
Senate passes Patent Reform Bill - raymondh
http://hosted.ap.org/dynamic/stories/U/US_CONGRESS_PATENTS?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2011-09-08-17-49-38
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ipsin
From what I can tell, it does nothing to raise the "obvious" bar, especially
where companies take every patent over the last 50 years and append "on the
Internet" or "on a tablet" to them.

It also doesn't obviate the need for huge patent arsenals. Why is this a
positive change, or is it only one for large companies with stables of patent
lawyers?

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Newkleer
As someone who has seen invention at the individual, small business, and large
corporation level, this bill saddens me. Regardless of other complications
with the system, I was always proud that our country stuck up for those who
invented first but filed later. I understand that patent applications have
quickly been dominated by large companies, but this legislation will only
serve to solidify that trend all in the name of simplicity.

~~~
mikeknoop
My understanding is the bill puts the decision of "who invented it first" to
the courts instead of the patent office. You'd still have recourse to claim
you invented it first.

~~~
cHalgan
This basically means we will have more trivial patents filled which can be
used to extort small companies. Correct?

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huhtenberg
tl;dr -

    
    
      The measure would switch the United States from the
      "first-to-invent" system to the "first-inventor-to-file" 
      system for patent applications. That change would put 
      the U.S. in line with other industrialized countries.

~~~
danvideo
It's unclear (at least in this article) whether the legislation makes much
headway in the "little guy" vs. "patent troll" problem.

Will this allow companies to file like crazy--everything under the sun--and
block the "first-to-invent" people? Or would the change allow smaller
companies more power once they file so bigger companies can't come along later
and claim something had really been invented earlier that was similar...?

~~~
tekacs
Honestly, both possibilities suggested above sound like a win for patent
trolls...

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cHalgan
Does anybody thing this is a good reform?

My understanding that this is a bill promoted by big law firms to make more
money and to protect financial industry against patent trolls. Also, 'first-
inventor-to-file' is something which big companies were pushing anyway.

We are doomed...

~~~
marcamillion
Well...just to be play devil's advocate here for a sec...I don't know if
that's the case, but just based on the vote it seems a bit fishy to me.

89-9 means many Republicans were on-board. The stereotype for the 'typical'
Republican positions are torte reform and less interference with business
process.

So just by that reasoning alone, if this was Big Law Firm (only) friendly, it
seems to me that so many republicans wouldn't have supported it.

I am just putting forth a theory, as I was not party to the negotiations so I
don't know for sure.

~~~
cHalgan
You really think that republicans and democrats are two different parties?
(sorry for being sarcastic... I'm just frustrated with politics in US... It
seems so corrupted beyond belief)

~~~
Roboprog
Exactly. There is "gays & abortion theater" (financial impact: $0.00), but
otherwise, multi-national corps get what they want.

Citizens of this nation seem to no longer run their own country very much.

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carsonm
IANAL, but to me it sounds like patent trolls can now patent stuff other
people invent, then sue the inventor.

"The measure would switch the United States from the "first-to-invent" system
to the "first-inventor-to-file" system for patent applications."

~~~
ww520
The stuffs an inventor created would become prior arts. Patent trolls filing
after seeing the invention would get its patent invalidated.

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linuxhansl
"The measure would switch the United States from the "first-to-invent" system
to the "first-inventor-to-file" system for patent applications. That change
would put the U.S. in line with other industrialized countries."

I hope that does not mean there is no longer prior art? What if I invent
something and just publish. Now somebody else files a patent application for
this.

I was the first to invent, but the other person was the first to file.

Generally I think the way out of this mess it to start to publish every little
invention (however obvious it might seem). Then hopefully over time there will
be no more room for obvious patents.

~~~
law
First to file vs. first to invent are procedural requirements that do NOT, in
any way, alter the standards for patentability. In other words, you still have
to prove novelty, utility, nonobviousness, and sufficiency of disclosure of an
invention falling within the scope of patentable subject matter.

This change just brings us more in line with other members to the Paris
Convention/Patent Cooperation Treaty. It's important to note that _their_
definitions of patentable subject matter may differ from ours.

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jheriko
Seems like the wrong solution to the problem - maybe if there weren't so many
ridiculous patents the patent office could handle patent applications in a
timely fashion... people wouldn't waste time trying to patent "trivial
consequence of nature number X" to start with like they currently do.

