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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.'"
The first post. I didn't invent it, but I did get here first.
Supporters of the act contend that reforming the patent system will unlock innovation and produce jobs in an economy that is increasingly driven by intellectual property. Currently, there is a backlog of about 700,000 patents waiting for examination, and the next cellphone, incandescent lamp or miracle drug could be hidden in that pile, supporters said.
Looking the waste in the current smart-phone patent "compulsive wars", I think the bottleneck in invention (and job creation) is NOT in first-to-invent vs first-to-file (the current battle would have happened in both "first-to..." strategies). Look, Europe is driven by the "first-to-file" for quite a while: did this stop Apple to block Samsung tablets/phones (or whatever) in Germany?
I don't see how's this one a step forward in the "job creation" direction (not says that is not, just saying that I need some explanations. Somebody care to explain?).
Questions raise, answers kill. Raise questions to stay alive.
How will this deliver "fewer patents, but those that do get accepted are of higher quality"? It seems to me that it will do the exact opposite.
Supporters of the act contend that reforming the patent system will unlock innovation and produce jobs in an economy that is increasingly driven by intellectual property. Currently, there is a backlog of about 700,000 patents waiting for examination, and the next cellphone, incandescent lamp or miracle drug could be hidden in that pile, supporters said.
How, exactly will this "unlock innovation" and produce jobs? And, what the hell does "Currently, there is a backlog of about 700,000 patents waiting for examination and the next cellphone, incandescent lamp or miracle drug could be hidden in that pile, supporters said" mean, or add to the conversation? It's all smoke and mirrors -- and you cannot seem to see that, but you don't seem to be alone. This benefits nobody (personally) (except for CEOs). But, the sheep that seem to make up most of the U.S. population cannot see it.
What matters is what the aristocracy would like to see. Which is precisely what the America Invents Act delivers.
Ideas are valuable. Therefore, the aristocracy wants to control them. If this slows innovation down to a snail's pace, eliminates jobs, and weakens America's position as a world power, so be it.
And before anyone explains to me that offering patents creates an incentive to invent, just stop. Take a look at how patents are actually used in practice. They empower wealthy corporations to set up barriers-to-entry by making it so expensive to innovate that only the wealthy corporations can do it...and of course they do very little of it because the RnD is expensive and the enterprise too risky.
This is reform?
Strongly resisting the temptation to whargarbl.
This act will only encourage patent trolling. It will increase the rates of industrial espionage in a country that is already struggling with cyber-crime.
The original inventors will have to become legal wizards in addition to their existing skillset.
Still, why should I care? I'm not American, and anything that stifles American invention can only be good for my country.... sooooo.... thanks America! Good job there!
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.
Right, it is actually much worse than that. There are indeed completely outrageous patents that get the thumbs up, but a whole lot get rejected, as well. This means one of two things: either there is some metric besides actual value by which patent applications are being judged that big corporations understand and the little guy inventor doesn't, or it is being determined randomly, in which case only the big guys can afford to file and see what sticks. Either way, the system is much worse for anybody but large corporations than the rubber stamp would be.
The problem with this is that as inventions get more and more complex(we've run out of simple inventions for the most part at this point) the amount of money to get that working sample increases. This means that a person must go to either a bunch of VCs who will end up controlling the product, or a corporation. and since it's first to get working, there absolutely nothing stopping the corp/VCs from dumping the idea creator and getting it working through their own R&D.
When Canada passed the exact same change 10 years ago (changing from first-to-invent to first-to-file) independent inventor applications dropped by 50% and have never recovered. This bill was pushed entirely by large corporations who don't want to pay the real innovators for their inventions.
I will create a sig when innovation restarts in the U.S.
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.
You should write your congress critter about it.
Here is how they voted
Dangerous, sexy, turing complete: Femme Bots
Mod parent up.
First to invent appeals to the notion that little guy inventors will get screwed over by big companies, because the big companies can afford to file patent applications quickly. This is sort of a short-sighted argument, though - because figuring out who invented first is a messy factual inquiry (can you prove you invented it in your garage? Are we supposed to just take your word that you had a working prototype years ago?), extensive, expensive litigation is necessary to pin down who invented first. Little guy inventor cannot win massive litigation against a big company - the little guy just can't afford the necessary lawyers and expert witnesses.
Its much cheaper to file an application than it is to win a patent lawsuit.
