Slashdot Mirror
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."
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.
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.
First to file encourages people to file for patents sooner rather than waiting for someone else to file and cutting them off with a first to invent claim.
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.
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!
#DeleteChrome
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.