> The bar for prior art is very high ... Even an actual real product made and sold by a company - not published. Even standard industry practise, established for years, if not written up and "published" somewhere, may not qualify as prior art
If that's true,[0] seems to me that the US has a much narrower definition of what can be part of the state of the art than Europe does. Here, the state of the art is "everything made available to the public by means of a written or oral description, by use, or in any other way"[1]
E.g. in the UK there was a famous case where a patent for a windsurfing board was invalidated because it was anticipated by a primitive board hacked together by a 12-year-old boy a decade earlier, and used by him on summer weekends.[2] That "the user was open and visible to anyone in the vicinity of the caravan site where the family stayed" was enough to qualify it as prior art.
[0] To be clear: as a Brit I have no idea about US patent law, and don't know whether the parent description of it is accurate. (It's not impossible that the USPTO's rules on what they'll look at when considering an application are narrower than what a court can consider prior art, just for practical reasons - a court can call and cross-examine witnesses to give evidence of oral disclosures or prior use, unlike a patent examiner. That's just a guess, though).
Yes, to be clear, (and I realize now that I wasn't above), what I'm talking about above is what a patent examiner is allowed to use to routinely disqualify a patent up front as part of the application process prior to granting it.
The examiner is not allowed to go on research expeditions to interview witnesses, or to locate, purchase and reverse engineer old products to prove they are implemented in such a way as to invalidate the patent. A court (or the litigants) can certainly do all that, but here we are focusing on what can invalidate a patent prior to it being granted. And for that we are limited to certain classes of readily verifiable types of evidence.
If that's true,[0] seems to me that the US has a much narrower definition of what can be part of the state of the art than Europe does. Here, the state of the art is "everything made available to the public by means of a written or oral description, by use, or in any other way"[1]
E.g. in the UK there was a famous case where a patent for a windsurfing board was invalidated because it was anticipated by a primitive board hacked together by a 12-year-old boy a decade earlier, and used by him on summer weekends.[2] That "the user was open and visible to anyone in the vicinity of the caravan site where the family stayed" was enough to qualify it as prior art.
[0] To be clear: as a Brit I have no idea about US patent law, and don't know whether the parent description of it is accurate. (It's not impossible that the USPTO's rules on what they'll look at when considering an application are narrower than what a court can consider prior art, just for practical reasons - a court can call and cross-examine witnesses to give evidence of oral disclosures or prior use, unlike a patent examiner. That's just a guess, though).
[1] Article 54(2) EPC
[2] http://en.wikipedia.org/wiki/Peter_Chilvers