~~~
mchusma
You got it. The biggest issue for patent reform is the scope of patents
granted. Reduce the scope of patentable things for the biggest effect.

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tzs
There are a lot of misconceptions, so some examples may help.

EXAMPLE 1

X comes up with an idea at time 0. X starts working to reduce the idea to
practice.

At time 4, Y comes up with a similar idea, and also starts reducing to
practice.

At time 10, Y gets it all working, writes up and files a patent application.

At time 15, X gets it all working (poorly), writes up and files a patent
application.

Under first to file, Y wins. Under first to invent, Y is presumed to be the
one deserving the patent, but X can initiate an "interference", which is an
administrative procedure in the patent office to determine who has the earlier
priority date. If X can prove that is him, he wins.

To prove this, X has to be able to show that there is some time before time 4
where X had conceived of the idea and had been continuously working diligently
to reduce it to practice from then until time 15.

Proving this can be difficult and expensive. It depends on how good X was at
keeping accurate, verifiable records.

EXAMPLE 2

X comes up with the idea at time 0. X starts working on reduction to practice.

Y comes up with the idea at time 4. Y starts reduction to practice.

At time 6, X takes time off to work on something else (maybe he needed money
to pay for a sick kid or something, so had to take a regular job for a while).
He gets back to working on the invention at time 8.

Y files his application at time 10. X files at 15. Y wins under both first to
file and first to invent, because X lost his priority date of time 0 when he
stopped working. His new priority date is time 6. Since Y was working
diligently from time 4 to filing, Y's priority date is 4.

EXAMPLE 3

Same as example 2, except X files at time 10, Y files at time 15.

X wins under first to file. Y wins (after an interference) under first to
invent. Note that in this example the guy who thought of the idea first loses
under first to invent and wins under first to file.

The take away here is that under first to invent, the patent doesn't
necessarily go to the first person to think of the idea, or to the first
person to reduce it to practice. The advantage goes to the person who spent
the longest time working on it in their last continuous period of diligent
work before filing, so it can have a lot to do with what other things are
going on the inventors life...and to make use of that advantage the person
better have good documentation.

First to file is likely to "right" at least as often as first to invent, with
a much smaller burden on everyone involved (and remember, this only even
becomes an issue when you have two or more inventors with overlapping claims).

~~~
fragsworth
So, theoretically, I could run a patent troll shop without having to file any
patents?

Just hire some engineers and scientists have each of them working on dozens of
different projects (very slowly), and I can file an interference against
anyone who later decides they want to make those things. Right?

~~~
jacques_chester
I believe this is, in part, exactly how Intellectual Ventures operates.

Even if they don't have a patent on something, they can use interference to
get some cross-licensing settlement going.

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ChrisNorstrom
Here's the Bill. <http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.1249>:

Looks like there IS prior art. There's a LOT but I wish it was written in a
simpler manner.

102\. Conditions for patentability; novelty ‘‘(a) NOVELTY; PRIOR ART.—A person
shall be enti- tled to a patent unless— ‘‘(1) the claimed invention was
patented, de- scribed 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; or ‘‘(2) the claimed invention was described in a patent
issued under section 151, or in an application for patent published or deemed
published under sec- tion 122(b), in which the patent or application, as the
case may be, names another inventor and was effectively filed before the
effective filing date of the claimed invention. ‘‘(b) EXCEPTIONS.— ‘‘(1)
DISCLOSURES MADE 1 YEAR OR LESS BE- FORE THE EFFECTIVE FILING DATE OF THE
CLAIMED INVENTION.—A disclosure made 1 year or less before the effective
filing date of a claimed in- vention shall not be prior art to the claimed
inven- tion under subsection (a)(1) if— VerDate Mar 15 2010 22:20 Jun 28, 2011
Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1249.PCS H1249
jlentini on DSK4TPTVN1PROD with BILLS6 HR 1249 PCS ‘‘(A) the disclosure was
made by the inven- tor or joint inventor or by another who obtained the
subject matter disclosed directly or indi- rectly from the inventor or a joint
inventor; or ‘‘(B) the subject matter disclosed had, be- fore such disclosure,
been publicly disclosed by the inventor or a joint inventor or another who
obtained the subject matter disclosed directly or indirectly from the inventor
or a joint inventor. ‘‘(2) DISCLOSURES APPEARING IN APPLICA- TIONS AND
PATENTS.—A disclosure shall not be prior art to a claimed invention under
subsection (a)(2) if— ‘‘(A) the subject matter disclosed was ob- tained
directly or indirectly from the inventor or a joint inventor; ‘‘(B) the
subject matter disclosed had, be- fore such subject matter was effectively
filed under subsection (a)(2), been publicly disclosed by the inventor or a
joint inventor or another who obtained the subject matter disclosed di- rectly
or indirectly from the inventor or a joint inventor; or ‘‘(C) the subject
matter disclosed and the claimed invention, not later than the effective
VerDate Mar 15 2010 22:20 Jun 28, 2011 Jkt 099200 PO 00000 Frm 00006 Fmt 6652
Sfmt 6201 E:\BILLS\H1249.PCS H1249 jlentini on DSK4TPTVN1PROD with BILLS7 HR
1249 PCS 1 filing date of the claimed invention, were owned 2 by the same
person or subject to an obligation 3 of assignment to the same person.