Although there seem to be many CIP among these 20+, some of the patents bearing his name seem non-obvious. This is quite typical for someone really productive filing patent applications assigned to his employer (in that case, Microsoft). Maybe 10-20%?
I have 16 US patents in the field of circuit design, of which I'm really proud of exactly 2, as they are really good, non-obvious, breakthrough-type inventions. All others are meant to increase my employer's patent chest for either defensive or attack purposes.
...to the issue, compared to how long the patent lasts. I believe creative destruction is good. If you can build a better mousetrap, I will gladly buy it. If you need lawyers to protect your product, you don't have a product.
For in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. - Publius
All that proves is that both systems exploit the small guy pretty equally. If you have to argue over which is less damaging, the battle is already lost.
The answer here is to simply get rid of patents and move on. Contrary to popular belief, patents are there to protect financial investment, nothing more. Ideas are cheap and rightly so. Investments on the other hand come from those with money, intending to exploit more. Patents arose in Britain as a way to grant government power to corporations on a temporary (or nor so temporary, as in the East India Company) in exchange for the government not having to pay. The system actually worked fairly well for colonization and trade. It is not, however, working particularly well when it comes to invention.
The problem is that cost of investment has gone down immensely from when patent law was written, and the legal complexity required to fight/defend patents has rocketed. No longer is a particularly large investment needed to set up production.
And even if it was, as we can see today, all patents do (when working as well as anyone hopes) is ensure a pittance payment to the inventor - often so small it doesn't compare to even a single percent of the actual profit. Few private inventors ever attain the investment to build their own businesses, and so, like copyright, the ownership of ideas ends up in the hands of the already rich and powerful.
What everyone needs to start asking is if this is worth it for what it is giving back. Is the ability to own an idea worth the nearly insignificant gains we are getting?
Simply entrenching the model that is already, more or less, standard, might be the most prudent course of action. Abolish patents, and let corporations employ those who can actually create ideas. Similarly, allow other corporations to usurp them, should they do better. The first to market always has an advantage, especially with modern speed of production and distribution. This alone makes patents obsolete.
It is my opinion that those who propose changes to a system, while failing to look at if the system is even worth having, cannot be taken seriously. There are many ways in which the government should be involved in the economy, but selling ideas to the wealthy is not one of them.
Great Intellect...
Assuming that they're doing their job, which conventional wisdom says they haven't been.[*]
They have not been because it's been an almost impossible task to keep up.
The new bill helps in two ways:
1) Since you don't care anymore who thought of an idea first, you only need to see if the idea exists in the market or has already been filed to dismiss. Before even if someone filed earlier it COULD be they thought of it later... or the guy filing thought of the idea before the thing on the market arrived.
2) I'm weak on this point but basically it allows outside entities to contest bad patents instead of just the patent holder. Now the EFF and the FSF can go to down striking down the evil before us.
And still won't, unless the bill vastly increases the funding for patent examiners.
You know what? It actually DOES do that. Because now the patent office gets to keep application fees. They didn't before? Nope, went into the general pool to pay for the growing SS or a new airport in Nowhereville dedicated to the state senator.
It's just that it's a lot more lucrative for qualified people to work in industry than at the Patent Office.
Perhaps they can pay examiners more now that they get to keep application fees.
This is really a decent overhaul, better than we could expect from all the infighting and bickering going on.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
I remember the idea of "first to file" (FTF) being explained to me in the past, although I don't rember where or whom. Basically, FTF doesn't trump prior art. If someone invents something before you patent it, the patent is invalid. This doesn't change. One of the big litigation problems with "first to invent" (FTI) over FTF is that, when two companies claim the rights to have invented something first, it take a HUGE amount of digging, research, and legal discovery to figure out. Especially when companies keep secrets and have long R&D periods; it's a tangled mess to figure out the exact timeline that grants patent ownership to one company or another. With FTF, you don't have this problem, because its blatantly obvious who filed first, and prior art is easier to prove in court. IANAL, so correct me if I'm wrong!
No, not true. If it already exists and is for sale, it cannot be patented by anyone, including the person who first put it up for sale. A patent application must be filed before a technology is made publicly available, or it is no longer patentable. That is already the case even under current patent law, and will not change.
However, if you have not quite made it to market and someone else comes up with the same idea and patents it while you are polishing up the edges, you're screwed, whereas before, you could at least ostensibly claim that you invented it first if your prototypes go back farther in time.
