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Patent Reform Bill Passes Senate
First time accepted submitter nephorm writes "The Senate passed the first major overhaul of the nation's patent law in more than a half century by passing the America Invents Act. The legislation won overwhelming approval in an 89-9 vote. From the article: 'The America Invents Act switches the U.S. patent system from a first-to-invent to a first-to-file nation. It also sets up a new regime to review patents and gives the U.S. Patent and Trademark Office more flexibility to set and spend fees paid for by inventors to get patents and businesses to register trademarks.'"
And just how many international patents do you have to your name? I have 2 and I can tell you that first to invent is a PITA and penalizes small inventors. First to file places a stake in the ground that is not contestable. First to invent is open to intrepretation via courts and unless you have the resources and well documented evidence (such lab books where EACH PAGE is signed by two individuals) you will lose out.
So this means the concept of prior art is moot?
No.
It appears that the bill in question is H.R.1249 (TFA doesn't actually specify which bill they're talking about - and there are several versions floating around congress). The text of the bill concerning prior art is:
‘‘ 102. Conditions for patentability; novelty
(a) NOVELTY; PRIOR ART.—A person shall be entitled to a patent unless—
(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or
(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention."
Thus, prior art under the new law would be anything that was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
I'm sorry, but this rant is just ignorance of how "first to file" actually works.
First to invent means, in theory, that you can build something, start selling it, and then file for patent. In practice, however, this allows big corporations to back-date an invention. There is no "chain of evidence" proving that you did, indeed, made the invention as far back as you claim you did.
With first to file, it is impossible to back-date an invention, as the one providing the time stamp is the (presumably reliable) patent office.
Now let's take the apocalyptic scenarios you describe and dissect them:
Now you could invent something, be using it and selling it for 10 years, and then Big Corporation file a $10,000+ patent and steal your invention and sue YOU for selling YOUR invention!
No, they can't. If you have been selling it on the market, it's prior art. No one can patent it. Even if that's not the case, first-to-file systems generally have "prior use" defenses. I cannot invalidate your patent by proving that I have been using it before you patented it, but I am exempt from licensing it from you.
since you can no longer prove "I've been using this for XX years!"
As far as I know, first to invent only goes back one year. That it the most you can back-date an invention. The load on the patent office will not change significantly.
But it will increase the filing process since they don't have to do any work, they don't have to figure out "Gee, does the wheel already exist? I swear this round thing looks familiar..." they can just do a quick search of their database and go "Nope don't find it here's your patent".
If it's published, it's prior art whether patented or not. If it's unpublished, then you can patent it. Nothing changes in that regard.
Shachar
Steve Perlman, President & CEO, Rearden, OnLive and MOVA wrote a detailed letter to Senator Diane Feinstein, voicing his extreme disapproval of this bill. It's a good read: (PDF) http://www.rearden.com/public/110301-Steve_Perlman_S.23_Letter_to_Senator_Feinstein.pdf
You might be "+5 Insightful," but you're also wrong. Inventors have a 1-year window after publishing in which they can file their application. This is true under both the old laws and the new. I love how the people with mod points don't let a little thing like not knowing anything about patent law get in the way of their pronouncing a post that (incorrectly) tries to explain a point of patent law as "insightful."