
House approves major overhaul of patent system - MichaelApproved
http://news.yahoo.com/s/ap/20110623/ap_on_re_us/us_congress_patents;_ylt=Al5JB1JhWFW2umzMUQNRyIas0NUE;_ylu=X3oDMTNucG1rYjg3BGFzc2V0A2FwLzIwMTEwNjIzL3VzX2NvbmdyZXNzX3BhdGVudHMEY2NvZGUDbW9zdHBvcHVsYXIEY3BvcwM2BHBvcwMzBHB0A2hvbWVfY29rZQRzZWMDeW5faGVhZGxpbmVfbGlzdARzbGsDaG91c2VhcHByb3Zl
======
absconditus
"The two chambers still have to reconcile differences, but the bill has the
advantage of being supported by the White House, major business groups, and
leaders from both parties who have hailed it as a major jobs-creating
measure."

This is a huge red flag.

~~~
seats
No kidding, and this one too-

"Opposition came mainly from groups representing independent inventors, small
businesses and academics."

~~~
mechanical_fish
Remember, though, that a patent troll's business card doesn't say "patent
troll" on it: It says "independent inventor".

Which is not to say that you might not be right to be worried.

~~~
seats
I suppose. My quick read of the details makes me think this is no good. It
sounds like the primary problem being solved for is the backlog of patent
applications not the quality of patents being issued or anything at all
related to litigation.

~~~
Steko
Increasing staff and relieving the pressure of a 3 year backlog on patent
applications could result in a more thorough (read: better) job being done and
less "obvious" patents approved.

Or it could water down the standards even further as undertrained people come
in and rubber stamp whatever's in front of them.

------
kkowalczyk
Can anyone shed a light on how the "first to file" change affects prior art?

In general "first to file" makes sense to me because it removes uncertainty
(who filed first is indisputable, determining who invented first requires an
expensive lawsuit).

But what if I invented something, published it, don't intend to ever file a
patent for it and someone comes in and files a patent for that invention?

If the can get a valid patent on my invention, it seems wrong and open to
abuse (what if they didn't actually invent it but just filed for a patent
based on what I published).

If they can't get a patent, then "first to file" seems meaningless.

~~~
kenjackson
_But what if I invented something, published it, don't intend to ever file a
patent for it and someone comes in and files a patent for that invention?_

Your published prior art blocks them.

 _If they can't get a patent, then "first to file" seems meaningless._

First to file is really about the windows between filiing and inventing. The
argument for first to file is generally what you state -- that it helps clear
up ambiguity.

The argument against is usually small businesses who believe that they may not
patent (because they're expensive) until they have something in practice. So
imagine you invent some new high efficiency light, and spend the next year
getting it working. And once it works and you're convinced of it you file. But
you find out that GE patented it a week earlier. But only discovered it a week
before that and hasn't made much progress on it (it's only been a few weeks).
You still lose the patent, despite the fact that you may be able to prove that
(a) you invented first, and (b) have spent the past year implementing it.

With that said, the first to file vs invest, IMO is a small part of the
reform. The bigger part is the grace period, which now has the following
change. In the past you could build an iPhone, ship it, write a paper about
it, and file a patent within the next year. Now you can write a paper about
it, but can't sell it. Once you sell it, your grace period is over.

At least that's my IANAL understanding. And the other big thing in it is
they've expanded the timeline of challenging patents. I'm surprised the EFF
doesn't have a more coordinated effort to challenge patents when granted.

~~~
extension
_Your published prior art blocks them_

How does it block them? Does it or does it not matter who invented the thing?
I am incredibly confused about this legislation.

~~~
Flenser
If you invented it first, but didn't tell anyone about it, then it's not prior
art and anyone else is free to patent it. If you publish details about it,
it's prior art and can't be patented.

~~~
extension
Ok, so the difference with the current system is that publishing the idea is,
in itself, the prior art, rather than serving as evidence thereof.

As defined in the bill, prior art can be "patented, described in a printed
publication, or in public use, on sale, or otherwise available to the public
before the effective filing date of the claimed invention".

It's not a great time to be making laws that depend on a formal distinction
between published and unpublished, since that distinction has been just about
completely smoothed over by now.

------
danbmil99
This is basically a cave-in to the EU/Japanese system, and IMNSHO it will
increase not decrease the number of frivolous patents.

What it really does is remove the option of protecting something as a secret.
You have to either publish or patent (which is basically a state-sanctioned
form of publishing with monopoly benefits). It completely changes the calculus
of small inventors, who will now be forced to file multiple provisional
patents ($100+ a shot plus time spent) and then within a year decide to shell
out $5K++ to have any chance at all of not being beaten over the head by
corporate patent trolls.

