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Patent Attorney Breaks Down Impact of the America Invents Act

Unknown Lamer posted more than 2 years ago | from the ensuring-patent-lawyers-have-work dept.

Patents 142

msmoriarty writes "As you probably heard, on Friday the Obama administration signed the America Invents Act, which changed our system to 'first to file.' Support for the bill itself was split in the tech industry: Microsoft and IBM (among others) supported the act, Google and Apple opposed it. Redmondmag asked a patent attorney to explain in detail the act and what impact he thinks it will have on the tech industry. According to him, there are still many open questions. From the article: 'The Act has not accomplished [first to file] harmonization in a straightforward or unambiguous way. For example, it is not clear whether a prior use or offer for sale of an invention by an inventor or joint inventor within a year of the date of filing would render the invention unpatentable.' He also said that the act clearly favors larger corporations, and he doubts it will speed up the patent process itself, which was one of its intended benefits."

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142 comments

Simple (3, Interesting)

Mensa Babe (675349) | more than 2 years ago | (#37468544)

Microsoft supported it, Google opposed it. What more proof do we need that this act is evil? Propably none and even if some then not much. Nevertheless the articles linked in this story even if not bad in content still may be quite hard to follow for anyone who hasn't got an opinion on this matter yet. You can find much more information in the Wikipedia article: Leahy-Smith America Invents Act [wikipedia.org] and even more in the articles linked in the references [wikipedia.org] . I strongly recommend reading it all because otherwise we risk to draw uneducated conclusions from the aspects of this story that may seem obvious but actually are not that obvious for anyone educated in the intellectual property law. Some of the implications of that act would be rather scary so we really need to take some time to fully research the subject and unlike the Redmondmag, the so called "independent voice of the Microsoft IT community", the Wikipedia is actually worth reading.

Re:Simple (0)

Anonymous Coward | more than 2 years ago | (#37468580)

Propably

Re:Simple (3, Insightful)

elsurexiste (1758620) | more than 2 years ago | (#37468606)

Microsoft supported it, Google opposed it. What more proof do we need that this act is evil?

OK

I strongly recommend reading it all because otherwise we risk to draw uneducated conclusions... we really need to take some time to fully research the subject...

If that's not ironic, I don't know what it is.

Re:Simple (0)

tobiasly (524456) | more than 2 years ago | (#37469276)

If that's not ironic, I don't know what it is.

10,000 spoons when all you need is a knife.

Re:Simple (0)

Anonymous Coward | more than 2 years ago | (#37469422)

Nothing in that song was ironic. Including what you just quoted there.

Re:Simple (2)

alen (225700) | more than 2 years ago | (#37468622)

google and apple like to do a lot of work in secret and then patent it or keep it secret for years.

microsoft and IBM are the opposite and like to patent things as soon as they finish the work on them even if there is no product yet

Re:Simple (1)

nschubach (922175) | more than 2 years ago | (#37470028)

First to file encourages "bad"/"poorly thought out" patents? (Not disagreeing, it's more rhetorical...)

Re:Simple (3, Interesting)

delt0r (999393) | more than 2 years ago | (#37470288)

Considering that the rest of the world has had first to file since forever, i think you are wrong. The quality is no worse elsewhere than in the US.

Re:Simple (2, Insightful)

Anonymous Coward | more than 2 years ago | (#37468710)

But Apple opposed it as well. Does that cancel out Google or does it add credence to Google is going evil. I'm so torn.

Re:Simple (0)

Anonymous Coward | more than 2 years ago | (#37468836)

I thought that corporations tended to act in their own usually short sighted, narrow self-interest. And, that attempts to pidgin-hole them as good or evil was just an attempt by the unintelligent to hammer the square peg through the round hole and then claim success when the board breaks, probably to preserve some kind of broken world view where heavens reward or wraith awaits in the end.

Re:Simple (0)

Anonymous Coward | more than 2 years ago | (#37469020)

But, but, the Supreme Court has ruled that corporations are better than people (all the rights and fewer responsibilities) so how can they be evil if they're better? I thought good/evil was just for people?

Re:Simple (1)

Aighearach (97333) | more than 2 years ago | (#37468732)

Microsoft supported it, Google opposed it.
What more proof do we need that this act is evil?

Normally I would agree. However IBM has a very good record with patents and OSS the past 10 years. IBM is now mostly a services company with little need for new patents. So I am not really convinced one way or the other.

Probably we will need to see wait a couple years until courts weight in before we judge the effects.

Re:Simple (5, Informative)

Desler (1608317) | more than 2 years ago | (#37469112)

IBM is now mostly a services company with little need for new patents.

And yet in 2009, they received 4900 patents and in 2010 they received nearly 5900 which is more than any other company. IBM has for 18 consecutive years held the #1 position in granted patents . Reality doesn't seem to march your assertion.

