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."
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?
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.
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.
Bill promotes publish-then-patent (Score:2, Interesting)
Actually, if you read the bill [senate.gov], this isn't the case. The provisions give you a one-year window for your own public disclosure still, but that disclosure will bar anyone else immediately. So in fact, publish-then-patent will be even more advantageous: you can disclose and then have a year during which nobody else can beat you to filing unless they themselves disclosed before you. In the current system, you still have the one-year window to put pressure on you to file, but there is no advantage to disclosing because competitors need merely be diligent about reduction to practice or filing to get around your disclosure.
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.