The Patent, Used as a Sword

Don't be so dramatic. By and large what patents prevent is copying: taking someone's ideas and passing them off as your own. Most people consider this immoral too. Restrictions on unfair competition are literally hundreds of years old--it's not a recent invention.

E.g. one of Samsung's biggest problems in the recent patent dispute with Apple was that they were clearly blatantly copying Apple's designs.

If this is in fact accurate (that Apple & Google R&D spend is less than their Patent spend), it's an incredible waste of time, money and talent:

"In the smartphone industry alone, according to a Stanford University analysis, as much as $20 billion was spent on patent litigation and patent purchases in the last two years — an amount equal to eight Mars rover missions. Last year, for the first time, spending by Apple and Google on patent lawsuits and unusually big-dollar patent purchases exceeded spending on research and development of new products, according to public filings."

Prior art is a very nuanced thing. When I have a lot of money, I can have my talented legal staff persuasively argue that "many of us were doing similar things in the field at the time of this invention, and other public disclosures did not provide proof of invention, but rather an interest in similar applications," or something of that nature. Our new patent regime will be "First Inventor To File," so you just have to convince the patent examiners that the genius engineers at your LargeCo were clearly thinking about the ideas and creating the same inventions as anything else a prior art search might turn up.

You made me think about something, however. Maybe one of our solutions to this problem should be a very well organized, completely open source, "open registry." One of the other changes -- a concession, really -- that will come into place along with the new patent system will be a much-expanded definition of prior art. Now, as things currently stand it will become very easy to shoot down searches of discussion list postings and the sort as being relevant, but what if there was a true open, public registry of ideas/inventions? And moreover, what if we as a collective community encouraged ideas to go in there through social incentive; i.e., if I add a new invention to the registry that is actually awesome, people vote it up and I gain cred in the industry -- and if it's already in existence or something, others can comment/explain I'm not the genius I thought I was. You could also have some sort of a system whereby you could see inventions that are "forks" of others' ideas -- basically, a software version of the citations on a patent application.

Once we built this, and started using it, we could get the patent office (and patent offices around the world) to incorporate it into their workflow when evaluating applications. This could really help us in cutting down bogus filings, while making their job easier (music to every government employee's ears).

I know people have been making moves in this area, but perhaps it's time we get really serious about it. We seem to be better at coding things, than at lobbying, so maybe this is the way to go...

First-to-file is basically meant to get rid of "interference" lawsuits.

And, in general, it's not the apocalypse you might expect because prior art can still invalidate a patent.

The USA is basically on its own with first-to-invent. Everyone else is on first-to-file. And generally speaking, it works pretty well. There are absolutely anomalies, but there are mechanisms to deal with them. The payoff is a simply abolishing a massively expensive and difficult field of litigation.

It's a lot like how the Torrens land title system dramatically increased the security of land title, while also driving out whole classes of litigation and fraud. It changed real estate, land ownership and development for the better.

(IANAL, TINLA)

> It won't be safe to suggest ideas openly anymore. It won't be safe to talk about "what if" or "have you considered" or "someone should really." We are going to see a flood of really bad patents based on other people's ideas -- and that's exactly what our lawmakers have provided to their friends in large businesses.

That's not how first to file works. It just changes is what happens if two or more otherwise eligible people apply for the same patent. What I mean by "otherwise eligible" is that they would be entitled to the patent if there was not a conflict with another inventor claiming the same invention.

When there is a conflict (which does not happen for the vast majority of application), then first to file changes the resolution so that the winner is the first inventor to file, rather than the inventor with the earliest constructive invention date. (The constructive date is not necessarily the date you came up with the idea. If you come up with the idea, start working on reducing it to practice, but then stop for a while and then start again, your constructive invention date jumps from the date you came up with the idea to the date you resumed working on it. Each time you stop and start, your date jumps forward).

If you come up with some idea and have no intention of patenting it, you want to talk about it publicly under first to file just as much as you do under first to invent, in order to get it out there as prior art.