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Senate Panel Backs Patent Overhaul Bill 243

Posted by Soulskill
from the then-patented-their-support-and-demanded-licensing-fees dept.
mvar writes "A bill to reduce the likelihood of massive damage awards in patent disputes took a step forward with approval by the Senate Judiciary Committee. The committee voted 15-0 to back the legislation that would give judges a major role in determining how important a particular patent is to a product, so that infringing minor patents would not lead to huge damages. The bill (PDF) also gives patents to the first inventor to file, rather than the first to invent, making the patent application process easier for companies who apply for patents in multiple countries. This year, Microsoft, the Pharmaceutical Research and Manufacturers of America and the Biotechnology Industry Organization support the patent legislation, while Dell, Cisco and others oppose it." Microsoft's blog post in support of patent reform calls for a quick review period for newly-granted patents and the acceptance of prior art submissions from third parties.
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Senate Panel Backs Patent Overhaul Bill

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  • by TaoPhoenix (980487) <TaoPhoenix@yahoo.com> on Friday February 04, 2011 @10:02AM (#35102878) Journal

    Well this is interesting. Do we like the track record of judges, or will they all file in East Texas where "a big corp clearly has better ideas on what to do with an idea that they were (second) to sell"?

  • Well..... that fixes all the problems with prior art, now there is none!
    • by Java Pimp (98454) <java_pimp@NOspam.yahoo.com> on Friday February 04, 2011 @11:09AM (#35103522) Homepage

      First-to-file does not negate or eliminate prior art. First-to-file applies to parties independently coming up with the same invention (without existing public knowledge of such an invention) and granting the patent to the first to file.

      Prior art can still be used to show that the first to file didn't actually do the inventing.

      Interestingly enough, the Microsoft blog linked to in the article specifically mentions and endorses the use of prior art in countering patents.

  • WTF? (Score:5, Insightful)

    by Cyberax (705495) on Friday February 04, 2011 @10:03AM (#35102888)

    "The bill (PDF) also gives patents to the first inventor to file, rather than the first to invent"

    WTF?

    • Re:WTF? (Score:5, Insightful)

      by a_n_d_e_r_s (136412) on Friday February 04, 2011 @10:07AM (#35102916) Homepage Journal

      Perfect now big companies can steal ideas from other countries and patent them in the USA. And the smaller damages means it won't cost as much for Microsoft and other big companies when they are convicted of infringing on others patents. This is really good for big companies that like to infringe on smaller companies patents.

      • by horza (87255)

        Why do you perceive it as stealing from other countries? The objective of the patent system is to get inventors to contribute their invention to the sum of human knowledge, in return for a time limited monopoly on the invention in the country in which they file.

        If I am a widget manufacturer X in the UK that has invented and patented the sprocket, and the UK is my only market, then as a business decision I may decide to only file in the UK. If a widget manufacturer in the US decides to file it there then it

        • What don't have enough money to file the patent in both the UK and US? And by the time your widget earns you enough money to file, a big corporation has already filed for the patent in every country except the UK?

          • If your widget is on the market then it may qualify as prior art. The international thing is presumably a problem right now if the U.S. is the only one operating a "first to invent" system. I'm assuming that a PCT patent could be rejected if its validity hinged on the inventor claiming to be the first to invent, and the UK IPO is probably not accepting that if used to challenge a patent that someone managed to file in the UK before the US guy got a chance to file.

        • Re:WTF? (Score:5, Interesting)

          by Yvanhoe (564877) on Friday February 04, 2011 @10:50AM (#35103324) Journal
          But after 3 years of UK success, the UK manufacturer wants to compete in US. "No" says the patent troll, you got to pay the "foreigner tax" first.

          Having to pay a license to lawyers to be authorized to sell your own invention is not really what the patent system is supposed to be.
          • Re: (Score:2, Insightful)

            by 0123456 (636235)

            Having to pay a license to lawyers to be authorized to sell your own invention is not really what the patent system is supposed to be.

            That's exactly what the patent system is supposed to be: you invent something yourself, then discover that you can't use your own invention because someone invented it before you and has a piece of paper saying they own it.

            There are few really unique and innovative inventions which someone else in the field couldn't come up with independently.