Not good.

~~~
patentnerd
It is still possible to protect an invention as a trade secret. Of course, if
someone later independently invents and files, they get the patent. The
earlier user is immune from infringement of the patent under the "prior user
defense", though.

~~~
dctoedt
> _It is still possible to protect an invention as a trade secret. Of course,
> if someone later independently invents and files, they get the patent._

That's been true for decades under existing law.

> _The earlier user is immune from infringement of the patent under the "prior
> user defense", though._

This will be a new feature of the law under the new legislation.

------
true_religion
I think the US should move towards a system where multiple patents are awarded
for the same invention.

For example:

Lab A and B are all working independently on a project.

1\. Lab A files first and receives a patent. If without reading the patent or
knowing of the details of the invention, Lab B manages to re-invent the same
technology they will receive a patent as well.

2\. Lab A invents first, but doesn't file. Later Lab B files for a patent it
wins one as Lab A's work hadn't been described via the patent office. Lab A
can still file for a patent if they can prove that their invention came first.

Essentially it seeks to turn the patent from a monopoly grant to a cartel
grant, thereby rewarding _invention_ regardless of when it occurs.

If a patent holder wants to ensure protection for their work, they need to
file first and extensively publicize their filing as such no one can claim
spontaneous re-invention as is the case with many software products.

~~~
anamax
> If a patent holder wants to ensure protection for their work, they need to
> file first and extensively publicize their filing as such no one can claim
> spontaneous re-invention as is the case with many software products.

In other words, billion dollar companies get all the SW patents.

HP can "extensively publicize" for almost nothing by piggybacking on other
things that they do. Small companies and individuals can't.

IBM, for example, has numerous publications that would qualify. (They send
them to every CS department library as well as other subscribers.)

What? You don't keep up with the literature?

I used to look at every tech report that Stanford CS received. That became
impossible in the late 80s and things have only gotten worse.

~~~
true_religion
> In other words, billion dollar companies get all the SW patents.

All? No, they only get patents for those things that they invent.

It cuts both ways, the bigger you are the more liable the newly empowered
patent bureau is to say that you could have easily found the existing patented
invention.

On the other hand, since multiple parties can hold patents and subsequently
re-licence them it will be easy for a a company, large or small, to protect
other parties from patent trolls.

The something obnoxious like the famed "one click" patent would have multiple
holders, and _any_ could simply give a universal grant to it _.

In the worst case scenario, which I don't think is plausible then the current
status quo is maintained for some patents. A large company invents, files it,
then publicizes it.

P.S.

_ I think that business form patents patents like the one-click should be
null-in-void in any country.

~~~
anamax
>> In other words, billion dollar companies get all the SW patents.

> All? No, they only get patents for those things that they invent.

As I pointed out, the "extensive publication" requirement is a significant
obstacle for everyone else, so they won't get SW patents. Thus, all of the SW
patents go to big companies.

> The something obnoxious like the famed "one click" patent

"obnoxious"? That's your objection to one click?

What's wrong with novelty/prior art and non-obvious?

In every other field, recognizing that there is a problem and patenting a
broad-swath of mechanisms to solve it is considered good. Why is software
different?

And yes, I'm familiar with James Bessen's work. I introduced his EE380 talk at
Stanford.

------
chamakits
Can we stop pretending like patents are a good idea?

As long as they exist, they'll need to be "fixed".

~~~
rayiner
[Citation needed].

EDIT: Computer folks tend to see the world through a particular set of
glasses. They see a world of inventors in their basement you can invent with
little capital investment. That's fine and is great for innovation, but the
whole world doesn't look like that. If you're in an industry where the process
of invention is extremely costly, patents can often be the only way for
smaller entities to participate. Say you have an idea for a new radio
technology. It'll cost you millions of dollars to build a prototype (the
associated parts and equipment are very expensive). And once you have it ---
what do you do with it? Go into production and compete with AT&T and Verizon?
Patents allow meaningful seperation of invention from productization, and
that's something that hugely benefits smaller entities.

------
gridspy
The biggest concern to me - given two competitors, the one who delays their
product to market while they get patents wins. I want a patent system that I
can safely ignore without someone else later 'inventing' the same thing as me
and taking me to court.

"[T]he bill would put the United States under the same first-inventor-to-file
system for patent applications used by Europe and Japan. Currently the country
operates on a first-to-invent system" ...

"John Conyers [...] said it would permit the Patent and Trademark Office to
award a patent to the first person who can win a race to the patent office
regardless of who is the actual inventor."

~~~
sliverstorm
I would hope prior work would be an acceptable defense in court against a
first-to-file-patent suit.

e.g. you really don't care about patents. Guy later patents what you're doing
and sues you. You prove prior work, suit fails.

Best of both worlds?

~~~
gte910h
You have to publish your work to make yourself protected.

