
United States Transitions To A 'First-Inventor-To-File' Patent System - jamessun
http://www.forbes.com/sites/johnvillasenor/2013/03/11/march-16-2013-america-transitions-to-a-first-inventor-to-file-patent-system/
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hmottestad
I remember an article about SpaceX where Musk said that they didn't file many
patents, because then other countries essentially had free access to their
inventions if they didn't honour patents (China was mentioned).

With this change in law, they may no longer have protection against a patent
filed by someone else that they (SpaceX) invented first...simply because they
were not the first to file.

This may bring about more innovation because it forces "sharing" of ideas.
Even if that "sharing" is done to stop real sharing.

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danielweber
SpaceX is in a very distinct position that its products are launched into
space, making it very hard for a third-party to dissect and reproduce them.

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gknoy
Industrial espionage is still very powerful, and recovery of boosters is also
possible.

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danielweber
SpaceX is probably protected against domestic copiers by trade secret law.

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adventured
Even if this were a better approach, all I see it doing is forcing an even
bigger torrent of patents into a system already so overloaded that it hardly
functions as it is.

How is the patent office going to manage the increase? It's not, the system is
going to slow down even further.

This also increases the cost of innovation. If I have a business, invent
something, and don't patent it - I'm screwed regardless of if I prove I
created it three years prior to the filing. In other words, now you have to
file patents for everything to protect your ass (because it's not good enough
to be able to prove you invented it first X years ago), and that's a very
expensive proposition, particularly for small companies. This encourages the
patenting of every little detail possible, even more so than today. Because if
you don't patent every little detail, now you will have no right to self
defense on the basis that you were the original inventor - they can come after
you for every rounded corner you failed to patent, so to speak.

This forces everybody into the patent game.

The rationalizations being offered up, such as that this will be good because
it forces openness on innovation are not only wrong (all it actually does it
make it easier to steal technology for countries that already don't respect
foreign patents), but the negatives are going to far outweigh any supposed
benefits.

In five years everybody here is going to be complaining about how they really
botched this piece of legislation and how it created more problems than the
old system. This will turn out to be an extraordinarily expensive and
destructive change; it is not the right approach.

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rayiner
There are a lot of concerns about first to file, but I think they're overblown
because they ignore the context in which "first to file" versus "first to
invent" comes into play: when there are two simultaneous patent applications.

What the AIA does is two-fold:

1) It changes the rule from "first to invent" to "first to file" when two
inventors simultaneously seek a patent for the same invention;

2) It expands the "prior user rights" defense so that if you've been using a
technology commercially for a year before the patent filing, you're not liable
for infringement.

So if you weren't going to patent something, and keeping it as a trade secret
instead, it's not clear that under AIA you have a new incentive to go patent
it. If you weren't going to patent it anyway, there wasn't going to be a
"dueling applications" situation, and "first to file" wasn't going to come
into play anyway. And if you disclosed the technology instead of keeping it
secret, then prior art comes into play and AIA expands the cases in which
prior art can be used to invalidate a patent.

I'd personally like to see a merging of the "prior user rights" and "prior
art" defenses. It should be possible to invalidate a patent by showing that
_someone else_ was using the technology before the patent was filed, even if
that other person didn't publish.

Of course, one way to achieve that effect under current rules is to publish
instead of keeping technology secret. If the tech community is really opposed
to patents, especially software patents, then it should take additional
measures to publish exactly how all their technologies work. This is something
Google, etc, can take the lead on without waiting for legislation. Establish a
rich database of prior art that can be used to invalidate future patents.

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Nursie
I'd rather transition to a system where if two people try to file for the same
thing within a few months or a year of each other, neither one gets it because
it's probably pretty obvious.

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rplnt
What if both of them put real effort (money) into research and arrived at
similar/same place? Should it be dismissed as well? Or is there something as
joint patent?

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bediger4000
I think in that case, the answer is "too bad, so sad". The patent system
shouldn't _guarantee_ some kind of monetary reward. If it does, it sets up the
wrong incentives.

Independent invention should be a sign that the idea isn't worth patenting,
that it was "in the air" at the time.

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pc86
> The patent system shouldn't guarantee some kind of monetary reward. If it
> does, it sets up the wrong incentives.

They don't, unless people use it and the patent holder wants to charge for
licensing.

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bediger4000
The comment to which I responded seemed to take the view that spending a bunch
of money on discovering or inventing something should more-or-less be
automatically rewarded with at least a portion of the "intellectual property"
rights. That's the concept I wanted to rebut.

I don't have facts at hand, but I imagine that like any other thing (starting
a business, writing a book, creating an App) 99.9% of patents result in no
monetary gain whatsoever. But if we're going to go all in on the property
aspects of patents, then I think that morally and ethically, we have to give
an independent inventor a share of the property. Anything else just looks
arbitrary, and leads to disrespect of patents, "intellectual property" and The
Law in general.