            • Re:WTF? (Score:4, Insightful)

              by cmarkn (31706) on Friday February 04, 2011 @11:41AM (#35103858)
              No, you missed the point. The guy who invented the sprocket and got the patent on it in the UK but not the US. US Widgets Inc sees the UK patent and files it in the US -- even though they didn't invent it. Now the UK inventor wants to expand his sales into the US. Bam! He gets hit with a patent suit because US Widgets owns the patent here. The judge decides that the inventor has to pay to sell his own invention, because he was not the first to file, merely the first to invent.
        • by LingNoi (1066278)

          So lets take a real world case rather then your made up case.

          BlueJ comes up with an innovative way to display code. Microsoft implements and patents it in Visual Studio.

          If prior art was taken out then Microsoft could sue the author of BlueJ? Fuck that shit. One set forward, two steps back. ugh...

          • (a) NOVELTY; PRIOR ART.—A person shall be enti- tled to a patent unless—
            ‘‘(1) the claimed invention was patented, de- scribed 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

            There's more to it than that, but there's the most relevant section of the bull.

          • Not one is talking about removal of prior art though. In fact later in the summary (not the article, the summary) it talks about Microsoft's support for improving prior art claims by allowing third parties to submit them. Presumably this means that if I know that a company has filed a patent on something I already released into the public domain, I can personally call the patent investigator and submit evidence of prior art before the patent is approved.

            • Re:WTF? (Score:4, Insightful)

              by Jane Q. Public (1010737) on Friday February 04, 2011 @06:13PM (#35107420)
              But that's a narrow definition of "prior art", and it does not seem like a fair method. As I understand it, that would give companies an advantage over garage inventors.

              Let's say I invent gadget G in my basement. I have kept meticulous records of the lab and shop work I put in over time to invent it. It took me 5 years.

              I want to patent it, but it takes me a year and a half to get the funding to do a proper patent search and file for a patent. In the meantime, my next-door neighbor, who works for Corporation X, saw my invention, and the corporation filed for a patent right on G away, 8 months before I did.

              My invention is not yet "public knowledge". Yet clearly I was the inventor. Why should Corporation X be awarded the patent?

              If that's the way it would truly work, I am strongly against it.
        • by Scott Wood (1415)

          How is that US widget manufacturer contributing an invention to the sum of human knowledge? Why do they deserve a monopoly on the US market for those widgets?

      • In fairness, the bill institutes "derivation proceedings", in which someone can assert that someone else's patented invention was actually derived from their own invention and wasn't original to the patentee. This is similar to today's "interference" proceedings, except the complainant gets to file a petition to directly initiate such proceedings. The derivation proceedings would initially take place before the USPTO rather than in court, decreasing litigation costs (at least initially, as the results may

      • If if the patent is granted to the first to file (rather than first to invent) I would think the patent would still have to pass the "prior art" test to be valid. In other words if a company 'invents' something and then markets it but DOES NOT apply for a patent the fact that a product based on the principles that could be patented exist would make a patent for anyone else invalid. In other words, you must be first at the patent office to get a patent even if you develop the principles of the patent after

        • That's the objection I see, too. Your typical backyard inventor, for example, might need time to fund a patent search and the patent application, while a company with money could file right away... so the actual inventor gets screwed out of it.

          That would be a terrible situation. It would stifle innovation. Most inventions -- ultimately belonging to corporations or not -- are created by individuals or small teams. Giving someone first shot just because they are better funded seems contrary to the whole pr
    • Re:WTF? (Score:5, Informative)

      by Svartalf (2997) on Friday February 04, 2011 @10:08AM (#35102928) Homepage

      That only benefits the big companies... Filing is friggin' expensive. Tens of thousands of dollars are involved with the filing of a Patent. First to file means whomever has the resources will get to it first. That's NOT reform.

      • Re:WTF? (Score:4, Insightful)

        by coldfarnorth (799174) on Friday February 04, 2011 @12:30PM (#35104352)

        I disagree, this also helps the little people. If you file a patent for a cool idea, and IBM files for the same idea two days later (Keep in mind that the important date here is the postmark), you win. There's no expensive and lengthy court case (where you can lose by running out of money) to determine who invented it first. The debate will be over the day that they look at the postmarks. Keep in mind that prior art applies here also: if you publish a patent in another country, that is prior art, and you can use it to invalidate patents that are filed at a later date in the USA.

