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Senate Passes Landmark Patent Reform Bill

samzenpus posted more than 3 years ago | from the problem-solved dept.

Government 362

inkscapee writes "The US Senate is congratulating itself for passing a 'landmark' piece of patent reform legislation. Some key elements are 'first to file' instead of first to invent, and ending fee diversion, which means fees paid to the Patent Office will actually fund the Patent Office. Curiously, this practice has resulted in a backlog of 700,000 patent applications. The House is reportedly working on a similar bill, and soon harmony and rationality will triumph."

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wait (4, Insightful)

CSFFlame (761318) | more than 3 years ago | (#35433964)

Isn't first to file REALLY bad? It helps patent trolls doesn't it?

Re:wait (5, Insightful)

Gumshoe (191490) | more than 3 years ago | (#35434066)

Isn't first to file REALLY bad? It helps patent trolls doesn't it?

Yes. It's a disaster. In effect if you invent something you now have to patent it or possibly suffer the consequences from a patent troll. It's a money spinner for the patent office if nothing else.

Re:wait (0, Flamebait)

LordNacho (1909280) | more than 3 years ago | (#35434120)

Isn't first to file REALLY bad? It helps patent trolls doesn't it?

Yes. It's a disaster. In effect if you DON'T invent something you now have to patent it or possibly suffer the consequences from a patent troll. It's a money spinner for the patent office if nothing else.

Fixed that for ya...

Re:wait (1)

by (1706743) (1706744) | more than 3 years ago | (#35434748)

Flying car
Flux capacitor
Food in pill form
Warp drive
Pills in food form

My offspring's gonna be rich...

Novelty and publication (2, Interesting)

tepples (727027) | more than 3 years ago | (#35434648)

In effect if you invent something you now have to patent it or possibly suffer the consequences from a patent troll.

You appear to claim that the law has been changed such that publication of an invention outside of a patent no longer makes the invention not "novel". Can you cite a particular piece of language in the bill supporting your claim?

Re:wait (5, Insightful)

IP_Troll (1097511) | more than 3 years ago | (#35434662)

First to file encourages people to file for patents sooner rather than waiting for someone else to file and cutting them off with a first to invent claim.

First to file doesn't favor patent trolls, they can't patent the invention if someone else was using it publicly and didn't bother to patent it.

If anything it cuts off patent trolls because they can't keep inventions a secret waiting for someone else to file a patent, and then usurp that patent from the original filer.

Re:wait (1)

Lovedumplingx (245300) | more than 3 years ago | (#35434830)

Interesting. I was thinking first to file would favor but patent trolls but your explanation makes sense to me.

Re:wait (4, Informative)

skids (119237) | more than 3 years ago | (#35434962)

They used to file, then before they got approved, refile with amendments and just keep doing that until someone with something close enough to their patent came along, then refile with one last final amendment to make their patent close to what the unfortunate victim had started to market.

That was called a "submarine patent" and they fixed that a while back. This is probably aimed at killing the practice you just mentioned, which was what trolls turned to after that.

It kills submarine patents (2)

rsilvergun (571051) | more than 3 years ago | (#35434982)

but it creates it's only share of problems described above. First to File would be fine if our patent office would stop rubber stamping stuff like 1 click shopping...

Re:wait (3, Interesting)

Jane Q. Public (1010737) | more than 3 years ago | (#35434988)

First-to-file does favor companies and corporations indirectly, if not necessarily patent trolls.

Backyard and basement inventors (who make up a surprisingly large percentage of true innovation) in many cases do not have the money to file right away. Although the patent search situation is much better than it was some years ago, it can still take money, research, and time to file, and the services of a patent attorney, while not technically necessary, can be an advantage.

These are things that many companies and corporations have readily at hand, or can easily afford to do. Not so the independent inventor.

There are a few protections in place, but there is still no doubt that first-to-file favors the big players over the little. That is a very bad situation, and I argue that it is worse for inventors in America than the problem it is supposed to solve.

Re:wait (4, Informative)

h4rr4r (612664) | more than 3 years ago | (#35435044)

So then they should publish their works. The patent system was created to move knowledge into society. If you want to keep your widget a secret you do not deserve protection. It was not made to protect anyone or let anyone profit from anything.

Re:wait (0)

Anonymous Coward | more than 3 years ago | (#35434678)

Hasn't caused any disasters in the rest of the world where "first to file" has been used for ever.

Re:wait (0)

Anonymous Coward | more than 3 years ago | (#35434716)

Or publish the invention, thus making it unpatentable, and move on with your life.

In the end, first-to-invent is just waaaay too fucking complicated to enforce. And it actually empowers patent trolls, as it allows someone to say "See, I totally invented this thing first, therefore I win!", while first-to-file encourages disclosure.

Re:wait (1)

NJRoadfan (1254248) | more than 3 years ago | (#35434734)

FWIW China also uses the first to file system for both patents AND trademarks. The system has already stung a few large corporations who didn't know the law of the land. The court system there makes it impossible to fight as well.

Re:wait (0)

Anonymous Coward | more than 3 years ago | (#35435020)

FWIW China also uses the first to file system for both patents AND trademarks. The system has already stung a few large corporations who didn't know the law of the land. The court system there makes it impossible to fight as well.

I believe the goal there is to bribe, not to fight. If the opponent charges too high, you bribe the judge.