Re:Simple (1)

Oxford_Comma_Lover (1679530) | more than 2 years ago | (#37470870)

And yet in 2009, [IBM] received 4900 patents and in 2010 they received nearly 5900 which is more than any other company. IBM has for 18 consecutive years held the #1 position in granted patents . Reality doesn't seem to march your assertion.

That seems like a strange misuse of funds, if they're not using the patents for anything.

Although in the SCO debacle, they did whip out a patent for "hierarchical menu systems" IIRC. Talk about a "don't mess with IBM" patent...

Re:Simple (2)

Oxford_Comma_Lover (1679530) | more than 2 years ago | (#37470814)

> Microsoft supported it, Google opposed it. What more proof do we need that this act is evil?

So pro-data-privacy laws, for example, where Microsoft might benefit (via data privacy functionality it builds into healthvault, for example) where Google would not (since its goal is generally to collect all data) are necessarily evil?

The simple fact is that Microsoft has probably the largest patent warchest of any Corporation (not necessarily by dollar value--see bigpharm). They would be out of their minds not to support legislation favoring the big guy, and their board would have to be incompetent to do so under most ways of looking at corporate responsibility. If you had 10% of your savings in microsoft, would you want them to support something that will devalue a large asset of theirs?

Of course there are competing interests. I'm not saying it's the best law, or even an improvement. For many people it's not. For most slashdotters it's not.

On the other hand, you also have some pretty ridiculous transaction costs in the old system that this system gets rid of. If I'm working on developing a drug or software project, why should I need to have a day-by-day log of my progress each day, and a good excuse if I don't work on it on any day, or else I risk losing the patent? First-to-file eliminates the "you'd-better-not-take-a-vacation" rule (and the associated transaction costs) that used to apply when you wanted to prove that you invented before the first person to file. Even though those cases come up relatively rarely, it costs society a fair amount to *prepare* for that eventuality during the research on every major invention.

There is also a problem, in my view, that different fields really ought to have slightly different patent laws. It's crazy that a software patent has the same life as a major new transformative industrial process.

Short version (5, Funny)

durrr (1316311) | more than 2 years ago | (#37468570)

We're all fucked.

Re:Short version (1)

DoofusOfDeath (636671) | more than 2 years ago | (#37470158)

Nice try. I've patented the act of being fucked by legislation. And since I'm first to file, you're kind of fucked. If I give you permission, that is.

Re:Short version (1)

Pictish Prince (988570) | more than 2 years ago | (#37470606)

Nice try. I've patented the act of being fucked by legislation. And since I'm first to file, you're kind of fucked. If I give you permission, that is.

Now that's Funny!

"the act clearly favors larger corporations" (5, Insightful)

Anonymous Coward | more than 2 years ago | (#37468638)

"the act clearly favors larger corporations"

Well, duh! Isn't that the sole purpose of all acts and reforms? More advantages for larger corporations?

Re:"the act clearly favors larger corporations" (4, Funny)

fuzzyfuzzyfungus (1223518) | more than 2 years ago | (#37468654)

Anonymous Coward, I must request that you cease your class warfare immediately.

Strike all instances of "larger corporations" and replace them with "job creators" immediately.

Thank you for your cooperation.

Re:"the act clearly favors larger corporations" (1)

orgelspieler (865795) | more than 2 years ago | (#37469998)

I'm confused. I thought "job creators" meant "rich people."

Re:"the act clearly favors larger corporations" (0)

Anonymous Coward | more than 2 years ago | (#37470038)

Corporations are people.
Large corporations are rich.

Re:"the act clearly favors larger corporations" (4, Insightful)

DCFusor (1763438) | more than 2 years ago | (#37469016)

Unfortunately, that does seem to be the case. Funny the cognitive dissonance when they mention how it's *small* companies that create most of the jobs and innovation. There is no way you can now break into the big boys club. They just patent everything they can, and while they hate each other -- they can cross-license at nominal or no cost. But a little guy with one patent who starts eating into their market share will always find they've patented about 10 obvious things they can use against him, as the days of anything being simple, covered by just one patent, are long gone. As durrr said above, we're all fucked.

Re:"the act clearly favors larger corporations" (2)

GodInHell (258915) | more than 2 years ago | (#37469432)

See -- you're mixing your terms there. Small, in the political sense, is a reference to "S" class corporations -- businesses with small ownership pools that pay tax like a partnership (owners treat corporate income as personal income). The "S" stands for "small," but many S corporations are anything but small, as in money and employees.

-GiH

Re:"the act clearly favors larger corporations" (1)

Oxford_Comma_Lover (1679530) | more than 2 years ago | (#37470904)

See -- you're mixing your terms there. Small, in the political sense, is a reference to "S" class corporations -- businesses with small ownership pools that pay tax like a partnership (owners treat corporate income as personal income). The "S" stands for "small," but many S corporations are anything but small, as in money and employees.

-GiH

WTF?

When Congress refers to Small Business owners they're only talking about S Corps?

