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

Re: Patents are about to become a bigger problem

#31

Post by tzs » Mon, Aug 01, 2011, 9:20 PM UTC

WiseWeasel wrote: post #22

monochromatic wrote: post #18

Earlier quoted context omitted.

> 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 (i…

That's ridiculous! Inventor A should obviously always win, since he actually implemented his idea before B did. B could have seen A's idea and filed a patent on it.

He said A came up with the idea first, not that he implemented it first. You could have this timeline:

    A comes up with the idea, starts working on implementing

    B later, independently comes up with the idea, and start
    working on implementing

    B completes implementations, files for patent

    A later completely implementation, files for patent

Under first to invent, A wins even though B implemented first. Under first to file, B wins.

> B could have seen A's idea and filed a patent on it

A could challenge B's patent on the grounds that B was not an inventor.

Re: Patents are about to become a bigger problem

#32

Post by tzs » Mon, Aug 01, 2011, 9:22 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…

> With "First to File" all you need to do is be first to file.

No. You have to invent, and then you can file. You seem to think that "first to file" removes the requirement for invention. It does not. It just changes the priority determination in the case where two independent inventors have both invented overlapping inventions.

Re: Patents are about to become a bigger problem

#33

Post by jeremymims » Mon, Aug 01, 2011, 9:28 PM UTC

tzs wrote: post #32

jeremymims wrote: post #13

Earlier quoted context omitted.

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…

> With "First to File" all you need to do is be first to file. No. You have to invent, and then you can file. You seem to think that "first to file" removes the requirement for invention. It does not. It just changes the priority determination in the case where two independent inventors have both invented overlapping inventions.

It's not very hard to "invent" things if your sole reason for being is to copy entrepreneurs' work before they can afford to file, before they can afford to hire a lawyer, pay the USPTO an $8800 fee to ask for a review, and you've got only a short window (which you probably won't know about) to do so.

Look, we need real patent reform and this (even if you think it's only marginal) tilts things yet again in the wrong direction.

Re: Patents are about to become a bigger problem

#34

Post by monochromatic » Mon, Aug 01, 2011, 9:28 PM UTC

tzs wrote: post #31

WiseWeasel wrote: post #22

Earlier quoted context omitted.

That's ridiculous! Inventor A should obviously always win, since he actually implemented his idea before B did. B could have seen A's idea and filed a patent on it.

He said A came up with the idea first, not that he implemented it first. You could have this timeline: A comes up with the idea, starts working on implementing B later, independently comes up with the idea, and start working on implementing B completes implementations, files for patent A later completely implementation, files for patent Under first to invent, A wins even though B implemented first. Under first to fil…

All true. I was just trying to brush all this stuff about conception, reduction to practice, diligence, etc. under the rug.

Re: Patents are about to become a bigger problem

#35

Post by cube13 » Mon, Aug 01, 2011, 9:43 PM UTC

WiseWeasel wrote: post #26

cube13 wrote: post #20

Earlier quoted context omitted.

>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…

The problem also applies if one inventor invents something, then another individual gains access to it before the inventor distributes it publicly, and files a patent on it. But in the more general case, I find it difficult to believe that the notion of Prior Art is unaffected by the elimination of first-to-invent. Under the new rules, if the PTO considers two patents determined to cover the same invention, they will…

>The problem also applies if one inventor invents something, then another individual gains access to it before the inventor distributes it publicly, and files a patent on it.

No. This would be fraud(because the "inventor" that filed didn't actually invent the thing) or could be theft of trade secrets(if an NDA is involved). Both of which are covered under US law.

>But in the more general case, I find it difficult to believe that the notion of Prior Art is unaffected by the elimination of first-to-invent. Under the new rules, if the PTO considers two patents determined to cover the same invention, they will accept the one filed first and decline the one filed later, even if the first-filed invention was invented at a later date. If a patent lawsuit can reverse this decision by finding prior art, then how can these be reconciled?

If there is clear prior art before either were filed, then the patent would be nullfiied in either a First to File or First to Invent scenario.

I think that you're confusing prior art and what first to file/invent means.

First to File and First to Invent means that if two people file for an identical patent, the patent is granted based on either the filing date or the invention date. The only time that First to File applies is when two independent inventors file for the same patent in the same timeframe. Ovbiously, one cannot try to patent an idea after the patent has been accepted, even if they did invent first.

Prior art applies to all patents, based on the date of the filing of the patents. If I try to patent something that someone else is selling, like a mousetrap design, then it should get thrown out, no matter when I actually invented it, because it's already in production by someone else.

Re: Patents are about to become a bigger problem

#36

Post by WiseWeasel » Mon, Aug 01, 2011, 9:44 PM UTC

tzs wrote: post #31

WiseWeasel wrote: post #22

Earlier quoted context omitted.

That's ridiculous! Inventor A should obviously always win, since he actually implemented his idea before B did. B could have seen A's idea and filed a patent on it.

He said A came up with the idea first, not that he implemented it first. You could have this timeline: A comes up with the idea, starts working on implementing B later, independently comes up with the idea, and start working on implementing B completes implementations, files for patent A later completely implementation, files for patent Under first to invent, A wins even though B implemented first. Under first to fil…

Thanks for your detailed response! If that's truly the case, then I could support this move to first-to-file.