Re:wait (2)

h4rr4r (612664) | more than 3 years ago | (#35434994)

No, you just have to publish to so you can provide prior art. The whole point of the patent system is to provide a limited monopoly in exchange for showing the public how to make your widget. So either patent or publish or STFU.

Re:wait (0)

Anonymous Coward | more than 3 years ago | (#35434708)

Isn't first to file REALLY bad? It helps patent trolls doesn't it?

I thought of that before you.

Why do you ask if you already knew the answer? (2)

Lead Butthead (321013) | more than 3 years ago | (#35434910)

From TFA -

Chuck Grassley (Iowa), the Ranking Republican on the Judiciary Committee, and Orrin Hatch (R-Utah) were original co-sponsors of the bill.

The moment I saw THAT name, I already know this bill is bought and paid for by special interests. This is the same MAFIAA loop that tried to rape us with the INDUCE act [corante.com] . I think we'll all be so very f_cked if this f_cker passes. Epic Fail does not even begin to describe the this...

Does not Affect Prior Art Doctrine (5, Informative)

Sonny Yatsen (603655) | more than 3 years ago | (#35434000)

I'm sure someone's going to start asking whether a First-To-File system affects the prior art doctrine and whether it means big companies can steal ideas from open source projects and patenting them. Let's dispense with some misconceptions.

Misconception 1: This destroys the prior art system.
* This isn't true. A prior art will still cause an application to be denied under 35 USC 102. This means that if any sort of prior art is published (i.e. available to the public) that would anticipate or render an application invalid, it would still operate to render the application unpatentable. Remember, the law requires all patents to be "novel" and "nonobvious".

Misconception 2: This would mean big companies can steal ideas from open source projects and file applications on them.
* This isn't true either. The open source project would function as prior art against the later application. Even though there is a first to file system, it doesn't mean that the first person to file can steal ideas that were out there and use it as their own.

The first to file system only really works in a very specific context - where you have two inventors who filed an application on almost identical types of inventions within a short period of time. Under the current system, there has to be a very fact-intensive and time consuming process of determining who was the first inventor - which means going through years of lab notebooks and correspondences to pin out the priority between two applicants. This is very expensive, very time consuming, and it's also taxing on the court system and the USPTO. A First to File system makes it much easier - priority can be determined within seconds of looking at the filing date.

Re:Does not Affect Prior Art Doctrine (1)

Synn (6288) | more than 3 years ago | (#35434070)

Great explanation. Thanks.

Re:Does not Affect Prior Art Doctrine (1)

bluefoxlucid (723572) | more than 3 years ago | (#35434098)

Second Place: The First Loser

I think Ricky Bobby said it best... (1)

NeverVotedBush (1041088) | more than 3 years ago | (#35434250)

"If you ain't first, you're last. You know, you know what I'm talking about? That there is trademarked, not to be used without written permission of Ricky Bobby, Inc."

Re:Does not Affect Prior Art Doctrine (0)

Anonymous Coward | more than 3 years ago | (#35434928)

"Losers always whine about their best! Winners go home and fuck the prom queen."
Sean Connery in "The Presidio"

Re:Does not Affect Prior Art Doctrine (2, Insightful)

Anonymous Coward | more than 3 years ago | (#35434146)

I don't know much about the new legislation, but considering that the provision in current law, that "... all patents to be "novel" and "nonobvious"." has been frequently ignored, I'm not sure the specific context you mention would be the limiting factor in practice.

Re:Does not Affect Prior Art Doctrine (3, Insightful)

Drakkenmensch (1255800) | more than 3 years ago | (#35434164)

Remember, the law requires all patents to be "novel" and "nonobvious".

What will become of the dozens of geniuses who patent laser pointers as "cat exercise systems"?

Re:Does not Affect Prior Art Doctrine (1)

meerling (1487879) | more than 3 years ago | (#35434496)

That's not because of a flaw in the patent system, just a massive flaw in the patent examiners. (Incompetence, Corruption, Overworked, or Laziness, your call.)

Re:Does not Affect Prior Art Doctrine (1)

shawb (16347) | more than 3 years ago | (#35434996)

Which, in theory, should be somewhat alleviated by the patent office now holding on to the license fees rather than passing them on to patch the general budget. Well, unless corruption is actually one of the largest driving factors. Which, having worked in a beaurocracy, I highly doubt.

Re:Does not Affect Prior Art Doctrine (3, Insightful)

Cyberax (705495) | more than 3 years ago | (#35434190)

This isn't true. A prior art will still cause an application to be denied under 35 USC 102. This means that if any sort of prior art is published (i.e. available to the public) that would anticipate or render an application invalid, it would still operate to render the application unpatentable.

Yeah, sure. Like USPTO concerns itself with prior art searches. Or like you're going to waste hundreds thousands of dollars in multi-year lawsuits if a patent troll approaches you with 'an offer you can't refuse'.

Re:Does not Affect Prior Art Doctrine (2)

MozeeToby (1163751) | more than 3 years ago | (#35434378)

So... how is that different from now? Patent trolls trample over prior art with the system as it is today, the change to first to file doesn't change that in the slightest. All it does is reduce the costs associated with a review if two similar applications are received at nearly the same time. Incidentally, this is exactly how most of the Western world's patent systems work, and they have no more, and often quite less, trouble with patent trolls than the US does.

