

EFF takes a look at the 2011 Patent Reform Act - grellas
https://www.eff.org/deeplinks/2011/02/could-2011-be-year-look-patent-reform-act

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chopsueyar
_Finally, we are disappointed that the bill would take the teeth out of the
Best Mode defense, which currently allows an alleged infringer to invalidate a
patent when that patent fails to teach the "best way" to make the invention.
Under the new bill, the patent would only have to show "a way" to make the
invention, removing an important part of the bargain under which patents are
granted – the disclosure of the best mode._

Wouldn't this kill any innovation when trying to "build a better mousetrap"?

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Natsu
The point of granting a patent is that we're supposed to gain something in
return, specifically the invention disclosed on the patent application.

If we don't even get the best idea they have for how to build it, the public
comes out on the losing end of the social bargain.

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malnourish
Which, depending on how cynical you are, might be the point.

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danielparks
Perhaps I'm reading this wrong, but the implication seems to be that the EFF
supports first-to-file.

I understand that first-to-file clarifies things once an applicant receives a
patent — they don't have to worry about pior art at that point.

However, it seems worse for everybody else: If I publish something new and
patentable, but don't file for a patent, it seems like somebody else could
then file for a patent on the same concept and I would end up out of luck.

To be clear, I understand first-to-file to mean that a patent can't be
challenged on the basis of prior art once it's issued.

What am I missing?

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sp332
"Prior art" means the state of the art at the time the patent was filed. If
the patent is really an advencement on the state of the art, and it's not
obvious, then first-to-file makes sense. The trouble with not having first-to-
file is, that someone could keep their invention secret until a competitor
files before revealing their advancements. The point of the patent system in
the US is to get people to publish their inventions, so it would be counter-
productive to encourage secrecy. By denying protection to un-filed inventions,
the patent system encourages openness.

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ronp
In a sense, that's true, but the protection for unfiled inventions is not
infinite. The at-sale bar goes a long ways to helping inventors get it right
without unduly delaying filing for patent protection

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mrspandex
From what the EFF has to say, this seems to be an encouraging direction for
the patent system. I wonder if some non profit could be funded to monitor and
oppose obvious software patents in that initial 9 month window.

