House approves major overhaul of patent system • Hacker News Board

Re: House approves major overhaul of patent system

#31

Post by sukuriant » Fri, Jun 24, 2011, 6:10 AM UTC

tzs wrote: post #20

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.

For varying levels of "non-obvious"

Re: House approves major overhaul of patent system

#32

Post by extension » Fri, Jun 24, 2011, 6:16 AM UTC

kenjackson wrote: post #24

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…

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 ambigu…

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.

Re: House approves major overhaul of patent system

#33

Post by danbmil99 » Fri, Jun 24, 2011, 7:07 AM UTC

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.

Re: House approves major overhaul of patent system

#34

Post by patentnerd » Fri, Jun 24, 2011, 7:58 AM UTC

danbmil99 wrote: post #33

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 multipl…

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.

Re: House approves major overhaul of patent system

#35

Post by ChrisNorstrom » Fri, Jun 24, 2011, 8:21 AM UTC

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?

Re: House approves major overhaul of patent system

#36

Post by nextparadigms » Fri, Jun 24, 2011, 8:29 AM UTC

ChrisNorstrom wrote: post #35

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…

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.

Re: House approves major overhaul of patent system

#37

Post by patentnerd » Fri, Jun 24, 2011, 8:39 AM UTC

ScottBurson wrote: post #26

gte910h wrote: post #22

Earlier quoted context omitted.

You have to publish your work to make yourself protected. Undisclosed prior art is not a defense in first to fiel systems

Well, you can file an invention disclosure with the PTO. I'm not sure, but I would think this would be sufficient to establish prior art.

There is a prior user defense, see 35 USC 273. Unfortunately, in its current form it is essentially useless, as it only applies to method claims, and nearly all patents contain both product and method claims.

However, the House version of the reform bill expands the defense to cover all types of claims; thus if it survives reconciliation with the Senate bill it will likely become a viable defense.

Re: House approves major overhaul of patent system

#38

Post by chamakits » Fri, Jun 24, 2011, 9:12 AM UTC

Can we stop pretending like patents are a good idea?

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

Re: House approves major overhaul of patent system

#39

Post by Flenser » Fri, Jun 24, 2011, 9:26 AM UTC

extension wrote: post #32

kenjackson wrote: post #24

Earlier quoted context omitted.

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 ambigu…

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.

If you invented it first, but didn't tell anyone about it, then it's not prior art and anyone else is free to patent it. If you publish details about it, it's prior art and can't be patented.

Re: House approves major overhaul of patent system

#40

Post by extension » Fri, Jun 24, 2011, 9:54 AM UTC

Flenser wrote: post #39

extension wrote: post #32

Earlier quoted context omitted.

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.

If you invented it first, but didn't tell anyone about it, then it's not prior art and anyone else is free to patent it. If you publish details about it, it's prior art and can't be patented.

Ok, so the difference with the current system is that publishing the idea is, in itself, the prior art, rather than serving as evidence thereof.

As defined in the bill, prior art can be "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".

It's not a great time to be making laws that depend on a formal distinction between published and unpublished, since that distinction has been just about completely smoothed over by now.