Re:Does not Affect Prior Art Doctrine (1)

Cyberax (705495) | more than 3 years ago | (#35434562)

It will make it easier for patent trolls. It's quite hard to get a patent revoked due to prior art and courts also tend to side with patent holders. The 'first to file' system needs also the 'prior use' clause - anyone who was using the invention prior to the filing date should get an automatic license for this patent.

Re:Does not Affect Prior Art Doctrine (1)

daedae (1089329) | more than 3 years ago | (#35434688)

No, anyone who was using the invention prior to the filing date should (and, theoretically, does) prevent the patent from being granted. Unless you're suggesting that a free prior use license for existing instances and making everybody else pay for a license is somehow better than prior art blocking a patent, and you're suggesting that getting a prior use license would be be easier than getting a patent revoked/blocked.

Re:Does not Affect Prior Art Doctrine (2, Insightful)

Anonymous Coward | more than 3 years ago | (#35434596)

Old system:
I invent something, somebody catches wind of it and puts in a patent application, then I send in a patent application showing I've been working on it for longer. I get a patent.

New system
I invent something, somebody catches wind of it and puts in a patent application, then I send in a patent application showing I've been working on it for longer. They get a patent because they filed first and I can't afford to take them to court to get it reversed. I lose. Or I do have enough money, they lose the patent and now NOBODY has a patent. I needed patent protection so I could license out my product. I still lose.

Re:Does not Affect Prior Art Doctrine (0)

Anonymous Coward | more than 3 years ago | (#35434780)

you forgot to mention the first mover advantage [wikipedia.org] which is usually all that is needed to realise a sensible profit

Re:Does not Affect Prior Art Doctrine (1)

perpenso (1613749) | more than 3 years ago | (#35435076)

I invent something, somebody catches wind of it and puts in a patent application, then I send in a patent application showing I've been working on it for longer. They get a patent because they filed first and I can't afford to take them to court to get it reversed. I lose. Or I do have enough money, they lose the patent and now NOBODY has a patent. I needed patent protection so I could license out my product. I still lose.

Why did you not file as you were inventing, before someone else discovered what your were doing? If you were trying to max out the time your invention would be under patent then you knowingly took a risk, trading a longer protection period for increased risk of discovery. With a US patent lasting 20 years it seems you got greedy and lost. Even if it took ten years to get to market you would have ten years of monopoly. Furthermore licensing can occur during development. It may even be financially beneficial for you to do so. Things are not as simple as you are suggesting.

Re:Does not Affect Prior Art Doctrine (1)

EvanED (569694) | more than 3 years ago | (#35434412)

Yeah, but that sort of thing can happen now. The new law wouldn't change that fact.

Re:Does not Affect Prior Art Doctrine (1)

Anonymous Coward | more than 3 years ago | (#35434266)

I wish patents were more like trademarks in that you have to actively enforce them unless you loose your right to exclusivity. That would prevent patent trolls from waiting until something is "popular" to sue the crap out of every company that exists.

Laches doctrine (1)

tepples (727027) | more than 3 years ago | (#35434742)

Say an alleged infringer can prove that the owner of an exclusive right delayed legal action with intent to harm the alleged infringer. Then under the "laches" doctrine, the alleged infringer doesn't have to pay damages; the most the owner of an exclusive right can get is an injunction.

Re:Does not Affect Prior Art Doctrine (1)

Anonymous Coward | more than 3 years ago | (#35434376)

I've always been a bit confused about this: maybe you can clear it up for me by confirming what would happen in these scenarios:

1) Suppose I invented an algorithm and made my code opensource and readily available on GitHub or SourceForge. If someone else files a patent application for what is effectively the same algorithm, it's possible to establish an argument of prior art by referencing the repository's commit logs and demonstrating that the algorithm had been fully realized by the time the application was filed.

2) Same algorithm, but this time my code is stored in a local repository and the public does not have access to it yet. To protect the invention from Trolls, I have to file a patent and hope that I get to it before someone else does because there's no hope of establishing prior art if the public does not have access to it.

Is this correct?

Re:Does not Affect Prior Art Doctrine (1)

Sonny Yatsen (603655) | more than 3 years ago | (#35434532)

Algorithms are unpatentable subject matter under 35 USC 101, so both scenarios are inapplicable.

Re:Does not Affect Prior Art Doctrine (1)

theshowmecanuck (703852) | more than 3 years ago | (#35435060)

Sure the algorithm is not patentable, but the business method is. e.g. the infamous "one click" patent. So this guy comes up with an idea and then a patent troll patents it. Now the original inventor has to spend tens of thousands of dollars or more to fight to get the patent revoked; even though in theory it shouldn't cost that much. I don't think the actual algorithm is the issue. I think the effect of that algorithm is more important with the patent office. i.e. what it does. There are many ways to code a 'one click' type of system or method. It doesn't matter how many algorithms there are, they are all blocked by the one business method patent.

Re:Does not Affect Prior Art Doctrine (1)

Defenestrar (1773808) | more than 3 years ago | (#35434632)

Not entirely. There's also going to be an open window where third parties may submit documents relevant to the patent - which include demonstrations of prior art. The key piece is that you have to be paying attention to what other people are patenting because if you miss the window to file, you (and the public) will be out of luck. Oh, you also better be able to show some sort of time stamp too.

The EFF has a decent summary in their deeplinks [eff.org] , but I'm not sure if it's the house or senate version they are talked about.