One worry I have is that the order might often be more like:

    A comes up with the idea, starts working on implementing

    B later, independently comes up with the idea, and starts
    working on implementing

    B files patent application describing a grossly simplistic, 
    untested implementation of the idea

    A later completes implementation, irons out the bugs, 
    files for a patent, starts a business, adds great value to 
    the economy

    B never really does much with his patent, ends up selling 
    it off to C who sues A for mucho $$$ in patent licensing, 
    or sells it to A's competitor D for mucho $$$, so they can 
    copy A's product with impunity.

Re: Patents are about to become a bigger problem

#37

Post by monochromatic » Mon, Aug 01, 2011, 9:44 PM UTC

jeremymims wrote: post #33

tzs wrote: post #32

Earlier quoted context omitted.

> With "First to File" all you need to do is be first to file. No. You have to invent, and then you can file. You seem to think that "first to file" removes the requirement for invention. It does not. It just changes the priority determination in the case where two independent inventors have both invented overlapping inventions.

It's not very hard to "invent" things if your sole reason for being is to copy entrepreneurs' work before they can afford to file, before they can afford to hire a lawyer, pay the USPTO an $8800 fee to ask for a review, and you've got only a short window (which you probably won't know about) to do so. Look, we need real patent reform and this (even if you think it's only marginal) tilts things yet again in the wrong…

> pay the USPTO an $8800

This is a small thing, but filing fees (for a small entity) are $462. The fact that you think USPTO fees are this much indicates to me that you have never had anything to do with an actual patent application, have no real idea what you're talking about, and are basically making shit up. But then, your article conveyed that pretty clearly as well.

Re: Patents are about to become a bigger problem

#38

Post by lmarinho » Mon, Aug 01, 2011, 9:51 PM UTC

ejames wrote: post #9

suprasanna wrote: post #2

I don't see how this isn't a bigger issue or hasn't been brought to light. As I understand it, large corporations (or anyone with the money, really) can simply file patents for future products they predict will come to market and then sue startups and entrepreneurs when they create the actual product. Someone please tell me I'm misunderstanding this.

In theory, a patent is supposed to be specific enough that the patent itself accurately describes the object, to the extent that a reasonably knowledgeable person could actually manufacture the object using only the patent as a blueprint. In other words, you would not be able to write the patent application unless you had actually invented the object in question, because otherwise you wouldn't know how to describe th…

Building on that, I pose a question. Has anyone here ever used a software patent as a reference to help solve a problem?

Re: Patents are about to become a bigger problem

#39

Post by jeremymims » Mon, Aug 01, 2011, 9:54 PM UTC

monochromatic wrote: post #37

jeremymims wrote: post #33

Earlier quoted context omitted.

It's not very hard to "invent" things if your sole reason for being is to copy entrepreneurs' work before they can afford to file, before they can afford to hire a lawyer, pay the USPTO an $8800 fee to ask for a review, and you've got only a short window (which you probably won't know about) to do so. Look, we need real patent reform and this (even if you think it's only marginal) tilts things yet again in the wrong…

> pay the USPTO an $8800 This is a small thing, but filing fees (for a small entity) are $462. The fact that you think USPTO fees are this much indicates to me that you have never had anything to do with an actual patent application, have no real idea what you're talking about, and are basically making shit up. But then, your article conveyed that pretty clearly as well.

Wow. Usually we try to keep things a little more civil here. This filing fee is the smallest portion of what you need to pay in order to file a patent. First, you need to get a patent attorney to help you put your filing together. I don't know what lawyers you use, but this can typically run more than $15k and up to do it right.

Edit: Since I don't seem to be able to reply to your comment, thank you for your sort of apology. You can read at length about this particular bill here: http://en.wikipedia.org/wiki/America_Invents_Act. It's not all sunshine and equivalencies.

Perhaps we can have a discussion about it some time, but as someone who has both been in startups that have pursued patents and been in a company sued by a patent troll, you're just going to have to accept that we have different views on the issue.

Re: Patents are about to become a bigger problem

#40

Post by monochromatic » Mon, Aug 01, 2011, 10:04 PM UTC

jeremymims wrote: post #39

monochromatic wrote: post #37

Earlier quoted context omitted.

> pay the USPTO an $8800 This is a small thing, but filing fees (for a small entity) are $462. The fact that you think USPTO fees are this much indicates to me that you have never had anything to do with an actual patent application, have no real idea what you're talking about, and are basically making shit up. But then, your article conveyed that pretty clearly as well.

Wow. Usually we try to keep things a little more civil here. This filing fee is the smallest portion of what you need to pay in order to file a patent. First, you need to get a patent attorney to help you put your filing together. I don't know what lawyers you use, but this can typically run more than $15k and up to do it right. Edit: Since I don't seem to be able to reply to your comment, thank you for your sort of…

Sorry, not really trying to be a dick. But your article reads like you're trying to stir up the (already considerable) patent hatred around here, without really understanding the issues.

And yes, I know the filing fee is insubstantial compared to the legal fees. The point was that you should know that too, if you're expounding on patent law and policy.