Obama To Sign 'America Invents Act of 2011' Today

ideonexus writes "President Obama will be signing the 'America Invents Act of 2011' into law today at Thomas Jefferson High School for Science and Technology in Alexandria, Va. The bill will transition America from a 'first-to-invent" to a 'first-to-file" country, but critics argue that the bill fails to address the more important problem that 'nobody can tell what a patent covers until they've spent months or years working it out, often in the courts.'"

Comments

America Invents?

[Anonymous Coward]

What kind of title is that? Doublespeak and marketing entering politics.

Re:America Invents?

[GameboyRMH]

Like the PATRIOT act. The title is an ironic opposite of what the act actually does.

Re:America Invents?

[gandhi_2]

The "China Produces Act" was already taken.

Re:America Invents?

[Enry]

Clear Skies Act, No Child Left Behind...

Re:America Invents?

[Jeremiah Cornelius]

First to file.

Now.

Raise filing fees and barriers to protect incumbent interests.

Why not? In Amerika today, money has already become the right to vote, and the right to speech.

Re:America Invents?

[aynoknman]

Doublespeak and marketing entering politics.

That should be

Doublespeak and marketing rears it's ugly head again in politics.

For many years, politics has been primarily doublespeak and marketing.

Re:America Invents?

[Anonymous Coward]

This bill is a scam. Included is a provision to bailout a law firm. They missed a patent deadline but with this bill, congress is giving them a pass and applying the patent retro. Its a big win for the law firm who's take from this will be in the hundreds of millions of dollars.
And yes, they gave heavily to Obama...

Re:America Invents?

[Jeremiah Cornelius]

He ALSO signed a continuation of Emergency Powers.

How Nice.

Funny this little occurrence receives so little attention, when, of these invoked powers, The Washington Times wrote on September 18, 2001:

Simply by proclaiming a national emergency on Friday, President Bush activated some 500 dormant legal provisions, including those allowing him to impose censorship and martial law.

I guess there wasn't enough NewSpeak in that article for the WT to preserve it from their Memory Hole. Here it is on the Wayback:
http://web.archive.org/web/20010918184425/www.washtimes.com/national/20010918-1136.htm

Now, back to Barry's continuation of the legacy:

Notice of September 9, 2011

Continuation of the National Emergency With Respect to Certain Terrorist Attacks

Consistent with section 202(d) of the National Emergencies Act, 50 U.S.C. 1622(d), I am continuing for 1 year the national emergency previously declared on September 14, 2001, in Proclamation 7463, with respect to the
terrorist attacks of September 11, 2001, and the continuing and immediate threat of further attacks on the United States.

Because the terrorist threat continues, the national emergency declared on September 14, 2001, and the powers and authorities adopted to deal with that emergency must continue in effect beyond September 14, 2011. Therefore, I am continuing in effect for an additional year the national emergency that was declared on September 14, 2001, with respect to the terrorist threat.

This notice shall be published in the Federal Register and transmitted to the Congress.

(Signed, BO)

Re:America Invents?

[Anonymous Coward]

What! You must be from the Obama whitewash department. Even NYTimes called him out on it dumbass.
http://www.nytimes.com/2011/09/08/business/patent-bill-could-save-a-law-firm-millions.html?_r=2&emc=tnt&tntemail1=y

Re:America Invents?

[RenderSeven]

Actually a little Google backs it up. Try HERE

Looks like Medicines Company would make $65m in fees under the new provisions. Although I cant verify that anyone donated significantly to Obama. They run their own PAC but doesnt look like significant money. Then again, politicians can be bought for nothing these days.

Re:America Invents?

[euroq]

You are a liar. They are not applying the patent retro. They are clarifying the deadline rules, so that the rules in law (on paper) are explicit to what two judges have already ruled is the case.

"[The company] had received F.D.A. approval for Angiomax after the customary close of business on a Friday, the 60-day clock should not have started ticking until the next Monday."