Re:Does not Affect Prior Art Doctrine (1)

locallyunscene (1000523) | more than 3 years ago | (#35434402)

As long as you have the money to go after the patent in court because,

Excluded from the bill was a controversial amendment, backed by many tech companies, that would have eased the process for initiating an in-house administrative review process at the Patent Office for challenges to patents that have been granted, a measure billed as a less costly alternative to private litigation.

IMHO this bill is a disaster; it's regulatory capture and not reform.

More info on the bill (4, Informative)

billstewart (78916) | more than 3 years ago | (#35434418)

The Senate bill is S.23, aka "America Invents" [gpo.gov] , sponsor Patrick Leahy, who's been trying to get patent reform done for years.
Bill status query at thomas.loc.gov (not sure if these are persistent) [loc.gov] , Computerworld article [computerworld.com] , National Journal with some brief comments from pro/neutral/con parties [nationaljournal.com] , SF Chron article [sfgate.com] .

Silicon Valley businesses large and small were mostly against it, IBM was for it. Dianne Feinstein attempted an amendment to remove the First-to-File part, but voted for it anyway after that failed. Barbara Boxer voted against.

The US patent system has been first-to-invent for a long time, while Europe has been first-to-file. There's lots of other detail, largely intended to reduce the amount of patent litigation, improve the coordination with non-US patents, potentially improve the problems with patents on things with prior art and obviousness, and affect some tax issues."

Re:Does not Affect Prior Art Doctrine (1)

dgatwood (11270) | more than 3 years ago | (#35434470)

The open source project would function as prior art against the later application.

Maybe, maybe not. It would have to be shown that the open source project was in use by people in the United States prior to the date that the other company "invented" their product (which is not the filing date for the patent).

It's not at all clear whether online publication is considered publication for patent litigation purposes because it is easy to change and falsify dates. Thus, the project itself might or might not be considered prior art, though a print publication describing the open source project would.

The first to file system only really works in a very specific context - where you have two inventors who filed an application on almost identical types of inventions within a short period of time.

I would argue that except in cases of corporate espionage, all such filings are, by definition, situations in which "the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains." (35 U.S.C. 103) The fact that we're even discussing first-to-patent versus first-to-file patent rules is illustrative of the fundamental brokenness of our patent system. If there is ever an argument about who should get the patent, then the patent is almost invariably too obvious to be deserving of a patent in the first place.

First-to-File prevents publish-then-patent (3, Insightful)

billstewart (78916) | more than 3 years ago | (#35434512)

One big difference between the First-to-File system and First-to-Invent is that with First-to-Invent, you can publish your invention and then file the patent within a year of publishing it, while it's very difficult to do that with first-to-file. I'm not sure how important that is in practice; one major impact it had in the US was the RSA patent and other patents that were affected by another US quirk, which is that the military can declare your patent application to be classified and prevent publication (nearly forever), and Publish-then-Patent made it possible for R, S, and A to get their work out.

Re:First-to-File prevents publish-then-patent (1)

Defenestrar (1773808) | more than 3 years ago | (#35434726)

You can still patent and publish at the nearly the same times. Have your press release written, journal articles through the in-house review, etc..., and as soon as you've got that postmark or electronic submission time stamp you flip the switch to punch the others out too. If you screw up and get your PR out there a little early there's still very little chance someone else can write up and submit the patent before you've got yours in (although I wouldn't want to be in that position), especially in a "this work is mine" convincing manner.

Re:Does not Affect Prior Art Doctrine (1)

yakatz (1176317) | more than 3 years ago | (#35434518)

While this might be the intent of the new rules, here is why some people are skeptical:

First, how many small companies/individuals can afford to hire a patent attorney to help them wade through the many forms required to request a re-examination of a patent for prior-art?

Second, once the patent has been issued the big corporation (with in-house council and the budget for lawyers) usually wins (as the Eastern District of Texas [wikipedia.org] has [slashdot.org] shown [slashdot.org] many [slashdot.org] times [slashdot.org] ).

They can file in court in a district that is known to be friendly to patent trolls corporations and/or run up large legal bills that a smaller company/individual would not be able to pay.
 

Remember, the law requires all patents to be "novel" and "nonobvious".

In all seriousness, when did that stop anyone?

Ok, I know that those patent cases I linked to are not necessarily about prior art, but on examination by a tech person instead of a lawyer, many would be thrown out before they got very far.
---
Final note, I discussed this with a "Senior Legal Advisor" in the Office of Patent Legal Administration of the US Patent and Trademark Office, so I am pretty sure I got it all right.

Re:Does not Affect Prior Art Doctrine (2)

vldragon (981127) | more than 3 years ago | (#35434524)

If there are multiple inventers coming up with the same thing at aproximantly the same time you would think the invention wouldn't be patantable as it should be considered obvious by the fact that more than 1 person came up with it.

Re:Does not Affect Prior Art Doctrine (0)

Anonymous Coward | more than 3 years ago | (#35434544)

The first to file system only really works in a very specific context - where you have two inventors who filed an application on almost identical types of inventions within a short period of time. Under the current system, there has to be a very fact-intensive and time consuming process of determining who was the first inventor - which means going through years of lab notebooks and correspondences to pin out the priority between two applicants. This is very expensive, very time consuming, and it's also taxing on the court system and the USPTO. A First to File system makes it much easier - priority can be determined within seconds of looking at the filing date.