        Now, if you want to stick with a system where a court case is necessary to determine who gets the patent, I guarantee that will primarily benefit the side with the most cash available for lawyers.

        Food for thought, the rest of the world uses a first-to-file system, and it does not appear to have destroyed society yet.

        Oh, one more thing: if you, as a "small entity", are willing to do the legwork and write up the patent application yourself, you can have a patent of reasonable length for less than $1000. The current fee schedule is available here:

        http://www.uspto.gov/web/offices/ac/qs/ope/fee2009september15.htm [uspto.gov]

        • There's no expensive and lengthy court case (where you can lose by running out of money) to determine who invented it first. The debate will be over the day that they look at the postmarks.

          That's a nice theory. But in reality, a major corp with a suitable (i.e. ethically deficient) legal team can tie up anyone but another major corporation in court until they go bankrupt. The fact that all evidence is against them is only a minor problem - look at how long SCO was able to tie things up without ever producing any real evidence to back up their claims.

        • But what if you're poor, or at least have to struggle to come up with the $1000? And while you are trying to dig up the funds, IBM files their version?

          That gives too much priority to whoever is better funded. That is contrary to the whole principle of patents, which are supposed to go to the first inventor.
    • Re:WTF? (Score:5, Insightful)

      by Sonny Yatsen (603655) * on Friday February 04, 2011 @10:25AM (#35103068) Journal

      Well, there are two major reasons why a first-to-file system may be advantageous. First, the United States is unique among the nations of the world in having a first-to-invent system. This means an inventor can gain priority over another inventor who filed before the first inventor if he can prove that they invented something first. Every single other country in the world uses a first-to-file system. To change US law to permit the first-to-file system would harmonize US law with every single other country's laws, simplifying the matter for inventors. It also gets rid of weird results like a family of patents that protect in every other country but the US.

      Secondly, it's cheaper for all parties. A first-to-file system can determine who gains priority in a patent by simply looking at the dates. On the other hand, a first-to-invent system almost always devolves into massive lumbering multi-million dollar litigation suits where hundreds of attorneys and document reviewers pour though millions of pages of notes to prove one party reduced something to practice before another party. It also takes years to go through the courts, which is not helped by the already heavy backlog of cases in the Federal Courts. Plus, while a first-to-file system doesn't help the small inventor, a 102(g) fight priority fight in the courts REALLY doesn't help small inventors. They can't afford the potential millions of dollars that may be lost permanently if they lose such a case, or even to settle.

      • Re:WTF? (Score:5, Interesting)

        by Cyberax (705495) on Friday February 04, 2011 @10:35AM (#35103150)

        I'm reading it and it's horrible.

        For comparison, Russia has a 'first-to-file' patent system. However there's a clause that earlier inventors receive an automatic license to use the patent, and it also could lead to patent's invalidation. I don't see anything like this in the new bill.

      • by Nerdfest (867930)
        Doesn't this screw over people who invent something and don't want it patented, or can't afford to?
        • by mangu (126918)

          Doesn't this screw over people who invent something and don't want it patented, or can't afford to?

          No. Those people wouldn't have a patent anyway, so why should they complain?

          If you are an inventor who cannot afford to patent your inventions you need an investor to finance you. You would need a partner anyway if you are poor and wish to produce your invention.

          If you want to give your invention as a gift to the world you should patent it and licence the patent for free. Yes, it sucks, paying for the patent process if you just want to release it for free, but that's the way it is when you have patents, no

          • But the moment you let your investor know about your invention, he can go and patent it.

          • by Scott Wood (1415)

            I need an investor to write software? Even if I have one, I need to burn valuable startup capital patenting every little aspect of my product that someone might want to patent?

            Does "first to file" only make a difference with prior inventors that did not disclose, or does it interfere with prior art that has been made public by way other than patenting?

            Personally, if there are multiple independent inventors within a short period of time (disclosed or otherwise, as long as you have evidence that it happened,

          • If you want to give your invention as a gift to the world you should patent it and licence the patent for free. Yes, it sucks, paying for the patent process if you just want to release it for free, but that's the way it is when you have patents, no matter if the priority goes to the first to invent of to the first to file.