Can you give some sort of citation for that claim. That's a pretty remarkable claim, considering that 90+% of America has little or no clue what an S-Corp is and Congress discusses small business owners not infrequently.

More political theater (1)

Anonymous Coward | more than 2 years ago | (#37468640)

Does it stop patents on life? No

Does it stop software patents? No

Does it work to prevent patent abuse by companies like Monsanto who use it as a weapon? No

Does it stop patents on items that have been in the commons for years or even centuries? No

This is more pro-corporate political theater at the expense of individual liberty, just like every administration since Reagan.

Re:More political theater (0)

Anonymous Coward | more than 2 years ago | (#37468806)

Does it stop patents on items that have been in the commons for years or even centuries? No

Worse than that, since it's now "first to file" instead of "first to invent", technically it outright encourages patents on items that have been in the commons for years or even centuries, since if nobody has filed a patent on it yet, it doesn't matter who invented it, it's up for grabs and lawsuits.

Re:More political theater (3, Informative)

Jawnn (445279) | more than 2 years ago | (#37469008)

Worse than that, since it's now "first to file" instead of "first to invent", technically it outright encourages patents on items that have been in the commons for years or even centuries, since if nobody has filed a patent on it yet, it doesn't matter who invented it, it's up for grabs and lawsuits.

Only if you have pockets deep enough to use the legal system to bully anyone who might challenge your patently weak patent. Challenges cost money. For Big Corp, Inc., that's usually chump change. Big Corp wins, citizen loses. Again.

Re:More political theater (1)

Desler (1608317) | more than 2 years ago | (#37469250)

No it doesn't. Even under first to file, prior art invalidates a patent. First to file only changes the rules if what happens when multiple people attempt to patent the same thing.

Meh (1, Insightful)

Aerorae (1941752) | more than 2 years ago | (#37468646)

Life goes on. Corps always win in our system as it is. This shouldn't come as a surprise to anyone.

SO FOR GODS SAKE PEOPLE STOP THE GRATUITOUS LAMENTING

Re:Meh (0)

Anonymous Coward | more than 2 years ago | (#37469526)

Inciting a riot, eh?

Re:Meh (1)

ediron2 (246908) | more than 2 years ago | (#37470800)

Yeah, because not only do we get all the fun of repressing our views, but They will hear us via our silence, in some sort of pseudo-zen handwavy way.

For me, voicing or acting to make clear one's disagreement with policies is never gratuitous. It's civic duty.

Worst thing for America (2)

KlomDark (6370) | more than 2 years ago | (#37468648)

With all the talk about how the US needs to out-innovate other countries, they throw a wrench like this in the works. With first to file in place, that cool hack you just came up with and put on your web site, without patenting it first, can now be 'discovered' by a patent troll, who then files a patent based on your work, and then can turn around and sue you for using something that you invented.

Most creative people dont have the time or money to mess around with patenting their new ideas. This whole thing is just a bonanza for megacorps to steal all kinds of IP from the little guys who do most of the inventing.

Complete crap

Re:Worst thing for America (5, Interesting)

Anonymous Coward | more than 2 years ago | (#37468692)

The trolls could do that before. What they could do before, and could not do now, is pre-date the invention by 364 days, so that they could show priority over you. Of course that would be perjury, but the USPTO stopped prosecuting perjury on patent applications when they disbanded their enforcement division for budget reasons in 1974. No prosecutions since then.

Filing a patent on someone else's invention is still itself perjury. Now, we just have to get them to prosecute that.

Re:Worst thing for America (1)

Dachannien (617929) | more than 2 years ago | (#37468738)

Actually, your website would serve as prior art to their patent, same as it would under the old law. They may sue you, but they would lose.

Re:Worst thing for America (1)

vlm (69642) | more than 2 years ago | (#37468826)

Actually, your website would serve as prior art to their patent, same as it would under the old law. They may sue you, but they would lose.

Absolutely irrelevant. They only lose if the cost of protection money / licensing they offered was greater than the spectacular cost of legal defense.

I could patent posting goatse on /., god only knows that has plenty of prior art. Somebody posts goatse, I make my offer. It'll cost $50K to defend yourself at which time I'll lose and you'll get the patent overturned and you'll get no legal fees back because I (or my corporation) are judgment proof. Or, you can pay me $100 for a license to my patent, and that problem all goes away... If you have more than $100 in the bank (statistically likely) and less than $50K in the bank (statistically likely) then I win and you lose.

Re:Worst thing for America (1)

vlm (69642) | more than 2 years ago | (#37468882)

Whoa there big time mistake on my part. I forgot to add that before the new act, false patent marking was financial suicide. After the act, it doesn't look so bad. So as a business methods patent troll, I don't even have to bother patenting "post goatse on /." as a method. I just have to threaten you that it I have done so. Then post my licensing fee as lower than the cost of you even hiring a lawyer to figure out if my patent is even valid.

The two parts of the act turns patent trolling into a legal extortion business.