Easier but not more fair..

I understand the need to clear the backlog but this does seem to reward trolls. I would be happier if the process allowed the interested parties to do the research themselves and present it in court in order to invalidate the first filer on the grounds of prior art. I'm assuming that prior art applies even within small periods of time that would exist in this situation.

Re:Does not Affect Prior Art Doctrine (1)

Sonny Yatsen (603655) | more than 3 years ago | (#35434644)

What you suggested is already part of the US Patent System.

Third parties are allowed to cite prior art to the USPTO for a patent application where the prior art is believed to have a bearing on the patentability of the application. Similarly, for already issued patents, third parties may also request an ex parte reexamination of issued patents on the basis of prior art references that is believed to have a bearing on the validity of the patent.

http://www.uspto.gov/web/offices/pac/mpep/documents/2200.htm [uspto.gov]

Re:Does not Affect Prior Art Doctrine (2)

BenFenner (981342) | more than 3 years ago | (#35434564)

The first to file system only really works in a very specific context - where you have two inventors who filed an application on almost identical types of inventions within a short period of time.

Why is that even a specific case to consider that needed clarifying? Wouldn't two inventors coming up with almost identical types of inventions within a short period of time necessarily evoke the "obvious/trivial advancement" disqualification?

Re:Does not Affect Prior Art Doctrine (1)

marcello_dl (667940) | more than 3 years ago | (#35434616)

> The first to file system only really works in a very specific context - where you have two inventors who filed an application on almost identical types of inventions

AND, when a crook steals an idea from the inventor and files the application.

But who cares, as long as the patent office can award patents efficiently? I mean why don't we dispose of judge and jury and just make the guy with most expensive lawyers the automagic winner of a trial, too? :)

Re:Does not Affect Prior Art Doctrine (1)

Mordok-DestroyerOfWo (1000167) | more than 3 years ago | (#35434868)

I mean why don't we dispose of judge and jury and just make the guy with most expensive lawyers the automagic winner of a trial, too? :)

Isn't that the way it works already?

Re:Does not Affect Prior Art Doctrine (1)

Script Cat (832717) | more than 3 years ago | (#35434722)

"Misconception 1: This destroys the prior art system."

The system does not really work in the way you describe.

Prior art will be destroyed because the open source project will not have money to defend its self in court. Instead they will have to decide between losing their job and abandoning their family to spend years defending their little OSS project or quitting and going on with their life.

Re:Does not Affect Prior Art Doctrine (1)

FutureDomain (1073116) | more than 3 years ago | (#35434768)

Misconception 1: This destroys the prior art system. * This isn't true. A prior art will still cause an application to be denied under 35 USC 102. This means that if any sort of prior art is published (i.e. available to the public) that would anticipate or render an application invalid, it would still operate to render the application unpatentable. Remember, the law requires all patents to be "novel" and "nonobvious".

This should be true, but since the patent office often approves patents without doing a proper prior art check, then it probably won't work this way in practice. What needs to happen is for this "patent reform" bill to allow the patent office to be sued for issuing a blatantly invalid patent. If there is obvious prior art or it is obviously vague, then they could be sued for the cost of invalidating the patent plus some other damages (such as loss of sales if case of an injunction). The patent office would then be much more cautious about approving invalid or questionable patents.

Any system gameable... (1)

DeAngeloLampkin (1993582) | more than 3 years ago | (#35434954)

Nice breakdown. I would seem any system or legislation or whatever we come up with can be gamed by the less scrupulous. I think the best we can do with the IP legal situation is prevent people from giving themselves outright economic advantages (i.e. infinite copyrights and whatnot).

-DeAngelo
CheerThis [cheerthis.com] -hassle free sharing with NO login and infinite voting
SheenNation [sheennation.com] - hassle free sharing Sheen! (no login and infinite voting)
Braincano [braincano.com]

Re:Does not Affect Prior Art Doctrine (1)

Jane Q. Public (1010737) | more than 3 years ago | (#35435042)

"Under the current system, there has to be a very fact-intensive and time consuming process of determining who was the first inventor - which means going through years of lab notebooks and correspondences to pin out the priority between two applicants. This is very expensive, very time consuming, and it's also taxing on the court system and the USPTO."

Perhaps so. But it is still the right, just, and proper way to do it.

Re:Does not Affect Prior Art Doctrine (1)

Jane Q. Public (1010737) | more than 3 years ago | (#35435080)

We do not exist, pay taxes, or work for the convenience of the federal government. On the contrary: we pay the federal government to do right by us. First-to-file has this principle exactly backward.

Ha (2)

cbs4385 (929248) | more than 3 years ago | (#35434022)

For a patent, it should be the first to walk into the office with a working prototype, and that implementation is what the patent should cover.

Re:Ha (1, Troll)

ByOhTek (1181381) | more than 3 years ago | (#35434186)

Consider:

Joe Schmoe is familiar with with the production of FOO. FOO is expensive to produce, an individual probably could produce one without prohibitive cost.
Joe has figured a way to make BAR, an item significantly better than FOO, but it still costs about the same as FOO.
Joe wants to sell BAR to companies, doesn't want them to steal it from him. With a first-to-prototype style of patent, Joe has no protection.

