New is not good enough. In theory patents must be novel and this should be applied to practice as well. The difference between new and novel is the degree of originality. New can mean taking an existing idea and putting a fresh spin on it. Novel means the idea never existed before and the current invention is original opposed to a modification or extension. Normally novelty is documented against an inception date, but inception dates are hard to qualify in court.
Also, while on this subject patents should be limited to inventions deliberately excluding discoveries. An invention is something a person made or formed with some degree of deliberation. A discovery is something that already existed and that a person merely found for the first time. This distinction would invalidate attempts to protect genetic sequences and organic chemicals present in nature. It would continue to allow protection of drugs that are more than merely chemical isolations.
Here's a bit more information about the case: https://patentlyo.com/patent/2018/07/diagnostics-provisional...
Briefly: Granted patents count as prior art from their filing date. The question is what happens to provisional filings. The court has split the treatment of those documents depending on whether or not the prior art is claimed or not.
The Federal court's position is interesting, as it is a compromise position. It recognizes that the documents are not published to the public, and accordingly afford the opportunity to create so-called submarine rights, and limits the scope of these rights to the specific 'stuff' of the patent in question, while preventing the non-public remainder of the filings from popping up and cutting prospective patents down.
What's the right course of action here? Well, that heavily depends on the behavior of filers across an industry.
It is, however, clear that the federal court's position is not borne out of a consistent, principled approach. For some, that's enough for them to claim the baby needs to be tossed out without trying to address the threat of the submarines directly.
Is it true that provisional applications are not disclosed to the public? It seems fair that if the invention is never publicly disclosed (only mentioned in private filings), that the invention isn't covered by patent law. That's standard -- only public information is part of the patent system.
However, patent applications can act as prior art as of the day they are filed, which is often well before they are published. The justification for this is that, even though the information is not yet public, the applicant has established that they know that information and that it will be disclosed to the public when the patent publishes.
The question in Ariosa Diagnostics v. Illumina is whether the provisional application can also act as prior art as of its filing date. The court's decision was that only the material from the provisional application that was later claimed in the published patent counts as prior art as of the filing date. Everything else in the provisional application only counts as of the publication date.
Then again, if it is patentable, I'm sure some troll owns that one too.
Good documentary, though. It's currently on Hulu.
Absolutely nothing other than your willingness to pursue it and pay the fees.
As an exercise, I once applied for a patent on a device that would violate the laws of physics (specifically allowing faster-than-light communications) to test the theory that you can in fact patent anything. The result was receiving U.S. patent number 7126691.
1. Draft the patent application. You don't even need to do any research. The PTO will do that for you.
2. Wait for the application to be rejected, which it almost certainly will be the first time around. But the rejection is required to contain specific reasons for the rejection, which will almost always be citations of prior patents that already cover what you have claimed (because there is no shortage of stupid patents). In effect, the PTO does your homework for you.
3. Tweak the application to get around the specific objections the PTO cited and re-submit.
4. Iterate if necessary. But I have never had to go more than one round, and I have eight patents.
You also can only tweak with regard to disclosures already described in your application.
But he'd also do this thing where he'd ddos via patent lawsuit evil companies, filing like hundreds of thousands of lawsuits against a single company in the span of a day.
> It turns out, a couple giant companies — IBM and Halliburton — have been working for years to patent what patent trolls do.
I believe that IBM actually has a patent on this, to whip out in case a troll decides to step to Big Blue.
Of course, big business incumbents don’t mind the system because they have corporate lawyer teams that understand how it works and how to play it, so I don’t have any hope that it will ever become a political issue
Small businesses get hurt the most by the patent system. A patent troll can bankrupt them or make them unfundable, big business can squash them (perhaps offensively, eg a big business takes a small business to court even though they can’t win, so the small business can’t raise funding and has to pay tons in legal costs), and they still have to pay lawyers for advice on how to protect themselves even if nobody goes after them.
Basically abolishing patents would definitely receive pushback from bigger and even smaller companies, but improving case law to be more reasonable really wouldn't.
Plus lawyers are not all interchangeable, just because you have people who know employment law or how to M&A didn't mean they are good at fighting patents on court. AFAIK they're usually externally firms, not in-house lawyers
That doesn't necessarily mean removing it altogether. Making more thing unpatentable (ex algorithms, discoveries, etc.) and shortening the lifetimes of patents could go a long way.
The EFF writeup makes it sound like material appearing only in the specification of an earlier published patent does not count as prior art, that it must appear in the claims. That’s not true in the general case:
> In the simple case outlined above, the courts all agree that the disclosures found in an issued patent or published application count as prior art as of the patent’s filing date.
Ariosa addresses a very different issue. Generally, patent applications are prior art even before they are publicly disclosed—they count as prior art starting from the day of filing. Ariosa addresses what happens when you have a provisional patent application:
> In this case, the Federal Circuit ruled that a published application can count as prior art as of its provisional filing date — but only as to features actually claimed in the application. According to the court, features disclosed in the provisional but not claimed in the published application will only be prior art as of their date of public disclosure.
The EFF writeup is in fact completely inaccurate, because it starts by talking about a “published” patent application. Once the application is published, all agree that it is prior art. This case is about what happens between the date if filing of a provisional, and the date of publication.
If I make something, I should be capable of earning money with it if I want to. Copyright protects software in that regard, as well as music and images, etc.
The same arguments generally apply to patents. There are monetization models like live shows, subscriptions, Patreon, advertising, sponsorships, etc that work very well for creators.
Especially in the internet age, we shouldn't act like copyright and patents do anything to stop people. Creators would likely do better if the publishers weren't in the middle controlling access to their works.
You can't get rid of those types of patents unless you also start either handing out massive research subsidies or perform research with government money.
Which might be a good idea if the goal is to develop vaccines or new, effective antibiotics - things which are desperately needed but still do not seem to produce a strong enough incentive even with patents.
Patent law is super arcane and I do not practice in that area specifically but I would be surprised if the people who down voted my comment (to which you are replying) are really steeped in the peculiar minutiae of the operation of the PTO.