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Patent Reform Bill Passes Senate

samzenpus posted more than 3 years ago | from the first-to-file dept.

Patents 368

First time accepted submitter nephorm writes "The Senate passed the first major overhaul of the nation's patent law in more than a half century by passing the America Invents Act. The legislation won overwhelming approval in an 89-9 vote. From the article: 'The America Invents Act switches the U.S. patent system from a first-to-invent to a first-to-file nation. It also sets up a new regime to review patents and gives the U.S. Patent and Trademark Office more flexibility to set and spend fees paid for by inventors to get patents and businesses to register trademarks.'"

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I'd like to take this time to patent.... (5, Funny)

MasseKid (1294554) | more than 3 years ago | (#37348172)

The first post. I didn't invent it, but I did get here first.

Re:I'd like to take this time to patent.... (5, Interesting)

Divebus (860563) | more than 3 years ago | (#37348300)

I'd like to see the old "first to show the damned thing working" system come back. Ideas are one thing, but there's nothing like a working sample. No ambiguity if you can/can't show it, no pie-in-the-sky "inventions" that lay in wait in patent trolls' filing cabinets.

The people who have no resources to actually create their idea may be subject to someone else capitalizing on it, but I can see a robust VC or incubator lab market growing out of the need to show the device in action. Contracts would be between the idea person and the VC or lab and won't dirty up the patent system.

It doesn't matter what you would like to see (4, Insightful)

Anonymous Coward | more than 3 years ago | (#37348350)

What matters is what the aristocracy would like to see. Which is precisely what the America Invents Act delivers.

Ideas are valuable. Therefore, the aristocracy wants to control them. If this slows innovation down to a snail's pace, eliminates jobs, and weakens America's position as a world power, so be it.

And before anyone explains to me that offering patents creates an incentive to invent, just stop. Take a look at how patents are actually used in practice. They empower wealthy corporations to set up barriers-to-entry by making it so expensive to innovate that only the wealthy corporations can do it...and of course they do very little of it because the RnD is expensive and the enterprise too risky.

Re:It doesn't matter what you would like to see (0)

Anonymous Coward | more than 3 years ago | (#37348458)

And before anyone explains to me that offering patents creates an incentive to invent, just stop. Take a look at how patents are actually used in practice.

You're conflating the purpose of one thing, and whether or not it's often mangled and abused. Patents do create incentive. They are also used in perverse ways, such as how you described. The goal should be to get rid of the later issues hindering innovation, not to remove all incentive to innovate.

Re:It doesn't matter what you would like to see (3, Interesting)

slippyblade (962288) | more than 3 years ago | (#37348496)

In what way do patents, in ANY form, foster innovation? Strangely enough, there have been thousands of years of inventions without patents. I've never seen a single shred of evidence that patents do anything other than stifle creativity and lead to competition by litigation.

Re:It doesn't matter what you would like to see (4, Insightful)

ShakaUVM (157947) | more than 3 years ago | (#37348618)

>>In what way do patents, in ANY form, foster innovation?

I wouldn't bother going to the time and effort to bring a super cool new product (like, let's say, a hula hoop) to market if it was just going to get ripped off by a large corporation that has the resources to dump imitations at a loss until I go out of business.

The founding fathers understood this: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Sure, there have been inventions and discoveries in the past, but they've been faster and more impressive under our current patent regime than at any time before.

Re:It doesn't matter what you would like to see (2)

Pseudonym (62607) | more than 3 years ago | (#37348720)

Sure, there have been inventions and discoveries in the past, but they've been faster and more impressive under our current patent regime than at any time before.

You think? Surely the rate of truly groundbreaking invention and discovery was faster and more impressive a hundred years ago.

Re:It doesn't matter what you would like to see (0)

Anonymous Coward | more than 3 years ago | (#37348652)

Evidence? Every single thing that's ever been invented with the expectation of future profit, even before implementation of any kind of legal mechanism of protection. That should be sufficient.

In the past, everyone just made the investment of time and money, and then tried to hide the "secret sauce" for everything. There are long traditions of this. Now, given that nearly everything is trivially reverse-engineered and/or copied, with the benefit of technology and cheap foreign labor and manufacturing, we use patents instead of safes. And it mostly works.

Though as we discussed, the system has been mangled and abused, if only because every system is abused sooner or later. When that happens, it needs to be fixed. And it'll never be perfect, because there will always be shitty people in the world.

Ultimately, there's precious little reason for me to throw my money and labor at inventing anything new, be it machine, toy or drug, if someone else can simply copy it and sell a knock-off, profiting off of my significant investments with virtually no overhead of their own. And believe it or not, many aren't interested in throwing their life savings away (or a company flushing millions on) developing anything new if someone else is going to steal it and sell it for less, without repercussion.

It's common sense, people. Let's not throw the baby out with the (admittedly disgusting) bathwater.

Re:It doesn't matter what you would like to see (3, Interesting)

Anonymous Coward | more than 3 years ago | (#37348502)

Look, read and understand this:

http://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm [ucla.edu]

Patents do not and have never incentivised innovation. That's just a "lie to children" used as an excuse for their existence.

Re:I'd like to take this time to patent.... (1)

Anonymous Coward | more than 3 years ago | (#37348480)

I see you're using my PATENTED First Post Hijacking Technique for getting people to read and mod-up your comment by attaching it to a totally unrelated First Post.

My attorney will be contacting you to discuss a licencing fee.

Re:I'd like to take this time to patent.... (1)

Divebus (860563) | more than 3 years ago | (#37348568)

I'll see you in court!

Re:I'd like to take this time to patent.... (0)

bonch (38532) | more than 3 years ago | (#37348492)

I'd like to see the old "first to show the damned thing working" system come back. Ideas are one thing, but there's nothing like a working sample. No ambiguity if you can/can't show it, no pie-in-the-sky "inventions" that lay in wait in patent trolls' filing cabinets.

Then Apple would immediately win [cnn.com] its patent lawsuits against HTC since they actually invented the technology they're describing, signed by Jobs himself.