It has already been determined by two judges and the government has not appealed the decision that the above statement is correct - the company did not miss their patent deadline. NOTHING THIS BILL DOES IS GOING TO CHANGE ANYTHING FOR THAT LAWFIRM AND COMPANY. It is only going to clarify the rules. (Actually, on second thought, it will remove the threat of APP Pharmaceuticals's appeal)

Even if this did retroactively give the patent to this company (which is won't), that wouldn't be a bailout - no government money would be given to them (you might have an argument for corruption, but it's not a bailout).

Finally, the funny thing in the NYT article is that two Republicans want the patent protection for the company to go away because "...the extra patent protection on Angiomax could cost hospitals and consumers $1 billion.". Well, Republicans, that's EXACTLY what you wanted when you opposed "socialized" healthcare! That very argument was the left's argument for the healthcare overhaul. Patents are what help drug companies make lots of money "at the expense of hospitals and consumers", because they will in turn fund new R&D for new medicines.

Re:America Invents?

[Grishnakh]

Exactly. You can vote, or you can stay home, and it won't make a damn bit of difference. You'll still get corporate fascists being elected.

Re:America Invents?

[euroq]

No it didn't. The NY Times reported that a Republican called it a bailout. RTFA... it's not.

It has already been determined by two judges and the government has not appealed the decision that the above statement is correct - the company did not miss their patent deadline. This bill is only going to clarify the rules that agrees with the two judges that already said.

WTF passes for the definition of a "bailout" nowadays? Even if this story was changing the patent filing decisions retroactively, no government money was going to be given to any companies involved either way.

Re:America Invents?

[rubycodez]

You don't get it, wealthy people have the powerful in their pocket, who have transformed democracies into oligarchies and plutocracies to enslave and plunder and even kill the people who work.

Re:America Invents?

[RenderSeven]

Point taken but OTOH the closing statement by Lamar Smith seems pretty valid: “As a practical matter, this is a special fix for one company”. And while lobbyists from both parties promoted the bill it seems like the Obama Administration was the primary recipient of lobbying largess, and the law lobby in general is one of the top contributors to the DNC. Perhaps the NYT didnt explicitly call it 'bailout' but that's the case they implicitly made. And, when a bill is passed that results in large sums of money changing hands, and is demonstrably influenced by significant lobbying money, it seems naive to cling to the argument that the provision was included solely out of concern for the public good.

BTW I only read that one judge agreed, not two as you said. The 'other judge' I think is the partner in WilmerHale referring to the single 8/10 decision.

And 'what constitutes a bailout'? Thats a real good question. Mod parent up. 'Bailout' has become a poisonous term for anything anyone dislikes, and appeals to public emotions. Maybe we should add it to the lexicon for Godwins Law. But lets assume for the sake of this one point that a law was passed for the sole purpose of saving $214M by one company. Lets assume it was a Republican president and a Republican lobby for the benefit of, say, the oil industry. What would you call it then? Maybe 'bailout' is the wrong word but it would still smack of corruption and crony-ism.

I don't get "First to File"

[gameboyhippo]

How about first to do both. You would have to have an invention before you can file. Otherwise, I'm patenting time travel.

Re:I don't get "First to File"

[gandhi_2]

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1394833#%23

"...reforms had a small adverse effect on domestic-oriented industries and skewed the ownership structure of patented inventions towards large corporations, away from independent inventors and small businesses."

Now you get FTF. And why Obama and Hatch agree on it.

Re:I don't get "First to File"

[Theaetetus]

How about first to do both. You would have to have an invention before you can file. Otherwise, I'm patenting time travel.

The change is as opposed to the earlier "first to invent" system, in which you could be the second person to file, but still get the patent. Basically, under the old system, say person A conceives of an idea on January 1. They diligently and continuously work to reduce the idea to practice, and file a patent application on December 1. Meanwhile, person B conceived of the idea on June 1, and being quicker, filed a patent application July 1. Even though B filed first, A would get the patent, because A had first possession of the idea.

