Senate Passes Landmark Patent Reform Bill 362
inkscapee writes "The US Senate is congratulating itself for passing a 'landmark' piece of patent reform legislation. Some key elements are 'first to file' instead of first to invent, and ending fee diversion, which means fees paid to the Patent Office will actually fund the Patent Office. Curiously, this practice has resulted in a backlog of 700,000 patent applications. The House is reportedly working on a similar bill, and soon harmony and rationality will triumph."
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Yes. It's a disaster. In effect if you invent something you now have to patent it or possibly suffer the consequences from a patent troll. It's a money spinner for the patent office if nothing else.
Novelty and publication (Score:3, Interesting)
In effect if you invent something you now have to patent it or possibly suffer the consequences from a patent troll.
You appear to claim that the law has been changed such that publication of an invention outside of a patent no longer makes the invention not "novel". Can you cite a particular piece of language in the bill supporting your claim?
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I think it will have the opposite effect you suggest, bringing MORE secrecy rather than less. You dare not let anyone see even an early demonstrator or model, or even talk about something you have in the works for fear they could run out and file a patent EVEN WITHOUT inventing anything. If you don't have to prove you invented it first, you can shut down your competitors with mere paperwork, while you labor in the back room to actual make something.
I haven't read the bill, but generally speaking, I don't think first to file really does that. The only way someone can do that under first to file is by breaking the law by claiming they invented it when they really got the invention from your publication. And if the troll is willing to break the law then the problem you're expressing still exists under a first to invent system, because the troll can just claim they independently invented the invention before you did and produce a bunch of backdated docume
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First to file doesn't favor patent trolls, they can't patent the invention if someone else was using it publicly and didn't bother to patent it.
If anything it cuts off patent trolls because they can't keep inventions a secret waiting for someone else to file a patent, and then usurp that patent from the original filer.
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Interesting. I was thinking first to file would favor but patent trolls but your explanation makes sense to me.
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They used to file, then before they got approved, refile with amendments and just keep doing that until someone with something close enough to their patent came along, then refile with one last final amendment to make their patent close to what the unfortunate victim had started to market.
That was called a "submarine patent" and they fixed that a while back. This is probably aimed at killing the practice you just mentioned, which was what trolls turned to after that.
It kills submarine patents (Score:3)
Re:wait (Score:4, Interesting)
Backyard and basement inventors (who make up a surprisingly large percentage of true innovation) in many cases do not have the money to file right away. Although the patent search situation is much better than it was some years ago, it can still take money, research, and time to file, and the services of a patent attorney, while not technically necessary, can be an advantage.
These are things that many companies and corporations have readily at hand, or can easily afford to do. Not so the independent inventor.
There are a few protections in place, but there is still no doubt that first-to-file favors the big players over the little. That is a very bad situation, and I argue that it is worse for inventors in America than the problem it is supposed to solve.
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So then they should publish their works. The patent system was created to move knowledge into society. If you want to keep your widget a secret you do not deserve protection. It was not made to protect anyone or let anyone profit from anything.
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And the whole system is based on two key assumptions
You can argue about the first point. Personally, I think that innovation would still occur by without the patent system, but the point can be argued.
The second point is really where all th
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Very wrong. Patents exist to provide an incentive to the inventor for making knowledge about his patent available to the public. It's not about inventors; it's about growing the body of public knowledge. A patent is the reward for publication, not a reward for inventing.
Inventors can profit when they keep their inventions secret, for certain types of inventions. Keeping a better mousetrap secret wouldn't work, because anyone could buy one and figure out how to make it. But if the invention is a better way to make a mousetrap, secrecy could be more profitable than a patent. First to market is another powerful reward that does not depend on patents.
The government should not be in the business of picking winners and losers; the market, with certain notable failure modes, does a much better job. On the other hand, providing incentives to people to act in ways that benefit the public at large is the principle role of the government.
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"Yes, but it achieves the goal of moving that knowledge into the culture."
Not if there isn't any knowledge to move into the culture. Countries that did not have a patent system for citizens have been excellent examples of just that.