Re:I'd like to take this time to patent.... (0)

Anonymous Coward | more than 3 years ago | (#37348782)

You seriously just quoted an article that quotes Florian Mueller. Your Slashdot account and low id should be banned.

Re:I'd like to take this time to patent.... (0)

Anonymous Coward | more than 3 years ago | (#37348848)

Why? Why all this baseless heckling of Florian Mueller anytime he is mentioned? Is he as threatening as RMS to you or what?

Re:I'd like to take this time to patent.... (3, Insightful)

Kenja (541830) | more than 3 years ago | (#37348512)

That favors large companies over small inventors. One of the points of the patent system is that it allows people to get investors to build a prototype without giving their idea away. Without that, Uber Corp just takes the idea and develops it them selves, originator gets nada.

Re:I'd like to take this time to patent.... (0)

iamhassi (659463) | more than 3 years ago | (#37348592)

I'd like to see the old "first to show the damned thing working" system come back. Ideas are one thing, but there's nothing like a working sample. No ambiguity if you can/can't show it, no pie-in-the-sky "inventions" that lay in wait in patent trolls' filing cabinets.

The people who have no resources to actually create their idea may be subject to someone else capitalizing on it, but I can see a robust VC or incubator lab market growing out of the need to show the device in action. Contracts would be between the idea person and the VC or lab and won't dirty up the patent system.

That's great, but right now they changed the system to first-to-patent. Anyone else think this is a nightmare for inventors and the patent office? Now you could invent something, be using it and selling it for 10 years, and then Big Corporation file a $10,000+ patent and steal your invention and sue YOU for selling YOUR invention!

This is the rich getting richer and the poor getting poorer. Inventing the Next Big Thing was the last avenue the middle-class inventor had, now we don't even have that.

And this is a nightmare for the patent office too because now everyone that hadn't received a patent will be filing ASAP. This law will significantly increase the number of patents they receive since you can no longer prove "I've been using this for XX years!" and keep your patent, now it only counts if you paid $$$$$ to file.

But it will increase the filing process since they don't have to do any work, they don't have to figure out "Gee, does the wheel already exist? I swear this round thing looks familiar..." they can just do a quick search of their database and go "Nope don't find it here's your patent".

Again the US congress has failed to listen to the American people and instead did what Big Corporation told them to do.

Re:I'd like to take this time to patent.... (1)

Anonymous Coward | more than 3 years ago | (#37348608)

no they couldn't sue you, yours would count as prior art.

first to file has nothing to do with prior art, its just when 2 people happen to have made the same thing at roughly the same time.

you should have filed your patent if you find it worth filing. if you were selling it without filing a patent, obviously you did not find it worth doing, for that, you really just cant "lose" your patent. and they would not be able to steal your invention because yours still is prior art, however they can sell it just as well as you can, in exactly the same shape and form, since, you know, its not patented.
you on the other hand probably can still sell it first and then patent it later, but there are some rules tied to that too.

Re:I'd like to take this time to patent.... (1)

rtfa-troll (1340807) | more than 3 years ago | (#37348722)

no they couldn't sue you, yours would count as prior art.

Only if you published an explanation of how you did your product somewhere. Not that this is difficult, but everyone should understand that secretly using the invention is probably protected under a new term in this legislation, but will not invalidate the future patent. For this reason people should publish what the do.

Re:I'd like to take this time to patent.... (1)

rtfa-troll (1340807) | more than 3 years ago | (#37348762)

Actually what I said is partly wrong because of the "in public use" clause. This problem applies if you have a production process but don't actually deliver the invention for the customers to use.

Re:I'd like to take this time to patent.... (1, Informative)

Anonymous Coward | more than 3 years ago | (#37348664)

Public use or on sale of the claimed invention before the filing date of the patent would invalidate it.

‘‘ 102. Conditions for patentability; novelty
        ‘‘(a) NOVELTY; PRIOR ART.—A person shall be entitled to a patent unless—
                ‘‘(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or...

Re:I'd like to take this time to patent.... (5, Informative)

Sun (104778) | more than 3 years ago | (#37348682)

I'm sorry, but this rant is just ignorance of how "first to file" actually works.

First to invent means, in theory, that you can build something, start selling it, and then file for patent. In practice, however, this allows big corporations to back-date an invention. There is no "chain of evidence" proving that you did, indeed, made the invention as far back as you claim you did.

With first to file, it is impossible to back-date an invention, as the one providing the time stamp is the (presumably reliable) patent office.

Now let's take the apocalyptic scenarios you describe and dissect them:

Now you could invent something, be using it and selling it for 10 years, and then Big Corporation file a $10,000+ patent and steal your invention and sue YOU for selling YOUR invention!

No, they can't. If you have been selling it on the market, it's prior art. No one can patent it. Even if that's not the case, first-to-file systems generally have "prior use" defenses. I cannot invalidate your patent by proving that I have been using it before you patented it, but I am exempt from licensing it from you.

since you can no longer prove "I've been using this for XX years!"

As far as I know, first to invent only goes back one year. That it the most you can back-date an invention. The load on the patent office will not change significantly.

But it will increase the filing process since they don't have to do any work, they don't have to figure out "Gee, does the wheel already exist? I swear this round thing looks familiar..." they can just do a quick search of their database and go "Nope don't find it here's your patent".

If it's published, it's prior art whether patented or not. If it's unpublished, then you can patent it. Nothing changes in that regard.

Shachar

Re:I'd like to take this time to patent.... (0, Troll)

Anonymous Coward | more than 3 years ago | (#37348748)

The ignorance you show to how the patent system should work and how it does work is unfathomable. The current patent system cannot flat out reject a patent, they can only send back for revision.

"No, they can't. If you have been selling it on the market, it's prior art. No one can patent it. Even if that's not the case, first-to-file systems generally have "prior use" defenses. I cannot invalidate your patent by proving that I have been using it before you patented it, but I am exempt from licensing it from you."

Yes, unfortunately they CAN, have you read the bill? It was written specifically for large corporations who funded it. They also cannot "exempt" anyone from licensing, they can provide a zero cost license, if they choose, however since you're a competitor, they legally can't since that would go against their legal requirement to obtain profits year over year.