Re:Worst thing for America (1)

Anonymous Coward | more than 2 years ago | (#37469502)

...and how is that different from the old patent system?

Re:Worst thing for America (1)

vlm (69642) | more than 2 years ago | (#37469882)

...and how is that different from the old patent system?

Costs 15% more to file, but most of the punishments for falsely claiming a patent exists when it doesn't, have been removed.

Re:Worst thing for America (1)

Baloroth (2370816) | more than 2 years ago | (#37469640)

So what you're saying is that we need legal reform of the way patents are handled in court, not just reform of the patenting system itself. That would be the only way to handle the "license is cheaper than lawsuit" problem. Maybe make the troll put up cash, which they loose if they can't show in court that their patent is valid? Making invalid lawsuits very expensive for the trolls.

Re:Worst thing for America (1)

Dachannien (617929) | more than 2 years ago | (#37469766)

Absolutely irrelevant.

Except for the part where your post was decrying the supposedly shameful new patent law, yet your rebuttal fails to address the fact that your hypothetical website would serve as prior art just as well (if not better) under the new law than under the old.

Re:Worst thing for America (0)

Anonymous Coward | more than 2 years ago | (#37468932)

And, after paying your lawyer's bill, you would lose as well. Pyrrhic victory.

If you aren't making much (if any) money from your idea, the only rational course of action would be to abandon it to the guy with the patent (and thus the power). It's not entirely different from the current situation, but is likely to force the argument away from the patent office and towards the courts. Where a big company with a horde of pet lawyers has the advantage.

Re:Worst thing for America (2)

Desler (1608317) | more than 2 years ago | (#37469160)

*facepalm* First to file does not get rid of prior art requirements. Do you idiots even bother doing two second of research before continuing to spout this nonsense? Secondly that same company could already do that now so this change won't make any difference in someone trying to patent prior art.

Re:Worst thing for America (1)

geekoid (135745) | more than 2 years ago | (#37469764)

Did YOU bother to read it? it radically changes prior art.
Hey, guess what? That coll hack you have and are trying to get funding for? Fuck you, we'll patent. What that, it's publish. Fine we will wait a year and then see if you managed to get enough money to get a patent, if not Fuck you.

Seriously, read the fucking bill.

why favor large corporations? (2, Insightful)

vlm (69642) | more than 2 years ago | (#37468664)

He also said that the act clearly favors larger corporations

Why? He never explained why. I realize they are the boogy-man now, so any time you want to imply something is bad, you imply its good for the big corporations, but the logic seems to be missing. I guess the argument is something like submarine patents will be harder to implement, but ...

Re:why favor large corporations? (0)

Anonymous Coward | more than 2 years ago | (#37468706)

If you think that corporate power is just a bogeyman you must live in a different world than I do. Or ignorance really is bliss...

Re:why favor large corporations? (1)

Anonymous Coward | more than 2 years ago | (#37468756)

large corp has resources to patent everything they do. small devs don't.

e.g. you make a cool app, put it on your website, big-corp sees it, copies it, patents it, and sues YOU for infringing on their IP.

Chances are, they won't sue "you" (that would just be too evil, and wouldn't get'em moneh), but they'll probably still parent it, and sue their other-big-corp competitors, pretending to be the inventors.

In other words, as a small developer who doesn't have resources to parent everything you do, you're pretty much handing over ownership of whatever intentions you come up with to big corps.

Re:why favor large corporations? (1)

vlm (69642) | more than 2 years ago | (#37468986)

Hmm that argument would fit in with the other part of the act which is to increase cost by 15%.

But it works just as well with "individual" vs "small businessman" or "tiny business" vs "microscopically larger business".

Re:why favor large corporations? (1)

MrVictor (872700) | more than 2 years ago | (#37468910)

RTFA FFS. He did say why. This legislation just empowers patent trolls like never before. Now, even if you thought of the idea first and implement it, someone else can patent it years later and sue the crap out of you. First to file, remember?

Re:why favor large corporations? (1)

vlm (69642) | more than 2 years ago | (#37469040)

The set of all patent trolls are a subset of the set of large corporations? I don't think so. Not even "most" or "majority".

That's my point. Why beat on the drums that large corporations are gonna be the problem, when all you need is an unemployed attorney with about $5K startup costs, and look, insta-troll.

For a monopoly provider like microsoft, its not so bad, but a player in a competitive field like GOOG would get terrible PR, so "on average" the little trolls are going to be more numerous and more brutal than the large corps, aren't they?

Re:why favor large corporations? (1)

MrVictor (872700) | more than 2 years ago | (#37469486)

My point is this. In response to this legislation, corporations will shotgun sketchy patents for all sorts of ideas. That is what the guy in TFA is trying to say.

