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Senate Passes Landmark Patent Reform Bill
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."
Isn't first to file REALLY bad? It helps patent trolls doesn't it?
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.
My postings are informational and does not constitute legal advice. Act on it at your risk.
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 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 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.
It seems this "first to file" thing is going to clog up the patent office even more, while potentially costing rightful inventors their hard-earning rewards from their ingenuity.
Colin Dean Go a year without DRM
There's nothing reformatory about this bill. The patent trolls and lawyers are well pleased.
Other than first to file, what's in the Senate bill? But there's plenty of reporting about the industry politics and lobbying, which Senators claimed it was a landmark that would put Americans back to work, etc.
How about limiting the number of patents issued per year by significantly raising the standards required to issue a patent? I don't know how anyone can possibly believe there have been 7 million unique inventions (and counting) since the patent system was initiated.
rotfl.
"If you ain't first, you're last. You know, you know what I'm talking about? That there is trademarked, not to be used without written permission of Ricky Bobby, Inc."
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.
-Ryan
AUWYHSTOT (Acronyms are Useless When You Have to Spell Them Out Too)
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.
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.
As is common these days, the small-time inventor is left out to dry... This just makes it easier for large companies who can afford to file the patent right away to grab inventions from individual inventors...
So, let's say I have an invention. I have not yet made it "public" but I have talked to one or two companies about investing in the product, which I am intending to patent when I have secured sufficient funding... Now, upon seeing that I don't have the money to file it myself, and now knowing all about the invention... they can file the patent for themselves, thus robbing me of my idea. Since it's first to file, I can no longer fight them on it, even if I have a legally dated document (either notarized and dated, or by sending a certified letter containing the document describing the idea)
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 thomas.loc.gov (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."
Bill Stewart
New Fast-Compression-only CPR http://preview.tinyurl.com/dy575ks
So you can patent landmarks now?
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.
Bill Stewart
New Fast-Compression-only CPR http://preview.tinyurl.com/dy575ks
I'm generally for first to invent with the following caveats:
* If your invention predated someone else's first-filing by more than a year, tough. You should've published or filed.
* If two parties file before anyone publishes or before the patent office discloses, it's at least some indication that the invention might be obvious. In other words, if you invent in 2000, keep it a secret for 10 years, file in late 2010, and someone independently invents it in early 2011 and files immediately, the patent office should at least consider that as of late 2010 the invention was obvious, and not grant anyone the patent. This is an incentive to not sit on things.
Why do I favor first to invent? Because first to file deprives a "first inventor" who takes reasonable time to polish his application before submitting it of his rightful claim. Granted, if the 1-year limit and two-submissions-within-a-year-may-be-obvious considerations above, this wouldn't be quite as much of a difference as it is without them.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
You're confusing two concepts, originality and novelty. To get a patent, both elements are required. Novelty is obvious; that nobody else has come up with the idea. This is a conceit, because "there's nothing new under the sun", so novelty really just comes down to methods of evidence. Originality means that you must have conceived of the idea yourself, even if a million other people also conceived of it before you.
Thus if someone tells you a novel idea, the idea might still be novel according to law, but it wouldn't be original to you. Thus you can't legally obtain a patent.
Compare this with copyright, where the only requirement is originality. Thus if two people come up with the same song, both can obtain copyright for their independent works, even if the second person comes up with it years later. However, in practice, if some expression appears so patently novel, the second-comer will have a difficult time proving originality; that he wasn't tainted by the idea.
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?
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.
Have gnu, will travel.
Say an alleged infringer can prove that the owner of an exclusive right delayed legal action with intent to harm the alleged infringer. Then under the "laches" doctrine, the alleged infringer doesn't have to pay damages; the most the owner of an exclusive right can get is an injunction.
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 with it even if it goes to trial. I guess with a first to invent system, then it was always possible to create notebooks with false dates, but now you don't have to guess an early enough date you just have to create a believable date. Could be a subtle but important difference.
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. 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...
ELOI, ELOI, LAMA SABACHTHANI!?
What is "fee diversion"? The fact that money is diverted to something better instead of a bunch of people wasting money paying fees for the same invention but only one of them getting recognized? How is this something to be congratulated?
Nice breakdown. I would seem any system or legislation or whatever we come up with can be gamed by the less scrupulous. I think the best we can do with the IP legal situation is prevent people from giving themselves outright economic advantages (i.e. infinite copyrights and whatnot).
-DeAngelo
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Braincano
If you get a moment, check out my blog Braincano
"...soon harmony and rationality will triumph." From the US Government, surely you jest!
Meddle thou not in the affairs of Dragons, for thou art crunchy and with most anything.
USPTO... fucking genius over since 1904
but it creates it's only share of problems described above. First to File would be fine if our patent office would stop rubber stamping stuff like 1 click shopping...
Hi! I make Firefox Plug-ins. Check 'em out @ https://addons.mozilla.org/en-US/firefox/addon/youtube-mp3-podcaster/
the only good patent law is no patent law.
Did the so-called "reform" cap damages so that giant incumbent corporations can ignore patent risks while small companies cannot ignore them?
