House approves major overhaul of patent system

http://news.yahoo.com/s/ap/20110623/ap_on_re_us/us_congress_patents;_ylt=Al5JB1JhWFW2umzMUQNRyIas0NUE;_ylu=X3oDMTNucG1rYjg3BGFzc2V0A2FwLzIwMTEwNjIzL3VzX2NvbmdyZXNzX3BhdGVudHMEY2NvZGUDbW9zdHBvcHVsYXIEY3BvcwM2BHBvcwMzBHB0A2hvbWVfY29rZQRzZWMDeW5faGVhZGxpbmVfbGlzdARzbGsDaG91c2VhcHByb3Zl

by MichaelApproved • 15 years ago

89 45 15 years ago

news.yahoo.com

absconditus• 15 years ago

"The two chambers still have to reconcile differences, but the bill has the advantage of being supported by the White House, major business groups, and leaders from both parties who have hailed it as a major jobs-creating measure."

This is a huge red flag.

seats2• 15 years ago

No kidding, and this one too-

"Opposition came mainly from groups representing independent inventors, small businesses and academics."

mechanical_fish• 15 years ago

Remember, though, that a patent troll's business card doesn't say "patent troll" on it: It says "independent inventor".

Which is not to say that you might not be right to be worried.

ericd• 15 years ago

"The most significant change brought about by the bill would put the United States under the same first-inventor-to-file system for patent applications used by Europe and Japan. Currently the country operates on a first-to-invent system"

Wow, does this mean everyone who wants to not get patent trolled has to file immediately?

tzs4• 15 years ago

No. It has no effect on patent trolling.

gridspy2• 15 years ago

Why not?

It sounds like looking for new gizmos without associated patents and then patenting them as yours would be an ideal strategy.

The alternative? Patent every gizmo yourself before release. Neat. A tax on innovation.

gridspy2• 15 years ago

The biggest concern to me - given two competitors, the one who delays their product to market while they get patents wins. I want a patent system that I can safely ignore without someone else later 'inventing' the same thing as me and taking me to court.

"[T]he bill would put the United States under the same first-inventor-to-file system for patent applications used by Europe and Japan. Currently the country operates on a first-to-invent system" ...

"John Conyers [...] said it would permit the Patent and Trademark Office to award a patent to the first person who can win a race to the patent office regardless of who is the actual inventor."

sliverstorm• 15 years ago

I would hope prior work would be an acceptable defense in court against a first-to-file-patent suit.

e.g. you really don't care about patents. Guy later patents what you're doing and sues you. You prove prior work, suit fails.

Best of both worlds?

gte910h• 15 years ago

You have to publish your work to make yourself protected.

Undisclosed prior art is not a defense in first to fiel systems

kkowalczyk• 15 years ago

Can anyone shed a light on how the "first to file" change affects prior art?

In general "first to file" makes sense to me because it removes uncertainty (who filed first is indisputable, determining who invented first requires an expensive lawsuit).

But what if I invented something, published it, don't intend to ever file a patent for it and someone comes in and files a patent for that invention?

If the can get a valid patent on my invention, it seems wrong and open to abuse (what if they didn't actually invent it but just filed for a patent based on what I published).

If they can't get a patent, then "first to file" seems meaningless.

amalcon• 15 years ago

I am not a lawyer. This is not legal advice. But I did post (what looks to me like) the relevant text of the bill in a previous discussion: http://news.ycombinator.com/item?id=2685141

tzs4• 15 years ago

Your publication is part of the prior art, and will block their patent to the extent of your invention. They might be able to patent non-obvious improvements to your invention.

sukuriant• 15 years ago

For varying levels of "non-obvious"

kenjackson• 15 years ago

But what if I invented something, published it, don't intend to ever file a patent for it and someone comes in and files a patent for that invention?

Your published prior art blocks them.

If they can't get a patent, then "first to file" seems meaningless.

First to file is really about the windows between filiing and inventing. The argument for first to file is generally what you state -- that it helps clear up ambiguity.