Re:why favor large corporations? (2, Interesting)

Anonymous Coward | more than 2 years ago | (#37469066)

Yes but, you're ignoring the fact that under the old law, you could think of the idea first, file a patent first, and STILL get the crap sued out of you by a large corporation that claimed they invented it first (" this internal memo from five years ago full of randomly strung together buzzwords clearly shows we invented it first") At least under the new regime, as long as you file first (and were an actual inventor, not someone who just copied an idea), you win. And that's more aligned with the spirit of patent law--we want to encourage people to publish as quickly as possible..

Re:why favor large corporations? (1)

Desler (1608317) | more than 2 years ago | (#37469184)

If that is what he says than he is an idiot. Prior art still applies even in a first to file system.

Re:why favor large corporations? (0)

Anonymous Coward | more than 2 years ago | (#37469410)

Only if that Prior Art is _PUBLIC_. What if that prior art was embedded in your software, and not publicized? Patent troll wins because he was the first to file, right? IANAL.

Re:why favor large corporations? (1)

Bucky24 (1943328) | more than 2 years ago | (#37470202)

I think as long as you can prove it was prior art it shouldn't matter if it's public or private. Then again I don't know for sure.

Re:why favor large corporations? (1)

Desler (1608317) | more than 2 years ago | (#37470454)

Which is no different than how prior art works now so what's your point?

Re:why favor large corporations? (1)

Desler (1608317) | more than 2 years ago | (#37470604)

And if you don't believe me, just read the words of the USPTO for it's rules of prior art (yes these are the rules of the first to invent system):

For the purposes of Article 33(2) and (3), everything made available to the public anywhere in the world by means of written disclosure (including drawings and other illustrations) shall be considered prior art provided that such making available occurred prior to the relevant date.

So again, what is your point since the rules on what constitutes prior art is exactly the same.

Re:why favor large corporations? (2)

Zouden (232738) | more than 2 years ago | (#37469268)

That's not what he said at all. The first to file rule doesn't override prior art. If someone invents something and publishes it, no one else can come along and patent it. However, if someone invents something and doesn't publish it (keeping it a trade secret), it can still be patented by someone else. This is a good thing because it encourages the publication of inventions, patented or otherwise.

Now, the reason why this act favours large corporations is that it allows for a company to publish an invention to a limited group, ie, other departments, sister corporations, whatever, but keeping it a secret from the outside world. They've satisfied the requirements to establish "prior art", but in reality no one else knows about the invention.

The act has established a new type of trolling: alongside the submarine patent, there is now submarine prior art.

Re:why favor large corporations? (1)

geekoid (135745) | more than 2 years ago | (#37469726)

If I invent it, and try to get investors, and it take more then a year, I'm screwed.

Re:why favor large corporations? (1)

delt0r (999393) | more than 2 years ago | (#37470406)

Ever tried to do that in the old system? I know several folks who have had this problem with the old system. Sure this may not fix that, but then the old system didn't either.

Re:why favor large corporations? (0)

Anonymous Coward | more than 2 years ago | (#37469778)

True, there is now submarine prior art. However, that invention can still be patented by someone else by my reading. The company that's using the unpublished invention can't be found to be infringing because they have the submarine prior art. However, they can't use it to invalidate the patent if they haven't filed for one when the patent is granted.

Re:why favor large corporations? (3, Insightful)

Baloroth (2370816) | more than 2 years ago | (#37469838)

But, unless he omitted something, the "submarine prior art" can't be used to invalidate a patent, nor to claim the patent for yourself. All it does is make you (or someone you sell the "trade secret" to), immune to being sued. I'm quite confused how that is a bad thing. It doesn't give as much incentive to publicize the technique, to be used by everyone after the patent period, but given the way patent law was before, that didn't really help before. Basically, it seems that this just makes a company, who doesn't publish their art, immune to patent suits, as long as they were using the art in question, but they cannot invalidate a patent someone else filed. Again, this is unles I am completely misreading what he said or he omitted a major point.

The only way this benefits large companies more than small companies is because large companies can afford to maintain and develop more such art. That is all. So basically it benefits large companies the same way as patent law in general does: they can maintain more of it. All in all, however, this (part of the) reform seems good, since trolls can't file for a patent afterwards and sue some company who was actually using it before them, but didn't publish it.

Re:why favor large corporations? (0)

Anonymous Coward | more than 2 years ago | (#37469302)

No, idiot. First to file is about determining which of two concurrent applicants gets the patent when all else is equal. Use an invention one year or more prior to the filing: You're safe. Publish about your invention before someone files: you're safe.

Re:why favor large corporations? (0)

Anonymous Coward | more than 2 years ago | (#37470030)

The whole fucking point of the patent system isn't to be the first to implement things, it is to PUBLISH inventions. So if you invent something and keep it private you are not pursuing the goals the patent system wants you to pursue and your invention can be lost to somebody who does publish (read: file) it. If you invent something cool and publish it (on a website or something) with an obvious timestamp, then (theoretically) nobody can patent that thing because you have established prior art and their patent would be invalid. Now, what problems does the new system create (and what problems does it solve) versus the problems (and solutions) of the old system? Both systems will have trolls, both will have people try to patent things with prior art, and in both the companies with the pockets will win - but in the NEW system, it encourages publication a lot more, which is the whole point of the patent system in the first place!