For example, an early-stage startup with a patent on a genuinely novel invention won't be able to deter Microsoft from destroying them -- but if the situation was reversed and Microsoft had the same patent, then Microsoft can deter the startup from becoming competition.
Did our patent system just turn into a giant incumbent protection machine? Wasn't D.C. already tilted too much in that direction?
IMHO, there needs to be more balance, where the rewards of becoming an incumbent are attractive enough without destroying what is left of meritocracy and a truly free market.
you will soon see bastards attempting AND succeeding to patent very basic mechanics of the machinery and systems that run modern society.
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.
Read radical news here
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.
Bruce Perens.
Actually, if you read the bill, 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.
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.
Even though the big company wouldn't be granted the patent due to prior art, wouldn't their filing-first preclude Joe-inventor from patenting an idea he pitched to them but hadn't filed yet? This is a serious question I'd like to know the answer to. If Joe-inventor could get big-company to sign an NDA, he may have a suit against big company, but from what I understand, big companies' lawyers usually aren't willing to sign NDAs from Joe-inventors. Under a first-to-invent system, Joe-inventor's right to the patent would be protected for the duration of the "patent-clock," even without the NDA. Though I concede that Joe-inventor may not have the resources to challenge big company if they tried to steal his idea.
You post a normal comment and nobody looks at it. Al least my goatse posts get replies and modded (even sometimes up....)
You get 1 year to either abandon the preliminary patent or convert it into a formal patent filing.
In other words the "little guy" gets a year to try to market the invention before paying to file a formal patent.
Does anyone know how this is affected by the present legislation?
The patent system was created to protect the RnD investments of large businesses. ALL other justifications for it are just posturing to win the hearts and minds of the oppressed.
This was brought up below but seems unanswered.
Does anyone know how this will affect the 1-year rule wherein you had a year after publication to patent in the US?
I always thought this was a major flaw in the EU system and perhaps directly responsible for the relatively low economic production (read start-up and licensing deals) of the EU university-based research.
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.
use it's fees to support the patent office. Those should just gop into the general fund.
The reason for this is that you don't want an agency working in their best interest, you want them working the the citizens best interest.
People seem to be forgetting that a government, any government, has a level of social responsibility and obligation for it's citizens.
The Kruger Dunning explains most post on
They get there money regardless of approval.
And right now the money they get gets diverted to other funds, this will stop that; Which seems to be a mistake.
The Kruger Dunning explains most post on
I'm betting when they say reform, it's going to be the opposite of what you and I think reform is.
- 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.
46137
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.
For all intensive purposes, "whom" is no longer a word. That begs the question, "who cares"?
Isn't it about time all involved evolved beyond the troglodyte "trial-by-joust" "there can be only one", er, mentality? How about doing something with a head closer to this century?
To begin with, patents should reward the creators. The thinkers. The tinkerers. People. Humans. And relevant AIs, maybe. Eventually ;)
There is no need for a bronze-age olympic "there can only be one winner" mentality. Good for primitive Spartans. Not-so-good for the (hopefully) modern microelectronic, nanotech, 3D-printed quantum-linked intercybernetic world.
Have all creative intelectual contributors be recognized as duly deserving. Rank them somehow, if necessary. In modern form, that means a collective vote. And ranking system. Take a page from Wiki. And all the collaborative initiatives out there. Hopefully pondered by competence and merit. And a sideways spanner-in-the-works "joker" factor, to keep the system from ossifying into peer cronyism too easily. Or vice-versa. Moderate "quoism". With random leeways.
It's really sad to see all these arcane bronze-age death-of-empire discussions on who should get right-of-way on the Via Appia during business hours, or something. Its like reading edicts and discussions from the late Byzantine court on privileges for salt-sellers.
(Expelitive sublimated)!
Yes, the safe, easy, even money-making way around the patent system is to publish. :-)
I know it, I do it
On top of that it benefits everybody and if everybody did this, little by little, that would cut the steam from the big players...
First at anything sounds really good. Nothing but the best! And winners only!
But how about making them race to get there? Or doing something along the lines of American Gladiator? But with middle-aged pot-bellied nerdy geeks. Reality-show style.
People would get more interest in science, right? And revenue from advertisement can help fund the office too. Can't hurt any. Right? Maybe it could have a season. Like, every year. With kickoff application contests. And big finals for the major players. Major and minor leagues. Why not? And the colleges and universities are in by default.
Sorry if I front-ran your own idea. But I'm going to finish this here beer first. So, you probably still have some time to get there first. Heh.
The patent office posts on it's website the summary or abstract of the application and invites knowlegable practioners of the art to invent a comparable system within some given period (possibly determined by the complexity of the invention).
If an alternative invention is submitted before the end of that period then that application must have been obvious.
If the application is repudiated within 1 hour the applicant is forced to eat their application documentation!
...by patent trolls I can say that I don't give a shit, screw this corporatist country and the broken system. Patents are a tool to screw inventors.
"The America Invents Act" is about recognizing a problem a then proposing a solution to something vaguely related, and declaring victory. This is the American way in its third century.
The US government have made it clear that we have no inalienable rights; any we do not defend vigorously will be taken.
