
Don't Let Congress Hand Patent Abusers Their Ultimate Wishlist - DiabloD3
https://www.eff.org/deeplinks/2019/09/dont-let-congress-hand-patent-abusers-their-ultimate-wishlist
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fludlight
The broader issue is that the USPTO will let you patent anything. They have a
long review process, but so many stupid things get approved that the agency is
a sad joke.

The latest example:

[https://www.eff.org/deeplinks/2019/07/someone-suing-
companie...](https://www.eff.org/deeplinks/2019/07/someone-suing-companies-
using-sms-messages-2019)

~~~
DannyB2
The patent examination process is not well understood by most people.

Once a patent is received, the patent examiner carefully places the
application into a room full of other patent applications.

Then kittens are released into the room with PATENT GRANTED stamps affixed to
their feet.

The kittens are then returned to their holding area to await the next round of
patent examination.

The patent examiners collect the applications from the floor and look to see
which patent applications were granted.

~~~
gumby
The use of kittens was specifically specified by lobbyists as they knew that
would make it impossible to change the procedure. Who’s going to vote against
kittens? Squee!

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WalterBright
Edison spent a large part of his career:

1\. being sued for patent infringement

2\. suing for patent infringement

3\. being hired by companies to find workarounds for patents

It's doubtful any of that was worthwhile in the end.

~~~
abawany
I am surprised to read this: his patenting of the stock ticker and the two-way
telegraph is listed on Wikipedia as the key to his fortunes. Do you mean
"worthwhile" as in wrt. society or for him?

~~~
undersuit
That surmises Edison had to have patented those inventions to secure his
future fortunes.

I'm pretty sure the comment you're replying too was attacking the worth of
patents, not the inventions.

~~~
WalterBright
Hollywood was also born of people trying to get away from Edison and his
patent lawsuits.

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WalterBright
The US patent system is why the US lost 10 years of aviation development and
the Europeans took the lead. The US arguably did not catch up until WW2.

~~~
bcaa7f3a8bbc
Why didn't the problem reappear after the war?

~~~
WalterBright
The government forced them to create a patent pool.

~~~
bcaa7f3a8bbc
Interesting.

Where can I read more about it?

~~~
WalterBright
Here's an overview:

[https://en.wikipedia.org/wiki/Manufacturers_Aircraft_Associa...](https://en.wikipedia.org/wiki/Manufacturers_Aircraft_Association)

[https://www.wipo.int/wipo_magazine/en/2018/06/article_0007.h...](https://www.wipo.int/wipo_magazine/en/2018/06/article_0007.html)

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paul7986
The tech companies changed the game in their favor when they successfully
lobbied and changed the law to first to file vs. first to invent.

~~~
manderley
"First to invent" doesn't make much sense when the point of the patent system
is to get inventors to publicize their inventions in return for a guaranteed
monopoly.

"First to invent" runs counter to the patent system.

~~~
pnw_hazor
First to invent is indicative of a policy that favors individual inventors
over well-funded corporations.

Little inventors might like to shop an idea first and then file a patent
application if they find traction or funding. US law allows for a one year
grace period after disclosure. Fail to file within one year, all US patent
rights are lost. Outside of the US, any public disclosure before filing bars a
patent.

Big Corp has the money to file patent applications early before disclosure.

Now with first-to-file in the US, there still is a one-year grace period in
the US, but the first applicant to file is the winner not the first to invent.

Among other things, this is bad for small inventors because bad actors can
file patent applications on the small inventors' inventions first. Trolls can
and do scour websites to identify inventions that may be worthwhile sniping.
In the old days the inventors just need to show that they invented their
invention before the troll filed their patent application. Now, you have to
prove that the troll literally stole the idea which the USPTO doesn't really
look into.

~~~
derf_
So, my understanding of first-to-file is that _any_ public disclosure counts
as prior art for anyone else. So the only time you would have to prove the
troll literally stole the idea is if your disclosure to them was non-public.

In either case, it's likely that the USPTO isn't going to notice before
issuing the patent, but under first-to-file it is way easier (read: cheaper)
to show that "X document was published on Y website on Z date" than it is to
start doing discovery to compare private lab notebooks or whatever to decide
who _really_ invented the thing first.

