
Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public - otp124
https://www.eff.org/deeplinks/2018/08/supreme-court-should-say-no-patents-take-old-ideas-away-public
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austincheney
> EFF and R Street’s brief emphasizes the need for the Supreme Court to
> confirm what should be uncontroversial: to be patentable, inventions must be
> new.

New is not good enough. In theory patents must be _novel_ and this should be
applied to practice as well. The difference between new and novel is the
degree of originality. New can mean taking an existing idea and putting a
fresh spin on it. Novel means the idea never existed before and the current
invention is original opposed to a modification or extension. Normally novelty
is documented against an inception date, but inception dates are hard to
qualify in court.

Also, while on this subject patents should be limited to inventions
deliberately excluding discoveries. An invention is something a person made or
formed with some degree of deliberation. A discovery is something that already
existed and that a person merely found for the first time. This distinction
would invalidate attempts to protect genetic sequences and organic chemicals
present in nature. It would continue to allow protection of drugs that are
more than merely chemical isolations.

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dumbfounder
So this new version of patent trolling is to find old valuable patents that
can be invalidated in some way, and patent them again, then sue everyone in
the world that "infringes" because they thought the patent was long expired?
Wow, that is a new level of scumbaggery.

~~~
ErikVandeWater
Not new. Turbotax has long lobbied the government to make the tax law
convoluted so you have to use Turbotax (or another similarsoftware) so you can
avoid fines for submitting the wrong amount of taxes.

~~~
craftyguy
That has nothing to do with patents and/or patent trolling. You don't need to
pay patent royalties to file your taxes.. (for example)

~~~
ErikVandeWater
You're correct that it doesn't have to do with patents. But the point is about
abusing the legal system to extract value from others. What Turbotax does is
worse. So it is not a "new level" of abuse of the legal system.

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ABCLAW
I think the EFF's note is a bit confusing, because it glosses over a key
nuance in the evaluation.

Here's a bit more information about the case:
[https://patentlyo.com/patent/2018/07/diagnostics-
provisional...](https://patentlyo.com/patent/2018/07/diagnostics-provisional-
application.html)

Briefly: Granted patents count as prior art from their filing date. The
question is what happens to provisional filings. The court has split the
treatment of those documents depending on whether or not the prior art is
claimed or not.

The Federal court's position is interesting, as it is a compromise position.
It recognizes that the documents are not published to the public, and
accordingly afford the opportunity to create so-called submarine rights, and
limits the scope of these rights to the specific 'stuff' of the patent in
question, while preventing the non-public remainder of the filings from
popping up and cutting prospective patents down.

What's the right course of action here? Well, that heavily depends on the
behavior of filers across an industry.

It is, however, clear that the federal court's position is not borne out of a
consistent, principled approach. For some, that's enough for them to claim the
baby needs to be tossed out without trying to address the threat of the
submarines directly.

~~~
gowld
Is EFF mischaracterizing the case (which it often does when blogging about on
patent cases)?

Is it true that provisional applications are not disclosed to the public? It
seems fair that if the invention is never publicly disclosed (only mentioned
in private filings), that the invention isn't covered by patent law. That's
standard -- only public information is part of the patent system.

~~~
sjrosen
When a patent or patent application is published, all the applications it
claims priority to (e.g., provisional applications) become open for public
inspection.

However, patent applications can act as prior art as of the day they are
filed, which is often well before they are published. The justification for
this is that, even though the information is not yet public, the applicant has
established that they know that information and that it will be disclosed to
the public when the patent publishes.

The question in Ariosa Diagnostics v. Illumina is whether the provisional
application can also act as prior art as of its filing date. The court's
decision was that only the material from the provisional application that was
later claimed in the published patent counts as prior art as of the filing
date. Everything else in the provisional application only counts as of the
publication date.

------
cityzen
I recently watched the documentary The Patent Scam with the XPlane guy... it
was disturbing to say the least. My question is this... With "method" patents
being an absolute joke, what would stop me from patenting, "A method of
acquiring patents for the sole purpose of litigating infringement without
actually creating a licensable alternative"? I'm serious, these patents seems
so stupid, I don't see why you couldn't just get that patent and sue all of
these people?

Then again, if it is patentable, I'm sure some troll owns that one too.

Good documentary, though. It's currently on Hulu.

~~~
komali2
I really wish I could remember the sci fi book I read this in, but basically
there was a guy who forewent currency, instead inventing things, patenting
them, then giving them for free to people. In return the oss community
supported him.

But he'd also do this thing where he'd ddos via patent lawsuit evil companies,
filing like hundreds of thousands of lawsuits against a single company in the
span of a day.

~~~
amanaplanacanal
Sounds like Accelerando by Charlie Stross.

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opportune
The entire patent system needs to be redesigned. Lawyers always seem terrified
at the prospect of throwing away decades of case law but in this case,
considering the nature of what patents represent and how they are used has
changed so much from their original purpose, it’s probably necessary.

Of course, big business incumbents don’t mind the system because they have
corporate lawyer teams that understand how it works and how to play it, so I
don’t have any hope that it will ever become a political issue

~~~
jchw
It may balance out over time, but big businesses spend an enormous amount of
money defending themselves against patent suits and defensively filing
patents. Patent trolls are the only types of businesses that purely see upside
from patents.

~~~
opportune
They also benefit from the stability of operating within a pretty known system
and the fact that they are able to afford legal expertise. Big businesses may
get hurt by patent trolls, but I’d imagine that this is less strategically
important to their business than using their patents to prevent competitors
from starting up or from taking away their business.

Small businesses get hurt the most by the patent system. A patent troll can
bankrupt them or make them unfundable, big business can squash them (perhaps
offensively, eg a big business takes a small business to court even though
they can’t win, so the small business can’t raise funding and has to pay tons
in legal costs), and they still have to pay lawyers for advice on how to
protect themselves even if nobody goes after them.

