Hairgel

From Patentbarquestions

[from MyPatentBar]

The Hair Gel variant: “someone gets a patent application in 99 and it issues as a patent in 01. A couple years later,

a competitor realizes that it is the exact same hair gel he had advertised in 98. The question asks what the competitor

can do to correct it, petition for a correction, ex parte re-exam, inter parte re-exam, reissue or certificate of correction.”

Reissue and certificates of correction have to be requested by the inventors or the assignee (consent of inventors needed for broadening reissue).

A competitor can request re-exam (either inter partes or ex parte) only if there is a patent or printed publication raising a substantial new question of patentablility.

Thus, unless the advertisement constitutes a printed publication (with sufficient disclosure to raise substantial new question of patenability), the competitor is out of luck.

If the advertisement qualified, then ex parte re-exam would be available to the competitor, based on facts above.

Inter partes re-exam would be available only if the application was filed on or after Nov 29, 1999 (MPEP 2609).

It would probably be ex parte since it happened 98/99 and there was a printed ad.

The hair gel variant is a bit tougher than the original question as it does not spell out (to my recollection), like Q37,

that the advertisements raise a substantial question of patentability.