Real patent reform is not likely in this politically conservative and financially motivated environment. There is a reason that the large companies agree with this legislation. It stagnates the economy and limits challenges to their size.

Re:I'd like to take this time to patent.... (0)

Anonymous Coward | more than 3 years ago | (#37348698)

You don't understand first-to-patent.

If Big Corporation does as you describe, then you submit your work (with your 10-year history) as prior art, and easily get their patent overturned. They wasted a bunch of money to file the patent, but they lose it anyway because you clearly invented it first (provided you have documentation of that) and thus can show "prior art". Of course in this situation you don't get a patent for it either (since they were first-to-file), but if you really wanted a patent on it, why did you wait 10 years to file in the first place?

Re:I'd like to take this time to patent.... (1)

JimboG (1467977) | more than 3 years ago | (#37348304)

The first post. I didn't invent it, but I did get here first.

.. and therefore filed it. Congratulations, you have now earned the scorn and derision of slashdotters for infinity less one day.

Re:I'd like to take this time to patent.... (1)

NoNonAlphaCharsHere (2201864) | more than 3 years ago | (#37348386)

Well, he was first to file :D

According to the new rules, that makes him the winner.

Re:I'd like to take this time to patent.... (1)

JimboG (1467977) | more than 3 years ago | (#37348456)

Damn you MasseKid - for every first post statement I've ever read.

Re:I'd like to take this time to patent.... (1)

93 Escort Wagon (326346) | more than 3 years ago | (#37348426)

The first post. I didn't invent it, but I did get here first.

Crap! I came up with the idea first, but I'm just such a slow typist...

Re:I'd like to take this time to patent.... (1)

mwvdlee (775178) | more than 3 years ago | (#37348570)

No worry. Just file his idea with the patent office and he'll have to pay you for having had the idea before you.

What does all this mean for "prior art"?

Re:I'd like to take this time to patent.... (1)

Sun (104778) | more than 3 years ago | (#37348692)

What does all this mean for "prior art"?

Nothing. The prior art rules are unaffected by first to file rules. Of course, IANAL, but, then again, neither is anyone else commenting on this thread.

Shachar

Re:I'd like to take this time to patent.... (1)

mwvdlee (775178) | more than 3 years ago | (#37348800)

If prior art is unaffected, then how can you ever have a "first to file" system? I mean; if person A invents something before person B files a patent application for that invention, shouldn't person A's invention be considered prior art?

Or more simply; if I publish an idea on my blog and some company takes that idea and patents it, does my blog entry count as prior art? Assuming nobody else thought of it first, I would obviously be first-to-invent but not first-to-file, and since there's no actual implementation, is it prior art? Can I safely publish new ideas without the risk of some third party pattenting them afterwards?

Seems fitting (1)

LostMyBeaver (1226054) | more than 3 years ago | (#37348728)

In a country built on the concept of being punishing several races of people who had the audacity to occupy our land before we discovered it, it only seems right that now we punish people for thinking of things before we did too.

Re:I'd like to take this time to patent.... (1)

sconeu (64226) | more than 3 years ago | (#37348560)

Well played, Mauer!

It's About Time (1)

Greg Hullender (621024) | more than 3 years ago | (#37348190)

We really do need fewer (but higher-quality) patents, and we need a more predictable system. With any luck, this will deliver that. And I speak as the inventor of 20+ US Patents. (Corporate ones; an individual inventor might feel otherwise.) :-)

--Greg

Re:It's About Time (0)

Anonymous Coward | more than 3 years ago | (#37348244)

Did you invent those 20+ patents, or did you patent those 20+ inventions?

I'm willing to bet there isn't actually a single legitimate invention (commonsense definition, something an intelligent layperson would recognize as a breakthrough or great leap of technology not previously conceived of) in the bunch.

Re:It's About Time (2)

serbanp (139486) | more than 3 years ago | (#37348536)

Although there seem to be many CIP among these 20+, some of the patents bearing his name seem non-obvious. This is quite typical for someone really productive filing patent applications assigned to his employer (in that case, Microsoft). Maybe 10-20%?

I have 16 US patents in the field of circuit design, of which I'm really proud of exactly 2, as they are really good, non-obvious, breakthrough-type inventions. All others are meant to increase my employer's patent chest for either defensive or attack purposes.

Re:It's About Time (2)

Psychotria (953670) | more than 3 years ago | (#37348264)

How will this deliver "fewer patents, but those that do get accepted are of higher quality"? It seems to me that it will do the exact opposite.

Supporters of the act contend that reforming the patent system will unlock innovation and produce jobs in an economy that is increasingly driven by intellectual property. Currently, there is a backlog of about 700,000 patents waiting for examination, and the next cellphone, incandescent lamp or miracle drug could be hidden in that pile, supporters said.

How, exactly will this "unlock innovation" and produce jobs? And, what the hell does "Currently, there is a backlog of about 700,000 patents waiting for examination and the next cellphone, incandescent lamp or miracle drug could be hidden in that pile, supporters said" mean, or add to the conversation? It's all smoke and mirrors -- and you cannot seem to see that, but you don't seem to be alone. This benefits nobody (personally) (except for CEOs). But, the sheep that seem to make up most of the U.S. population cannot see it.

Re:It's About Time (0)

Anonymous Coward | more than 3 years ago | (#37348370)

Don't think it really benefit the CEOs either. More like the lawyers.

Re:It's About Time (0)

Anonymous Coward | more than 3 years ago | (#37348388)

I'm a patent attorney and no one that I've talked to understand this either. Some patent attorneys are in favor of the bill and others not. But it doesn't seem to have anything to do with creating more jobs or eliminating the backlog.

Just another example of politicians making shit up.

Re:It's About Time (1)

scdeimos (632778) | more than 3 years ago | (#37348418)

Supporters of the act contend that reforming the patent system will unlock innovation and produce jobs in an economy that is increasingly driven by intellectual property.

How, exactly will this "unlock innovation" and produce jobs?

It means that it creates jobs for the lawyers to litigate patent claims. It could mean nothing else.

The America Invents Act has just taken the patent system and made it more broken. Way to go, America!