            Theoretically they don't need to file. Simply publish your invention specifics (online would do I'm sure), and you've established prior art. No one else can patent your idea, because it's already existent in the public domain. If, as the second article in the summary suggests, they also change the law to allow third party submission of prior art, then it wouldn't even be difficult to defend your public domain invention.

        • by reebmmm (939463)

          No. Well, sort of no. The system isn't much different for that person than it is under the current system.

          The first file only impacts the situation in which two people file a patent application at or about the same time. The first to file rule says that one with the earlier postmark wins, essentially. Under the current rules, someone can have filed later in time but shown by evidence that they had possession of the invention sooner by proof of diligence and non-concealment.

          I think that there is a lot of

      • My problem is this, let's say I come up with a cool way to do something on a web page. I see it as a trivial solution to a problem (let's say 1 click buying). I never patent it.

        Now some company (say amazon) develops the same thing months or years later, patents it and sues me.

        Another example, let's say a open source product comes up with a revolutionary way to use a trackpad. Now let's say apple implements and patents that method in their next release of OSX. We can't expect a lose org of programmers to hav

        • Replacing first-to-invent with first-to-file doesn't mean it also gets rid of prior art. In the situations you presented above, your solutions will act as prior art which may anticipate or render the subsequent invention obvious during prosecution or during reexamination or during litigation.

          • So then, after their patent is invalid, can I file?

            • Only if it's within the 1 year bar after publication. The US Patent system doesn't want people to dedicate new inventions to the public (by publication) and then, after some indeterminate time, take it back from public domain by filing a patent on it. If you published and more than a year went by before you file a patent, then your own publication will act as prior art against you.

      • by srealm (157581)

        On the other hand, with things like software and business model patents, this is disastrous.

        1. Some open source developer creates some cool piece of software, algorithm, or whatever.
        2. Big Company (tm) see's this and decides it's cool, and files patent.
        3. Big Company (tm) sues open source guy (and any other competitors it feels like) over said patent.
        4. Open source developer who invented the cool software/algorithm/etc. is forced to abandon his/her own code because or fight in court - probably signing the r

        • I keep seeing this type of argument here, but this is untrue. Prior art isn't being abolished by a first-to-file situation. Remember, prior publications constitute prior art. The open source project, by virtue of being earlier and published (wouldn't be much of an open source project if it wasn't) to the public would constitute as prior art to Big Company (tm)'s patent and can be used to invalidate Big Company (tm)'s patent or application.

          Also, in regards to business model patents - they are rather weak now

          • by RogerWilco (99615)

            Yes, but that's not what the example is about.

            The scenario seems to be:
            1) What if there is prior art, but it was not found discovered during the patent application review so the patent was granted.
            2) Now the patent owner goes after the creator of the prior art and sues for violating the patent.
            3) The creator does not have the money to defend him/herself in court. ...
            Profit for the patent holder?

            What is there to stop this scenario, and does the proposed change in the litigation make it harder or easier?

            • The proposed change neither makes it harder nor easier. The prior inventor can, of course, cite the relevant prior art to the USPTO and request an ex parte re-examination of the issued patent. This could result in the USPTO invalidating a patent on the basis of anticipation, obviousness, etc.

        • Two words invalidate your whole post ...

          PRIOR ART

      • Harmonizing with what the every other country does may sound appealing, but that doesn't make first-to-file more just. In the situation you described (where a patent family is protected in every other country but the US), why shouldn't that be the case? If someone can prove that they were in fact the first to invent (within statutory time limits) despite someone else filing first in other countries, why shouldn't they be able to invalidate the latter inventor's claim to an invention? In the situation you
      • It's also unconstitutional, and contrary to the overall goals of the patent system. The US Constitution requires that patents only be granted to inventors, as opposed to johnny-come-latelies. And the goal of the system is not the granting of patents for its own sake, but to encourage the invention, disclosure, and bringing to market of novel, non-obvious, useful inventions, so that they can meaningfully enter the public domain. Granting rewards to people who can more swiftly negotiate bureaucracy doesn't en

        • by Grond (15515)

          It's also unconstitutional, and contrary to the overall goals of the patent system. The US Constitution requires that patents only be granted to inventors, as opposed to johnny-come-latelies.

