Patents are about to become a bigger problem • Hacker News Board

Re: Patents are about to become a bigger problem

#11

Post by tzs » Mon, Aug 01, 2011, 8:00 PM UTC

The author is deeply confused. This part is simply incorrect:

   See, “First to File” doesn’t require that you build
   anything at all, that you have an intention to build
   something, or that you’re getting a patent on something
   that hasn’t, you know, already been invented by someone
   who couldn’t afford the patent.

First to file makes no changes to any of that. It all remains exactly the same as it was under first to invent.

All that first to file changes is what happens when two (or more) separate inventors, who meet all of the statutory requirements for patentability (e.g., novelty, utility, non-obviousnous, reduction to practice and enablement), both file for patents.

Under first to invent, you try to figure out when each inventor actually started working on reducing the invention to practice (just having the idea is not enough). You find the earliest time T such that the inventor was working diligently on reduction to practice between T and the time of the patent application. T is that inventors invention date. Lowest date wins.

Under first to file, you look at the date on the application. Lowest date wins.

First to invent is problematic because it comes down to comparing two or more vague dates, and there can be a lot of subjectivity involved, such as deciding whether or not an inventor was working diligently or not toward reduction to practice.

Re: Patents are about to become a bigger problem

#12

Post by WiseWeasel » Mon, Aug 01, 2011, 8:01 PM UTC

On the plus side, it seems like only a small matter of time before this obviously broken system collapses under its own weight, and we're forced to do something slightly more sane instead.

Once the ensuing tidal wave of patent applications is upon us, the USPTO will have no choice but to drastically lower their (already depressingly low) standards for patent acceptance due to lack of resources available to check them, and the growing portion of corporate profits evaporating to legal costs will put pressure on some actual patent reform.

Personally, I am angered that inventors will lose a recourse to challenge individuals who file patents on their previous inventions, and I in no way condone breaking the system for honest businessmen in order to make a case for fixing it, but at least I can take some solace in the fact that it will be a quick demise, unless I'm missing something.

Re: Patents are about to become a bigger problem

#13

Post by jeremymims » Mon, Aug 01, 2011, 8:11 PM UTC

tzs wrote: post #11

The author is deeply confused. This part is simply incorrect: See, “First to File” doesn’t require that you build anything at all, that you have an intention to build something, or that you’re getting a patent on something that hasn’t, you know, already been invented by someone who couldn’t afford the patent. First to file makes no changes to any of that. It all remains exactly the same as it was under first to inven…

As the author, I do appreciate that someone thinks I'm confused, but this sentence is hardly the point of my argument. My point is that large corporations are at an even larger advantage with this system and that it hurts entrepreneurs. What has already been a tilted playing field will become even more so.

The key with "First to Invent" is that someone could demonstrate that they had invented something but not actually patented it previously. For instance, if you came up with a novel software process, didn't patent it, and went about your business, it should theoretically be harder for another company to come along and patent your work. Since our patent system is broken, it hasn't always (maybe usually) worked that way. With "First to File" all you need to do is be first to file. And at a mere $15k to $50k to file, this is an undue burden on startups who are inventing things. As the author, I do appreciate that someone thinks I'm confused, but this sentence is hardly the point of my argument. My point is that large corporations are at an even larger advantage with this system and that it hurts entrepreneurs. What has already been a tilted playing field will become even more so.

The key with "First to Invent" is that someone could demonstrate that they had invented something but not actually patented it previously. For instance, if you came up with a novel software process, didn't patent it, and went about your business, it should theoretically be harder for another company to come along and patent your work. Since our patent system is broken, it hasn't always (maybe usually) worked that way. With "First to File" all you need to do is be first to file. And at a mere $15k to $50k to file, this is an undue burden on startups who are inventing things.

edit: Because some people clearly don't want to understand the point here, there are several steps (lawyers, patent searches, etc.) that cost you money before you can file. This is included in the $15k to $50k I'm talking about.

Re: Patents are about to become a bigger problem

#14

Post by joe_the_user » Mon, Aug 01, 2011, 8:11 PM UTC

WiseWeasel wrote: post #12

On the plus side, it seems like only a small matter of time before this obviously broken system collapses under its own weight, and we're forced to do something slightly more sane instead. Once the ensuing tidal wave of patent applications is upon us, the USPTO will have no choice but to drastically lower their (already depressingly low) standards for patent acceptance due to lack of resources available to check them…

Uh yeah,

The US patent system will collapse under its own weight, about when the US health care system collapses under its own weight, the US education system collapses under its own weight, and while we're at it, the entire US collapses under its own weight.

I can imagine that but I don't think we should, uh wait, till then, considering doomed systems show a distressing ability to just keep going when people do nothing but wait for them to collapse...

Re: Patents are about to become a bigger problem

#15

Post by WiseWeasel » Mon, Aug 01, 2011, 8:14 PM UTC

tzs wrote: post #11

The author is deeply confused. This part is simply incorrect: See, “First to File” doesn’t require that you build anything at all, that you have an intention to build something, or that you’re getting a patent on something that hasn’t, you know, already been invented by someone who couldn’t afford the patent. First to file makes no changes to any of that. It all remains exactly the same as it was under first to inven…

The problem lies in the fact that an inventor no longer has a recourse to contest a patent lawsuit against him by showing evidence that the patented idea was implemented prior to the patent filing date (or before the determined invention date). This exposes all inventors to having their ideas copied and patented by others, drastically increasing the incentive to patent their own ideas on a continual basis. This has the effect of significantly increasing the total number of patents being filed.