"That is a nice reasoning, but it exists to promote the useful arts, not to make you rich."
It isn't "reasoning", it's historical fact. The patent system was put in place, yes to promote the useful arts and sciences... BY allowing artists and inventors to profit from their works. If you haven't gotten that by now, you are pretty slow. And it doesn't take reasoning to prove it. There are reams of historical documents that say as much.
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No, you just have to publish to so you can provide prior art. The whole point of the patent system is to provide a limited monopoly in exchange for showing the public how to make your widget. So either patent or publish or STFU.
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Flux capacitor
Food in pill form
Warp drive
Pills in food form
My offspring's gonna be rich...
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Flying car
Flux capacitor
Food in pill form
Warp drive
Pills in food form
My offspring's gonna be rich...
Sorry, I just printed out your post and faxed it to the Patent Office - I win!
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You win because you got there first. But ... (flux capacitor). Still not too late.
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Fine, but they were talking about pills in food form... like little banana shaped pills or ones shaped like cabbage. :p
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Like a box of Runts?
Why do you ask if you already knew the answer? (Score:3)
From TFA -
The moment I saw THAT name, I already know this bill is bought and paid for by special interests. This is the same MAFIAA loop that tried to rape us with the INDUCE act [corante.com]. I think we'll all be so very f_cked if this f_cker passes. Epic Fail does not even begin to describe the this...
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It definitely does help patent trolls. Prior art is still a blocking requirement, but now if the patent troll is able to file first, then your invention is unpatentable, and you are open to a lawsuit from the troll, which you must defend at your own cost.
All the while they can sue everyone else as well. Fabulous...
From the article:
First-to-file is good, not bad (Score:5, Interesting)
Currently, a patent applicant can pre-date their application by 364 days and claim that they made the invention before the Open Source project, standards committee, or whatever they are eavesdropping. With first-to-file, there is no more pre-dating of inventions, so this loophole is closed and the Open Source project, standards work, etc. is more defensibly prior art.
There has been no prosecution for lying on a patent application under perjury laws since 1974, when the patent office closed its enforcement department. Lawyers sometimes get penalties if they are caught in inequitable conduct, but not the lying applicants. Thus, there was no penalty for pre-dating your invention.
Re:First-to-file is good, not bad (Score:4, Interesting)
They can do everything you are afraid of today, but they can pre-date their invention by 364 days, so that it is even harder for you to prove that you sent an email disclosing this particular invention before they "invented" it.
So, I think it's better for the system to make them file their invention with a date concurrent with or after your email, rather than a year before you. You have a better chance of killing that patent.
It would be nice if public disclosure was enough to prevent someone from filing a patent, but that ignores the fact of patent thickets, in which someone patents many different (and possibly trivial) variations of what you invented. If you want to stop that, sit down and think of the variations yourself, and make a protective disclosure of them.
IMO, the system is still set up so that most of the incentives are for the bad guys, and there are little penalties for being a bad guy. This isn't the last reform bill needed.
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I don't think you are considering the cost and difficulty of arguing precedence over a pre-dated application in a first-to-invent regime. Most Open Source projects and many standards committees simply don't have the funds to bring that to court. First-to-file removes the opportunity for the applicant to perjure in this way, and makes it so much less likely that the question would have to be litigated.
Re:First-to-file is good, not bad (Score:4, Insightful)
Yes, but that's perjuring themselves to the court rather than the patent office, and judges are very much more likely to bring perjury charges and the peril to the perjurer is substantial. Also, it puts the burden of proof on the patent holder. And the patent holder would have to show that the material was not published, but was made available to that particular party in some way.
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The Senate bill would transition the Patent Office to a so-called first-to-file system, bringing the U.S. system in line with the patent regimes of much of the rest of the world. The shift would confer patent rights on the first inventor or company to file an application, rather than the current first-to-invent system.
So, since the rest of the world already does it this way, I'd say you'll have to look elsewhere for your troll problem.
