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Patents are about to become a bigger problem

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Re: Patents are about to become a bigger problem

#41

Post by glimcat »

lmarinho wrote: post #38
ejames wrote: post #9

Earlier quoted context omitted.

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?

Software, no. Hardware, fairly often.

Re: Patents are about to become a bigger problem

#42

Post by monochromatic »

WiseWeasel wrote: post #36
tzs wrote: post #31

Earlier quoted context omitted.

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 comple…

Is this situation really better under the current law though? If you change the situation so that B had the idea first, but the rest of the facts are the same, then the current law produces the same problems.

Re: Patents are about to become a bigger problem

#43

Post by tzs »

monochromatic wrote: post #30
kragen wrote: post #29

Earlier quoted context omitted.

Don't you have to prototype it to "reduce it to practice"? I thought you couldn't patent ideas that hadn't been reduced to practice.

Filing a patent application is a constructive reduction to practice.

Just to make sure no one gets the wrong idea, it should be noted that the law requires:

   The specification shall contain a written description of the
   invention, and of the manner and process of making and using it,
   in such full, clear, concise, and exact terms as to enable
   any person skilled in the art to which it pertains, or with
   which it is most nearly connected, to make and use the same,
   and shall set forth the best mode contemplated by the inventor
   of carrying out his invention.
(35 USC 112). So, even though filing counts as constructive reduction to practice, that doesn't mean you can just come up with a vague idea, write it up with no clue how to actually make the device, and get a patent. (Well, you aren't supposed to be able to--the examiners sometimes slip up!).

You don't actually have to have built a working prototype, but you have to be telling people in the patent how they can actually build the thing.

Re: Patents are about to become a bigger problem

#44

Post by WiseWeasel »

monochromatic wrote: post #42
WiseWeasel wrote: post #36

Earlier quoted context omitted.

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 comple…

Is this situation really better under the current law though? If you change the situation so that B had the idea first, but the rest of the facts are the same, then the current law produces the same problems.

The reason I suspect my situation is more common than the one you describe, if the first two lines are chronologically reversed, is that the time it takes A to go from idea to practical product and filed patent is assumed to be greater than the time it takes B to go from idea to filed patent, since B didn't wait until he had a marketable product before filing. This new system gives B a corresponding advantage over A.

Perhaps another assumption is that by the time the seeds for an idea are drifting in the ether, A would be more attuned to receive them, and would have started before B.

Though of course the situation you describe should be addressed, this change in policy may be an additional check against abuse that we are losing.

Re: Patents are about to become a bigger problem

#45

Post by [deleted] »

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…

[deleted]

Re: Patents are about to become a bigger problem

#46

Post by [deleted] »

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…

[deleted]

Re: Patents are about to become a bigger problem

#47

Post by lisper »

tzs wrote: post #43
monochromatic wrote: post #30

Earlier quoted context omitted.

Filing a patent application is a constructive reduction to practice.

Just to make sure no one gets the wrong idea, it should be noted that the law requires: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the be…

> the examiners sometimes slip up

The examiners often slip up. That is really the nub of the problem. The examiners are incentivized to close cases, not to make the right decisions. So if you badger an examiner enough you can get them to sign off on just about anything, e.g. U.S. patents 6368227 and 7126691.

Re: Patents are about to become a bigger problem

#48

Post by thyrsus »

Entities like China that are less than assiduous in respecting patents are going to benefit enormously from the hobbling effect of U.S. patent litigation. I don't think it's a complete counterbalance to the lack of free information flow which generates opportunity for corruption, but we really shouldn't do this to ourselves.

Re: Patents are about to become a bigger problem

#49

Post by wtallis »

WiseWeasel wrote: post #36
tzs wrote: post #31

Earlier quoted context omitted.

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 comple…

If that scenario actually happened, then either A's patent application would contain claims that are not in B's application (and in all likelihood, A's dependent claims would prevent B from completing their product), or A was just plain stupid about waiting too long to file or publish. (The other option is that B gets granted an overly-broad patent, but that's a completely different issue.)

Re: Patents are about to become a bigger problem

#50

Post by linuxhansl »

I think we have generally mixed up "value" and "cost".

Patents are (or should be?) a legal construct providing a temporary monopoly on an invention to incentivize investment into (costly) research. I.e. protect the "cost" of an invention.

Cost, however, is not necessarily directly related to value.

Patents (imho) should not protect "value". If you have a great idea one morning, that might indeed be very valuable. But you would have had that idea regardless of whether its patentable or not, and society as a whole is not better served by granting monopolies on such ideas. Instead the market decides who builds the best product. Other IP protections such as Copyright are still crucial for this obviously.

In the end I think that (case) law usually reflects general trends in society. This is not a society of altruism (anymore) but a society of the mantra "take the money and run". Once or if that changes the law will eventually match that.

One way out of this mess is to document, publicly, every idea - however insignificant it might be. That way there will be prior art to everything that is obvious.

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