

Obama Signs Patent ‘Reform’ Bill - ubasu
http://www.wired.com/threatlevel/2011/09/obama-signs-patent-reform-bill-crustless-sandwich-still-patented

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tzs
This bill contains a major blow to patent trolls. The new joinder rules make
it much harder to sue multiple defendants in one suit. Companies like Lodsys
that want to sue dozens of companies will have to do it in dozens of separate
suits.

This hurts them in three ways:

1\. Their litigation costs will go way up.

2\. Defendants will be much more successful in getting venue changes to a
forum of their choice, instead of being force to defend where the troll files.
(When there were multiple defendants in one suit, carefully chosen by the
troll to be from all over the country, it was hard for a defendant to get a
venue change to their home turf because the court would want to keep all the
cases together for judicial efficiency, and there would be no district that
would be better for all the defendants). This further drives up the costs to
the troll because now they will not only be litigating dozens of suits, they
will be scatted are over the country.

3\. They have a much greater chance of losing their patent. Each trial
provides an opportunity for a judge or jury to decide on any number of grounds
that the patent is invalid. Once a patent is ruled invalid, that's it for that
patent.

There's a good post elaborating on those points from Red Hat's senior patent
counsel here: [http://opensource.com/law/11/9/new-patent-reform-law-
could-r...](http://opensource.com/law/11/9/new-patent-reform-law-could-reduce-
lawsuits-non-practicing-entity?sc_cid=70160000000IDmjAAG)

Toss in the new rules making it easier to challenge a patent, and the new
rules that increase the scope of prior art, and this is overall a pretty good
bill from a programmer's point of view.

~~~
marshray
s/patent troll/small inventor/ and all your logic remains valid.

The only thing this significantly benefits is large companies' ability to kill
off smaller competition.

Patents should be completely abolished as a relic from the age of steam. This
is the 21st century.

~~~
Poiesis
I'm having trouble putting your two statements together into a coherent whole.
You say that making life more difficult for patent trolls will make it harder
for smaller shops,but then go on to advocate abolishing patents, which does
not strike me as terribly friendly to the smaller inventor.

~~~
marshray
A. I advocate abolishing patents. Some type of temporary protection would need
to be provided for the very rare exceptional case of the development of new
drugs. I can think of very very few, if any, cases where 21st century patents
have actually contributed to "progress in the useful arts". Instead, they are
universally a drag on people who actually produce things of value.

B. People may point to an exception case here and there, but the proverbial
small inventor with a patent is a thousand times more likely to have his life
savings eaten up by lawyers than to actually get paid for a useful invention.
I don't think an improved patent system is actually going to help the small
inventor.

C. This particular law looks to me like it further enhances large companies'
ability to kill off smaller competition.

I don't think that there is a contradiction here.

------
sunir
I quite dislike that this bill places greater onus to locate prior art onto
the public rather than the patent filer. I'm not sure how that protects the
mythical small inventor.

I mostly dislike that there is no move to make patents only defensive. Patent
awards should be limited to only the cost of direct interference with the
patent holder's business.

That would be the most sensible given the intended purpose of patents of
defending an inventor in return for publishing the discovery.

Suing a business that has nothing to do with your own because it employs a
similar solution logically is destructive to the economy, since their success
does nothing to harm your own success. Patents should be limited to protect
you against competitors who are in a zero-sum game for the same market.

~~~
anamax
> Patent awards should be limited to only the cost of direct interference with
> the patent holder's business.

So you think that inventors who don't practice shouldn't be compensated.

I've done some work in computer architecture but I'm not in a position to
build processors.

How do I get compensated for my work? (Note that "be an employee" doesn't
work.)

~~~
evgen
_So you think that inventors who don't practice shouldn't be compensated._

No, they should not. If you don't practice then you, and the public in
general, are losing nothing from your inability to sue people who are actually
making things happen. If you don't practice then you have no expectation of
being compensated for your work other than hoping that someone else steps on
your patent and trolling them. If your patent actually has value then you
should be forced to take the risk to demonstrate that fact by putting the
invention into practice -- you do not need to be successful at the practice,
but you should be forced to at least make the effort.

~~~
anamax
> If you don't practice then you, and the public in general, are losing
> nothing from your inability to sue people who are actually making things
> happen.

I don't work for free, so I'm not gong to bother to disclose if I'm not
compensated.

> If you don't practice then you have no expectation of being compensated for
> your work other than hoping that someone else steps on your patent and
> trolling them.

Wrong. In the current world, I can file and approach folks who might benefit,
offering to license.

In your world, I can't disclose without risking them saying "great idea,
thanks".

And no, no one signs NDAs with individual inventors, so that's a non-starter.

> If your patent actually has value then you should be forced to take the risk
> to demonstrate that fact by putting the invention into practice

The existing patent thicket around processors means that there's no way for me
to practice. Plus there's the "invest millions of dollars" part (getting to
tape-out is at least $1M, tape-out adds another $1M, and I still haven't done
product support or any of the other things required to actually practice).

The value of my invention has nothing to do with whether I can do other things
(design register files, etc) so it's unclear why my compensation should depend
on doing said other things.

~~~
sunir
The motivation for you to patent is that someone else can file before you even
if you invented it first. That's new in the United States and common in other
jurisdictions.

You make money by licensing your inventions to companies that have means to
create a product. You can use trade secrets and copyright to protect your
invention. You don't need patents. However, in the defensive patent world, you
should still get one in case they steal your idea.

What you'd be prevented from doing is creating an expansive definition of a
market. That's not crazy talk. In the case of the Lodsys patents, Novell has
filed that for prosecution history estoppel, which my reading of Groklaw might
be because the original patents were filed with caveats they would only apply
to a restricted market (probably set-top pay-per-view TV boxes).

[http://www.groklaw.net/articlebasic.php?story=20110708021518...](http://www.groklaw.net/articlebasic.php?story=20110708021518693)

I think this constraint on patents should be explicit and part of the law.
i.e. a Pharmaceutical patent should declare it is for the pharmaceutical
industry; if material engineering could use the same organic compound, that is
sufficiently novel and non-predatory of the original patent holder. However,
it's unclear in the current law whether or not the new use could pass.