          First to file doesn't mean that a non-inventor can file for a patent. The bill wouldn't repeal the 35 USC 102(f) requirement that the applicant actually invent the claimed invention. First to file just means that, if there are multiple independent inventors, the first one to file wins rather than the one who invented it first. There will likely be a constitutional challenge, but it's unlikely that the courts would find it unconstitutional. There are two reasons: first, the Constitution doesn't specify '

      • This "harmoization" of US law with other countries is getting really old. We need to decide what we stand for and do it. Others can do as they wish. Why don't we just dump our whole government and put the states under some other one? Since we think adopting all their rules is a good idea... That is the stupidest reason I've ever seen for changing a law, and it gets used more often than a stupid idea should come up.
    • by Asic Eng (193332)

      Hmmm - does this effectively abolish prior art? If I file a patent on what my competitor has been doing for years, then I'll get the patent award.

      Sounds dangerous - everybody would have to file everything unless they want to be deprived of using their own ideas. It's a tax on innovation - no wonder Microsoft likes it.

      • by shentino (1139071)

        That's only if nothing but previous patents qualify as prior art.

      • Not really. If your competitor comes up with an amazing invention but keeps it secret then it can't be considered prior art, so you could indeed file a patent. If however the invention becomes public prior to your filing it then constitutes prior art. The downside to filing a patent is that the thing in question becomes a matter of public record. People not wanting that to be the case could maintain the thing as a trade secret, with the risk of someone else patenting it.

        Everybody has to either file, publish

      • by horza (87255)

        First to file is standard for every country outside of the US, and prior art is still equally important. You are correct that companies do file a lot of defensive patents, but then do anyway under first to invent. Don't forget that for a patent to be granted, it has to be non-obvious to somebody skilled in the art, so you can try filing everything everybody does but 99.99% will be a complete waste of money.

        Rather than being a tax on innovation, it reduces the burden by giving much clearer rules which elimin

    • I'm glad somebody brought this up. First to file obviously makes contesting an inventorship date easier, but certainly not more fair. In any event, the laws and regulations as currently written impose a time limit for filing (relative to another inventor filing a patent application, among other things), so it's not like somebody could just wait for a patent to become successful, and then say "I invented first, gimme!" As for dealing with international patents, it's pretty simple: follow the rules and ti
      • by Cyberax (705495)

        "it's not like somebody could just wait for a patent to become successful, and then say "I invented first, gimme!""

        Why not? If you've got a patent for something that has already been invented, then why should you be able to use it at all?

        • If the original inventor is content with concealing their invention, and someone else later independently invents the same thing and files for a patent, the patent system is designed to benefit the person revealing their invention to the public. In this case, there is a time limit that a person can remain silent on their invention. If the latter inventor files a patent application and the first inventor waits for more than a year to come forth with their earlier invention, they are denied a patent even if
    • by rtb61 (674572)

      Of course first inventor to file is corporate doublespeak, for first ass hat to steal somebody elses idea because they didn't patent it and then demand payment from them for inventing it. Your idea, you now me money for legally stealing it. Basically a thieves 'R' us patent system, especially targeted at those that share ideas, rather clamouring greedily for every cent and crippling future development.

      • by reebmmm (939463)

        This is ridiculous. First to File does not eliminate derivation (i.e., taking someone else's invention) and does not eliminate prior art. In fact, the reform bill includes new rules regarding derivation.

        Regarding prior art, prior use, prior sale, prior publication, prior patenting, etc. are all still grounds for invalidity.

        Moving to a first to file system only means that everyone needs to "rush" to the patent office to file. Which, in reality, is not much different than it was in the case of two near sim

    • The Constitution authorizes the government to issue patents to reward the publication of inventions. Making information widely available to the public is the ONLY reason for the government to be involved at all with inventions. Government has no business rewarding invention itself.

      • by stinerman (812158)

        Let's look at the actual text of Article 1, Section 8:

        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

        A plain reading shows that Congress can only grant a patent to an inventor, not just any person who happens to file for the patent. IIRC an IP attorney (perhaps cptkangarooski) stating that he believed a first-to-file patent regime would be unconstitutional.