Re:why favor large corporations? (1)

delt0r (999393) | more than 2 years ago | (#37470388)

In the old system you need to prove that you invented first... in a court of law, with a 1000US per hour legal fees? How did that work out for the little guy?

It simply does not matter what system you have (first to file is cheaper to prove in court, and what the rest of the world has always used). If the only way to test or show something is with a 3 year court battle, it only supports big corporations.

No matter who loses, lawyers always win. Note who the biggest defenders of this system are.....

Re:why favor large corporations? (0)

Anonymous Coward | more than 2 years ago | (#37469068)

any time you want to imply something is bad, you imply its good for the big corporations, but the logic seems to be missing.

I can think of dozens of scenarios where the profit motive works against the interests of the public, and only a few where it works in favor. That makes it more likely that any entity with the primary mission of increasing profits in the most efficient way possible will work to my detriment more often than it will work to my benefit.

Re:why favor large corporations? (1)

nahdude812 (88157) | more than 2 years ago | (#37469626)

He does explain why:

As one example, the Act expands the Prior Use defense to patent infringement to apply to all inventions (it was previously limited to business method patent claims) in a manner that encourages those with sufficient R & D resources -- generally, large companies -- to discover, document, use in an "internal commercial use," and maintain as a trade secret new methods and/or materials producing a "useful end result" which can then be sold or transferred with impunity. If a patent application claiming the new methods and/or materials is filed a more than a year later by another entity, and issues as a patent, this prior internal commercialization, or the transfer or sale of the end result, is immune from patent infringement, and is protected thereafter so long as it is continuously performed.

Basically if they do a large amount of internal R&D (most big tech companies), anything they piloted internally gets them a license to the tech. Even if you come up with an amazing new idea, if their R&D team spent any time on something similar, they can sell it commercially even though you have a patent.

Re:why favor large corporations? (1)

delt0r (999393) | more than 2 years ago | (#37470444)

How is that bad. They did also come up with it, they did also invest in R&D, they also "discovered" the secret sauce. Why should they be denied the use of it because someone else did all that and just added a lawyer?

Re:why favor large corporations? (1)

nahdude812 (88157) | more than 2 years ago | (#37470830)

Because they have the resources to cast the widest possible net without regard to working out specifics or surmounting challenges present in the invention. Basically they are "inventing" in the sense that they think of an idea, and document it entirely internally (read: completely forgeably), then let the market prove the invention worthwhile. They can then pursue only those inventions the market has demonstrated a demand for.

In effect they can let third parties take all the risk while they reap the reward. Small inventors don't have the resources to do something similar, so any time they patent something, as soon as they start seeking royalties they potentially risk having invested years of research and work creating something incredible only to have a big corporation show up claiming "Oh, we've been doing that all along, it's just that nobody but these two guys in our extremely highly paid R&D team knew about it," and start selling licenses of their own. Their investment is much lower, and their risk is practically none.

I could understand if this exception permitted continued use in the same manner as the company has already been using it. That is, if any scale, so you get the ability to sell it the same as the patent owner does," is just a smack in the face to anyone without enormous R&D budgets.

Since the patent system is intended to reward people for taking the risk of inventing, a clause such as this which shifts the burden of risk from the big kids to the little kids is directly opposed to the design of the patent system in the first place. It's turned into a cash-back guarantee for big companies, and this legislation furthers that trend.

Re:why favor large corporations? (1)

NetNed (955141) | more than 2 years ago | (#37469736)

How is it "insightful" if the poster clearly didn't RTFA? It's in there, go read it! He never explained why in a short snip-it from the much bigger article? GO FIGURE!

Re:why favor large corporations? (2, Interesting)

Anonymous Coward | more than 2 years ago | (#37470310)

A few ways this favors large corporations:
1. The "internal commercial use" allows a company to escape being prosecuted if they documented the invention and use of a patententable item internally but did not disclose it to the public in a patent but kept it as a trade secret. This seems to benefit large companies. I also think It seems to be against the intent of the constitution. Presumably it is to prevent an employee with access to trade secrets from disclosing them to a third party who then patents them and sues the original inventing company for patent infringement.

2. He seems to say there is a new requirement to do surveilance shortly after the patent is issued to prevent people from utilizing your patent. I assume to prevent submarine patents. A small company may be developing the manufacturing, distribution, and sales parts of the company and may not have the resources to allocate to this. A large company will have a system in place.

3) The additional fee of $4800.00 to get the patent processed in one year may be more affordable to large companies. This may cause the 34 month backlog to extend beyond the 34 months. A small company could go bankrupt waiting for their patent to be granted. The end result is that all small companies will have to pay the $4800.00 as well. It did not say if the patent office would refund the $4800.00 fee if they failed to process the patent in one year. As I understand it, the patent office typically finds problems and then kicks it back to you for further clarification by a certain deadline. If the one year is then pushed out by how long it takes you to respond, it may not be much of an improvement.