This is both good and bad. On the one hand, patent trolls who actually got as far as building a prototype but never marketing it or publishing it cannot use that as prior art to show that someone else's patent is invalid. On the other hand, it means that companies must file patents (or at least provisional applications) much earlier in the process and much more often to avoid the risk of a competitor coming up with the same idea and screwing them.
On the whole, this so-called reform is basically basically a wash except that it will cause an increase in patent filings (which makes it a net negative in my book). It does almost nothing to reduce the ability of patent trolls to prosper. It similarly does almost nothing to reduce the scope of software patents' ability to stifle innovation and bog down the industry in unnecessary lawsuits. All it really does is make the trial duration slightly shorter....
This is to patent reform what shooting someone in the backside with a shotgun is to discipline. Sure, it technically qualifies as discipline, but it's not the sort of discipline that actually improves behavior.
Check out my sci-fi/humor trilogy at PatriotsBooks.
Nope. If you were selling it, and can prove you were doing so to the public before the other guy filed the patent, you still win. Of course now you can't get the patent, but neither can they.
"Who is the Journal of Quantum Physics going to believe?" --Stephen Hawking
IANAL
The main difference this brings is that you cannot publish something prior to patenting it, as your own publishing can act as prior art, invalidating your own patent. This means that you cannot take something published, say "hey, this would actually make a nice patent", and go around and patent it. You'd be committing fraud when signing the piece of paper saying that, as far as you know, the invention is novel.
People here confuse "first to invent" with "prior art". If something is published, it is unpatentable, no matter which system you use. First to file encourages early filing, as if you keep things secret, someone else might file a patent (due to unrelated invention), and you'd be left with nothing. This means you need to either publish (and prevent everyone, yourself included, from monopolizing it) or patent it early (a provisional is fine, so small inventors can still participate, provided they can spare $110).
Under the current system, patents could surface quite late in the game. So long as you have some proof that the patent was in progress, you could wait until someone else published it, and then run off to the patent office and patent it. That makes no sense. The purpose (original one) of the patent system was to encourage inventors to publish their inventions.
Shachar
There seem to be a lot of people in this thread saying, "Oh no! Prior art is dead!"
All this actually means is that somebody can no longer invent (or CLAIM have invented) something and then KEEP IT A SECRET (not sell, publicly demonstrate, file for a patent, etc...) and then, later on, after somebody else files for the patent, say, "Hey! I invented that %d years ago!" Right now, it seems to be pretty common practice for corporations to attempt to 'manufacture evidence' of non-public prior art. It seems like this would simplify patent disputes.
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
The main difference this brings is that you cannot publish something prior to patenting it, as your own publishing can act as prior art, invalidating your own patent.
Not so. IIRC from law school, inventors get a year-long grace period after they publish their invention before they have to patent it or lose it.
In fact, this provision appears to be in the new legislation. From HR.1249:
"A disclosure made 1 year or less before the effective filing date of a claimed invention shall not be prior art to the claimed invention under subsection (a)(1) if:
(A) the disclosure was made by the inventor or joint inventor or by another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor; or
(B) the subject matter disclosed had, before such disclosure, been publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor."
Yes, certainly, but any idea that people should only do things for free is also a cancer and should die. There's nothing wrong with putting ideas and functional objects in the public domain, but there's also nothing wrong with deciding to monetize an idea or a functional object. Personally, I find the GPL distasteful and wrongheaded, but even so, I see nothing wrong with it either in the sense that choosing it as a way to go is just fine if you like it. When you birth an idea, it should be yours to decide what to do with. Period. Ideas can have enormous value; people who claim any kind of automatic ownership of other people's ideas when they didn't contribute to the thing's genesis are simply pickpockets. If the idea is given to them by the inventor, that's something completely different.
I pop out the occasional public domain project and/or enhancement, but I also do commercial projects in the hardware and software realms, because I find I have this peculiar need to eat and cower within shelter from time to time, and I've noticed the same curious problems with the rest of my family.
I've fallen off your lawn, and I can't get up.
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."
Other than the first paragraph, about publishing before patenting, GP's post is insightful. You should stick with correcting/clarifying posts you disagree with, not slamming them.
It actually encourages people like you, not moderating on that post, to come out with your ideas that either add to its validity or add additional information that disproves it, increasing the overall breadth of information. You performed that role.
That's awesome.
Nobody knows. It is a lost art.
You are an idiot.
John McAfee 'It was like that time I hired that Bangkok prostitute; to do my taxes, while I fucked my accountant'