Spoken like someone who has never actually had to spend the hours and hours to do a proper prior art search. How many people do you think work for the USPTO?
I don't think the USPTO is the problem (and no, I don't work there...), but rather the vast multitude of patent apps that are 99% the same as other inventions, but have very minor and subtle differences from the existing art. Software patents are most easily guilty of this. The USPTO has to deal with these apps with the people they have employed. I highly doubt that spending 30+ hours on a proper prior art search for every single application is plausible unless you are comfortable with it taking even more than 3-4 years to get a patent through.
I may be mistaken, but I recall some talk of having a public review of newly issued patents where public-organized crowdsourcing could potentially be applied to find missing prior art. This could potentially be at least a partial solution.
The act states that prior art (published no earlier than 1 year before filing) by the inventor is not prior art to warrant a 102 rejection, but is prior art if published (or derived) by someone other than the claimed inventor. In my view, publishing the invention in a very public way would be more likely to protect the true inventor in this case. I think the first to file just better forces the 1-year to file from inception rule...an inventor cannot as easily sit on an idea, but is encouraged to get it out in a big way so (s)he can point to a vivid prior art publication to protect his/her intellectual property.
On a side note...someone mentioned the stealing of an idea and running to the patent office...if the inventor can prove his "friend" bought the product from him and then patented the inventor's idea (as one person stated) the act gives the inventor a path for civil action (assuming the inventor can afford a lawyer...or is certain enough of winning that his fees would be awarded as damages):
135. Derivation proceedings
‘‘(a) INSTITUTION OF PROCEEDING.—An applicant for patent may file a petition to institute a derivation proceeding in the Office. The petition shall set forth with particularity the basis for finding that an inventor named in an earlier application derived the claimed invention from an inventor named in the petitioner’s application and, without authorization, the earlier application claiming such invention was filed. Any such petition may only be filed within 1 year after the first publication of a claim to an invention that is the same or substantially the same as the earlier application’s claim to the invention, shall be made under oath, and shall be supported by substantial evidence."
Perhaps the real problem is that lawyers need to be more affordable.;-)
Slashdot Mirror
Indeed.
Spoken like someone who has never actually had to spend the hours and hours to do a proper prior art search. How many people do you think work for the USPTO?
I don't think the USPTO is the problem (and no, I don't work there...), but rather the vast multitude of patent apps that are 99% the same as other inventions, but have very minor and subtle differences from the existing art. Software patents are most easily guilty of this. The USPTO has to deal with these apps with the people they have employed. I highly doubt that spending 30+ hours on a proper prior art search for every single application is plausible unless you are comfortable with it taking even more than 3-4 years to get a patent through.
I may be mistaken, but I recall some talk of having a public review of newly issued patents where public-organized crowdsourcing could potentially be applied to find missing prior art. This could potentially be at least a partial solution.
The act states that prior art (published no earlier than 1 year before filing) by the inventor is not prior art to warrant a 102 rejection, but is prior art if published (or derived) by someone other than the claimed inventor. In my view, publishing the invention in a very public way would be more likely to protect the true inventor in this case. I think the first to file just better forces the 1-year to file from inception rule...an inventor cannot as easily sit on an idea, but is encouraged to get it out in a big way so (s)he can point to a vivid prior art publication to protect his/her intellectual property.
On a side note...someone mentioned the stealing of an idea and running to the patent office...if the inventor can prove his "friend" bought the product from him and then patented the inventor's idea (as one person stated) the act gives the inventor a path for civil action (assuming the inventor can afford a lawyer...or is certain enough of winning that his fees would be awarded as damages):
135. Derivation proceedings
‘‘(a) INSTITUTION OF PROCEEDING.—An applicant for patent may file a petition to institute a derivation proceeding in the Office. The petition shall set forth with particularity the basis for finding that an inventor named in an earlier application derived the claimed invention from an inventor named in the petitioner’s application and, without authorization, the earlier application claiming such invention was filed. Any such petition may only be filed within 1 year after the first publication of a claim to an invention that is the same or substantially the same as the earlier application’s claim to the invention, shall be made under oath, and shall be supported by substantial evidence."
Perhaps the real problem is that lawyers need to be more affordable. ;-)