Now, that's changed. B filed first, B wins...

... unless A published prior to June 1. Under the new rules, if A conceived of the idea on January 1, and posted it on his or her blog on January 2, that counts as prior art against B, but not A (for one year).

So, now, rather than just a race to the patent office, we actually have a race to make a public disclosure, which is a good thing.

Re:I don't get "First to File"

[Aladrin]

If that disclosure thing is correct, and the courts actually see it that way, then this system is much better. First-disclosed is much better for the community than first-invented or first-filed. It's an incentive to actually report new inventions, so that everyone can eventually benefit from them.

Re:I don't get "First to File"

[tycoex]

What about the patent for "look and feel" of the space elevator?

Re:I don't get "First to File"

[geekoid]

" that counts as prior art against B, but not A (for one year)."
so so you missed the double talk of the bill.

AS it turns out, that one year exemption will only apply to win it's signed. After a year it won't be worth diddly.
I spend several hours listening to patent expert discuss this issue a couple of weeks ago.

Also, it will severally hamper in attempt I make to get investor in on my inventions. Because that could, quite legally, take my idea and patent it and I have NO RECOURSE.

This is the typical 'Something needs to be done, there fore anything is an improvement' response to a small and specific problem..

Re:I don't get "First to File"

[Theaetetus]

If that disclosure thing is correct, and the courts actually see it that way, then this system is much better. First-disclosed is much better for the community than first-invented or first-filed. It's an incentive to actually report new inventions, so that everyone can eventually benefit from them.

Agreed... There's one slight wrinkle, however...

In the US, you now have that encouragement to disclose your new invention immediately, to prevent anyone else from filing a patent application on it. You still have one year to file your patent application. HOWEVER, there's no one-year grace period in Europe under the EPO rules: as soon as you disclose your new invention, that disclosure is prior art to any patent application of yours, even if you file the following week. So Europe actually discourages disclosure prior to filing (and so do some other countries).

So, say you're Nokia, with manufacturing in Europe and a major market in the US... What do you do? Disclose then file, or wait to disclose until you file? The former destroys your rights in Europe, while the latter makes it possible for others to file first and block your application.

Re:I don't get "First to File"

[Ghostworks]

Before, you could challenge a patent on the basis that you actually invented something first, even though the party currently holding the patent filed first. At that point, the court would have to determine who truly invented the device or process first, usually by considering evidence such as notes, lab books, or private correspondence. Bell had to do this at one point when his telephone patent was challenged, and apocryphally came down to the question of who really understood what it meant for an "undulating" (AC) current to carry a signal. Gould, on the other hand, successfully challenged for the patent to the laser, and received the patent just in time to reap the rewards.

Pretty much every other nation on Earth is first-to-file. That means the first person to get the paperwork through wins. Thought of it first? Then you should have patented. It's easier and cheaper on the bureaucracy, so it's no surprise. There is an argument that, now that we're moving to first-to-file, the garage inventor now has no recourse against the large corporations with armies of lawyers. The people in favor say that was always true, practically speaking, and that the procedural change will save the People loads of money in court costs. However, they forget that this further incentivizes all companies to file early and file often. It will probably increase the load for the already over-worked patent office, and the quality of patents will probably go down.

America

[Dunbal]

Invents a better way to screw Americans.

You still have to have invented it

[tepples]

The old way: You have to have invented the product or process and reduced it to practice, you have to file a patent application, and you have to have invented before other inventors.
The new way: You have to have invented the product or process and reduced it to practice, you have to file a patent application, and you have to have filed before other inventors.

The purported advantage of the new way is that it's a lot easier to prove having filed first than to prove having reduced it to practice first.

Re:You still have to have invented it

[Anonymous Coward]

Obvious to a person having ordinary skill in the art.