        • by Grond (15515)

          A plain reading shows that Congress can only grant a patent to an inventor, not just any person who happens to file for the patent

          The first to file system still requires that the applicant actually invented the claimed subject matter. It would not repeal 35 USC 102(f). It's about how the Patent Office prioritizes between multiple independent inventors, not who is allowed to file. There is no constitutional issue.

  • by locallyunscene (1000523) on Friday February 04, 2011 @10:11AM (#35102942)

    legislation that would give judges a major role in determining how important a particular patent is to a product, so that infringing minor patents would not lead to huge damages

    Okay that sounds good, what's the catch?

    patents to the first inventor to file, rather than the first to invent, making the patent application process easier for companies who apply for patents in multiple countries

    ... and making it much harder for anyone who is not a large company with money to throw at patent applications. Also could someone familiar with patent law explain how changing this one particular law in the U.S. makes it easier for companies to file in other countries?

    Schumer's amendment would have allowed companies sued over such patents to ask the U.S. Patent and Trademark Office to declare them invalid without resorting to litigation.

    "I feel very strongly about this issue," said the Democrat from New York. He could not guarantee he would vote for patent reform once it hit the Senate floor if it was not in the bill.

    So 90% of what would have protected smaller innovative companies was removed and what is left is further patent domination for the bureaucratic styled corporations.

    Other provisions in this year's 99-page bill aim to prevent bad patents from being issued by allowing third parties to provide information on why an application should be rejected.

    Useful, but not nearly as useful as the above proposed amendment.

    The U.S. Patent and Trademark Office has asked for the right to set its own fees in order to hire more examiners and upgrade technology so it can chip away at a massive backlog of patent applications.

    The bill would give the patent office authority to set fees, but requires that the smallest applicants get relief on application fees.

    They'll need it with the flood of "first to file" applications coming in.

  • Just look at who are backing this, and you can clearly see that it's a very bad thing for the consumer and average citizen.
    • "Just look at who are backing this, and you can clearly see that it's a very bad thing for the consumer and average citizen"

      Yes, because prejudice is much easier than analysis.
      • Microsoft is currently using patents in their strategy to destroy competitors. This is designed to allow them to make more profit on less development. By definition, anything which helps Microsoft is partly bad for the consumer. The only possible other explanations are that a) Microsoft is wrong about what is good for them or b) it's a double bluff. Neither of which seems likely.
  • Large companies, who can afford to defend themselves in court, will benefit from this. Same is true for Microsoft's case against i4i where they want to make it easier to invalidate patents in court.

    For small and medium-sized companies, and for individuals, this won't help.

    In software, people need the freedom to use the commonly used video formats, and the freedom to make a website to sell stuff. For a small company, the court case would cost more than the profits they'd be trying to protect.

    Patents simply don't work for software. They *might* work for things where all mass production is done by large companies (e.g. pharma, cars), but for things which ordinary people do, such as writing books and writing software, patents don't work and must be abolished. Reform is not enough.

    * http://en.swpat.org/wiki/Why_software_is_different [swpat.org]
    * http://en.swpat.org/wiki/Why_abolish_software_patents [swpat.org]

    • From Microsoft's (and other big companies) perspective the problem with the current system is that you have to throw facts (and time) at the Patent Office to get an inconvenient patent invalidated. The new system would merely require throwing lawyers (but NOT bribes, oh no, not bribes) at a pliable judge. Problem solved, pesky upstart squished.
    • by bunratty (545641)

      Just glancing at the page for reasons why to abolish software patents, I see the claim that nearly all software is patentable, and it's easy to come up with software that is patentable. Inventions are supposed to be non-obvious to be patentable. If the patent office simply enforced this simple rule, the problems with software patents would be fixed. We don't need to abolish software patents.

      As for your arguments about writing books, books (and software) are copyrighted, not patented. Inventions (such as al

      • Your first paragraph is overly optimistic. The Mpeg h.264 video format is covered by over 1,000 patents. Raising quality might get rid of 5 or 10% percent, or in a dream world 50%, but that would change nothing, you'd still need the MPEG LA cartel's permission to use that format.

        Your 2nd paragraph is correct*, software and books are copyrighted. Algorithms and plots are not. Plots are not patentable, and neither should algorithms be.

        ( * To be more correct, you've over-simplified in saying that algorithm

        • Oh, was there finally a case that decided that otherwise patentable plots (novel, etc.) were not patentable?

