sufficient to make the art public knowledge. The claimant firm argued that this was not sufficient: the three people who had seen the prototype had no special interest in the design or knowledge of the manufacture of the folding stair. They would not have been able to describe its particular features after seeing it.
The UK Patent Court upheld the patent.
This case is interesting as it runs somewhat counter to other decisions. An appeal must therefore be a distinct possibility. Even though this case turned out well for the claimant, it makes sound commercial sense to ensure that all intellectual property which needs to be formally protected is kept firmly under wraps until it is safe to make it public.