Does not Affect Prior Art Doctrine (Score:5, Informative)
I'm sure someone's going to start asking whether a First-To-File system affects the prior art doctrine and whether it means big companies can steal ideas from open source projects and patenting them. Let's dispense with some misconceptions.
Misconception 1: This destroys the prior art system.
* This isn't true. A prior art will still cause an application to be denied under 35 USC 102. This means that if any sort of prior art is published (i.e. available to the public) that would anticipate or render an application invalid, it would still operate to render the application unpatentable. Remember, the law requires all patents to be "novel" and "nonobvious".
Misconception 2: This would mean big companies can steal ideas from open source projects and file applications on them.
* This isn't true either. The open source project would function as prior art against the later application. Even though there is a first to file system, it doesn't mean that the first person to file can steal ideas that were out there and use it as their own.
The first to file system only really works in a very specific context - where you have two inventors who filed an application on almost identical types of inventions within a short period of time. Under the current system, there has to be a very fact-intensive and time consuming process of determining who was the first inventor - which means going through years of lab notebooks and correspondences to pin out the priority between two applicants. This is very expensive, very time consuming, and it's also taxing on the court system and the USPTO. A First to File system makes it much easier - priority can be determined within seconds of looking at the filing date.
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Great explanation. Thanks.
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I think Ricky Bobby said it best... (Score:2)
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I don't know much about the new legislation, but considering that the provision in current law, that "... all patents to be "novel" and "nonobvious"." has been frequently ignored, I'm not sure the specific context you mention would be the limiting factor in practice.
Re:Does not Affect Prior Art Doctrine (Score:4, Insightful)
Remember, the law requires all patents to be "novel" and "nonobvious".
What will become of the dozens of geniuses who patent laser pointers as "cat exercise systems"?
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http://www.youtube.com/watch?v=aFztjgfDWDA [youtube.com]
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From the towers of Cary Quad, I could get drunks to follow the spot and even run into trees.
Re:Does not Affect Prior Art Doctrine (Score:4, Insightful)
This isn't true. A prior art will still cause an application to be denied under 35 USC 102. This means that if any sort of prior art is published (i.e. available to the public) that would anticipate or render an application invalid, it would still operate to render the application unpatentable.
Yeah, sure. Like USPTO concerns itself with prior art searches. Or like you're going to waste hundreds thousands of dollars in multi-year lawsuits if a patent troll approaches you with 'an offer you can't refuse'.
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So... how is that different from now? Patent trolls trample over prior art with the system as it is today, the change to first to file doesn't change that in the slightest. All it does is reduce the costs associated with a review if two similar applications are received at nearly the same time. Incidentally, this is exactly how most of the Western world's patent systems work, and they have no more, and often quite less, trouble with patent trolls than the US does.
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Old system:
I invent something, somebody catches wind of it and puts in a patent application, then I send in a patent application showing I've been working on it for longer. I get a patent.
New system
I invent something, somebody catches wind of it and puts in a patent application, then I send in a patent application showing I've been working on it for longer. They get a patent because they filed first and I can't afford to take them to court to get it reversed. I lose. Or I do have enough money, they lose
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I invent something, somebody catches wind of it and puts in a patent application, then I send in a patent application showing I've been working on it for longer. They get a patent because they filed first and I can't afford to take them to court to get it reversed. I lose. Or I do have enough money, they lose the patent and now NOBODY has a patent. I needed patent protection so I could license out my product. I still lose.
Why did you not file as you were inventing, before someone else discovered what your were doing? If you were trying to max out the time your invention would be under patent then you knowingly took a risk, trading a longer protection period for increased risk of discovery. With a US patent lasting 20 years it seems you got greedy and lost. Even if it took ten years to get to market you would have ten years of monopoly. Furthermore licensing can occur during development. It may even be financially beneficial
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Too bad for you. You should have done one of two things:
1. Made your invention public, either through a patent (a provisional patent costs very little money) or through publishing.
or
2. Made sure no one gets wind of it.
The patent system was established to give inventors to publish their inventions so that society at large can benefit from it. You attempted to to circumvent that, and, indeed, lost. Why is that not a win for the system,
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Excluded from the bill was a controversial amendment, backed by many tech companies, that would have eased the process for initiating an in-house administrative review process at the Patent Office for challenges to patents that have been granted, a measure billed as a less costly alternative to private litigation.