          • Not that I know of, but if they were patentable, there would be film owners and trolls patenting plots and enforcing them.

            If that's not happening, it's not for lack of interest from trolls. It must be that plot patents aren't being granted (or granted but not upheld).

            If anyone has more info, it would be great to gather it here:

            * http://en.swpat.org/wiki/Storyline_and_fashion_patents [swpat.org]

      • by Wolfbone (668810)

        If the patent office simply enforced this simple rule, the problems with software patents would be fixed. We don't need to abolish software patents.

        In view of the ironic 'Understand what you're discussing before you start discussing it.' which you aimed at Ciaran, i think it's only fair to ask you for the theoretical and empirical economic support on which you base that assertion. :P

  • ... is that we don't have enough patent office workers, and very few are any quality. They make a low salary, there aren't enough of them, and they leave shortly after starting (within 2 years, I heard). If we had enough to do a careful review, maybe the current law would suffice. This law is the equivalent of trying to make software fast by removing all the useful work it does. Process is streamlined, but results are crap.
  • "first inventor to file, rather than the first to invent" sounds like code for "prior art no longer matters". Think about this for a minute. You invent something. You try to use it. You get sued into oblivion because someone else filed first. Or how about this one: You invent something. You don't believe in patents, so you give it to the world for free. Someone files and locks it down. Or how about this one: You are sued for doing something that everyone has been doing for fifty years. When you try to defen
    • by ThosLives (686517) on Friday February 04, 2011 @10:40AM (#35103206) Journal

      "First to file" doesn't eliminate the "novel, useful, unobvious" requirements on a patent. If an invention is already in the field and in use, first to file won't be the thing that locks it up. Instead, it will be the same thing that happens today when people get patents on obvious or preexisting "inventions".

      First to file simply eliminates the fights over who invented things first. Of course, I'm of the opinion that if there is a "who invented it first" fight then the patent under question should immediately be invalidated or rejected, because near-enough simultaneous development by disparate parties means the invention is "obvious to those skilled in the art" QED.

      • There are two versions of the "who invented it first" argument; there's the "idea whose time has come" type, say Newton vs Leibniz on calculus; and here invalidation of both claims is probably an option, even if we ignore the money to be made by SOMEBODY holding a patent. But secondly, there's the question as to whether invention was independent, or even fraudulent, as in Elisha Gray vs Alexander Graham Bell and the telephone. Bell basically won on first-to-file because Gray didn't have good enough records
      • Except the "novel, useful, unobvious" requirements on a patent are hardly ever the reason that patents get rejected. Come on, "exercising a cat with a laser pointer", "displaying an insanity bar", "[fill in the blank] on a [specialized hardware]". I had someone trying to convince me to patent a super-basic PCL printer driver just because it was on an flow computer (it's an embedded device for measuring flows, like on an oil pipeline). That's bullshit. But it probably would have gone through. If the system
    • by horza (87255)

      I don't understand. Why does first to file rather than first to invent invalidate the whole concept of prior art?

      Phillip.

    • "first inventor to file, rather than the first to invent" sounds like code for "prior art no longer matters". Think about this for a minute. You invent something. You try to use it. You get sued into oblivion because someone else filed first. Or how about this one: You invent something. You don't believe in patents, so you give it to the world for free. Someone files and locks it down. Or how about this one: You are sued for doing something that everyone has been doing for fifty years. When you try to defend yourself, your defense is struck down because prior art no longer matters--you didn't file first.

      Most of that isn't possible. If you invent something and publish it to the world then it becomes prior art. You could certainly be sued if you tried to make us of your secret invention and someone filed before you did. Establishment of prior art doesn't appear to be changing. What's changing here is that anyone wanting to protect their invention had better file or make their invention public in order to prevent someone else from filing. I'm not entirely sure what constitutes publishing in this case, but it

  • The thing that scares me about this is that if this passes it will allow people with the resources to file patents on other peoples (with lesser resources) inventions. As things stand no one can patent something Ive created with any reasonable expectance that their patent can be defended in court. This law would basically allow patent trolls to scour open source software and patent anything they see. How could we expect to defend against anything like the wave of filings this would create?