Re:You still have to have invented it

[StillNeedMoreCoffee]

We will see companies and individuals flooding the patent office will all kinds of wacky half formed patents to try and get there first. Like the rush to capture Web domain names to be able to sell them to the company who's name you used finds out that there company name's domain name is owned by someone holding it hostage. I don't see that this is a useful way to go about things.

It may be that prior art can invalidate a patent still but it may be invalidated for the first to file rather than the inventor. Which would beg the question, if a first to file patent was invalidated by prior art from the inventor, could the inventor then file for the patent?

Re:You still have to have invented it

[jcfandino]

It's obvious that obvious is subjective, so it may be obvious to somebody skilled in the art and not obvious to others also skilled. How can we prove this? Obviously we can't.

Re:You still have to have invented it

[BluBrick]

I actually like the use it or lose it idea, but by incentive, rather than directly codified in law. My proposal for patent reform is based on the idea that an invention must be truly innovative and of clear benefit to the inventor to even consider a patent. I'm sure this would never see the light of day. It quite probably violates several points of law or clauses of the US constitution, but it's kinda nice to dream.

The actual numbers given here are simple examples.

• Patents have a limited life. 10 Years.
• A patent holder may choose to expire any of their patents early.
• Patents are non-transferable.
• Individuals or companies may hold patents.
• Company-held patents are licensed at a very high annual fee. $1,000,000/yr
• No annual fee is charged on individual-held patents but there shall be a ceiling on number of patents an individual may hold - say 10
• Companies may hold as many patents as they can afford.
• Patent applications carry a significant filing fee which is refunded only if the patent is granted - $10,000.
• Upon filing, patents will be thoroughly investigated prior to being granted, not just rubber-stamped.
• Business methods or software cannot be patented. They can be protected by copyright - or even trade secret.

Individuals are discouraged from patent squatting by the low ceiling. Companies are discouraged from squatting by the high licensing fee. It is impractical to place a ceiling on a companies' number of patents, as the company could spin off new companies to get around the ceiling. Furthermore, companies are discouraged from employing individuals as patent holders by the high fee and non-transferability. Individuals employed as patent holders for company inventions would know that their 10 free patent slots are worth $10M per annum to the company and even then, the company would not own the IP in those 10 patents - the employee would. Patents that were frivolous, obvious, or clearly based on prior art would disappear because of the potential for loss of the filing fee. Also, the revenue from licensing fees could be used to conduct thorough investigation prior to granting a patent. Early expiry for companies allows inventions that are not making money to be retired.

Honesty in naming

[roman_mir]

Again, I just posted on this in the previous story.

HONESTY IN NAMING. Give that bill's number, make them read it. Of-course this will do nothing for Obama's reelection, but this "America Invents Act" will do nothing for inventions in America.

There are 152 PAGES in that bill. (PDF warning)

152 pages. You'd think to have America "inventing" you wouldn't need that. What you'd need is to stop punishing people for investments with inflation, taxes, regulations and insane spending, like that on wars. How about ABOLISHING the patent system altogether and abolishing all patents and refunding those that are pending by the way? Having a freer society, so that people could ACTUALLY INVENT AND INNOVATE without FEAR of being SUED?

You think they'll stop wars in that bill? You think they'll stop inflation and encourage underconsumption, savings and investments?

Please. It's about dates of filing, it's about law suits. It's about more government protections given to large corporations. It's about lawyers.

The only 'innovation' that will be promoted by this bill will be lawyer innovation, innovative ways to file MORE LAWSUITS.

That's all this is going to do - more lawsuits and actually less innovation and fewer inventions, as always the exact opposite of what the bill is named.

Re:Honesty in naming

[Applekid]

I don't necessarily agree with abolition because it's a bit of a fatalistic fix. Patents just need to be fixed.

They were great at encouraging invention during the early US. People that filed patents would use those patents and actually make stuff. Improvements could also be filed as separate patents and the US Patent Office sorted it out and kept things nice and tidy.

