

What The New Patent Reform Act Means For Innovation - nighthawk
http://www.fastcompany.com/1779071/first-to-file-a-patently-obvious-reform

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krschultz
The author has the concept of a patent troll entirely backwards. The author is
arguing that the trolls are people who have prior art to a patent and then
come along and submarine legit patents after they have been issued. In the
author's world, the victim is the patent holder who paid the money to get a
patent.

In the real world, the patent trolls are the patent holders that don't
actually use their patents, not the ones invalidating patents with prior art.
This law only makes it worse, now the patent trolls don't even need to buy
patents from legit inventors, they simply have to patent inventions before the
inventors get around to it.

Before this you could keep good records of your work and be safe in the
knowledge that if anyone patented your idea after you created it, you would at
least have the prior art to prove you came up with it first. Now you _must_
patent it in order to be safe. A troll can come along at any time and patent
your idea and screw you out of your hardwork.

If I'm an un-employed patent lawyer, why don't I just sit around reading tech
news all day and patent every un-patented startup idea that comes up and sue
the companies for their VC money?

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cube13
>Before this you could keep good records of your work and be safe in the
knowledge that if anyone patented your idea after you created it, you would at
least have the prior art to prove you came up with it first. Now you must
patent it in order to be safe. A troll can come along at any time and patent
your idea and screw you out of your hardwork.

This is only true if you apply for the patent at a later date, without
publicly releasing the invention or giving out any details. In a first-to-
invent case, you would have a prior art argument if you applied for the patent
after the other party. However, if you don't ever bother patenting or
releasing the invention, you do not have any protections in either a first-to-
file or first-to-invent system. Those rules only apply when two patents for
the same invention are applied for around the same time.

If you release the invention as a product, and someone files for the patent
after you released it, that is a clear prior art case, and they should lose
the patent.

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maratd
> If you release the invention as a product, and someone files for the patent
> after you released it, that is a clear prior art case, and they should lose
> the patent.

Releasing a product does not constitute prior art. The invention must be
documented and you must explain its use, in a public forum. Today, most
inventions play supporting roles in the background. They are rarely seen or
heard or documented.

In our current system, you have some protections as you can demonstrate that
you are indeed the first to invent by using your product as evidence and you
can publish your work down the road, if it becomes an issue. In the new
system, nobody cares. He who files first wins.

~~~
cube13
>In our current system, you have some protections as you can demonstrate that
you are indeed the first to invent by using your product as evidence and you
can publish your work down the road, if it becomes an issue. In the new
system, nobody cares. He who files first wins.

You have protections only if you apply for a patent. You do not have those
protections if you do not. That has not changed. The only thing that has
changed is what is used to grant two similar patents that are submitted around
the same time. In the current case, it's the nebulous "invention date". In the
new system, it's whoever files first.

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maratd
How very nice that they bury the horrible news toward the end of the article.

Getting a valid patent is an expensive prospect. Today, many times, small
businesses innovate, use their innovation, but never file for a patent because
of the prohibitive costs.

With this new law, there will be absolutely nothing to stop a large firm, a
competitor, or just a random patent troll to notice your invention (which you
are using) and then file a patent for it. And then, guess what? You're
screwed.

IBM happy about the new law? What a shock.

~~~
drzaiusapelord
First to file doesn't invalidate prior art.

~~~
maratd
For it to be prior art, the entire invention must be publicly documented and
published. You must also disclose how to use it.

In other words, you must release it to the public where everybody, including
your competitors, can use it as they see fit. While that's better than getting
your pants sued off by a troll or a big corporation for using your own
invention, it's most certainly worse than the status quo.

On top of that, the courts have a funny way of defining what is and what is
not obvious. You may think the process you created and use in your company is
obvious, so you never bother to document it or publicly disclose it, and then
you end up in court. With zero protection. Is that what we really want?

~~~
juiceandjuice
Third parties can now submit prior art to patent applications. This is huge,
it means we can help intercept and readjust before patents get granted and
people get sued.

What we need now is a website tracking patent applications and assignments by
companies (specifically Intellectual Ventures and their cronies) and inform
the public to submit prior art for these applications and now help the patent
office do a better job than it's been doing, and prevent the courts from even
having to be involved.

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ScottBev
How will this change OSS development? Do we need additional patent lawyers
filing patents for every open source idea? What happens when someone makes a
commit today and then mega-patent troll notices this tomorrow? They certainly
will beat me to filing the patent.

~~~
maratd
It won't, as long as you clearly comment your code and explain what everything
is and what it does. You should be doing that anyway for an OSS project.

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Aviwein77
I really hope that this decreases the amount of patent trolling there is, I
think that there is nothing worse than if you were to put your hard work into
something and someone else comes along and sues you for your good idea.