To understand the changes in S.23 (and for intelligent discussion of the relative merits of both systems) see http://www.patentlyo.com/patent/2011/03/mccrackinpatentreform.html
I've been waiting for a good reason to patent the wheel!
but one has to take into account how courts work. They cling to "formal" things (e.g. "filed first") and try to avoid difficult decisions (e.g. is this "prior art" or not?).
Besides, whatever is cosidered "nonobvious" by those patent folks is non obvious to us mere engineering mortals. Cf. the laser pointer cited upthread. Cf. one-click.
To me, "first to invent" was the only Good Thing in the otherwise broken US variant of the globally broken patent system. Harmonization, it seems, works only for the worse.
In the field of copyrights, trademarks and patents (very politically subsumed under "intellectual property" - yuck!), this harmonization is being mis-used to circumvent democratic mechanisms everywhere.
It's one direction: copyright terms get longer, patenting things get easier, whatever.
You are doing away with the only good thing in the otherwise very broken US patent system.
Congratulations for that.
And Europe. Ah, Europe. Do you think Europe "wants to combat patent trolls"?. Think twice.
It was by a thin margin that software patents were ruled out here (the Commission ain't done yet trying) -- on the other hand, the EU patent office is dealing out what de-facto are sofare patents hand over fist, as if there was no tomorrow.
" . . . soon harmony and rationality will triumph."
NOT!
Non Disclosure Agreements. Ever heard of them? They work really well.
And, with a first-to-file system they can't predate their application to before you mailed them your copy and say they invented it first.
And, unlike a patent, an NDA NEVER expires unless you wanted it to.
Close. They filed for a patent, but rather than let it be issued, they would wait a year or more (the process is too slow) and then file an amendment. By repeatedly filing amendments, they prevent the patent from being issued and available for public view. They were then also able to make modifications to better encompass the legitimate products being developed by others. Once a target was identified, you try to tweak the patent so they infringe, let it get issued, claim you filed the patent years ago, and enjoy 17 years of royalties. Now they have made it 20 years from the date of (first) filing, so you can't lay low indefinitely. There may be a couple other anti-troll measures, but the main thing was fixing span to the date filed rather than issued. It's wasn't a terrible compromise since it usually takes a couple years from filing to issuing.
For the little guy or small company it is. If you need to work with bigger companies to line up production or marketing, the patent prevents them from just taking your design and sending you away. Like the guy who invented intermittent windshield wipers - he needed auto makers to implement it, which they did, but IIRC he had to take them to court (with patent in hand) to force them to pay him. It's much harder to start your own car company claiming one new feature, or even to start an aftermarket retrofit business (which would entail working with others too).
What a lot of people seem to be forgetting here is the Patent Pending process. You can file for Patent Pending quickly and inexpensively compared to a full patent. This then locks in your filing date AND gives you a year to file the full patent.
How about a self-assessed buyout value taxed at 3% annually for copyrights, maybe less for shorter patents?
Some little progress documented on IP taxes is at: http://www.ip-tax.com/
Then (2003, by me):
http://p2pfoundation.net/Copyright_Tax
http://journalism.berkeley.edu/projects/biplog/archive/000431.html
http://journalism.berkeley.edu/projects/biplog/archive/000763.html
From one of those links: "Since it is difficult to value a copyright, one possibility to determine the value of a copyright is to let copyright holders assess themselves how much it is worth it to them to keep their work out of the public domain. Then the rights holder would pay annually a small percentage of this value (perhaps three to five percent). Each year, when the rights holder sent in their tax, the rights holder could change this self-assessed value to reflect their changing priorities and a changing market. If the rights holder did not pay the tax, then the work would move immediately into the public domain. If someone wanted that work in the public domain, they could pay the copyright holder the self-assessed amount and the work would then immediately be moved into the public domain. This public domain buyout possibility serves to limit the tendency of rights holders to produce low self-assessments to minimize their annual tax payments."
I got the idea from someone's slashdot sig back around; the sig asked something like, if it is intellectual property, why is it not taxed?
Ultimately we need to move beyond an economic system more-and-more built around "artificial scarcity". See also:
http://peswiki.com/index.php/OS:Economic_Transformation
A 21st century issue: the irony of technologies of abundance in the hands of those still thinking in terms of scarcity.
Losing your patent because of prior art isn't the problem with secret military patents. It's losing your work, and your ability to publish it, that's a much more serious risk with the current system; RS&A and a couple of other people had to do end runs around the system to get their work published without the military stealing it. It's bad enough if you're in commercial business, where you can at least still sell it to military contractors or whatever, but if you're an academic, you need to be able to publish, and to do your work in a non-secret environment.
Bill Stewart
New Fast-Compression-only CPR http://preview.tinyurl.com/dy575ks
Who would have believed it -- patent reform has finally passed in one chamber. Given the momentum this issue has right now, I'd expect that some version of the bill will likely pass in the House soon, too. As usual, however, the devil will be in the details; though I can't imagine much opposition to the fee diversion and fee-setting authority provisions, the first-to-file and post-grant issues may prove somewhat thorny.