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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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Senate Passes Landmark Patent Reform Bill

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  • by Sonny Yatsen ( 603655 ) * on Wednesday March 09, 2011 @03:36PM (#35434000) Journal

    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.

  • by Sonny Yatsen ( 603655 ) * on Wednesday March 09, 2011 @03:44PM (#35434114) Journal

    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." []

  • by billstewart ( 78916 ) on Wednesday March 09, 2011 @04:02PM (#35434418) Journal

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

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

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

  • Re:wait (Score:5, Informative)

    by skids ( 119237 ) on Wednesday March 09, 2011 @04:42PM (#35434962) Homepage

    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.

  • Re:wait (Score:5, Informative)

    by h4rr4r ( 612664 ) on Wednesday March 09, 2011 @04:46PM (#35435044)

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

Kill Ugly Processor Architectures - Karl Lehenbauer