The argument against is usually small businesses who believe that they may not patent (because they're expensive) until they have something in practice. So imagine you invent some new high efficiency light, and spend the next year getting it working. And once it works and you're convinced of it you file. But you find out that GE patented it a week earlier. But only discovered it a week before that and hasn't made much progress on it (it's only been a few weeks). You still lose the patent, despite the fact that you may be able to prove that (a) you invented first, and (b) have spent the past year implementing it.

With that said, the first to file vs invest, IMO is a small part of the reform. The bigger part is the grace period, which now has the following change. In the past you could build an iPhone, ship it, write a paper about it, and file a patent within the next year. Now you can write a paper about it, but can't sell it. Once you sell it, your grace period is over.

At least that's my IANAL understanding. And the other big thing in it is they've expanded the timeline of challenging patents. I'm surprised the EFF doesn't have a more coordinated effort to challenge patents when granted.

extension2• 15 years ago

Your published prior art blocks them

How does it block them? Does it or does it not matter who invented the thing? I am incredibly confused about this legislation.

iqster• 15 years ago

Good old wikipedia gives some key details: http://en.wikipedia.org/wiki/First_to_file_and_first_to_inve...

true_religion2• 15 years ago

I think the US should move towards a system where multiple patents are awarded for the same invention.

For example:

Lab A and B are all working independently on a project.

1. Lab A files first and receives a patent. If without reading the patent or knowing of the details of the invention, Lab B manages to re-invent the same technology they will receive a patent as well.

2. Lab A invents first, but doesn't file. Later Lab B files for a patent it wins one as Lab A's work hadn't been described via the patent office. Lab A can still file for a patent if they can prove that their invention came first.

Essentially it seeks to turn the patent from a monopoly grant to a cartel grant, thereby rewarding invention regardless of when it occurs.

If a patent holder wants to ensure protection for their work, they need to file first and extensively publicize their filing as such no one can claim spontaneous re-invention as is the case with many software products.

anamax2• 15 years ago

> If a patent holder wants to ensure protection for their work, they need to file first and extensively publicize their filing as such no one can claim spontaneous re-invention as is the case with many software products.

In other words, billion dollar companies get all the SW patents.

HP can "extensively publicize" for almost nothing by piggybacking on other things that they do. Small companies and individuals can't.

IBM, for example, has numerous publications that would qualify. (They send them to every CS department library as well as other subscribers.)

What? You don't keep up with the literature?

I used to look at every tech report that Stanford CS received. That became impossible in the late 80s and things have only gotten worse.

true_religion2• 15 years ago

> In other words, billion dollar companies get all the SW patents.

All? No, they only get patents for those things that they invent.

It cuts both ways, the bigger you are the more liable the newly empowered patent bureau is to say that you could have easily found the existing patented invention.

On the other hand, since multiple parties can hold patents and subsequently re-licence them it will be easy for a a company, large or small, to protect other parties from patent trolls.

The something obnoxious like the famed "one click" patent would have multiple holders, and any could simply give a universal grant to it.

In the worst case scenario, which I don't think is plausible then the current status quo is maintained for some patents. A large company invents, files it, then publicizes it.

P.S.

I think that business form patents patents like the one-click should be null-in-void in any country.

wwag• 15 years ago

Let's keep our fingers crossed that this actually helps our economy in some way or another (even if it is just the lawyers ;)

JacobIrwin• 15 years ago

Okay, good. No, great.

But what about software patents? Can we discuss reform specifically related to those?

Ideas:

1.) Shorter periods of ownership/proprietary rights. 2.) More detailed applications. 3.) OR abolishment.

danbmil99• 15 years ago

This is basically a cave-in to the EU/Japanese system, and IMNSHO it will increase not decrease the number of frivolous patents.

What it really does is remove the option of protecting something as a secret. You have to either publish or patent (which is basically a state-sanctioned form of publishing with monopoly benefits). It completely changes the calculus of small inventors, who will now be forced to file multiple provisional patents ($100+ a shot plus time spent) and then within a year decide to shell out $5K++ to have any chance at all of not being beaten over the head by corporate patent trolls.