Soooooo we can still defensively publish yes?

~~~
btilly
In principle, absolutely. In practice, maybe.

If you defensively publish, the person who files the patent can still file
within a year. If they learned about it from you, directly or indirectly, they
are not supposed to do that. But now we're dependent upon their honesty, and
their keeping sufficiently good records that we can prove that they did, in
fact, learn it from us. People who'd be inclined to abuse that are unlikely to
be honest, and are unlikely to keep good records of their dishonesty.

~~~
URSpider94
I disagree with your reading of the bill, and with your interpretation of the
current law. The one year grace period to file -ONLY- applies for the inventor
who is filing the patent, or if the disclosure happens from a related party to
the inventor. If a third party discloses the information before you file, then
you can't receive a patent over and above that prior art.

~~~
btilly
On re-reading, I think you're right.

------
eande
The names of the client lobby list is speaking volume
<http://www.opensecrets.org/lobby/billsum.php?id=124645>

Dale Carlson's article in the The National Law Journal makes some good points
[http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202513148515&...](http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202513148515&Patent_Reform_One_Giant_Step_Backwards)

indeed a sad day

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Kell
Will not change anything about patent trolls... pffff

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Zarathust
The solution appears to be to push patents faster by having more people
working on them. If this effectively solve the patent quality problem, it
might be a good thing.

I imagine that the large companies will keep filling hundreds of patents per
year since they aren't as affected as a single patent shop.

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ChrisNorstrom
Does anyone know if the US First to File system will come with a 12 month
grace period? What about published prior art, aka Defensive publishing?

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bfrog
Next startup won't be in the US.

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daimyoyo
The loss of first to file means the end of American independent innovation.
May God save us.

~~~
resnamen
Read the fine article?

~~~
daimyoyo
Yes I did. And all I needed from it was the fact that we are switching from
first to invent from first to file(IMHO the rest was partisan fluff trying to
positively frame the legislation)and the fact is that this will allow the
Nathan Myhrvold's and Lodsys trolls of the world to file a tsunami of vague
conceptual patents with no intent of using them to create products. They will
wait for a real innovator to "infringe" on them and then seek damages. I
absolutely guarantee that if and or when this bill is signed into law that
there will be entire departments of tech corporations that will do nothing but
think up ideas, patent them and wait. As I have said, first to invent was the
single biggest stop gap keeping the small, independent inventor in the game.
As an example, do you really think that Robert Kearns[1] could have possibly
fought Ford Motor CO without first to invent? First to invent is what has set
America aside and now that it's effectively destroyed I genuinely believe that
the small, independent inventor(the backbone of american innovation from Eli
Whitney, to Larry and Sergei) will be put out of business. And that will
negatively impact American innovation. Downvote me if you must, but I speak
the truth. This "reform" means the death of the independent American inventor.

[1]<http://en.wikipedia.org/wiki/Robert_Kearns>

EDIT: I mixed up the terms on my first post. My bad. I still feel the switch
to first to file will decimate the small, independent inventor.

~~~
danmaz74
You can't patent ideas, you have to patent working solutions. It's up to the
USPTO - and later to the courts - to sort the ones from the others.

The real problem here is "obvious" patents, not the first to file or to
invent.

~~~
misterbee
This is not really true. A description of a "solution" is common practice for
modern software patents, which is legal gobbledydook that has nothing to do
with implementation.

It's no diagram of a cotton gin these days.

~~~
danmaz74
I agree with you on this - this is THE problem. What I meant is that it
shouldn't be so already with this legislation.