Re:Ha (0)

Anonymous Coward | more than 3 years ago | (#35434454)

Huh? This isn't true at all. There are these things called trade secrets and contracts. Joe can have the company sign an NDA and non-compete, and then disclose. If the company steals the idea, he can sue the company on the contract. If someone else gets wind of the idea through the company, Joe can use trade secret law to stop them from competing.

In reality, the capacity to invent an idea uses usually coincides with the means and opportunity to put it to the test. If you're a computer scientist, you have your computer. If you're a biologist, you probably already work at a lab somewhere. If you're a metallurgist or machinist you probably have the equipment, either at home or at work.

What about the guy who invents the next aircraft engine or power plant, you ask? Bad question. He's almost certainly not inventing the next engine or power plant; he's invented a new fuel pump or heat casing material. And that is far easier to prototype.

Re:Ha (0)

Even on Slashdot FOE (1870208) | more than 3 years ago | (#35434494)

If "an individual probably could produce one without prohibitive cost" what is stopping him from making the prototype and patenting it? Magic? The desire to use this argument to make your point? What?

Re:Ha (1)

The Grim Reefer2 (1195989) | more than 3 years ago | (#35434442)

For a patent, it should be the first to walk into the office with a working prototype, and that implementation is what the patent should cover.

It would be interesting to know what percentage of patents are granted that actually have a working prototype these days. I have no idea, but would speculate it's fairly small.

Re:Ha (1, Insightful)

Atrox666 (957601) | more than 3 years ago | (#35434886)

I invent things that could be used to cause harm. Sharing this technology with a murderous criminal organization like the US government would be immoral. Should I have no right to my own work?
The people who invent things should be rewarded, right now it is corporate parasites that get rewarded all too often and all too much.
I also don't feel like paying war criminals for the rights to my own work.
Forcing people to pay to not be ripped off is a protection racket and should be considered a crime like any other kind of theft.

First to file versus first to invent? (1)

Rinisari (521266) | more than 3 years ago | (#35434056)

It seems that "first to file" places a burden on inventors to patent as soon as they can, which may be very, very expensive.

What happens if I invent something and show it to some friends, then one of them takes my idea and patents it before I can because of whatever reason (he has money, connections, etc.)? That seems dreadfully unfair to me, especially if I can demonstrate that I had the idea first by showing recordings, demos, etc.

I see it like this: IIRC, Franklin didn't patent his stove design. What if he'd sold one to someone, they quickly realized he'd not patented it, then they patent it. That gives them a right to his profits, without having done any work, all because he neglected to patent his invention before selling it.

It seems this "first to file" thing is going to clog up the patent office even more, while potentially costing rightful inventors their hard-earning rewards from their ingenuity.

Re:First to file versus first to invent? (1)

Rinisari (521266) | more than 3 years ago | (#35434094)

I yield to this explanation [slashdot.org] .

Re:First to file versus first to invent? (0)

Anonymous Coward | more than 3 years ago | (#35434602)

Yes, I believe they can claim prior art if they can show they developed it before another party in order to block patent applications until they file one.

Re:First to file versus first to invent? (4, Informative)

Sonny Yatsen (603655) | more than 3 years ago | (#35434114)

Then the patent is invalid on the basis of 35 USC 102(f):

"A person shall be entitled to a patent unless -
(f) he did not himself invent the subject matter sought to be patented."
http://www.uspto.gov/web/offices/pac/mpep/documents/2100_2137.htm#sect2137 [uspto.gov]

Re:First to file versus first to invent? (0)

Anonymous Coward | more than 3 years ago | (#35434536)

did not himself invent the subject matter

Why does this sound like you're "inventing" terminology like pseudo-science?

Re:First to file versus first to invent? (1)

BitZtream (692029) | more than 3 years ago | (#35434926)

Of course ... you would actually have to PROVE the person didn't invent it which is far easier said than done, don't you think?

Re:First to file versus first to invent? (1)

Microlith (54737) | more than 3 years ago | (#35434144)

I see it like this: IIRC, Franklin didn't patent his stove design. What if he'd sold one to someone, they quickly realized he'd not patented it, then they patent it. That gives them a right to his profits, without having done any work, all because he neglected to patent his invention before selling it.

It could be a problem, if the USPTO ignores prior art that directly covers the application at hand. If first-to-file allows them to post the applications publicly within a short time frame, you could easily point to an example of prior art that existed before the filing date and nullify it entirely.

Re:First to file versus first to invent? (0)

Anonymous Coward | more than 3 years ago | (#35434148)

NDAs.

Re:First to file versus first to invent? (1)

ibpooks (127372) | more than 3 years ago | (#35434176)

In your example, neither man would be eligible to patent the design as the offering for sale to the public discloses the invention to the public, which constitutes prior art.

Re:First to file versus first to invent? (2)

necro81 (917438) | more than 3 years ago | (#35434314)

If memory serves, the person who actually invented it may still file for a patent for up to one year after the first public disclosure. Generally, businesses will still try to file a patent before the first public disclosure, but that is largely a strategic decision, not a legal one.

Re:First to file versus first to invent? (2)

TooManyNames (711346) | more than 3 years ago | (#35434520)

Nope. An inventor has up to a year after public use/offers for sale to patent. If, during that time, someone else files for patent before the inventor (say one of the purchasers), they'd get priority with first-to-file, not the actual inventor. Now, 102(f) is there to safeguard against fraudulent claims of inventorship, but if it can't be proven one way or the other, the inventor is SOL. Under the old system, the inventor could have used notebooks and other materials to prove his claim to the invention (being first to invent). Of course, it wouldn't be easy for the inventor to prove he was first to invent, and it would cost him to do so, but he would still have had the capability to prove he invented first even if 102(f) was unprovable. Now, the only hope for him is to prove beyond a doubt that 102(f) holds.