This only ever affected a minor number of cases anyway, and the change mostly
just made litigation costs cheaper and more predictable.

It also seems really great for open source software (where I personally work),
since everyone publishes everything they do immediately anyway.

~~~
rayiner
First to file has nothing to do with prior art. It’s about what happens when
two companies claim to have invented the same thing.

~~~
derf_
One might easily believe that based upon the name, but a number of changes to
how prior art worked in the US were required to implement it. Please consider
[https://www.uspto.gov/web/offices/pac/mpep/s2152.html](https://www.uspto.gov/web/offices/pac/mpep/s2152.html)

In particular, the paragraph starting with "Although some of the provisions of
AIA 35 U.S.C. 102(a) and (b) are similar to pre-AIA 35 U.S.C. 102(a), (b), and
(e), the AIA has introduced a number of important changes with respect to
prior art ..."

Edit: And more importantly, Section 2152.01 right below it.

~~~
rayiner
Ah, you’re right. The critical date for a patent is now the date of filing
rather than the date of invention. Apologies for jumping the gun—I misread
your comment as suggesting that first to file somehow changed how you
calculate the date as of which a non-patent disclosure (such as an article) is
prior art.

~~~
derf_
No worries. It is rather the date that you compare it to that changed (filing
rather than invention). I could have expressed that more clearly.

It actually does change the dates for when patent documents are considered
prior art (as described in the first paragraph I referenced), so it is easy to
get the issues confused.

The effects of first to file on how prior art works are, in my opinion, _way_
more important than the litigation edge condition it eliminated.

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joelx
Copyrights and patents should be reduced to a maximum of 7 years and then
opened up for anyone to use it. Society will advance far more quickly and good
business owners will be able to bring competition and lower prices to
everyone.

~~~
Mirioron
I think 7 years is a little short on copyright. I think 10-15 years would make
more sense.

~~~
mikekchar
I'm interested to hear more of your thoughts. What are the downsides of a
shorter copyright (e.g. 7 years) vs a slightly longer copyright? I was trying
to think of some scenarios, but I can't think of anything about that time
range that might fit. For example if copyright was only 3 years, you could
imagine big publishers sitting on things until they were out of copyright so
that they didn't have to pay royalties. Most music, movies and TV shows are
relevant for only a few years. By 7 years out, they are relegated to the rerun
slot.

The only thing I can think of are things like novels. So the first Harry
Potter novel was quite successful, but it took a while until a movie came out.
Movie producers may be happy to wait until it came out of copyright. But that
argument might be made for 15 years as well. It would be a _different_ way of
doing things, but not necessarily worse, I think. Is it reasonable that Disney
can buy up the rights to all Marvel comic books for the last X years? Or would
we prefer that anyone could make Marvel comic book movies after a short time
-- even if that meant that the original authors aren't compensated.

Sometimes I think that even 5 years on software copyright is not a bad length.
If you've been updating the software for 5 years, who wants to fork your
project from 5 years ago? If you haven't, that's still pretty far out on the
revenue tail even for something like enterprise software, let alone games,
etc.

~~~
bloak
I might go for 30 years: roughly a generation (of humans).

If you wanted a different rule for software then you'd have to carefully
define what is meant by "software" and think carefully about side-effects:
would you be discouraging people from releasing source code, for example?
Perhaps not worth it.

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ilaksh
The fundamental problem which seems to be recurring is that the system is
generally hostile towards consumer interests.

It's all so broken, it makes me want something dramatic to happen. Maybe the
robots will take over soon and be better at governing. Or perhaps yogurt. Or
maybe we can start over on Mars.

~~~
kevin_b_er
As it no longer promotes progress of science, I have no respect for patents
anymore.

~~~
lukifer
This was the podcast that took me from opposing software patents, to opposing
the very concept of patents altogether:
[http://5by5.tv/hypercritical/67](http://5by5.tv/hypercritical/67)

See also: "The idea that I can be presented with a problem, set out to
logically solve it with the tools at hand, and wind up with a program that
could not be legally used because someone else followed the same logical steps
some years ago and filed for a patent on it is horrifying."

\- John Carmack

~~~
pnw_hazor
JC would just have to find a different/better way to solve the problem. Just
like someone designing disc brakes or mouse traps.

