The defense applies to commercial uses and certain other uses, specifically (1) uses by nonprofit entities, such as universities and hospitals, so long as the public is the intended beneficiary of the use and any continuing use of the claimed invention is for noncommercial use, and (2) use of a drug product subject to a premarketing regulatory review period (such as an investigational new drug (IND)) during that period. Companies should: A company might be tempted to ignore the prior use defense and instead create ‘defensive disclosures’ to ward off competitive patents.
After all, defensive disclosures (such as a publication or patent application) is prior art that can be used to invalidate a competitor’s patent, and requires less effort than the ongoing process of preserving factual evidence.
With an increase in such cases, there is also an increase in the requirement to perform invalidation searches to kill such patents.
But there are also potential problems with relying on defensive disclosures to invalidate a patent.And any patent would increase the company value and potentially provide a monopoly advantage in the marketplace.Indeed, one advantage of this is that the defensive disclosure only needs to pre-date the accuser’s patent (or earlier disclosure) by a day (under the new first-to-file law which takes effect in March 2013), rather than the one year needed for the prior use defense.In this popular case, Dutch Patent Office used the images from Donald duck story showing a method of raising a ship by filling it with ping pong balls and refused a patent application filed by Inventor Karl Kroyer on a method of raising the sunken ship by filling it with buoyant plastic bodies.Supposing the above shown figure can act as prior act to invalidate the invention though it is not mentioned in words but can be clearly seen from the figure.