Today corporations are be considered as individual people and corporations own ideas. The state of technology today is such that most of the low-hanging fruit has been picked and you're just not going to be able to invent anything without massive funding and research. Companies have sprung up to hold onto patents with no intention of using them except to later sue someone who stumbles upon doing something obvious. Even the local-boy-done-good dream of every inventor where they come up with something, patent it, and own the market for the next umpteen years and set themselves and their family on easy street is no longer valid. China will just use your patent as a blueprint and out-compete you in volume, price, distribution, and profit.

These abuses need to be corrected so that maybe individual genius might once again be valued. This is probably why do-nothing sex-tape celebrities and sport-team stars keep capturing the imagination of our children and causing the negative effect of teaching them that only the superficial selfishness matters, instead of valuing ingenuity and intelligence that really could stand a chance at improving society and everyone's lives.

At least patents still have a finite shelf life, unlike copyright which keeps getting pushed into perpetuity.

Re:Honesty in naming

[Migraineman]

Thanks for posting the PDF link. I'm reading it, and cringing ...

‘‘(b) REQUIRED STATEMENTS.—An oath or declara-
tion under subsection (a) shall contain statements that—
..‘‘(1) the application was made or was author-
..ized to be made by the affiant or declarant; and
..‘‘(2) such individual believes himself or herself
..to be the original inventor or an original joint inven-
..tor of a claimed invention in the application.
.‘‘(c) ADDITIONAL REQUIREMENTS.—The Director
..may specify additional information relating to the inventor
..and the invention that is required to be included in an
..oath or declaration under subsection (a).

‘‘(d) SUBSTITUTE STATEMENT.—
‘‘(1) IN GENERAL.—In lieu of executing an oath
or declaration under subsection (a), the applicant for
patent may provide a substitute statement under the
circumstances described in paragraph (2) and such
additional circumstances that the Director may
specify by regulation.

‘‘(2) PERMITTED CIRCUMSTANCES.—A sub-
stitute statement under paragraph (1) is permitted
with respect to any individual who—
..‘‘(A) is unable to file the oath or declara-
..tion under subsection (a) because the indi-
..vidual—
....‘‘(i) is deceased;
....‘‘(ii) is under legal incapacity; or
....'‘(iii) cannot be found or reached after diligent effort; or
..‘‘(B) is under an obligation to assign the
..invention but has refused to make the oath or
..declaration required under subsection (a).

So apparently dead people will be allowed to file for patents, because (obviously) they can be incentivised to promote the progress of science and the useful arts. ugh.

Make sure you patent everything

[Scootin159]

... otherwise someone could easily steal your design, write up a patent for it, and beat you to the patent office. Now you're out of business unless you pay royalties to them because they beat you to the office first.

Makes me wonder what FOSS software hasn't been patented yet, seems like all you need to do now is file a patent and you can claim ownership over a project that you had nothing to do with.

Re:Make sure you patent everything

[Dragonslicer]

"Prior Art" appears to be exactly what this bill does away with, no?

No.

Best Suggestion EVAR

[Kamiza Ikioi]

I was listening to a TWiT tech podcast, don't remember which one or who said this, but... They asked for one thing in a software patent... working demonstration code.

Immediately, light bulbs were going off for me. Finally, that might solve some abandon-ware problems. Forces companies to actually make a practical use idea (rather than, "two taps does a different action than one tap" patent, and yes, that's a real patent). And, above all, satisfies what patents were originally intended for. Protecting innovation, but also, sharing that idea with others who can improve it... and a significant improvement on someone's patent is itself, patentable.

More than anything, this would also expose frivolous patents. You have to actually MAKE the product or at least a demo before you can patent it. And, code can be checked with an algorithm to see if it already exists. That would be a fabulous tool for dev shops who could check all sorts of software, and get an immediate response with a quick code search.

so begins the whining....