4) I believe to invent something you must make a prototype which embodies the invention. Individuals and small companies often looked for partners to fund these prototypes during the one year grace period. I believe he said it is unclear whether this would invalidate the patent due to public disclosure. I believe it is necessary to have the interested parties sign non-disclosure agreements to prevent disclosure to the public under the current system, and I don't see how this changes anything.

Fast Lane for Big Companies (0)

Anonymous Coward | more than 2 years ago | (#37468716)

From TFA:
"The Act does contain mechanisms that are supposed to accelerate patent application examination and grant. For example, under the Act, an applicant can obtain Prioritized Examination (already available as a limited pilot program) in which grant could occur within a year or so after filing. The initial cost of requesting Prioritized Examination is $4,800 in addition to the regular filing fees for a small or large entity – to date the Office indicates that a small entity discount is not available for this procedure. I believe large corporations are more likely to regularly use this procedure than small entities or start-ups."

Gee, that sounds fair.

False patent labeling (1)

vlm (69642) | more than 2 years ago | (#37468758)

Does anyone have a cost benefit analysis of false patent marking before and after the new act?

Looks like before the act takes effect, false patent marking is pretty business-suicidal, and after the act it seems like little more than an annoyance.

Can we expect that in the future most patent claims will be false, since it will be cheaper to lie than to actually do the paperwork? In other words it'll make more sense economically to stamp "patent pending" on everything and only actually patent one in ten things just to keep copiers "honest"?

I do see the standard american business model trend of find something historically trustworthy (like writing the patent numbers and/or patent pending on a product) then breaking that trust for profit, until the market falls apart and disintegrates... I can clearly see the first step, second is looking kind of fuzzy. How are the megacorps planning to make money off this particular form of dishonesty? If its not to make money for the megacorps, why promote this kind of dishonesty (or rephrased, who's paying for it?)

First to file.... (0)

Anonymous Coward | more than 2 years ago | (#37468866)

I think I'll go out a patent the wheel now. After all, no one else has filed yet.

Sit back, and watch the royalities 'roll' in.

Re:First to file.... (1)

Desler (1608317) | more than 2 years ago | (#37469222)

Except for all the prior art to invalidate your patent? Oh right you don't even understand what you're talking about.

False advertising (2)

roman_mir (125474) | more than 2 years ago | (#37468908)

There is no honesty in politics, but can't they be stopped from false advertising? When they name something "Jobs Act" it doesn't mean there will be jobs, but if you are against the act on actual details of the bill, then you'll be labeled as if you are "against jobs".

Same with the Patriot Act - do you think it's easy to be in opposition to a bill named "Patriot Act"? What are you, a terrorist?

"America Invents Act" will only succeed in innovative litigation procedures.

There are 152 PAGES in that bill. (PDF warning) [house.gov]

How about doing something useful to get America 'inventing' again?

How about abolishing the patent system? How about reducing regulations and all other government nonsense and stop standing in the way of inventions and innovations and stop allowing the huge companies from crashing competition with their patents?

Of-course you don't have to stop, but all the inventions and innovations will take place somewhere else, not in America.

The correct way to read names of government bills is to reverse the literal meaning of the names.

This bill can be named: "America Inventing Prevention Act" or "Inventing Anywhere But America Act".

It would be easy to vote against those names.

Get them to give bills numbers and not names and then everybody would have to know the details of what's inside. Stop the false advertising, companies get sued for it, why not governments?

Re:False advertising (1)

fnj (64210) | more than 2 years ago | (#37469332)

I think you know the answer to your question "(how about abolishing the patent system?"). There's no MONEY in abolishing it. The thugs in charge on both sides of the aisle continue to contitute a sinister corruptocracy in collusion with megacorporations, in a death struggle against the interests of the people.

Re:False advertising (0)

geekoid (135745) | more than 2 years ago | (#37469708)

abolishing the patent system would be horrid. Why don't you try being an inventor for a few years, then get back to me.

Another short sighted myopic idiot for Ron Paul.. wow, what a surprise.

Re:False advertising (1)

bill_mcgonigle (4333) | more than 2 years ago | (#37470532)

abolishing the patent system would be horrid. Why don't you try being an inventor for a few years, then get back to me.

BTDT. I've had to scuttle two startups due to the impossibility of navigating the patent minefield without significant investor backing. Did you know every form of onscreen keyboard that's practical to implement is patented? The other product involved a VoIP system, a field which is also entirely patented, sometimes with multiple patents covering the same basic 'invention'. Without the current US patent system, there would be two companies in operating selling useful products - that aren't now because of it (and my desire for a garage-style startup, not a VC burn-fest).

Even if my products were entirely novel and I filed for patents on them, they would have issued after the products had become obsolete already and a new generation had been developed.