IMHO this bill is a disaster; it's regulatory capture and not reform.
More info on the bill (Score:5, Informative)
The Senate bill is S.23, aka "America Invents" [gpo.gov], sponsor Patrick Leahy, who's been trying to get patent reform done for years.
Bill status query at thomas.loc.gov (not sure if these are persistent) [loc.gov], Computerworld article [computerworld.com], National Journal with some brief comments from pro/neutral/con parties [nationaljournal.com], SF Chron article [sfgate.com].
Silicon Valley businesses large and small were mostly against it, IBM was for it. Dianne Feinstein attempted an amendment to remove the First-to-File part, but voted for it anyway after that failed. Barbara Boxer voted against.
The US patent system has been first-to-invent for a long time, while Europe has been first-to-file. There's lots of other detail, largely intended to reduce the amount of patent litigation, improve the coordination with non-US patents, potentially improve the problems with patents on things with prior art and obviousness, and affect some tax issues."
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In practice, first-to-invent does not result in a more moral outcome. It encourages deceit ("I invented it last year, before this similar device entered the market. Honest, I did.") and litigation. It's more complex, so it's slower and more expensive. Most (?) other countries have first-to-file. As far as I'm aware none have ever
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Maybe, maybe not. It would have to be shown that the open source project was in use by people in the United States prior to the date that the other company "invented" their product (which is not the filing date for the patent).
It's not at all clear whether online publication is considered publication for patent litigation purposes because it is easy to change and falsify dates. Thus, the project itself might or might not be
First-to-File prevents publish-then-patent (Score:4, Insightful)
One big difference between the First-to-File system and First-to-Invent is that with First-to-Invent, you can publish your invention and then file the patent within a year of publishing it, while it's very difficult to do that with first-to-file. I'm not sure how important that is in practice; one major impact it had in the US was the RSA patent and other patents that were affected by another US quirk, which is that the military can declare your patent application to be classified and prevent publication (nearly forever), and Publish-then-Patent made it possible for R, S, and A to get their work out.
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While this might be the intent of the new rules, here is why some people are skeptical:
First, how many small companies/individuals can afford to hire a patent attorney to help them wade through the many forms required to request a re-examination of a patent for prior-art?
Second, once the patent has been issued the big corporation (with in-house council and the budget for lawyers) usually wins (as the Eastern District of Texas [wikipedia.org] has [slashdot.org] shown [slashdot.org] many [slashdot.org] times [slashdot.org]).
They can file in court in a district that is known to be fri
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You realize PTO agents are necessarily "tech people," right? You don't need a law degree to be one, but you absolutely must have a technical degree (well, there are a few exceptions if you just took a bunch of chem/physics in college but didn't major in it, but for example, I have a BS in abstract math and a law degree, and I cannot become a PTO agent because I lack the requisite tech background).
Not to men
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The first to file system only really works in a very specific context - where you have two inventors who filed an application on almost identical types of inventions within a short period of time.
Why is that even a specific case to consider that needed clarifying? Wouldn't two inventors coming up with almost identical types of inventions within a short period of time necessarily evoke the "obvious/trivial advancement" disqualification?
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> The first to file system only really works in a very specific context - where you have two inventors who filed an application on almost identical types of inventions
AND, when a crook steals an idea from the inventor and files the application.
But who cares, as long as the patent office can award patents efficiently? I mean why don't we dispose of judge and jury and just make the guy with most expensive lawyers the automagic winner of a trial, too? :)
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I mean why don't we dispose of judge and jury and just make the guy with most expensive lawyers the automagic winner of a trial, too? :)
Isn't that the way it works already?