Someone earlier said that it should be first to demonstrate an actual working invention who gets the patent and I wholeheartedly agree with them.

Re:It's About Time (2)

ravenshrike (808508) | more than 3 years ago | (#37348454)

The problem with this is that as inventions get more and more complex(we've run out of simple inventions for the most part at this point) the amount of money to get that working sample increases. This means that a person must go to either a bunch of VCs who will end up controlling the product, or a corporation. and since it's first to get working, there absolutely nothing stopping the corp/VCs from dumping the idea creator and getting it working through their own R&D.

Re:It's About Time (1)

scdeimos (632778) | more than 3 years ago | (#37348654)

People with no resources and no intention of actually doing anything should not be able to say "I'm inventing a gene that lets humans fly**", patent it and then turn around and sue someone who does the hard work of actually researching and utilizing the gene that lets humans fly**. This is of no benefit to society.

** choose your own invention.

The proposed changes to the system allow for patents that the "inventor" just dreams up and has no intentions of ever prototyping or producing.

Re:It's About Time (1)

serbanp (139486) | more than 3 years ago | (#37348470)

It means that it creates jobs for the lawyers to litigate patent claims. It could mean nothing else.

That's why it's also known as "The Lawyer Employment Act"

Re:It's About Time (4, Insightful)

Sun (104778) | more than 3 years ago | (#37348730)

IANAL

The main difference this brings is that you cannot publish something prior to patenting it, as your own publishing can act as prior art, invalidating your own patent. This means that you cannot take something published, say "hey, this would actually make a nice patent", and go around and patent it. You'd be committing fraud when signing the piece of paper saying that, as far as you know, the invention is novel.

People here confuse "first to invent" with "prior art". If something is published, it is unpatentable, no matter which system you use. First to file encourages early filing, as if you keep things secret, someone else might file a patent (due to unrelated invention), and you'd be left with nothing. This means you need to either publish (and prevent everyone, yourself included, from monopolizing it) or patent it early (a provisional is fine, so small inventors can still participate, provided they can spare $110).

Under the current system, patents could surface quite late in the game. So long as you have some proof that the patent was in progress, you could wait until someone else published it, and then run off to the patent office and patent it. That makes no sense. The purpose (original one) of the patent system was to encourage inventors to publish their inventions.

Shachar

That's so useful... /sarcasm (0)

Anonymous Coward | more than 3 years ago | (#37348198)

These types of reforms aren't actually going to help the patent industry get any better. If anything, this act is going to cause even more disputes if the House passes it. The disputes would be based on, "I don't make anything, but I have a patent on this." And under this new law, they would actually have a valid argument. What we really need is a better patent system that accounts for modern times, not one that allows Patent trolls to troll even more.

"They see me trollin'... They hatin'" would really apply there... -.-

Re:That's so useful... /sarcasm (1)

fferreres (525414) | more than 3 years ago | (#37348348)

Who to write to the house? Any solid research on how this stifles innovation? Any advice from the LITTLE PEOPLE that will be forced as lowly paid employees (if lucky to have a job)? How about writing to not so LITTLE people, those with influence over many other little people, like media and popular bloggers? Anything that can be done?

I was reading the article, and first to file means that only corporations with 3 patent lawyer as FTE can survive, if barely. All those small forms that need to sell their inventions and prove them to work to earn a living, with filing as a luxury, should just quit, or cross their fingers that nobody files and earns a monopoly on their innovations.

I am not American, but live here. And it's sad to see how hard it is to be successful without the best lawyers and accountants as your infantry.

Re:That's so useful... /sarcasm (3, Insightful)

markkezner (1209776) | more than 3 years ago | (#37348500)

You should write your congress critter about it.

Here is how they voted [senate.gov]

Re:That's so useful... /sarcasm (1)

mirix (1649853) | more than 3 years ago | (#37348590)

That looks terribly non-partisan.

I suppose that makes sense as both parties are for the lawyers, by the lawyers...

First comment? (-1)

Anonymous Coward | more than 3 years ago | (#37348202)

Comment

approval in an 89-9 vote patent (0)

Anonymous Coward | more than 3 years ago | (#37348204)

Sorry...I own the method of "approval in an 89-9 vote" patent.

It shouldn't be about who's first (1)

blue trane (110704) | more than 3 years ago | (#37348212)

It should be about what's best for the nation and the General Welfare.

Re:It shouldn't be about who's first (1)

Black Parrot (19622) | more than 3 years ago | (#37348332)

It should be about what's best for the nation and the General Welfare.

I suspect this is going to boil down to "Congress Screws the Little Guy, Again".

Re:It shouldn't be about who's first (1)

nzac (1822298) | more than 3 years ago | (#37348380)

It should be about what's best for the nation and the General Welfare.

You do realise how socialist you sound there?

That's anti american dream talk there, more likely to get your shot than elected.

You have to present it more like this:
It should be about allowing leaving room for other companies to be successful.

But that still seems far to socialist for a Democrat Candidate to risk even thinking.

No more prior art? (1)

gumpish (682245) | more than 3 years ago | (#37348246)

So this means the concept of prior art is moot?

It might not be so detrimental except that I imagine the legislation in question will not improve the quality of work of patent examiners who will continue rubber-stamp approval of obvious ideas.

I think it's especially repulsive that some well-known useful tool people have been using for years could suddenly become patented by a troll who had no involvement in its creation and would then have the legal standing to demand license fees of the community.

Shit sucks.

Re:No more prior art? (1)

nephorm (464234) | more than 3 years ago | (#37348326)

There is still prior art. This removes the ability for patent applicants to get around prior art by "swearing behind" the references, which actually means more prior art is applicable.

Re:No more prior art? (1)

c0lo (1497653) | more than 3 years ago | (#37348336)

So this means the concept of prior art is moot?

No, it doesn't. To my mind, if publicly there is a prior art, then it's not something new, thus not an something that worth protecting by a temporary monopoly.

The prior art is "already there", why should one be granted a patent for something is already public?

Re:No more prior art? (1)

cuncator (906265) | more than 3 years ago | (#37348478)

The prior art is "already there", why should one be granted a patent for something is already public?

