Pre-patent-filing disclosure rules differ between US and Europe

Florian Mueller writing in FOSS Patents issues a warning for valuators attempting to take into account the global value of a technology patent as he describes what happened to Apple in its dispute over iPhone patent EP2059868 in Germany.

In January of 2007 Steve Jobs put on one of his famous dog and pony shows revealing all the “cool” features in the smartphone. It’s a video seen by millions. In Mueller’s own words,

Apple forgot about an important difference between U.S. patent law at the time and the patent laws of the rest of the world, especially Europe. In the United States in the pre-America Invents Act days, innovators had a twelve-month grace period to file for inventions after making an invention, and during those twelve months nothing that anyone would show publicly or publish would be eligible as prior art. In Europe, however, there never was such a grace period for patent applications, and even an inventor's own public demos could always be held against his own patents if they took place before the filing of an application. Even now, with the AIA in force, U.S. patent law has an exception in place for pre-filing disclosure by the inventor (35 U.S.C. 102(b)(1)(A)). Europe has always been stricter.

As a result of this difference, late last month the Federal patent Court of Germany sided with Samsung and Motorola Mobility in declaring that patent (part of the “rubber band” features) invalid.