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Legislation To Overhaul US Patent System
FutureDomain sends us to a PC World report on the filing yesterday of legislation to overhaul the US patent system completely. The US has the only system worldwide that tries to ascertain who first invented a thing — everywhere else the criterion is who filed first, and the new legislation would bring the US into line. Identical bills were introduced in both the House and the Senate by, in each case, bipartisan sponsors. The corporate roster of backers includes Microsoft, IBM, Amazon, and nearly everyone else. From the article: "The provisions of the Patent Reform Act would... restrict damages that patent holders can receive for infringement lawsuits, create a new procedure to challenge the validity of a patent after it has been granted, and boost resources for the US Patent and Trademark Office."
No. Prior art stays the same. If anyone has published a the same idea before it is not patentable (in theory, in practice USPO will still not check it),
The old system just had the option of companies not filing patents and not publishing their results could come in and claim they invented the idea first.
The new system is much less corrupt and more open.
In the rest of the world published prior art still disallows patents.
Filed first is just the decider when two applications are made for the same invention (which was secret until the applications).
In most of the world the person who gets to the patent office first gets the patent and the one who gets there second gets nothing. In the US you can claim that you invented it before the other party and try to prove it with dated notes etc. which were previously not published. In theory the first to have the invention gets the patent not the first to file. This leads to messy legal fights.
In the rest of the world the incentive is to file (and therefore publish) first which gives a clearer decision on this issue.
Joseph
The advantage of the 'first to file' rule is it prevents the situation where A patents something and B goes "Oi! I thought of that last year. Honest. Ask my cousin C and pal D". Big companies have an advantage in that kind of trick: 'Sure we did, just ask employees E1 ... En.
It has no bearing on patenting beer, the sky or sex, which ought to be covered by other rules (novelty and non-obviousness to start, but also the fact that they naturally exist). Or at least it shouldn't have... this is the USPTO we're talking about.
Only three things are certain; death, taxes, and apocryphal quotations - Ben Franklin.
"Some days you just can't get rid of a bomb."
No. Under the current system, the first to invent has 1 year (I think) to use the invention without worrying about "race to the Patent Office" that exists in the "first-to-file" countries. If anything, changing the system to the "first-to-file" rule would result in more filings because companies would be pressed to file as soon as possible to establish priority. Instead, the Congress should clarify the non-obviousness requirement and perhaps require USPTO to hire examiners with experience in the software development to review software patent applications.
I'm pretty sure that's incorrect. Prior art should still hold in that you can't patent something that was described by DaVinci, Ben Franklin, Alexander Graham Bell, Erosthanes, or some dude in Ohio in 1998 on his web site. What first to file means is that the USPTO no longer needs to flip a coin when it gets three applications for the same thing and needs to determine who made the invention when.
See http://www.heise.de/english/newsticker/news/86141 which makes if pretty clear that Germany -- a first to file country -- considers prior art in judging the validity of patents.
Of course, I'm no patent expert, and the US Congress with a little help from the lobbiests is capable of coming up with absolutely abominable legislation . But I'd keep an open mind on this one at least for a while for a while.
You can't see ANYTHING from a car, You've got to get out of the goddamned contraption and walk...Edward Abbey
http://www.uspto.gov/web/offices/pac/doc/general/i ndex.html#model
Models or exhibits are not required in most patent applications since the description of the invention in the specification and the drawings must be sufficiently full, clear, and complete and capable of being understood to disclose the invention without the aid of a model.
A working model, or other physical exhibit, may be required by the Office if deemed necessary. This is not done very often. A working model may be requested in the case of applications for patent for alleged perpetual motion devices.
When the invention relates to a composition of matter, the applicant may be required to furnish specimens of the composition, or of its ingredients or intermediates, for inspection or experiment. If the invention is a microbiological invention, a deposit of the micro-organism involved is required.
I have mod points, and was looking for some-one to point out that the parent and grandparent are not insightful, just wrong. There really needs to be a -1 wrong Mod.
Anyhow. This legislation makes it much MUCH easier for open source projects. Instead of having to write something, and then find out someone else claims to have invented it, and they filed a patent before you published, you just have to search filed patents. If it isn't there, publish your general idea, and write your open source project.
Similarly, both the parent and grandparent seem to totally miss that you most definitely cannot patent something from an open source project, as, anything which is available as open source, is already published.
Here is the thing. Any public disclosure (prior to filing) invalidates a patent. Now, I am allowed to talk with a friend, to further developement, but, to cover your ass, you really should get him/her to sign an NDA before talking about it, because simply talking about it constitutes a public disclosure. Proving that public disclosure can be an issue.
Now, what this legislation does is, it says that between 2 people (corporations, groups, committees, whatever) who have the same idea, and both try to patent it, provided that neither has published anything, and it is a useful, non-obvious idea, we will give the patent to the one who files first. This eliminates confusion about who should gt it, with both parties "no, I had the idea first. So, for the most part, to avoid infringement, you just have to search relevant patents. There is still some time, between when a provisional patent is filed, and when the USPTO accepts (and publishes) it that you could have various "submarine" patents get into an open standard, or your open source project, but this legislation doesnt make it possible, at all, for some-one to take your OS project, and start filing patents based on it. Parent and GP are crying wolf, without understanding what they are talking about.