~~~
jchw
No doubt it hurts small business the worst, but I'd not agree with the notion
that all big businesses net gain from this. Lawyer time isn't cheap, and the
bigger you are, the more attention you gather. And of course, patent trolls
optimize to use the most lawyer time possible, to make it less efficient to
defend (sometimes, it legitimately isn't worth it.)

Basically abolishing patents would definitely receive pushback from bigger and
even smaller companies, but improving case law to be more reasonable really
wouldn't.

~~~
cannonedhamster
If you're big enough you have teams of lawyers on staff. It costs you
literally nothing extra. If you're not big enough to have staff lawyers you're
not big. Small businesses are pretty much everyone else. You can't polish a
turd, and this system as well as the copyright system are a giant turd that's
antithetical to the original intent of the law.

~~~
icebraining
The lawyers they have on staff wouldn't otherwise be shooting pool and
drinking beer, they'd be doing useful things for the company. There's a big
(opportunity) cost.

Plus lawyers are not all interchangeable, just because you have people who
know employment law or how to M&A didn't mean they are good at fighting
patents on court. AFAIK they're usually externally firms, not in-house lawyers

------
rayiner
This post is really quite misleading. Better coverage here:
[https://patentlyo.com/patent/2018/07/diagnostics-
provisional...](https://patentlyo.com/patent/2018/07/diagnostics-provisional-
application.html)

The EFF writeup makes it sound like material appearing only in the
specification of an earlier published patent does not count as prior art, that
it must appear in the claims. That’s not true in the general case:

> In the simple case outlined above, the courts all agree that the disclosures
> found in an issued patent or published application count as prior art as of
> the patent’s filing date.

Ariosa addresses a very different issue. Generally, patent applications are
prior art even before they are publicly disclosed—they count as prior art
starting from the day of filing. Ariosa addresses what happens when you have a
provisional patent application:

> In this case, the Federal Circuit ruled that a published application can
> count as prior art as of its provisional filing date — but only as to
> features actually claimed in the application. According to the court,
> features disclosed in the provisional but not claimed in the published
> application will only be prior art as of their date of public disclosure.

The EFF writeup is in fact completely inaccurate, because it starts by talking
about a “published” patent application. Once the application is published, all
agree that it is prior art. This case is about what happens between the date
if filing of a provisional, and the date of publication.

------
pitaj
I haven't seen anything good about patents in years. Maybe the government
should just get rid of them, along with copyright. The idea of granting
someone a monopoly to an idea is crazy to me.

~~~
bluejekyll
I agree about software patents. But I disagree about all patents, and I
especially disagree about getting rid of copyright. I think copyright needs to
be reigned in, the DMCA is horrid, but the concept itself generally protects
artists and creators (and gets abused by the likes of Disney, etc.).

If I make something, I should be capable of earning money with it if I want
to. Copyright protects software in that regard, as well as music and images,
etc.

~~~
pitaj
There's a lot of evidence that copyright doesn't actually help most creators,
and significantly holds back progress.

[https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3198147](https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3198147)

The same arguments generally apply to patents. There are monetization models
like live shows, subscriptions, Patreon, advertising, sponsorships, etc that
work very well for creators.

Especially in the internet age, we shouldn't act like copyright and patents do
anything to stop people. Creators would likely do better if the publishers
weren't in the middle controlling access to their works.

~~~
fipple
I can say with confidence that >90% of new small-molecule pharmaceuticals
would not be created in a patent-free world. Now, not every new small molecule
drug is important, in fact probably the majority aren’t. But those that are,
save a lot of lives.

~~~
cwkoss
Counterpoint - it would drastically reduce overprescription of ineffective
medications that have strong marketing

~~~
fipple
Not sure why it would. Companies would still market the drugs they had.

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squozzer
Wouldn't an invalid patent still be considered prior art?

~~~
gumby
Not by the USPTO's peculiar definition of what constitutes prior art.

~~~
monochromatic
.

~~~
CobrastanJorji
So Invalid patents are prior art, but content in valid patents outside of the
claims section is NOT prior art?

~~~
monochromatic
[http://www.cafc.uscourts.gov/sites/default/files/opinions-
or...](http://www.cafc.uscourts.gov/sites/default/files/opinions-
orders/16-2388.Opinion.12-8-2017.1.PDF)

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combatentropy
I thought that the reason for the patent system was that otherwise people
would keep their ideas secret, and society would not benefit. The very word
"patent" means "open" \--- like when you say "it's patently obvious" it means
"it's openly obvious" (it's like really, really obvious). So a patent is meant
to bring an idea into the open. But if the idea is already in the open . . . ?

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monochromatic
This is basically the result of a poorly drafted statute. More discussion (and
less polemic) here: [https://patentlyo.com/patent/2018/07/diagnostics-
provisional...](https://patentlyo.com/patent/2018/07/diagnostics-provisional-
application.html)

~~~
entwife
The Ariosa decision involves whether an invention could be said to be publicly
disclosed on the date of a provisional patent application. A provisional
patent application is unpublished, although, if it ultimately supports a
patent claim, it is made available to public. Details of the court case are
better explained by Dennis Crouch in the cited article.

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howard941
Anyone have a link to the Fed Circuit's Ariosa opinion? I could only find
their amicus brief at the EFF link.

~~~
monochromatic
[http://www.cafc.uscourts.gov/sites/default/files/opinions-
or...](http://www.cafc.uscourts.gov/sites/default/files/opinions-
orders/16-2388.Opinion.12-8-2017.1.PDF)