Re: Patents are about to become a bigger problem

#16

Post by monochromatic » Mon, Aug 01, 2011, 8:22 PM UTC

WiseWeasel wrote: post #15

tzs wrote: post #11

The author is deeply confused. This part is simply incorrect: See, “First to File” doesn’t require that you build anything at all, that you have an intention to build something, or that you’re getting a patent on something that hasn’t, you know, already been invented by someone who couldn’t afford the patent. First to file makes no changes to any of that. It all remains exactly the same as it was under first to inven…

The problem lies in the fact that an inventor no longer has a recourse to contest a patent lawsuit against him by showing evidence that the patented idea was implemented prior to the patent filing date (or before the determined invention date). This exposes all inventors to having their ideas copied and patented by others, drastically increasing the incentive to patent their own ideas on a continual basis. This has t…

This is not correct.

Re: Patents are about to become a bigger problem

#17

Post by WiseWeasel » Mon, Aug 01, 2011, 8:24 PM UTC

monochromatic wrote: post #16

WiseWeasel wrote: post #15

Earlier quoted context omitted.

The problem lies in the fact that an inventor no longer has a recourse to contest a patent lawsuit against him by showing evidence that the patented idea was implemented prior to the patent filing date (or before the determined invention date). This exposes all inventors to having their ideas copied and patented by others, drastically increasing the incentive to patent their own ideas on a continual basis. This has t…

This is not correct.

How so? How does eliminating first-to-invent not remove the ability to contest a patent based on prior invention? It seems like a necessary effect.

Re: Patents are about to become a bigger problem

#18

Post by monochromatic » Mon, Aug 01, 2011, 8:25 PM UTC

jeremymims wrote: post #13

tzs wrote: post #11

The author is deeply confused. This part is simply incorrect: See, “First to File” doesn’t require that you build anything at all, that you have an intention to build something, or that you’re getting a patent on something that hasn’t, you know, already been invented by someone who couldn’t afford the patent. First to file makes no changes to any of that. It all remains exactly the same as it was under first to inven…

As the author, I do appreciate that someone thinks I'm confused, but this sentence is hardly the point of my argument. My point is that large corporations are at an even larger advantage with this system and that it hurts entrepreneurs. What has already been a tilted playing field will become even more so. The key with "First to Invent" is that someone could demonstrate that they had invented something but not actual…

> For instance, if you came up with a novel software process, didn't patent it, and went about your business, it should theoretically be harder for another company to come along and patent your work.

First to file doesn't change this. Prior art is still prior art.

This is slightly simplified, but here's the gist. The only change is when Inventor A comes up with an idea first, Inventor B comes up with the same idea (independently!) later, and they both file for patents, but Inventor B has the earlier filing date. Under the old law, Inventor A wins; under the new law, Inventor B wins.

If you're not in that situation, first to file doesn't change things.

Re: Patents are about to become a bigger problem

#19

Post by monochromatic » Mon, Aug 01, 2011, 8:26 PM UTC

WiseWeasel wrote: post #17

monochromatic wrote: post #16

Earlier quoted context omitted.

This is not correct.

How so? How does eliminating first-to-invent not remove the ability to contest a patent based on prior invention? It seems like a necessary effect.

The earlier invention can still be used as prior art against the later filing, assuming there was some publication or public use of it. See my comment here: http://news.ycombinator.com/item?id=2834229

Re: Patents are about to become a bigger problem

#20

Post by cube13 » Mon, Aug 01, 2011, 8:27 PM UTC

jeremymims wrote: post #13

tzs wrote: post #11

The author is deeply confused. This part is simply incorrect: See, “First to File” doesn’t require that you build anything at all, that you have an intention to build something, or that you’re getting a patent on something that hasn’t, you know, already been invented by someone who couldn’t afford the patent. First to file makes no changes to any of that. It all remains exactly the same as it was under first to inven…

As the author, I do appreciate that someone thinks I'm confused, but this sentence is hardly the point of my argument. My point is that large corporations are at an even larger advantage with this system and that it hurts entrepreneurs. What has already been a tilted playing field will become even more so. The key with "First to Invent" is that someone could demonstrate that they had invented something but not actual…

>For instance, if you came up with a novel software process, didn't patent it, and went about your business, it should theoretically be harder for another company to come along and patent your work. Since our patent system is broken, it hasn't always (maybe usually) worked that way. With "First to File" all you need to do is be first to file. And at a mere $15k to $50k to file, this is an undue burden on startups who are inventing things.

Did you publish it? Was it put out into the public space? If so, it's prior art, and evidence that the patent should be invalid. This HAS NOT CHANGED.

If I make a piece of software, put it out for sale, then someone files a patent after my software has been out in the open, the patent is not new and novel. It should be thrown out.

Again, like tzs said, this only applies if two inventors invent something simultaneously. Under First to Invent, each inventor needs to prove that they thought of the invention before the other. Under first to file, the patent is granted to whoever patents it first.