Slashdot Mirror
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.
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.
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.
I'm not American
Then you should know that most of the world is first-to-file rather than first-to-invent. This does the opposite of what you claim: small inventors no longer have to worry about being taken to court and having to prove that they invented it first; now as long as there wasn't prior art, they're in the right.
Now if we can just do something about software patents, we might have a decent system.
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.
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!
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
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."