How about because you're a giant corporation with an army of lawyers larger than the population of a small town sitting on a large reserve of cash you want to make even larger?

Re:No more prior art? (1)

nephorm (464234) | more than 3 years ago | (#37348354)

So this means the concept of prior art is moot?

It might not be so detrimental except that I imagine the legislation in question will not improve the quality of work of patent examiners who will continue rubber-stamp approval of obvious ideas.

I think it's especially repulsive that some well-known useful tool people have been using for years could suddenly become patented by a troll who had no involvement in its creation and would then have the legal standing to demand license fees of the community.

Shit sucks.

And no matter what you may have been told, patent examiners do not just "rubber stamp" applications.

Re:No more prior art? (2)

cforciea (1926392) | more than 3 years ago | (#37348436)

Right, it is actually much worse than that. There are indeed completely outrageous patents that get the thumbs up, but a whole lot get rejected, as well. This means one of two things: either there is some metric besides actual value by which patent applications are being judged that big corporations understand and the little guy inventor doesn't, or it is being determined randomly, in which case only the big guys can afford to file and see what sticks. Either way, the system is much worse for anybody but large corporations than the rubber stamp would be.

Re:No more prior art? (4, Informative)

Kirijini (214824) | more than 3 years ago | (#37348474)

So this means the concept of prior art is moot?

No.

It appears that the bill in question is H.R.1249 [loc.gov] (TFA doesn't actually specify which bill they're talking about - and there are several versions floating around congress). The text of the bill concerning prior art is:

‘‘ 102. Conditions for patentability; novelty
(a) NOVELTY; PRIOR ART.—A person shall be entitled to a patent unless—
(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or
(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention."

Thus, prior art under the new law would be anything that was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.

Re:No more prior art? (0)

Anonymous Coward | more than 3 years ago | (#37348854)

or otherwise available to the public before the effective filing date of the claimed invention

Now that raises an interesting question. What if a company's new technology is leaked and widely distributed to the public prior to the patent filing? Does the fact that it's already available to the public preclude its patentability, even though presumably the "inventor" (i.e. the company) had no intention of it being available to the public yet?

I guess this would primarily affect software patents (which we all love to hate anyway), since they're the only currently patentable area of technology I can think of off the top of my head that can be quickly and widely disseminated.

Re:No more prior art? (1)

iamhassi (659463) | more than 3 years ago | (#37348606)

So this means the concept of prior art is moot?

That is correct: [politico.com] "The America Invents Act switches the U.S. patent system from a first-to-invent to a first-to-file nation.

You can invent and use and sell something all you want, but if you did not file a patent on it then someone else can file a patent and sue you for selling your own invention. Prior art no longer exists unless there was a patent for that prior art.

Re:No more prior art? (3, Informative)

dgatwood (11270) | more than 3 years ago | (#37348680)

No, not true. If it already exists and is for sale, it cannot be patented by anyone, including the person who first put it up for sale. A patent application must be filed before a technology is made publicly available, or it is no longer patentable. That is already the case even under current patent law, and will not change.

However, if you have not quite made it to market and someone else comes up with the same idea and patents it while you are polishing up the edges, you're screwed, whereas before, you could at least ostensibly claim that you invented it first if your prototypes go back farther in time.

This is both good and bad. On the one hand, patent trolls who actually got as far as building a prototype but never marketing it or publishing it cannot use that as prior art to show that someone else's patent is invalid. On the other hand, it means that companies must file patents (or at least provisional applications) much earlier in the process and much more often to avoid the risk of a competitor coming up with the same idea and screwing them.

On the whole, this so-called reform is basically basically a wash except that it will cause an increase in patent filings (which makes it a net negative in my book). It does almost nothing to reduce the ability of patent trolls to prosper. It similarly does almost nothing to reduce the scope of software patents' ability to stifle innovation and bog down the industry in unnecessary lawsuits. All it really does is make the trial duration slightly shorter....

This is to patent reform what shooting someone in the backside with a shotgun is to discipline. Sure, it technically qualifies as discipline, but it's not the sort of discipline that actually improves behavior.

Re:No more prior art? (1)

mcrbids (148650) | more than 3 years ago | (#37348834)

A patent application must be filed before a technology is made publicly available, or it is no longer patentable. That is already the case even under current patent law, and will not change.

Sorry, not true. You have 1 year from public disclosure to patent the idea.

Re:No more prior art? (2)

Surt (22457) | more than 3 years ago | (#37348694)

Nope. If you were selling it, and can prove you were doing so to the public before the other guy filed the patent, you still win. Of course now you can't get the patent, but neither can they.

Re:No more prior art? (1)

Mindcontrolled (1388007) | more than 3 years ago | (#37348706)

Dead wrong. As soon as you make your invention public - i.e use and/or sell it, it constitutes prior art for anyone trying to file a patent on the same thing later. If you want a patent on your invention, file before you go public. That's all there is to first-to-file.

Re:No more prior art? (1)

galaad2 (847861) | more than 3 years ago | (#37348760)

China (and S. Korea too) are also using a first-to-file patent law system (and trademarks work the mostly same way too!, first-to-file) and there is a nightmare over there with competitors filing for patents and then blocking sales and exports of various products because they infringe their newly-granted patents or trademarks

patents in China
http://preview.tinyurl.com/Chinese-Patent-doc [tinyurl.com]

trademarks in China:
http://www.ipaustralia.gov.au/pdfs/general/trade_mark_protection_China.pdf [ipaustralia.gov.au]

http://www.chinalawblog.com/2009/11/china_trademarks_the_apple_of.html [chinalawblog.com]
quote from China law blog:
China is a first to file country, which means that, with very few exceptions, whoever files for a particular trademark in a particular category gets it. So if the name of your company is XYZ and you make shoes and you have been manufacturing your shoes in China for the last three years and someone registers the XYZ trademark for shoes, that other company gets the trademark. And then, armed with the trademark, that company has every right to stop your XYZ shoes from leaving China because they violate its trademark. /quote

Will it stop frivolous patents and patent wars? (4, Insightful)

c0lo (1497653) | more than 3 years ago | (#37348256)

TFA:

Supporters of the act contend that reforming the patent system will unlock innovation and produce jobs in an economy that is increasingly driven by intellectual property. Currently, there is a backlog of about 700,000 patents waiting for examination, and the next cellphone, incandescent lamp or miracle drug could be hidden in that pile, supporters said.