As an inventor, can say with first hand experience that abolishing the patent system would be good for inventors. Full disclosure: you'll find my name out there in the patent system (with corporate assignment), but the patent system never encouraged or helped anything I've invented.

Re:False advertising (1)

roman_mir (125474) | more than 2 years ago | (#37470678)

Except for your obvious lack of wisdom and good judgment, what I also see is lack of historic perspective. The patent system has only been in place for a few hundred years, but the real litigation didn't start until last century from about 19 hundreds to today. However the innovation has always been here and it will be here after the patent system is gone, just like the civilization has been here before this insane intruding government and it will be here long after that is gone too.

Opened the door for electronic lab books (0)

Anonymous Coward | more than 2 years ago | (#37469206)

My particular (large) corporation will be thankful for this change.
As a scientist I have had to record all my findings and notes on a dead-tree lab-book, just in case the attorneys from the US with their first-to-invent system came knocking.

Now I don't, we can record stuff much more efficiently in an electronic format.

SNYF: situation normal; you're fucked (2)

fnj (64210) | more than 2 years ago | (#37469290)

Microsoft and IBM (among others) supported the act, Google and Apple opposed it.

I think that says all we need to know about the act. It's a big zero. The old situation was no good and this new act is no good either. Big whoop. The corruptocracy of government in collusion with megacorporations continues ... accelerates, actually. Regardless of which band of thugs is in charge in Washington, or even if neither band has clear control. You know why? It's a big charade. They are all the same band of thugs.

Re:SNYF: situation normal; you're fucked (1)

alienzed (732782) | more than 2 years ago | (#37469746)

well you're right. I mean, one party loses, but still has 50% control... and we wonder why nothing ever gets done. It's time to make government more local and less global. Let the people decide how they want to exist. And seriously, other than for profit, all this patent nonsense is holding the human race back. Innovation will most certainly continue even if patents cease to exist. It's called academia!

Haha, Americans are screwed (0)

Anonymous Coward | more than 2 years ago | (#37469590)

The Comment Subject is my comment.

Abd uit doesn't fix the worse problem (1)

geekoid (135745) | more than 2 years ago | (#37469670)

That congress can take money from it for other things.

THAT'S the root of most problems. If congress would top doing that, they could hire more people for patent review.

Remember that this attorney is pro-patents (2)

iMadeGhostzilla (1851560) | more than 2 years ago | (#37469690)

He's saying that patents will be harder to file for smaller corporations, and that a large corporation is more likely to be immune from patent infringement if they internally developed something but did not disclose it before the small corporation filed, and so on.

As far as I am concerned, the fewer patent "traffic" there is and the smaller chance of successful patent lawsuits, the better -- but not for him, since he gets paid more when there is more such traffic.

If anything, I tend to think that a really bad situation got just a little better. And it's still quite bad.

First to invent (1)

X10 (186866) | more than 2 years ago | (#37469800)

It should be "first to invent", not first to file. This way, a company with a lot of money can look at your work, then patent it, effectively stealing it from you. If you don't have tons of money to patent every statement you write.

Better still, it should be "no patents".

You mean Obama? (1)

slapout (93640) | more than 2 years ago | (#37470178)

"Obama administration signed the America Invents Act"

How does an administration sign something?

in short (1)

nimbius (983462) | more than 2 years ago | (#37470204)

we screwed you all through a complex and highly guarded system of think tanks, policy centers, and lobbyists. to those of you who blame us, know that you are powerless and mute in our presence as have you always been. to those of you who blame the black person running the country, your obedience is duly noted. your television is working properly and serving its intended purpose.

regards, The Capitalist Class(c)

P.S. Consume.

A key benefits of first to file (2)

gstrickler (920733) | more than 2 years ago | (#37470650)

From TFA: However, in the majority of cases (e.g., if there is no derivation issue), the America Invents Act implements a "first to file" rule, and I would strongly advise clients to regard the Act in that manner, and to promptly perform a prior art search and, if the invention appears to be patentable, file a patent application before taking any other action, particularly before using, disclosing, selling or offering the invention for sale. Thus, the rule should be "file first" as well as "first to file."

Thus it encourages early filing and disclosure, which helps prevent people keeping ideas secret. Disseminating info to encourage progress is the primary reason for having patents, so changes that encourage disclosure earlier are good. This also helps simplify prior art claims in patent approval because unpublished prior art does not prevent the patent.

The extension of the Prior Use defense is also a net benefit. While it does allow companies to keep information private (partially offsetting the advantages above), as soon as someone else files a patent application for the same idea, the company who kept it private loses the ability to patent it, thus giving them an incentive to apply for a patent rather than keep it secret. It does allow the company to continue to use their method without infringing on the patent since they were using it prior to the patent filing. You no longer have to worry about someone patenting what you're already doing and making you license it from them.

There are other aspect of the overall act that are only beneficial to specific industries, and some that could be a disadvantage to individual inventors or smaller companies, so it not all good news, but first to file is a good change.

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