Undisclosed prior art is not a defense in first to fiel systems

~~~
ScottBurson
Well, you can file an invention disclosure with the PTO. I'm not sure, but I
would think this would be sufficient to establish prior art.

~~~
noonespecial
An invention disclosure is just the actual description of the invention that
an inventor writes used by a lawyer to write a patent. Its the actual
description of the invention before its translated into patent speak.

The difference between one of these and a patent is best summed up by one of
my favorite Terry Pratchett quotes: _"It's the difference between using a
feather and using a chicken."_

<http://en.wikipedia.org/wiki/Invention_disclosure>

------
ericd
"The most significant change brought about by the bill would put the United
States under the same first-inventor-to-file system for patent applications
used by Europe and Japan. Currently the country operates on a first-to-invent
system"

Wow, does this mean everyone who wants to not get patent trolled has to file
immediately?

~~~
tzs
No. It has no effect on patent trolling.

~~~
gridspy
Why not?

It sounds like looking for new gizmos without associated patents and then
patenting them as yours would be an ideal strategy.

The alternative? Patent every gizmo yourself before release. Neat. A tax on
innovation.

~~~
tzs
It's first INVENTOR to file. If you just see someone else's gizmo, you can't
patent it because you are not an inventor.

All this changes is how it is handled when two or more inventors have
overlapping inventions.

~~~
ynniv
If by INVENTOR you mean APPLICANT... It is simply first to file. If you filed
a patent for someone else's work, that work has to be successfully applied as
prior art to invalidate the patent. If the existing work isn't sufficiently
documented by acceptable publication, it is difficult to use as prior art
years later when the patent is first litigated.

But, I am not a lawyer.

------
eykanal
People keep posting links to mass media reports of this news. Are there any
good blog reviews analyzing how this will actually affect software
development? I don't trust the media to even have gotten all the facts right,
let alone to give me an in-depth understanding of how this will turn out.

------
rexreed
Isn't anyone else bothered by the fact that business method patents weren't
addressed? For us software folks, the business method patent issue is a lot
more pertinent given that the majority of software patents hinge on this idea.

~~~
rayiner
They are. There is a provision that says that financial services industries
can challenge business method patents (or something to that effect).

Hopefully this is a little loophole that can be widened to allow broader
attacks on business method patents.

~~~
rexreed
Actually, you're right. I had first read the article as stating that the
business method patents was written as an amendment that was defeated, but on
rereading it seems that the business method patents part was included, and the
amendment to remove it failed. Tricky context in reading this one.

"There was also strong opposition to a provision that allows financial
institutions to challenge patents issued on business methods, such as ways to
process checks. The opponents said the provision amounted to a bailout for
banks, but Rep. Robert Goodlatte, R-Va., chairman of the Judiciary
intellectual property subcommittee said business method patents, a fairly
recent phenomenon, were "a fundamental flaw in the system that is costing
consumers millions each year."

"An amendment to remove the section concerning the business method patents was
defeated 262-158."

So I guess it's in there? Confusing.

------
iqster
Good old wikipedia gives some key details:
[http://en.wikipedia.org/wiki/First_to_file_and_first_to_inve...](http://en.wikipedia.org/wiki/First_to_file_and_first_to_invent)

------
JacobIrwin
Okay, good. No, great.

But what about software patents? Can we discuss reform specifically related to
those?

Ideas:

1.) Shorter periods of ownership/proprietary rights. 2.) More detailed
applications. 3.) OR abolishment.

------
wwag
Let's keep our fingers crossed that this actually helps our economy in some
way or another (even if it is just the lawyers ;)

------
ChrisNorstrom
On one hand I'm upset about the fact that I can invent something, not have the
money to patent it, and have someone else get rights to the patent because
they had the money for it.

=============================

On the other hand, image this:

\- I created an invention.

\- I worked my ass off saving up $5-10 thousand dollars for patent and legal
fees.

\- I spend hundreds of hours of my life searching for prior art on the
internet and in publishing magazines. I think I'm safe.

\- I file the patent.

\- Some random ass guy in Minnesota comes up with prior art and I don't get
the patent.

\- I just wasted $15,000 and years of my life.

=============================

It feels like the first-to-file system protects inventors who haul ass and get
shit done, and punishes lazy (or unfortunately poor) inventors who sit on
their inventions and cannot afford to /or/ refuse to move them to market.

So maybe this is the good thing?

~~~
Vivtek
If you don't have the money to patent it, then publish it - rendering it
unpatentable due to your prior art. Nothing keeps you from being the expert in
the field, but you're protected from somebody else patenting it and charging
_you_ a royalty.

The first-to-file provision essentially just makes it easier to decide who
gets the patent if two people patent substantially the same thing. I don't
think it's going to make much of a difference in the existing breakage of the
patent system.