Not good.

patentnerd2• 15 years ago

It is still possible to protect an invention as a trade secret. Of course, if someone later independently invents and files, they get the patent. The earlier user is immune from infringement of the patent under the "prior user defense", though.

dctoedt• 15 years ago

> It is still possible to protect an invention as a trade secret. Of course, if someone later independently invents and files, they get the patent.

That's been true for decades under existing law.

> The earlier user is immune from infringement of the patent under the "prior user defense", though.

This will be a new feature of the law under the new legislation.

ChrisNorstrom• 15 years ago

On one hand I'm upset about the fact that I can invent something, not have the money to patent it, and have someone else get rights to the patent because they had the money for it.

=============================

On the other hand, image this:

- I created an invention.

- I worked my ass off saving up $5-10 thousand dollars for patent and legal fees.

- I spend hundreds of hours of my life searching for prior art on the internet and in publishing magazines. I think I'm safe.

- I file the patent.

- Some random ass guy in Minnesota comes up with prior art and I don't get the patent.

- I just wasted $15,000 and years of my life.

=============================

It feels like the first-to-file system protects inventors who haul ass and get shit done, and punishes lazy (or unfortunately poor) inventors who sit on their inventions and cannot afford to /or/ refuse to move them to market.

So maybe this is the good thing?

nextparadigms• 15 years ago

Is this the biggest "improvement" of the "overhaul"? I see this everywhere, but not much else. Did they shorten the expiration time for patents? Did they make it so you can't file for stupidly obvious patents? If they didn't, then this "overhaul" is not much of an overhaul at all.

Vivtek• 15 years ago

If you don't have the money to patent it, then publish it - rendering it unpatentable due to your prior art. Nothing keeps you from being the expert in the field, but you're protected from somebody else patenting it and charging you a royalty.

The first-to-file provision essentially just makes it easier to decide who gets the patent if two people patent substantially the same thing. I don't think it's going to make much of a difference in the existing breakage of the patent system.

chamakits• 15 years ago

Can we stop pretending like patents are a good idea?

As long as they exist, they'll need to be "fixed".

rayiner2• 15 years ago

[Citation needed].

EDIT: Computer folks tend to see the world through a particular set of glasses. They see a world of inventors in their basement you can invent with little capital investment. That's fine and is great for innovation, but the whole world doesn't look like that. If you're in an industry where the process of invention is extremely costly, patents can often be the only way for smaller entities to participate. Say you have an idea for a new radio technology. It'll cost you millions of dollars to build a prototype (the associated parts and equipment are very expensive). And once you have it --- what do you do with it? Go into production and compete with AT&T and Verizon? Patents allow meaningful seperation of invention from productization, and that's something that hugely benefits smaller entities.

eykanal• 15 years ago

People keep posting links to mass media reports of this news. Are there any good blog reviews analyzing how this will actually affect software development? I don't trust the media to even have gotten all the facts right, let alone to give me an in-depth understanding of how this will turn out.

rexreed2• 15 years ago

Isn't anyone else bothered by the fact that business method patents weren't addressed? For us software folks, the business method patent issue is a lot more pertinent given that the majority of software patents hinge on this idea.

rayiner2• 15 years ago

They are. There is a provision that says that financial services industries can challenge business method patents (or something to that effect).

Hopefully this is a little loophole that can be widened to allow broader attacks on business method patents.

rexreed2• 15 years ago

Actually, you're right. I had first read the article as stating that the business method patents was written as an amendment that was defeated, but on rereading it seems that the business method patents part was included, and the amendment to remove it failed. Tricky context in reading this one.

"There was also strong opposition to a provision that allows financial institutions to challenge patents issued on business methods, such as ways to process checks. The opponents said the provision amounted to a bailout for banks, but Rep. Robert Goodlatte, R-Va., chairman of the Judiciary intellectual property subcommittee said business method patents, a fairly recent phenomenon, were "a fundamental flaw in the system that is costing consumers millions each year."

"An amendment to remove the section concerning the business method patents was defeated 262-158."

So I guess it's in there? Confusing.

House approves major overhaul of patent system

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