Looking the waste in the current smart-phone patent "compulsive wars", I think the bottleneck in invention (and job creation) is NOT in first-to-invent vs first-to-file (the current battle would have happened in both "first-to..." strategies). Look, Europe is driven by the "first-to-file" for quite a while: did this stop Apple to block Samsung tablets/phones (or whatever) in Germany?

I don't see how's this one a step forward in the "job creation" direction (not says that is not, just saying that I need some explanations. Somebody care to explain?).

Re:Will it stop frivolous patents and patent wars? (1)

exomondo (1725132) | more than 3 years ago | (#37348290)

I don't see how's this one a step forward in the "job creation" direction (not says that is not, just saying that I need some explanations. Somebody care to explain?).

I'll jump on the 'i don't get it' bandwagon too.

Re:Will it stop frivolous patents and patent wars? (1)

hey! (33014) | more than 3 years ago | (#37348540)

I don't see how's this one a step forward in the "job creation" direction (not says that is not, just saying that I need some explanations. Somebody care to explain?).

I'll jump on the 'i don't get it' bandwagon too.

Then I'll *patent* jumping on the 'i don't get it' bandwagon.

Re:Will it stop frivolous patents and patent wars? (1)

exomondo (1725132) | more than 3 years ago | (#37348620)

I don't see how's this one a step forward in the "job creation" direction (not says that is not, just saying that I need some explanations. Somebody care to explain?).

I'll jump on the 'i don't get it' bandwagon too.

Then I'll *patent* jumping on the 'i don't get it' bandwagon.

Shit!

Re:Will it stop frivolous patents and patent wars? (0)

Anonymous Coward | more than 3 years ago | (#37348648)

c0lo and exomondo, you now owe licensing fees to hey! for the use of his patent.

Congratulations hey! You are now gainfully employed!

Re:Will it stop frivolous patents and patent wars? (1)

Dyinobal (1427207) | more than 3 years ago | (#37348320)

First to invent vs first to file has no real bearing on the state of patents int he USA. This won't stop patent wars and in some ways will make them worse. Did you patent every conceivable aspect of your invention? Will some slimy scum bag come in behind you and patent some trivial aspect of your product and then sue you?

Re:Will it stop frivolous patents and patent wars? (3, Informative)

Kirijini (214824) | more than 3 years ago | (#37348416)

Did you patent every conceivable aspect of your invention? Will some slimy scum bag come in behind you and patent some trivial aspect of your product and then sue you?

If your product is on the market before the slimy scum bag files for a patent, he'll be rejected at the patent office, because your product is prior art. Every aspect of the product is prior art, whether it was patented or not. Under a first to file system, you can't sue someone (successfully) for patent infringement if their product was for sale to the public before you filed. Under a first to invent system, the slimy scum bag might win, if he actually invented the "trivial aspect of your product" before you did, plus various other conditions. Under the first to file system, that messy problem of proving who invented first is removed.

Re:Will it stop frivolous patents and patent wars? (1)

KitFox (712780) | more than 3 years ago | (#37348488)

If your product is on the market before the slimy scum bag files for a patent, he'll be rejected at the patent office, because your product is prior art. Every aspect of the product is prior art, whether it was patented or not. Under a first to file system, you can't sue someone (successfully) for patent infringement if their product was for sale to the public before you filed. Under a first to invent system, the slimy scum bag might win, if he actually invented the "trivial aspect of your product" before you did, plus various other conditions. Under the first to file system, that messy problem of proving who invented first is removed.

The above statement (parent), if true, is the most informative item I have read in this entire comment discussion.

Re:Will it stop frivolous patents and patent wars? (1)

Black Parrot (19622) | more than 3 years ago | (#37348548)

If your product is on the market before the slimy scum bag files for a patent, he'll be rejected at the patent office, because your product is prior art.

Assuming that they're doing their job, which conventional wisdom says they haven't been.[*] And still won't, unless the bill vastly increases the funding for patent examiners.

So now Mr. SSB will often get patents that he shouldn't, and it will take an army of lawyers to get them revoked.

[*] No affront intended. It's just that it's a lot more lucrative for qualified people to work in industry than at the Patent Office. (Again, this according to conventional wisdom.)

The job is easier now for all (5, Interesting)

SuperKendall (25149) | more than 3 years ago | (#37348614)

Assuming that they're doing their job, which conventional wisdom says they haven't been.[*]

They have not been because it's been an almost impossible task to keep up.

The new bill helps in two ways:

1) Since you don't care anymore who thought of an idea first, you only need to see if the idea exists in the market or has already been filed to dismiss. Before even if someone filed earlier it COULD be they thought of it later... or the guy filing thought of the idea before the thing on the market arrived.

2) I'm weak on this point but basically it allows outside entities to contest bad patents instead of just the patent holder. Now the EFF and the FSF can go to down striking down the evil before us.

And still won't, unless the bill vastly increases the funding for patent examiners.

You know what? It actually DOES do that. Because now the patent office gets to keep application fees. They didn't before? Nope, went into the general pool to pay for the growing SS or a new airport in Nowhereville dedicated to the state senator.

It's just that it's a lot more lucrative for qualified people to work in industry than at the Patent Office.

Perhaps they can pay examiners more now that they get to keep application fees.

This is really a decent overhaul, better than we could expect from all the infighting and bickering going on.

Hi Bonch! The Apple Patent Troll Troll (0)

Anonymous Coward | more than 3 years ago | (#37348756)

Still crying yourself to sleep each night in your creepy black turtleneck jammies over Android destroying your piece of shit iPhone in sales?

Or Apple getting the shit kicked out of themselves now after trying to play Patent Troll?

Re:Will it stop frivolous patents and patent wars? (1)

dgatwood (11270) | more than 3 years ago | (#37348746)

If your product is on the market before the slimy scum bag files for a patent, he'll be rejected at the patent office, because your product is prior art.