Re:First to file versus first to invent? (0)

Anonymous Coward | more than 3 years ago | (#35434182)

It seems that "first to file" places a burden on inventors to patent as soon as they can, which may be very, very expensive.

What happens if I invent something and show it to some friends, then one of them takes my idea and patents it before I can because of whatever reason (he has money, connections, etc.)? That seems dreadfully unfair to me, especially if I can demonstrate that I had the idea first by showing recordings, demos, etc.

I see it like this: IIRC, Franklin didn't patent his stove design. What if he'd sold one to someone, they quickly realized he'd not patented it, then they patent it. That gives them a right to his profits, without having done any work, all because he neglected to patent his invention before selling it.

It seems this "first to file" thing is going to clog up the patent office even more, while potentially costing rightful inventors their hard-earning rewards from their ingenuity.

First, if your friend would do that, he's a dick.

Second, with great power comes great responsibility...as in make people sign an NDA if you are going to show something off.

Re:First to file versus first to invent? (1)

ByOhTek (1181381) | more than 3 years ago | (#35434234)

Conversely, what if a prototype for something is too costly for an inventor, but it has a high likelihood of functioning? Doesn't the inventor deserve some protection to either (a) get the backing for financing the prototype, or (b) selling the idea to companies which could afford to make the prototypes?

Re:First to file versus first to invent? (1)

SirGeek (120712) | more than 3 years ago | (#35434344)

No. If you can't produce something that works, then odds are no one else can either. and therefore NO ONE deserves protection. The lack of a prototype requirement is a big cause for most of the patent troll crap

Re:First to file versus first to invent? (1)

Defenestrar (1773808) | more than 3 years ago | (#35434902)

Not necessarily. An guy can sit down and draft something up (including mathematical and theoretical demonstrations), but he should still be able to patent even if he can't afford to build his own foundry, get the payload into orbit, or you know... buy enough palladium for his ARC reactor ;) (Not everyone has Tony Stark's financial superpowers).

That's also why an inventor has a year to file after public disclosure. Where the strategy changes is whether public disclosure to gather capital is wise if you're working in a field with competing inventors (i.e. you might give them the clue which gets their stuff working and then they might file before you). That's where NDA's and non-competes can help, but chances are the big company isn't about to sign those forms for the little guy in a garage without some pretty darn impressive examples of the work and it's ability to clear existing patents. It can be a real tricky thing to get someone to agree to not compete in your field (and likely their own) before you're allowed to tell them exactly why it's worth their while not to compete...

Re:First to file versus first to invent? (1)

sed quid in infernos (1167989) | more than 3 years ago | (#35434488)

I see it like this: IIRC, Franklin didn't patent his stove design. What if he'd sold one to someone, they quickly realized he'd not patented it, then they patent it. That gives them a right to his profits, without having done any work, all because he neglected to patent his invention before selling it.

No, the person who bought the stove would still have to prove they invented it. And if Franklin could prove he sold him a model that looks just like the one the fraudster is trying to patent, it'd be pretty easy for Franklin to prevail.

That doesn't mean this is a good change - it will clog the patent system as people rush to file prematurely - but it's not as bad as some are making it out to be.

Originality v. Novelty (0)

Anonymous Coward | more than 3 years ago | (#35434634)

You're confusing two concepts, originality and novelty. To get a patent, both elements are required. Novelty is obvious; that nobody else has come up with the idea. This is a conceit, because "there's nothing new under the sun", so novelty really just comes down to methods of evidence. Originality means that you must have conceived of the idea yourself, even if a million other people also conceived of it before you.

Thus if someone tells you a novel idea, the idea might still be novel according to law, but it wouldn't be original to you. Thus you can't legally obtain a patent.

Compare this with copyright, where the only requirement is originality. Thus if two people come up with the same song, both can obtain copyright for their independent works, even if the second person comes up with it years later. However, in practice, if some expression appears so patently novel, the second-comer will have a difficult time proving originality; that he wasn't tainted by the idea.

Re:First to file versus first to invent? (1)

Defenestrar (1773808) | more than 3 years ago | (#35434762)

Franklin would still have prior art.

Reform? (2, Insightful)

Anonymous Coward | more than 3 years ago | (#35434082)

There's nothing reformatory about this bill. The patent trolls and lawyers are well pleased.

Re:Reform? (2)

countertrolling (1585477) | more than 3 years ago | (#35434200)

There's nothing reformatory about this bill.

You can't "reform" slavery

lame reporting as usual (0)

Anonymous Coward | more than 3 years ago | (#35434104)

Other than first to file, what's in the Senate bill? But there's plenty of reporting about the industry politics and lobbying, which Senators claimed it was a landmark that would put Americans back to work, etc.

What we really need (0)

Anonymous Coward | more than 3 years ago | (#35434134)

How about limiting the number of patents issued per year by significantly raising the standards required to issue a patent? I don't know how anyone can possibly believe there have been 7 million unique inventions (and counting) since the patent system was initiated.

