

Patents are about to become a bigger problem - AustinEnigmatic
http://ownlocal.com/newspaper-support-group/patents-are-about-to-become-a-bigger-problem/ 

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tzs
The author is deeply confused. This part is simply incorrect:

    
    
       See, “First to File” doesn’t require that you build
       anything at all, that you have an intention to build
       something, or that you’re getting a patent on something
       that hasn’t, you know, already been invented by someone
       who couldn’t afford the patent.
    

First to file makes no changes to any of that. It all remains exactly the same
as it was under first to invent.

All that first to file changes is what happens when two (or more) separate
inventors, who meet all of the statutory requirements for patentability (e.g.,
novelty, utility, non-obviousnous, reduction to practice and enablement), both
file for patents.

Under first to invent, you try to figure out when each inventor actually
started working on reducing the invention to practice (just having the idea is
not enough). You find the earliest time T such that the inventor was working
diligently on reduction to practice between T and the time of the patent
application. T is that inventors invention date. Lowest date wins.

Under first to file, you look at the date on the application. Lowest date
wins.

First to invent is problematic because it comes down to comparing two or more
vague dates, and there can be a lot of subjectivity involved, such as deciding
whether or not an inventor was working diligently or not toward reduction to
practice.

~~~
jeremymims
As the author, I do appreciate that someone thinks I'm confused, but this
sentence is hardly the point of my argument. My point is that large
corporations are at an even larger advantage with this system and that it
hurts entrepreneurs. What has already been a tilted playing field will become
even more so.

The key with "First to Invent" is that someone could demonstrate that they had
invented something but not actually patented it previously. For instance, if
you came up with a novel software process, didn't patent it, and went about
your business, it should theoretically be harder for another company to come
along and patent your work. Since our patent system is broken, it hasn't
always (maybe usually) worked that way. With "First to File" all you need to
do is be first to file. And at a mere $15k to $50k to file, this is an undue
burden on startups who are inventing things. As the author, I do appreciate
that someone thinks I'm confused, but this sentence is hardly the point of my
argument. My point is that large corporations are at an even larger advantage
with this system and that it hurts entrepreneurs. What has already been a
tilted playing field will become even more so.

The key with "First to Invent" is that someone could demonstrate that they had
invented something but not actually patented it previously. For instance, if
you came up with a novel software process, didn't patent it, and went about
your business, it should theoretically be harder for another company to come
along and patent your work. Since our patent system is broken, it hasn't
always (maybe usually) worked that way. With "First to File" all you need to
do is be first to file. And at a mere $15k to $50k to file, this is an undue
burden on startups who are inventing things.

edit: Because some people clearly don't want to understand the point here,
there are several steps (lawyers, patent searches, etc.) that cost you money
before you can file. This is included in the $15k to $50k I'm talking about.

~~~
cube13
>For instance, if you came up with a novel software process, didn't patent it,
and went about your business, it should theoretically be harder for another
company to come along and patent your work. Since our patent system is broken,
it hasn't always (maybe usually) worked that way. With "First to File" all you
need to do is be first to file. And at a mere $15k to $50k to file, this is an
undue burden on startups who are inventing things.

Did you publish it? Was it put out into the public space? If so, it's prior
art, and evidence that the patent should be invalid. This HAS NOT CHANGED.

If I make a piece of software, put it out for sale, then someone files a
patent after my software has been out in the open, the patent is not new and
novel. It should be thrown out.

Again, like tzs said, this only applies if two inventors invent something
simultaneously. Under First to Invent, each inventor needs to prove that they
thought of the invention before the other. Under first to file, the patent is
granted to whoever patents it first.

~~~
WiseWeasel
The problem also applies if one inventor invents something, then another
individual gains access to it before the inventor distributes it publicly, and
files a patent on it.

But in the more general case, I find it difficult to believe that the notion
of Prior Art is unaffected by the elimination of first-to-invent. Under the
new rules, if the PTO considers two patents determined to cover the same
invention, they will accept the one filed first and decline the one filed
later, even if the first-filed invention was invented at a later date. If a
patent lawsuit can reverse this decision by finding prior art, then how can
these be reconciled?

Maybe the idea is simply to shift the burden of determining the earliest
invention date from the PTO before the patent is filed to the courts after the
fact?