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Misconception 1: This destroys the prior art system. * This isn't true. A prior art will still cause an application to be denied under 35 USC 102. This means that if any sort of prior art is published (i.e. available to the public) that would anticipate or render an application invalid, it would still operate to render the application unpatentable. Remember, the law requires all patents to be "novel" and "nonobvious".
This should be true, but since the patent office often approves patents without doing a proper prior art check, then it probably won't work this way in practice. What needs to happen is for this "patent reform" bill to allow the patent office to be sued for issuing a blatantly invalid patent. If there is obvious prior art or it is obviously vague, then they could be sued for the cost of invalidating the patent plus some other damages (such as loss of sales if case of an injunction). The patent office would
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"Under the current system, there has to be a very fact-intensive and time consuming process of determining who was the first inventor - which means going through years of lab notebooks and correspondences to pin out the priority between two applicants. This is very expensive, very time consuming, and it's also taxing on the court system and the USPTO."
Perhaps so. But it is still the right, just, and proper way to do it.
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I would argue that yes it is bad for innovation (for a variety of reasons that are scattered throughout this forum), and good for lawyers like yourself who now have one more thing to argue over while charging innovators even more fees and further confuscating the issue of patent reform. After all, true patent reform would mean an end to wealthy IP attorneys who contribute nothing to society. And we can't have tha
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Algorithms are unpatentable subject matter under 35 USC 101, so both scenarios are inapplicable.
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Not entirely. There's also going to be an open window where third parties may submit documents relevant to the patent - which include demonstrations of prior art. The key piece is that you have to be paying attention to what other people are patenting because if you miss the window to file, you (and the public) will be out of luck. Oh, you also better be able to show some sort of time stamp too.
The EFF has a decent summary in their deeplinks [eff.org], but I'm not sure if it's the house or senate version they are
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What you suggested is already part of the US Patent System.
Third parties are allowed to cite prior art to the USPTO for a patent application where the prior art is believed to have a bearing on the patentability of the application. Similarly, for already issued patents, third parties may also request an ex parte reexamination of issued patents on the basis of prior art references that is believed to have a bearing on the validity of the patent.
http://www.uspto.gov/web/offices/pac/mpep/documents/2200.htm [uspto.gov]
Laches doctrine (Score:2)
Ha (Score:2)
For a patent, it should be the first to walk into the office with a working prototype, and that implementation is what the patent should cover.
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Consider:
Joe Schmoe is familiar with with the production of FOO. FOO is expensive to produce, an individual probably could produce one without prohibitive cost.
Joe has figured a way to make BAR, an item significantly better than FOO, but it still costs about the same as FOO.
Joe wants to sell BAR to companies, doesn't want them to steal it from him. With a first-to-prototype style of patent, Joe has no protection.
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For a patent, it should be the first to walk into the office with a working prototype, and that implementation is what the patent should cover.
It would be interesting to know what percentage of patents are granted that actually have a working prototype these days. I have no idea, but would speculate it's fairly small.
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I invent things that could be used to cause harm. Sharing this technology with a murderous criminal organization like the US government would be immoral. Should I have no right to my own work?
The people who invent things should be rewarded, right now it is corporate parasites that get rewarded all too often and all too much.
I also don't feel like paying war criminals for the rights to my own work.
Forcing people to pay to not be ripped off is a protection racket and should be considered a crime like any othe
First to file versus first to invent? (Score:2)
It seems that "first to file" places a burden on inventors to patent as soon as they can, which may be very, very expensive.
What happens if I invent something and show it to some friends, then one of them takes my idea and patents it before I can because of whatever reason (he has money, connections, etc.)? That seems dreadfully unfair to me, especially if I can demonstrate that I had the idea first by showing recordings, demos, etc.
I see it like this: IIRC, Franklin didn't patent his stove design. What if
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I yield to this explanation [slashdot.org].