Soon harmony and rationality will triumph (1)

Arancaytar (966377) | more than 3 years ago | (#35434192)

rotfl.

first to file standardizes things world-wide (4, Insightful)

rritterson (588983) | more than 3 years ago | (#35434274)

Other comments have taken to clearing up some of the misconceptions regarding first-to-file versus first-to-invent so I won't duplicate them. However, one thing not yet pointed out is that the vast (VAST) majority of the rest of the world uses a first-to-file system.

By switching our system, it reduces the burden on an inventor (and thus the legal cost) of obtaining a world wide patent as the systems become closer to the same. And note that Europe has not considered switching to first-to-invent as a way to combat patent trolls, which says something about how much the USA switching will help/hurt trolls.

That's not real reform (3, Insightful)

Waffle Iron (339739) | more than 3 years ago | (#35434298)

Backlog, schmaklog. The real reform we need would be to reduce the number of patents issued by orders of magnitude. The bar for patentability should be raised from "not blatantly obvious to below-average freshman engineer" to "that's freakin' genius". That would simplify things for everybody, eliminate most of the huge burdens on society involved with accounting for tens of millions of extant patent claims, while still ensuring that people with genuine Big Ideas get rewarded.

IMO, it would be an improvement to make the patent system a reality show like The Apprentice or American Idol. Allocate something like 100 possible patents each year to each field of industry, then have juries (not bureaucrats) review all of the applicants in rounds, make the would-be idea monopolists defend their claims in public. Keep voting applications off the island until the few truly worthy patent candidates still stand.

Re:That's not real reform (1)

ubuntufan9 (2007444) | more than 3 years ago | (#35435066)

This not going to work, very sadly. Because, big corps will just buy the jury, and so they will get that 100 patents. In reality, money is the only factor. If you have it, you have power, if you don't then no law will protect you.

How To Monkey Wrench It (1)

b4upoo (166390) | more than 3 years ago | (#35434324)

The patent service is not perfectly screwed up. The Florida Voter Registration System should take charge. If they can steal an election as they already have they can screw up most anything. Then if that is not screwed up enough we can use Florida's Department of Children and Family Services as the agency from hell. They can mess up absolutely anything. They even are able to kill little children assigned to their care.

Well, that sucks for the small guy (0)

Anonymous Coward | more than 3 years ago | (#35434396)

As is common these days, the small-time inventor is left out to dry... This just makes it easier for large companies who can afford to file the patent right away to grab inventions from individual inventors...

So, let's say I have an invention. I have not yet made it "public" but I have talked to one or two companies about investing in the product, which I am intending to patent when I have secured sufficient funding... Now, upon seeing that I don't have the money to file it myself, and now knowing all about the invention... they can file the patent for themselves, thus robbing me of my idea. Since it's first to file, I can no longer fight them on it, even if I have a legally dated document (either notarized and dated, or by sending a certified letter containing the document describing the idea)

Landmark Patent Reform Bill? (1)

M8e (1008767) | more than 3 years ago | (#35434458)

So you can patent landmarks now?

First to invent WITH CAVEATS probably best (1)

davidwr (791652) | more than 3 years ago | (#35434558)

I'm generally for first to invent with the following caveats:

* If your invention predated someone else's first-filing by more than a year, tough. You should've published or filed.
* If two parties file before anyone publishes or before the patent office discloses, it's at least some indication that the invention might be obvious. In other words, if you invent in 2000, keep it a secret for 10 years, file in late 2010, and someone independently invents it in early 2011 and files immediately, the patent office should at least consider that as of late 2010 the invention was obvious, and not grant anyone the patent. This is an incentive to not sit on things.

Why do I favor first to invent? Because first to file deprives a "first inventor" who takes reasonable time to polish his application before submitting it of his rightful claim. Granted, if the 1-year limit and two-submissions-within-a-year-may-be-obvious considerations above, this wouldn't be quite as much of a difference as it is without them.

700,000? (1)

PPH (736903) | more than 3 years ago | (#35434702)

I can clean most of that up right now. Just search through applications which read "Do blah, blah, blah using the Internet" and throw them out. If blah, blah, blah was an innovation by itself, let them re-file without "Internet". Otherwise, the general case for doing generic stuff was placed into the public domain by ARPA a long time ago.

IP theft and corporate spies. (1)

bigpat (158134) | more than 3 years ago | (#35434796)

IP theft is a real problem and I am concerned that the real effect of a first to file system is that it will reward those companies that have the best corporate spies. Being nearly impossible to prove theft of an invention if one covers their tracks, the real deterrent to this type of theft has always been the risk that the inventor would be able to show an earlier invention date. With a first to file system as long as the thief covers their tracks and creates a false paper trail then they can get away with it even if it goes to trial. I guess with a first to invent system, then it was always possible to create notebooks with false dates, but now you don't have to guess an early enough date you just have to create a believable date. Could be a subtle but important difference.

What is "fee diversion"? (0)

Anonymous Coward | more than 3 years ago | (#35434942)

What is "fee diversion"? The fact that money is diverted to something better instead of a bunch of people wasting money paying fees for the same invention but only one of them getting recognized? How is this something to be congratulated?

Really? (1)

Y Ddraig Goch (596795) | more than 3 years ago | (#35434956)

"...soon harmony and rationality will triumph." From the US Government, surely you jest!

Tesla v. Marconi (0)

Anonymous Coward | more than 3 years ago | (#35434960)

USPTO... fucking genius over since 1904

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