~~~
cube13
>The problem also applies if one inventor invents something, then another
individual gains access to it before the inventor distributes it publicly, and
files a patent on it.

No. This would be fraud(because the "inventor" that filed didn't actually
invent the thing) or could be theft of trade secrets(if an NDA is involved).
Both of which are covered under US law.

>But in the more general case, I find it difficult to believe that the notion
of Prior Art is unaffected by the elimination of first-to-invent. Under the
new rules, if the PTO considers two patents determined to cover the same
invention, they will accept the one filed first and decline the one filed
later, even if the first-filed invention was invented at a later date. If a
patent lawsuit can reverse this decision by finding prior art, then how can
these be reconciled?

If there is clear prior art before either were filed, then the patent would be
nullfiied in either a First to File or First to Invent scenario.

I think that you're confusing prior art and what first to file/invent means.

First to File and First to Invent means that if two people file for an
identical patent, the patent is granted based on either the filing date or the
invention date. The only time that First to File applies is when two
independent inventors file for the same patent in the same timeframe.
Ovbiously, one cannot try to patent an idea after the patent has been
accepted, even if they did invent first.

Prior art applies to all patents, based on the date of the filing of the
patents. If I try to patent something that someone else is selling, like a
mousetrap design, then it should get thrown out, no matter when I actually
invented it, because it's already in production by someone else.

------
thyrsus
Entities like China that are less than assiduous in respecting patents are
going to benefit enormously from the hobbling effect of U.S. patent
litigation. I don't think it's a complete counterbalance to the lack of free
information flow which generates opportunity for corruption, but we really
shouldn't do this to ourselves.

------
suprasanna
I don't see how this isn't a bigger issue or hasn't been brought to light. As
I understand it, large corporations (or anyone with the money, really) can
simply file patents for future products they predict will come to market and
then sue startups and entrepreneurs when they create the actual product.

Someone please tell me I'm misunderstanding this.

~~~
ejames
In theory, a patent is supposed to be specific enough that the patent itself
accurately describes the object, to the extent that a reasonably knowledgeable
person could actually manufacture the object using only the patent as a
blueprint. In other words, you would not be able to write the patent
application unless you had actually invented the object in question, because
otherwise you wouldn't know how to describe the theoretical object well enough
for a person to manufacture it. Therefore you cannot patent imaginary future
inventions.

In practice, this rule is effective only to the extent that the Patent Office
enforces it.

~~~
lmarinho
Building on that, I pose a question. Has anyone here ever used a software
patent as a reference to help solve a problem?

~~~
glimcat
Software, no. Hardware, fairly often.

------
WiseWeasel
On the plus side, it seems like only a small matter of time before this
obviously broken system collapses under its own weight, and we're forced to do
something slightly more sane instead.

Once the ensuing tidal wave of patent applications is upon us, the USPTO will
have no choice but to drastically lower their (already depressingly low)
standards for patent acceptance due to lack of resources available to check
them, and the growing portion of corporate profits evaporating to legal costs
will put pressure on some actual patent reform.

Personally, I am angered that inventors will lose a recourse to challenge
individuals who file patents on their previous inventions, and I in no way
condone breaking the system for honest businessmen in order to make a case for
fixing it, but at least I can take some solace in the fact that it will be a
quick demise, unless I'm missing something.

~~~
monochromatic
> Once the ensuing tidal wave of patent applications is upon us, the USPTO
> will have no choice but to drastically lower their (already depressingly
> low) standards for patent acceptance

Or, you know, the backlog could just get bigger.

------
ChuckMcM
Now if they would combine expiration date with file date we'd be done.