    • No, this is untrue. As noted by myself and others, prior art remains in place. Anything that was published (i.e. those open source software resources you mentioned) prior to your invention is prior art.

    • by Wdi (142463)

      Of course anything published, in any reasonably accessible medium, before the filing date of a patent (and Open Source is here actually the prime example, because it is so simple to show that it was in the wild before the filing date) is prior art and invalidates any patents filed on its algorithms later.

      Contrary to what scare mongers imply here, Open Source clearly gains from this.

  • by seeker_1us (1203072) on Friday February 04, 2011 @10:57AM (#35103402)
    You need to be able to publish your stuff in academia as fast as possible, once you have good results. Waiting for the patent filing process (just the filing) can delay it badly. If you have first to invent, you can do your invention, then publish while you are doing the patent filing.

    This will cripple innovation in America's Universities as researchers are forced to choose between publishing and patenting.

    • by kanweg (771128)

      But then, those scientist were shooting themselves in the foot because they were denying themselves patent protection abroad (outside the US).

      Getting your article published takes a while. You can send it to the editor with a note that it should be kept confidential for patenting purposes and as far the patent office is concerned you're fine.

      Bert

    • by troyboy (9890)

      The bill would give inventors one year to file an application after they publish their inventions.

    • http://www.theatlantic.com/past/docs/issues/2000/03/press.htm [theatlantic.com]
      "Commercially sponsored research is putting at risk the paramount value of higher education -- disinterested inquiry. Even more alarming, the authors argue, universities themselves are behaving more and more like for-profit companies"

      I know of situations where the push to patent has delayed publication and caused academics to be secretive. We ideally need a basic income, a gift economy, and other social innovations to rethink how those who want to

  • From the summary: "A bill to reduce the likelihood of massive damage awards in patent disputes took a step forward with approval by the Senate Judiciary Committee. The committee voted 15-0 to back the legislation that would give judges a major role in determining how important a particular patent is to a product, so that infringing minor patents would not lead to huge damages."

    Judges already have a significant role in the damages determination. First, in some cases the right to a jury trial is waived, so t

  • So the bill addresses the first to invent problem. Without addressing the major issue with the way prior art is defined at the moment. The scope of material examined with regards to prior art is way too narrow, which is a major (if not the biggest) reason for the ridiculous patents that are granted these days, even though you can point to something someone else has already brought to market that employs the same techniques and whatnot.

    That makes this bill if not pointless then only a very tiny first step
  • The large corporations who want to continue to use patents to stifle innovation and competitors will hire lobbyists to get the patent "reform" they want.

    .
    Look for the patent law to swing wildly in favor of the large corporations and against upstart companies.

  • 1.Introduce a rule where anyone (someone being sued for the patent, someone using the patented technology and not being sued, someone not using the patent at all, whatever) can submit possible prior art for for the patent. Then the patent is re-examined in light of the new prior art. If the prior art is found to be genuine, the patent is ruled invalid and the person who submitted the patent has to pay the costs of the re-examination.
    If the prior art is found not to be genuine, the patent stands and the pers

    • "3.Ban patents on any genetic sequence or chemical compound found in nature. (so a pharma company that finds a new medicine in a plant in the amazon jungle does not get to claim a patent over that medicine or any genes in the plant responsible for producing that chemical). Chemicals and gene sequences created in a lab would still be eligible for patent protection though. Should it be discovered (and verified) that the complete chemical or genetic sequence does exist in nature and that the occurrence could n

  • Can we please stop the comments about prior art.

    Suppose you have "great open source software" everyone loves it and has been using it since v 1.0 (wow, I know it got out of beta!) came out on April 1st 2000. Now today Microsoft says "haha, no-one has patented this great piece of software let's steal it, lolz".

    First to invent - lolz we totally have notarized log books that show we actually did this way back in February 2000, see you in court"

    First to file - v 1.0 is prior art, end of story, Microsoft's paten

  • There needs to be a way for an inventor who does not want to file a patent ($$$) to prevent other people from using their idea to get a patent and then charge them for the use of their own invention (or prevent the inventor from letting others use their invention for no cost, if he so desires).

    Not every idea or invention in the world is about commercial profit making, and the law needs to recognize that.

    There needs to be some kind of filing that will block other patents but not grant exclusivity, which is m

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