You need to be a little more precise than that. Even under first-to-invent, what you said there is generally true. The exception is when two companies were inventing the same idea at the same exact time, in an overlapping fashion. It is almost invariably not a "scumbag". That person has to somehow prove that he or she was inventing the same thing at the same time and was diligently trying to reduce the invention to practice.

In practice, this does absolutely jack for stopping patent trolls, who almost invariably file a patent for some vague concept, then sue somebody a decade or more later for something that barely resembles the original patent (if at all).

In fact, I would go so far as to say that this is exactly the opposite of patent reform. In proper patent reform, when one party can show that they invented the idea before another party, but was unable to patent it before the other party did, unless those parties had some existing business relationship or there was corporate espionage involved, that is prima facie evidence that the idea does not meet the non-obviousness requirement, and thus, the patents should be automatically invalidated, and neither party should get to have a patent on the invention....

Re:Will it stop frivolous patents and patent wars? (0)

Anonymous Coward | more than 3 years ago | (#37348524)

I don't see how's this one a step forward in the "job creation" direction (not says that is not, just saying that I need some explanations. Somebody care to explain?).

It creates more jobs for lawyers.

Re:Will it stop frivolous patents and patent wars? (0)

Anonymous Coward | more than 3 years ago | (#37348644)

It creates jobs for lawyers and spokes(wo)men. These professions seem to be very high on the list of preferable professions according to US politicians. And actual inventors, manufacturers and service providers without mortal dependence on lawyers are not even on the list.

Re:Will it stop frivolous patents and patent wars? (1)

mcrbids (148650) | more than 3 years ago | (#37348808)

Silly engineer-type! You expect sentences to make sense?

Here's what normal people hear: blah blah blah job creation blah blah reform blah blah landmark legislation blah blah better future!

Sadly, people with this level of comprehension have a vote that counts just as much as yours. Welcome to America.

Disaster on the horizon (1)

phreest (1101099) | more than 3 years ago | (#37348262)

This its sure to allow the big guys to stifle innovation in so many ways. They would patent your eyeballs if possible in order to prevent the visitation of other web sites.

We are officially doomed! (0)

Anonymous Coward | more than 3 years ago | (#37348282)

See title! There's nothing more to say.

Brilliant! (1)

russotto (537200) | more than 3 years ago | (#37348328)

Great idea: throw away the one good reform to ever hit the US patent office; that is, ending the race to the patent office with the first-to-invent system.

Re:Brilliant! (5, Informative)

Anonymous Coward | more than 3 years ago | (#37348406)

And just how many international patents do you have to your name? I have 2 and I can tell you that first to invent is a PITA and penalizes small inventors. First to file places a stake in the ground that is not contestable. First to invent is open to intrepretation via courts and unless you have the resources and well documented evidence (such lab books where EACH PAGE is signed by two individuals) you will lose out.

Re:Brilliant! (2)

Kirijini (214824) | more than 3 years ago | (#37348518)

Mod parent up.

First to invent appeals to the notion that little guy inventors will get screwed over by big companies, because the big companies can afford to file patent applications quickly. This is sort of a short-sighted argument, though - because figuring out who invented first is a messy factual inquiry (can you prove you invented it in your garage? Are we supposed to just take your word that you had a working prototype years ago?), extensive, expensive litigation is necessary to pin down who invented first. Little guy inventor cannot win massive litigation against a big company - the little guy just can't afford the necessary lawyers and expert witnesses.

Its much cheaper to file an application than it is to win a patent lawsuit.

Re:Brilliant! (1)

zill (1690130) | more than 3 years ago | (#37348542)

...and unless you have the resources and well documented evidence (such lab books where EACH PAGE is signed by two individuals) you will lose out.

pssst, they sell pre-double signed lab books on eBay. Just make you buy them using prepaid credit cards and ship them to a PO box.

Re:Brilliant! (2)

bky1701 (979071) | more than 3 years ago | (#37348594)

All that proves is that both systems exploit the small guy pretty equally. If you have to argue over which is less damaging, the battle is already lost.

The answer here is to simply get rid of patents and move on. Contrary to popular belief, patents are there to protect financial investment, nothing more. Ideas are cheap and rightly so. Investments on the other hand come from those with money, intending to exploit more. Patents arose in Britain as a way to grant government power to corporations on a temporary (or nor so temporary, as in the East India Company) in exchange for the government not having to pay. The system actually worked fairly well for colonization and trade. It is not, however, working particularly well when it comes to invention.

The problem is that cost of investment has gone down immensely from when patent law was written, and the legal complexity required to fight/defend patents has rocketed. No longer is a particularly large investment needed to set up production.

And even if it was, as we can see today, all patents do (when working as well as anyone hopes) is ensure a pittance payment to the inventor - often so small it doesn't compare to even a single percent of the actual profit. Few private inventors ever attain the investment to build their own businesses, and so, like copyright, the ownership of ideas ends up in the hands of the already rich and powerful.

What everyone needs to start asking is if this is worth it for what it is giving back. Is the ability to own an idea worth the nearly insignificant gains we are getting?

Simply entrenching the model that is already, more or less, standard, might be the most prudent course of action. Abolish patents, and let corporations employ those who can actually create ideas. Similarly, allow other corporations to usurp them, should they do better. The first to market always has an advantage, especially with modern speed of production and distribution. This alone makes patents obsolete.

It is my opinion that those who propose changes to a system, while failing to look at if the system is even worth having, cannot be taken seriously. There are many ways in which the government should be involved in the economy, but selling ideas to the wealthy is not one of them.

Not reform at all (0)

Anonymous Coward | more than 3 years ago | (#37348334)

This is a bad plan. They can just push in their cronies' work and claim that they were the first to file. They can also assign higher fees or more favorable fees to those who are unsympathetic or sympathetic to the current administration, respectively.

Wait.. what? (2)

Wolfling1 (1808594) | more than 3 years ago | (#37348378)

This is reform?

Strongly resisting the temptation to whargarbl.

This act will only encourage patent trolling. It will increase the rates of industrial espionage in a country that is already struggling with cyber-crime.