Re:First to file versus first to invent? (Score:5, Informative)
Then the patent is invalid on the basis of 35 USC 102(f):
"A person shall be entitled to a patent unless -
(f) he did not himself invent the subject matter sought to be patented."
http://www.uspto.gov/web/offices/pac/mpep/documents/2100_2137.htm#sect2137 [uspto.gov]
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Of course ... you would actually have to PROVE the person didn't invent it which is far easier said than done, don't you think?
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It could be a problem, if the USPTO ignores prior art that directly covers the application at hand. If first-to-file allows them to post the applications publicly within a short time frame, you could easily po
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In your example, neither man would be eligible to patent the design as the offering for sale to the public discloses the invention to the public, which constitutes prior art.
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Conversely, what if a prototype for something is too costly for an inventor, but it has a high likelihood of functioning? Doesn't the inventor deserve some protection to either (a) get the backing for financing the prototype, or (b) selling the idea to companies which could afford to make the prototypes?
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Not necessarily. An guy can sit down and draft something up (including mathematical and theoretical demonstrations), but he should still be able to patent even if he can't afford to build his own foundry, get the payload into orbit, or you know... buy enough palladium for his ARC reactor ;) (Not everyone has Tony Stark's financial superpowers).
That's also why an inventor has a year to file after public disclosure. Where the strategy changes is whether public disclosure to gather capital is wise if you're
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I see it like this: IIRC, Franklin didn't patent his stove design. What if he'd sold one to someone, they quickly realized he'd not patented it, then they patent it. That gives them a right to his profits, without having done any work, all because he neglected to patent his invention before selling it.
No, the person who bought the stove would still have to prove they invented it. And if Franklin could prove he sold him a model that looks just like the one the fraudster is trying to patent, it'd be pretty easy for Franklin to prevail.
That doesn't mean this is a good change - it will clog the patent system as people rush to file prematurely - but it's not as bad as some are making it out to be.
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Reform? (Score:2, Insightful)
There's nothing reformatory about this bill. The patent trolls and lawyers are well pleased.
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There's nothing reformatory about this bill.
You can't "reform" slavery
Soon harmony and rationality will triumph (Score:2)
rotfl.
first to file standardizes things world-wide (Score:5, Insightful)
Other comments have taken to clearing up some of the misconceptions regarding first-to-file versus first-to-invent so I won't duplicate them. However, one thing not yet pointed out is that the vast (VAST) majority of the rest of the world uses a first-to-file system.
By switching our system, it reduces the burden on an inventor (and thus the legal cost) of obtaining a world wide patent as the systems become closer to the same. And note that Europe has not considered switching to first-to-invent as a way to combat patent trolls, which says something about how much the USA switching will help/hurt trolls.
That's not real reform (Score:4, Insightful)
Backlog, schmaklog. The real reform we need would be to reduce the number of patents issued by orders of magnitude. The bar for patentability should be raised from "not blatantly obvious to below-average freshman engineer" to "that's freakin' genius". That would simplify things for everybody, eliminate most of the huge burdens on society involved with accounting for tens of millions of extant patent claims, while still ensuring that people with genuine Big Ideas get rewarded.
IMO, it would be an improvement to make the patent system a reality show like The Apprentice or American Idol. Allocate something like 100 possible patents each year to each field of industry, then have juries (not bureaucrats) review all of the applicants in rounds, make the would-be idea monopolists defend their claims in public. Keep voting applications off the island until the few truly worthy patent candidates still stand.
How To Monkey Wrench It (Score:2)
The patent service is not perfectly screwed up. The Florida Voter Registration System should take charge. If they can steal an election as they already have they can screw up most anything. Then if that is not screwed up enough we can use Florida's Department of Children and Family Services as the agency from hell. They can mess up absolutely anything. They even are able to kill little children assigned to their care.
700,000? (Score:2)
I can clean most of that up right now. Just search through applications which read "Do blah, blah, blah using the Internet" and throw them out. If blah, blah, blah was an innovation by itself, let them re-file without "Internet". Otherwise, the general case for doing generic stuff was placed into the public domain by ARPA a long time ago.
