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I think it would be useful if there was a patent type for "free for anyone to use", something like the MIT License in open source. This would make it easier for patent officers to discover and reject applications conflicting with prior free to use patents and offload the burden of keeping track of this from the inventor to the patent office.

Well it used to be that no action was necessary to prevent someone from patenting something you've already invented and released publicly: The first person to invent it had the right to patent or not patent it, and nobody else.

A few years ago we switched to a "first-to-file" system and this is a direct consequence of that. Someone who didn't invent something can now file a patent. Doing so is a lengthy, expensive process, so the immediate consequence is there is no more "public domain" inventing.

This needs to be reversed.

A public disclosure by a first inventor prevents a later inventor from receiving a patent on the same invention. Even if that publication happened only one day before you file your application and you had no chance to be influenced by it at all, you will not get a patent (or it will be held invalid).

Saying that first-to-file means a non-inventor can lawfully obtain a patent is also wrong. It seems to imply that a new, non-obvious invention can only be made by one person at a time. This is not true in competitive industries where many people are working to solve the same problems and will often come up with the same new solutions independently. First-to-file encourages them to apply for their patents early.

There is such a thing as "public domain" inventing, as you call it. It is simply done by (1) inventing, (2) publishing, and (3) not applying for a patent.

False. A recent U.S. decision holds that such a disclosure must be well known to practitioners of the art, not just known to a few! Publication is no longer sufficient.

You do have to lie and say you thought of it independently; something impossible to disprove. The number of people who'd lie for big money is... innumerable.

You can patent ideas thousands of years old - if they're not well known to practitioners.

You're right that any publication will not be sufficient. A publication needs to be discoverable by the practitioners of the relevant art. However, it does not need to be well-known to them, nor does it need to be actually known by any of them. It only needs to be reasonably discoverable.

As for obtaining a patent by fraud, no comment.

Could you please link to this decision?

Absolutely. The first to file system greatly disadvantages individual and/or poorly funded inventors, because for big corporations, the cost to file is no great hurdle.

Flip side: first to file arose because first to invent is inherently ambiguous. The fixed cost of a filing was deemed better than the large and unknowable cost of determining who invented what when through the courts.

How does copyright handle that problem since copyright is automatic?

It doesn't matter who created a copyrighted work first, because independent creation is an absolute defense to copyright infringement.

Proof of independent creation might be; but similarity provides a statistical test of that. Cases use similarity and probability, they don't take "independent creators" at their word.

I'm not saying the system is perfect, but there is a reason we switched to the current system.

If I've invented widgets (or think that I've invented widgets), I should be able to know if I can patent and sell them, without years later getting sued because someone once did it in their basement and left it at that.

First to invent doesn't automatically mean they can sue when you file your own patent and intend to sell - they have to file their own patent first, and if you've already published enough of the invention before they even filed, then that only means neither side gets a patent (original inventor because they can't wait until after publication to file, second inventor because they were late).

Also, first to file has the same problem you mention. You can invent something, never publish, and get sued by somebody who reinvented it later.

The extreme case of this being the patents over radio, only settled long after they had expired (tesla won, who died in povery, won.)

I agree with you, however, I think the difficult part is finding an entity capable of enforcing such a patent. I mean, we have things like the EFF or Apache foundation, but what organization could manage such a patent type? There would have to be enough trust in a granting body of such a patent, and it would need to be able to operate unencumbered for the global public good. I think this is an interesting problem worth solving though, if it can be.

Edit: this was an interesting related HN discussion - https://news.ycombinator.com/item?id=17240429

There are such things as defensive publications, which prevents others from patenting something by providing a publicized proof of prior art.

But most companies would rather just patent something.

Very hard to manage given that publication is no longer enough - the average practitioner has to be aware of that publication, or it doesn't count, according to a recent U.S. decision.

You can just publish your invention and how to make it if you want it to be part of the prior art. Then, in theory, the patent examiners should find it when examining patents. Of course, making sure they actually find the relevant prior art is part of the problem.

False. Publication is no longer enough, the prior art or publication has to be sufficiently well known to practitioners, now. Recent U.S. decision.

Do you have a source for this?

Isn’t this exactly just the job of licensing? With favourable licensing, it seems to me (IANAL) the patenting is just defence for us all, keeping a less-sharing third party from patenting and locking-down a process or implementation.

No. Patents grant a monopoly for a limited time and there is no compulsory licensing regime for patents. Many patent-owners do license their inventions, but others don't.

I think we’re saying the same thing. The licensing isn’t compulsory, but if ONE CHOOSES to license liberally, those are the terms of use. A benevolent actor could patent a thing, freely license, and head off another actor that would patent-and-lock-down.

It's not necessary to spend the money to obtain a patent in order to prevent others from patenting an invention. All you need to do is make the invention available by publishing it somewhere discoverable by the relevant public. The publication doesn't need to be in an academic journal either. A recent case found that a message on Usenet was sufficiently public because Usenet is organized hierarchically into newsgroups on various topics. A blog post would also probably suffice, so long as it's indexed by a search engine.

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