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GotAnyMegadeth
I don't really understand who benefits from this change? Doesn't everyone
lose?

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nicktelford
I'm pretty sure the USPTO and Patent Attorneys win, given that it'll encourage
more people to file patents, and sooner rather than later.

Not sure of the impact on innovation, but my gut instinct isn't good.

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jrs235
The number of applications consisting of just ideas, that haven't been
implemented, tested, or tried, is going to sky rocket. And who can afford to
file so many patents? The "big" established guys. Things just got worse.

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Glyptodon
I still think that the occurrence a of situation where multiple parties file
for patents on essentially the same thing in a short period of time
independently should be considered unassailable evidence of obviousness and
consequently unpatentable subject matter.

Whatever happened to a "person having ordinary skill in the art"?

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reader5000
If an invention is invented twice independently, it should by definition be
"obvious" and not patentable.

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tzs
So if thousands of engineers independently worked for years trying to solve
some important problem, and then finally a mere two of them come up with
solutions around the same time that are similar, you'd say the solution is
obvious?

That's a pretty weird way to define obvious. It is true that sometimes a term
used in the law deviates a bit from the meaning of that term in ordinary
English, but rarely as far as your definition of obvious does. In English,
obvious means that it is easy to discover. It should be readily found by any
reasonably competent person who looks.

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rogueriver
1\. My gripes with our patent, and trademark system comes down to fees.

2\. I draft all my own patents(only 1), and found the process difficult, but
doable. I also filed my own trademark.

3\. I did have an issue with the filing fees. I contacted the offices involved
and complained about the fees. I felt the fees might prevent many young
inventors fron protecting their invention, or trademark.

4\. They told me their was some programs for low income individuals, but I
couldn't kind anything. The fees for filing a patent should be based on what a
person makes?

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Nursie
The fees are a deliberate barrier.

The patent office must get funding from somewhere. If the fees don't at least
mostly cover their staffing and research needs then huge companies that file a
lot become a huge financial burden on the taxpayer, and the taxpayer is then
paying for a business advantage for these companies.

Obviously this sucks for the small inventor. I'm not sure how you get around
it. The first X a year are free? But then the patents are always filed in
individual names and then assigned to the company anyway, so I'm not sure that
works.

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roc
While it's possible that too-low fees could hypothetically make the USPTO a
drain on the federal balance sheet, it's currently a revenue _source_. [1]

And there's long been a separate (reduced) fee schedule for "small entities".
And it's long been recognized those are still fairly high for situations like
the lone-inventor, and such situations make up such a small slice of the
USPTO's total revenue, that they certainly could be tweaked to be more
accommodating without much net impact.

And because all that was well-known: The AIA included giving the USPTO some
fee-setting authority. And one of their first proposals was to further reduce
some small-entity fees and to create a new micro-entity status with
commensurately-lower fees.

So it's not only a problem that would be fairly easy to address, without much
adverse impact, it's actually already being addressed. (Though not really in-
effect until later this year).

[1] Much ink has been spilt over the fact that the USPTO brings in more than
it takes from the federal balance sheet, yet their budget has been left so low
that they're chronically short on resources and thus backlogged.

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kylered
Patents are a necessary evil and a little bit addicting once you get your
first taste. First to file simplifies a lot of the issues with prior art (ie
the challenge of proving your idea was original), but I believe this system
stifles small companies even further because of the costs associated with the
patent system. We've made a decision to pursue key patents given how important
some of these technologies are for our product, but I don't think that applies
to most startups.

Here are some thoughts, cost overviews, and what to think about for a startup
patent strategy: [http://kylethered.tumblr.com/post/45273614239/good-rules-
of-...](http://kylethered.tumblr.com/post/45273614239/good-rules-of-thumb-for-
a-software-startup-patent)

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gcr
I'm confused by their example. How does this change the rules of public
disclosure?

Before this law, public disclosures _prevent_ the inventor from giving
patents. In a conference I attended, the scientists were very careful to avoid
publicly disclosing the details of their inventions for fear of removing their
ability to file for a patent. But the brief blurb in the article mentions that
if inventor A publically discloses their invention before inventor B files,
then inventor A gets the patent.

Could someone clarify?

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gamblor956
Publicly disclosing an invention does not prevent a patent...it simply puts a
deadline for filing (1 year under the old rules, not sure under the new rules)
starting with the date of disclosure. Thus, the purpose of avoiding disclosure
is to prevent giving yourself a deadline.

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lennel
Out of curiosity, what kind of protection does the system offer against
companies in certain markets patenting against potential innovations in these
markets by inventors?

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dthunt
In theory, (normal) patents should only be granted when they describe an
invention to the level of detail that someone versed in the art can replicate
the invention after expiration.

This property is unfortunately not generally present in patents once patent
lawyers are done broadening the scope of possible 'embodiments' and rendering
the language unintelligible.

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jschuur
Doesn't this put the pressure on companies to file even more patents on things
quickly, in case someone else beats them to it?