The reasoning is fairly simple, patents expire and the idea becomes public
domain, that is why, starting in 2015 as the great patent binge of late 90's
starts expiring, through 2025, all of that 'crap' that you see as being
patented will become public domain. Unlike copyright there will be no
restriction on you using it. (like you can write your own RSA encryption code
now without fear of being sued)

Also during that time there has been some progress made on getting better
examiners into the office since we're starting to see examiners who actually
used computers in high school versus the ones in 1995 who had just heard about
them and never actually used one.

So you file as soon as you can, and if its a spurious filing you have exactly
20 years (if we could have them expire on file+20) to make the product work
and to ship it with patent protection. Alternatively, we go back to a
requirement that the invention must have an exemplar which the PTO can examine
with the application. That however was originally eliminated because it was
slowing everything down. (although some of the model work is simply stunning,
check out the museum some time).

In the mean time I'm gonna watch all my old Star Trek episodes and file
patents on all that stuff :-)

------
linuxhansl
I think we have generally mixed up "value" and "cost".

Patents are (or should be?) a legal construct providing a temporary monopoly
on an invention to incentivize investment into (costly) research. I.e. protect
the "cost" of an invention.

Cost, however, is not necessarily directly related to value.

Patents (imho) should not protect "value". If you have a great idea one
morning, that might indeed be very valuable. But you would have had that idea
regardless of whether its patentable or not, and society as a whole is not
better served by granting monopolies on such ideas. Instead the market decides
who builds the best product. Other IP protections such as Copyright are still
crucial for this obviously.

In the end I think that (case) law usually reflects general trends in society.
This is not a society of altruism (anymore) but a society of the mantra "take
the money and run". Once or if that changes the law will eventually match
that.

One way out of this mess is to document, publicly, every idea - however
insignificant it might be. That way there will be prior art to everything that
is obvious.

------
baguasquirrel
What is the state of patent law, especially regarding software patents, across
the world? If patents really are going to be a murder on innovation, then the
least broken system should enjoy an advantage, no?

~~~
jeremymims
Keep in mind that the standard for "First to File" is actually present in much
of the rest of the world. Large US corporations have argued that this switch
will make our companies more competitive. What's happened is that American
companies see a unified global patent system eventually taking hold and they
want to use their resource advantage to dominate a future marketplace. They're
primarily concerned with establishing market leadership lock in. Innovation as
a desired outcome for the advancement of mankind couldn't be further from
their thought process.

------
yason
I've often wondered what's the commercial and political mechanism that
controls patent legislation and the lifetime of a patent. I mean, we're still
at a mere 17 years with patents but Mickey Mouse is at roughly 95 years by
now. Why is it worth lobbying for copyright extensions but not patent lifetime
extensions?

~~~
bluedanieru
Just a guess, but doing what you describe to patent law would seriously and
obviously harm the economy and isn't politically feasible, whereas insane
copyright terms just give the assholes at Disney a license to print money,
some of which finds its way back to the very corrupt bastards who extended the
term in the first place.

Put another way, copyright as it is currently conceived degrades the creative
space, but it isn't directly taking food out of people's mouths (it is, but in
a less obvious way, and no one gives a shit about artists anyway).

~~~
yason
I could imagine that myself, too.

It also means _everyone_ knows patents are bullshit and collectively the
companies don't want any of it but since we've got it established already and
it's really hard to shut down the companies know they need to play ball yet do
nothing in favor of patents.

------
pavel_lishin
> America’s most quintessential inventor did without them and thought they
> were foolish.

Right, but he also didn't care about selling his inventions to feed his
family, having other sources of income. It's easy to give away something you
don't need.

~~~
thyrsus
That might not be true: [http://www.portfolio.com/news-markets/national-
news/portfoli...](http://www.portfolio.com/news-markets/national-
news/portfolio/2008/02/19/Poor-Give-More-to-Charity/)

------
lhnn
It's hard to have a lot of hope for the United States.

~~~
monochromatic
If it makes you feel any better, this article really misunderstands a lot of
things.

