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House approves major overhaul of patent system

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Re: House approves major overhaul of patent system

#11

Post by kkowalczyk »

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.

Re: House approves major overhaul of patent system

#13

Post by [deleted] »

kkowalczyk wrote: post #11

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 val…

[deleted]

Re: House approves major overhaul of patent system

#14

Post by sliverstorm »

gridspy wrote: post #8

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…

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?

Re: House approves major overhaul of patent system

#16

Post by amalcon »

kkowalczyk wrote: post #11

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 val…

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

Re: House approves major overhaul of patent system

#17

Post by kd0amg »

gridspy wrote: post #9
tzs wrote: post #7

Earlier quoted context omitted.

No. It has no effect on patent trolling.

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.

Don't patent trolls often operate by buying up patent portfolios?

Re: House approves major overhaul of patent system

#18

Post by true_religion »

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.

Re: House approves major overhaul of patent system

#19

Post by ynniv »

tzs wrote: post #10
gridspy wrote: post #9

Earlier quoted context omitted.

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.

It's first INVENTOR to file. If you just see someone else's gizmo, you can't patent it because you are not an inventor. All this changes is how it is handled when two or more inventors have overlapping inventions.

If by INVENTOR you mean APPLICANT... It is simply first to file. If you filed a patent for someone else's work, that work has to be successfully applied as prior art to invalidate the patent. If the existing work isn't sufficiently documented by acceptable publication, it is difficult to use as prior art years later when the patent is first litigated.

But, I am not a lawyer.

Re: House approves major overhaul of patent system

#20

Post by tzs »

kkowalczyk wrote: post #11

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 val…

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.
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