IP theft and corporate spies. (Score:2)
IP theft is a real problem and I am concerned that the real effect of a first to file system is that it will reward those companies that have the best corporate spies. Being nearly impossible to prove theft of an invention if one covers their tracks, the real deterrent to this type of theft has always been the risk that the inventor would be able to show an earlier invention date. With a first to file system as long as the thief covers their tracks and creates a false paper trail then they can get away
Really? (Score:2)
First to file hahahaahah !!!! (Score:2)
just one thinks that we have hit the rock bottom of the pit that is capitalism, now we are really at a point of allowing ownership of basic logic. way to go.
conflict of interest (Score:3)
fees paid to the Patent Office will actually fund the Patent Office
Doesn't this mean that an even larger number of ridiculous patent applications will be approved, since everyone's salary will be dependent on the available budget? Now there's an incentive to massively expand the number of patent awards, with no comparable incentive for quality.
What the reforms should have been (Score:3)
- patent owners must be commercially utilizing their patent to keep it. (within 4 years of patent application)
- software and business process should not be patentable (ie 1 click)
- accidental infringement be not initially punishable
- the bar for novelty to receive a patent be way higher than it is now.
- patent application / renewal fees be based on number of patents held
eg x = v * n(n+1)/2 where v = the base patent cost.
Lets say v = $100
1 Patent = $100/annum to maintain
2 Patents = $300/annum to maintain
10 Patents = $5.5k/annum to maintain
100 Patents = $500k/annum to maintain
1000 Patents = $50M/annum to maintain
This would force very large companies / trolls to only keep their best patents and toss out the dross polluting the patent system.
You would need rules to stop companies spawning sub related companies to get around the intent.
One idea for patent reform (Score:3)
We should just go to compulsory licensing. If you think that your product might infringe a patent, you place 10% of the sales price in escrow. You keep a record of each sale (something most businesses do anyway), and at the end of the year you have an escrow account that's 10% of gross sales. If you think you are in the clear, you escrow nothing.
OK, are you with me? Those who claim that your product violates a patent have 1 year after your fiscal year ends to make a claim against the money you escrowed. If they don't make any claims, you pocket the money with interest.
If any patent holders make claims during that year, at the end of that year (as long as two years from the first violating sale), two things may happen.
1. You may disburse the escrow funds to claimants, based on the number of patents violated. e.g, You violate 2 Farbco patents and 1 Spimco patent, Farbco gets 2/3 of the money and Spimco gets 1/3. This gets a bit more complicated if you have multiple product lines, but you get the idea.
2. You may contest the claims, but if you do, you are subject to the usual civil claims process. If you didn't escrow anything, this is your only option.
Most people would probably opt for (1), unless the claims are really frivolous.
A system like this would have a number of consequences. First, software given freely would have an escrow of zero--immunity from suits. Per-seat service contracts (ala Red Hat) might be a different story. Yes, commercial free software would have to maintain the escrow. Really, I'd like to see software patents just go "poof!", but one thing at a time. Secondly, "suppressive" patents would not exist. If there realy is a car that runs on water, all I have to do is build it and escrow the money from sales. This might even silence the conspiracy theorists. Ditto for things like restrictions on large battery packs for electric vehicles. Nobody can stop me from building it--they can just tax me 10% for the duration of their patent. If my car is 10% better than theirs, it's worth building. If they aren't building the car, they still get paid; but they can't just sit on the patent at the behest of Big Oil.
Re: (Score:2)
Actually, if someone steals your idea and patents it, IANAL but I would think you could sue their pants off. Their application for the patent would be fraudulent, and if you keep accurate records of when you produced key artifacts (documents, drawings, prototypes, whatever) it should be easy to convince a jury that you came up with the complete invention long before your crooked competitor filed the patent.
Plus if you have half a brain you will take basic precautions like getting a signed and notarized Non-
Re: (Score:3)
Does anyone know how this is affected by the present legislation?
No, the ability to publish and then file within one year is still there. In fact, changing to first-to-file means the defense is even stronger, as now someone can't claim that they have "invented before you published" - all that matters is whether they published or filed before you did.