

New Patent Law Actually Makes Life Harder For Startups - jonbot
http://www.betabeat.com/2011/09/19/new-patent-law-first-to-file-startups/

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tptacek
I think 'tzs actually is an IP lawyer (or studying to be one?) and here's his
largely-positive take on this bill:

<http://news.ycombinator.com/item?id=3011427>

Much is being made out of "first-to-file" vs. "first-to-invent", but the name
is scarier than the actual practice. 'tzs explained that one too:

<http://news.ycombinator.com/item?id=2976041>

His summary, paraphrased: first-file is as accurate as first-invent, but
cheaper. In particular, it seems to be subject to less legal uncertainty.

Broadly speaking, the only reforms to patent law that really matter to
startups are the ones that foreclose on patent trolling. Patents take longer
to issue than the event horizon for most startups. In the 5+ years you'd wait
to get one --- an award that merely offers the privilege of spending hundreds
of thousands of dollars and many additional years to initiate lawsuits ---
you'll already have proven your company or not.

~~~
tzs
I'm not a lawyer, though I once was studying to be one. In '92 I took a break
from programming and went to law school (University of Washington) with the
intent of becoming an IP, corporate, tax, and civil rights lawyer.

This was motivated both by curiosity about the law, and I was getting burned
out on programming. We were basically a small contract programming shop,
specializing in taking on firmware projects that were late, over budget, and
failing and turning them around on a fixed bid and tight schedule. It was
rather intense, and after four years of it, I needed a break.

Law school was a perfect extended vacation. While I was in law school, my
former company had switched from the business of fixing people's messes to
developing its own products and selling them, and I had done some programming
on that part time and over the summers as I got over my programming burnout.

By the time I was finishing up law school, and only had left writing a paper
for the intellectual property seminar I had taken, I hit a case of writer's
block. I could just not get going on the topic I had chosen (intellectual
property issues of usenet).

By that time the plan was to get the law degree, pass the bar, and go back to
my old company as primarily the chief programmer and secondarily as in-house
counsel on corporate and IP matters. I went back to work full time that summer
and intended to write the paper when the writer's block passed and inspiration
struck, however long that took. I never did get around to that, and that's
where the matter stands today, 16 years later.

So, combine that with (1) a decent math and science background (BS
Mathematics, Caltech, class of '82), (2) an above average ability to recall
obscure but relevant snippets from magazines, books, blogs, and whatever other
random sources I've read or seen, and (3) sufficient lack of a social life
that I have time to Google obsessively before making statements of fact that
I'm not sure of, and I can end up sounding like I actually know what I'm
talking about!

~~~
dctoedt
A math degree from Caltech is more impressive than a law degree.

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swombat
Why doesn't someone start a project to crowd-source the reviewing of these
patents?

There are 150k patents issued in the US every year, which works out as some
410 a day. For a small company, that'd be a gargantuan task. Let's say half of
these are software patents. That's 200 a day.

All you need is about, what, 1400 programmers to volunteer a few hours every
week to review the 1400 relevant patents and flag them up for "wait a minute,
wtf". If those are then rejected, it will make spurious patent filing a costly
and pointless endeavour. If the patent office isn't reviewing stuff, it sounds
like we have to take that into our own hands.

1400 programmers for a few hours a week doesn't sound that impossible.
Presumably the EFF could help on the legal side. Or am I missing something
fundamental?

~~~
tptacek
Because, not to put too fine a point on it, programmers suck at evaluating
patents.

Patent language is pure, uncut crystal nerdbait. If you don't know how patent
claims language works (and why would you?), most patents will appear ludicrous
--- and that's assuming your programmer patent reviewers even know the
difference between claims and background material.

Incidentally, reviewing patents prior to their issue isn't necessarily a win
for defenders. I remember reading an analysis showing that defenders stand a
better chance invalidating a patent in court than during the patent process.
The crowdsourced review process could just end up helping patentholders by
providing a first wave of claims strengthening.

It would be far more feasible to fight and win the battle to abolish software
and business method patents.

~~~
brlewis
I don't know that it's possible to abolish software patents. The Supreme Court
tried, and were overruled by a lower court. Then those lower court precedents
were invalidated, yet software patents are still not abolished. The US legal
system is baffling.

~~~
anigbrowl
_The Supreme Court tried, and were overruled by a lower court._

what

 _The US legal system is baffling._

I can see why you'd think that. Could you try referencing which case you think
involved a lower court overruling the Supreme court (like find a news story
that mentions it or something)? That way someone might be able to clear up the
misconception for you. I agree that civil procedure and matters of precedent
can be very confusing, but I promise you the lower courts aren't going about
overruling the Supreme Court, much as they might like to.

~~~
brlewis
I promise you that if the legal reasoning in "In re. Alappat" and "State
Street" were applied to Benson and Flook, those cases would have been decided
the opposite way. The legal precedent in those Supreme Court cases was
overruled by the Fed Circuit.

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wccrawford
I thought the same thing, until someone pointed out that if you publish
information on your invention, it makes it impossible for anyone else to file
after that. (Prior art.) However, YOU can still file up to a year later. (In
Europe, it works as prior art against yourself, though. Meaning you can't
file, either.)

That effectively makes it 'first to publish' rather than 'first to file'.

I am not a lawyer, and neither was the person who told me this.

~~~
padrack
I believe under the new law you would need to show you employed your invention
as part of a business prior to their filing in order to have a case for prior
art.

~~~
tptacek
Am I misreading this, or is what you said the opposite of true?

[http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=120251473037...](http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1202514730370&Finally__A_Revitalized_Patent_Act&slreturn=1&hbxlogin=1)

(It is _very_ likely I'm misreading it).

~~~
jaekwon
I'm an entrepreneur and inventor. I want to make a record here that I have no
fucking idea whether publishing my invention is enough to have Prior Art, or
whether I need to state the use of the invention in my business case, or
whether I need to file a patent.

~~~
tptacek
As an entrepreneur, an "inventor", and a patentholder: I believe this is
simple:

(a) if you're planning on staking a claim on a patent, get a patent lawyer (
_no part_ of this bill reduces the need for IP lawyers; whether you like the
concept of requiring IP lawyers or not is besides the point).

(b) if you're not planning on getting a patent (and I think you shouldn't, for
simple pragmatic reasons), just publish what you're doing as soon as you can,
and you'll have established a prior art track record.

The reform we're talking about changes the mechanics of competing claims for a
patent, but it doesn't make prior art harder to establish (my understanding is
that in a variety of little ways it makes prior art _easier_ to establish).

------
realschool
Can you say plutocracy?

~~~
monochromatic
Go back to reddit.

~~~
tptacek
I appreciate the sentiment but next time just hit the downvote button.