[Lumpy]

The defense against it is simple. Do your research and publish it ALL to the public. Release it and get it out there Creative commons licensing eliminates the possibility of your idea being patented and stolen from you.

Stop being selfish asshats. Invent and release it to the wild.

OnLive CEO's insightful comments

[Anonymous Coward]

I can't find the original PDF that I had, but this blog has a copy of a letter that the CEO of OnLive wrote, condemning this legislation. He holds a number of patents that are used throughout the tech industry, and describes from a real life example (motion capture) how first-to-file would have ruined it.

http://onlivespot.blogspot.com/2011/09/onlive-founder-and-ceo-steve-perlman.html

a.k.a "The Lawyer Bailout Bill"

[sanzibar]

http://www.nytimes.com/2011/09/08/business/patent-bill-could-save-a-law-firm-millions.html?_r=2&emc=tnt&tntemail1=y smoke and mirrors....

Patents exist because of Free Rider Problem

[sjbe]

This critic argues that the bill fails to address the most important problem in patent law: that it still exists!

That is indeed unfortunate but until you can solve the even bigger problem of the free rider problem then a well designed patent regime remains better than no patent regime. Patents may slow invention but the free rider problem can halt invention entirely. There is no point in investing lots of money developing a technology that can be copied much more cheaply by someone who doesn't have to pay your R&D costs.

You can argue (and I will probably agree) that our current patent system is rather broken. That is not the same thing as making a credible argument that it should disappear.

Re:Patents exist because of Free Rider Problem

[mister_playboy]

That is indeed unfortunate but until you can solve the even bigger problem of the free rider problem then a well designed patent regime remains better than no patent regime.

Big companies get a free ride from smaller ones in the current system because the small fry can't afford to defend their patents or fully exploit the advantages of their innovation against bigger entrenched interests with far more capital.

If you do something innovative, the most you can hope for is to sell your company to a bigger player... you have next to no chance of actually becoming big yourself.

First-to-file doesn't affect novelty at all

[tepples]

First-to-file doesn't affect novelty at all. Published prior art that disqualifies an invention under first-to-invent also disqualifies an invention under first-to-file. Furthermore, I've read that the Act makes it easier to challenge a questionable patent, so you'll have an easier time of getting your open source project into the USPTO examiner's hands.

Re:Screw the developer

[S-100]

Yes, but that happened in the past as well. Read about JMRI vs. Katzer: http://jmri.org/k/Recent.shtml#2010-02-17 The troll was eventually defeated, but only after years in court and $100,000's spent.

Can't take you seriously with the Barry crap...

[Brannon]

just like you would start to tune me out if I called you a racist. See how that works?

BTW: Racist.

Re:Can't take you seriously with the Barry crap...

[Jeremiah Cornelius]

What?
I'm black...

Re:Can't take you seriously with the Barry crap...

[Jeremiah Cornelius]

I suppose you are right.

To jump to the assumption that I express contempt for the President, based on his ethnography rather than his behavior is a huge leap to make.

Maybe, if like the esteemed and beloved Dr. Cornell West, I call him "Brother Obama", then I would avoid the accusation.

Y'all didn't pay so much heed to me, when I voted for Sister Cynthia, and called on others to do the same.

So you got another Uncle Tom. Bush, with a tan. President Oreo.

Be an examiner & change the system from within

[apchar]

The hippies of the 60's didn't get much right, but one they did was "change the system from within."
Included in this bill is a big o' wad of cash so the patent office can hire more patent examiners. These are the people that really make the decisions of what's truly innovative and what's bogus. So... you critics of the system should watch the USPTO's website because they'll soon be hiring a whole lot of new examiners. Get a job there and you can (surreptitiously) reform the system yourselves by simply rejecting bogus patents. No legislation, lobbying, or protesting could make a bigger difference than a diligent and conscientious examiner. Keep your agenda to yourself but once you're in you'll be in the best possible position to change the system from within.