The original inventors will have to become legal wizards in addition to their existing skillset.

Still, why should I care? I'm not American, and anything that stifles American invention can only be good for my country.... sooooo.... thanks America! Good job there!

Re:Wait.. what? (4, Interesting)

MimeticLie (1866406) | more than 3 years ago | (#37348460)

I'm not American

Then you should know that most of the world is first-to-file rather than first-to-invent. This does the opposite of what you claim: small inventors no longer have to worry about being taken to court and having to prove that they invented it first; now as long as there wasn't prior art, they're in the right.

Now if we can just do something about software patents, we might have a decent system.

Just a Tax Increase (3, Insightful)

xkr (786629) | more than 3 years ago | (#37348472)

The patent office makes a profit -- over $1 billion dollars profit, in fact. Money that goes into the US Treasury for congress to spend how it likes. The patent bill just passed raises patent "fees" by 15% immediately. These are only partially fees, because of the excess. Now there is more excess. This is simply a tax on innovation. There is simply no other way to look at it. Where are all those Republicans who said, "no new taxes?" Where are the democrats who said they support innovation in this country.

When Canada passed the exact same change 10 years ago (changing from first-to-invent to first-to-file) independent inventor applications dropped by 50% and have never recovered. This bill was pushed entirely by large corporations who don't want to pay the real innovators for their inventions.

Re:Just a Tax Increase (1)

Waffle Iron (339739) | more than 3 years ago | (#37348600)

This is simply a tax on innovation.

No, it's a token fee that gets you a big, fat government entitlement, which you can then use as a club to stifle innovation.

Re:Just a Tax Increase (1)

rtfa-troll (1340807) | more than 3 years ago | (#37348786)

Now there are many things that are wrong with this bill, but it seems to me that your post can't be right and is self contradictory in a sense anyway.

Firstly: this is not a tax on innovation, it is a tax on patent filing. The two things are unrelated. If you innovate, then just publish your innovation on your web site or release it in a product and you don't need to patent.

Secondly, I believe this actually reduces fees for very small inventors, allowing 75% reductions for "micro entities". That means that it pushes more of the costs towards big corporations. Actually, to me it sounds quite specifically directed to increase the number of single patent patent troll companies.

Thirdly, you claim this will increase taxes because fees will increase by and then claim that applications will drop by 50%. That seems to me to be a 42.5% reduction in taxation (1 - (1.15 * 0.5 )).

Finally, it seems to me that the main set of patents which will not come out are patents on already published inventions. In particular, there's no way for a person to hear another persons idea, make a fake logbook and claim to have invented it before the other person published. A reduction in the number of patents in that way can hardly be seen as damaging to innovation.

Please explain what I'm missing here.

well (0)

Anonymous Coward | more than 3 years ago | (#37348556)

what can I say way to kick a dieing economy while its down
lets stifle every independent thinker in the country and reward the trolls of the world
and further more I am guessing I will soon have to pay every time I post something somewhere
because that combination of letters that makes up the word I use it patented and so is the whole dam
alphabet.

this only furthers my want to use open source products from both software and hardware worlds at least there
the people actually care about that they make

peacefully watching from my own messed up country just to the north

First to file/first to invent seem tangenetial... (2)

BenJCarter (902199) | more than 3 years ago | (#37348562)

...to the issue, compared to how long the patent lasts. I believe creative destruction is good. If you can build a better mousetrap, I will gladly buy it. If you need lawyers to protect your product, you don't have a product.

how is this better? (0)

Anonymous Coward | more than 3 years ago | (#37348604)

So now someone can invent something, but the first to file it gets all rights? how is that better??

example case:
- it costs $15.000 to file a patent
1. small guy invents something (e.g algorithm)
2. small guy doesnt has $15.000 to file the patent, and his not sure yet if his invention is worth it
3. small guy tries to make some money with the invention (u know like, creating google, facebook)
4. before the small guy has enough money to file patent, a patent troll sees the potential and files the patent
5. patent troll sues small guy

Re:how is this better? (1)

dgatwood (11270) | more than 3 years ago | (#37348794)

It costs $110 to file a provisional patent application, not fifteen grand. If you can't afford to spend a hundred and ten bucks to protect your invention, it's probably not worth protecting.

Re:how is this better? (1)

rtfa-troll (1340807) | more than 3 years ago | (#37348830)

So now someone can invent something, but the first to file it gets all rights? how is that better??

example case: - it costs $15.000 to file a patent

  1. small guy invents something (e.g algorithm)
  2. small guy doesnt has $15.000 to file the patent, and his not sure yet if his invention is worth it
  3. small guy tries to make some money with the invention (u know like, creating google, facebook)
  4. before the small guy has enough money to file patent, a patent troll sees the potential and files the patent
  5. patent troll sues small guy

If the guy could learn the algorithm from the small guy then that means the small guy published it. That will count as prior art. The guy who is willing to cheat and claim that he didn't learn that from prior art would be able to cheat worse in the current system.

  1. small guy invents something (e.g algorithm)
  2. small guy doesnt has $15.000 to file the patent, and his not sure yet if his invention is worth it
  3. small guy tries to make some money with the invention (u know like, creating google, facebook)
  4. before the small guy has enough money to file patent, a patent troll sees the potential and files the patent claiming an invention date almost one year before the filing date
  5. patent troll sues small guy and is almost certain to win

This is how 'I think' it works: (4, Interesting)

dizzysoul (2275254) | more than 3 years ago | (#37348616)

I remember the idea of "first to file" (FTF) being explained to me in the past, although I don't rember where or whom. Basically, FTF doesn't trump prior art. If someone invents something before you patent it, the patent is invalid. This doesn't change. One of the big litigation problems with "first to invent" (FTI) over FTF is that, when two companies claim the rights to have invented something first, it take a HUGE amount of digging, research, and legal discovery to figure out. Especially when companies keep secrets and have long R&D periods; it's a tangled mess to figure out the exact timeline that grants patent ownership to one company or another. With FTF, you don't have this problem, because its blatantly obvious who filed first, and prior art is easier to prove in court. IANAL, so correct me if I'm wrong!
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