~~~
anamax
> You make money by licensing your inventions to companies that have means to
> create a product.

That's assuming that I have something to license. Abolishing patents or
requiring me to practice means that I don't.

> You can use trade secrets and copyright to protect your invention.

Neither one applies to processor features.

For example, I invented a new way to do branch prediction. Copyright would
apply to any documents that I produce or to the mask that someone used to
implement that feature, but a new processor, by definition, wouldn't use that
same mask or even a portion thereof.

As to copyright, a processor company can implement without copying any
document (and even if someone did copy, the damages are at most $250k if I can
prove it, which is going to be expensive). They merely need to read whatever
description I provide.

For similar reasons, trade secret is a non-starter. (You have to disclose many
processor features to make them useful.)

> What you'd be prevented from doing is creating an expansive definition of a
> market.

Except that I'm not trying to do that. I'm trying to be compensated for
inventing a new way to do branch prediction (for example).

------
mscarborough
Can any of the legal eagles provide more context for how this is actually
better for inventors?

It just reads like different loopholes and lawsuit strategies.

------
drewvolpe
Is there any way in which first-to-file is better for innovators ? With the
new law, if you invent something and someone else can patent it 5 years later,
that person can sue you (the inventor).

~~~
Tuna-Fish
Patents are not given as prizes for the act of invention -- they are given for
prizes for the act of sharing your invention with the rest of the world.

Also, so long as you can prove prior art, the patent is worthless.

~~~
marshray
No, even if one can easily prove prior art, the patent is worth some portion
of the hundreds of thousands of dollars it would cost to do so in court.

~~~
law
Court isn't the only route to patent invalidation. When a plaintiff sues a
defendant for patent infringement, there are usually two defenses brought up:
"I'm not infringing on your patent" and "even if I were, your patent is
invalid." Prevailing on the latter defense begets invalidation.

Third parties can also file ex parte or inter partes reexamination request,
through which the third party can ask the USPTO to reexamine the patent to
verify the patentability of the claimed subject matter. The fee for requesting
an ex parte proceeding is $2520, and after filing the request, the third party
no longer actively participates in the proceedings. Third parties filing an
inter partes request, after paying the $8800 fee, may continue to participate
in the proceedings.

~~~
marshray
So typically what are the total out-of-pocket fees for filing these requests
including the bill from competent lawyer?

How likely are they to succeed in invalidating an issued patent?

If done poorly, couldn't they have the potential to actually reinforce a lousy
patent?

Is this "cheap" course of action actually available if you're already being
sued over some bogus patent you didn't know existed (or didn't choose to pay
for the reexamination) in advance?

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nazar
I am sorry, for my question might sound shallow for those who know law deeper
than me, but I want to clarify something. Lets say I invented something and
never patented it, but was using it in my business for some period of time,
and then someone patents my invention. Can he/she still sue me, provided I
give proofs I've been using that invention even before he/she patented it?

~~~
teyc
yes, the person can sue you.

But if you can demonstrate that you have already been practising it before
their patent lodgement date, then this is known as "prior art".

However, it will still cost you money to defend yourself in court.

------
benatkin
This bill sounds like it does some good things. What nasty surprises came with
it?

~~~
gridspy
If you ignore the patent system and release your product without patents, your
competition can arrive after you, patent your idea and then sue you.

~~~
chc
I don't think that's quite right. As I understand the law (and IANAL), you
could still get their patent invalidated for lack of novelty — you just
couldn't claim the patent yourself in that case.

~~~
cosgroveb
This Act changes the U.S. from a First to Invent system to a First to File.

~~~
ebiester
First to file doesn't mean anything if there's prior art.

~~~
alanX
Prior art has very little to do with denying patents in the U.S.

~~~
Symmetry
Unfortunately true, but it does make it really hard to sue you.

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lhnn
My understanding is that someone can now patent teleporters and replicators,
and sue the person who eventually invents it. True?

~~~
tzs
Not true. Why would you think it would be?

~~~
lhnn
It's first to file, right? I've heard there's no requirement for any
implementation details or intent to manufacture; you can just come up with an
idea, patent it, and wait for others to make it and sue them for royalties.

~~~
monochromatic
Intent to manufacture, no. Implementation details, yes. Your disclosure has to
enable a person of ordinary skill in the art to make your invention. If you
don't know how your teleporter works, you can't get a patent on it.

~~~
lhnn
AH! Ok. That is a crucial distinction I hadn't known was the case. It's
important this be made clear, since I've seen several discussions implying "no
details" was the case.

P.S. To Whom It May Concern, It is objectively unfair for my OP to be
downvoted. It was a legitimate question.

~~~
monochromatic
Yeah, I've seen lots of unfortunate confusion based on the "first-to-file" vs.
"first-to-invent" distinction. Just doing my part as a patent attorney to
clear it up when I notice it!

~~~
tzs
You're a patent attorney? Cool.

I'm a former law student who never quite got around to finishing my last
class, and has kept up somewhat so tries to answer questions here and on
Reddit until actual attorneys jump in. Some of my answers have been voted way
up, so there is some danger people might actually listen to them.

Great to see an actual patent attorney around so that if I get something wrong
there's a chance it will get caught.

~~~
monochromatic
There's a lot of misinformation out there. Keep fighting the good fight.

