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United States Transitions To A 'First-Inventor-To-File' Patent System

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Re: United States Transitions To A 'First-Inventor-To-File' Patent System

#51
post #45

Earlier quoted context omitted.

How is "just make sense for the time" different from "that obvious"?

I read the implication 'that obvious' by the OP as being obviously in cahoots or as obvious derivative works, rather than independent works along the same line of enquiry and execution.

Oh, I thought he meant that the invention itself was obvious, i.e. unpatentable because anyone knowledgeable in the field in question would come up with that solution when presented with that problem. In theory, "obvious" inventions aren't patentable, although in practice the bar is set pretty low.

Re: United States Transitions To A 'First-Inventor-To-File' Patent System

#52
post #45

Earlier quoted context omitted.

How is "just make sense for the time" different from "that obvious"?

I read the implication 'that obvious' by the OP as being obviously in cahoots or as obvious derivative works, rather than independent works along the same line of enquiry and execution.

Oh right, no. By 'obvious' I meant that if two people come up with the same thing independently then maybe the thing they came up with is comparatively not that special or innovative, and that perhaps if you have multiple folks in a field coming up with the same ideas then those ideas are not the ones deserving of protection.

--edit-- this would be because patents (in my mind) are the exchange of protection/exclusivity from the state in return for disclosure to the commons of an idea that might never otherwise become known or publicised.

If loads of folks are coming up with the same idea and racing to patent it, that points (to me) to a situation that patents aren't meant to address - giving exclusivity to someone based simply on them being first of many. If many can come up with it, then the deal is lopsided and the exclusivity shouldn't be granted. IMHO.

Re: United States Transitions To A 'First-Inventor-To-File' Patent System

#53
I still think that the occurrence a of situation where multiple parties file for patents on essentially the same thing in a short period of time independently should be considered unassailable evidence of obviousness and consequently unpatentable subject matter.

Whatever happened to a "person having ordinary skill in the art"?

Re: United States Transitions To A 'First-Inventor-To-File' Patent System

#54
Even if this were a better approach, all I see it doing is forcing an even bigger torrent of patents into a system already so overloaded that it hardly functions as it is.

How is the patent office going to manage the increase? It's not, the system is going to slow down even further.

This also increases the cost of innovation. If I have a business, invent something, and don't patent it - I'm screwed regardless of if I prove I created it three years prior to the filing. In other words, now you have to file patents for everything to protect your ass (because it's not good enough to be able to prove you invented it first X years ago), and that's a very expensive proposition, particularly for small companies. This encourages the patenting of every little detail possible, even more so than today. Because if you don't patent every little detail, now you will have no right to self defense on the basis that you were the original inventor - they can come after you for every rounded corner you failed to patent, so to speak.

This forces everybody into the patent game.

The rationalizations being offered up, such as that this will be good because it forces openness on innovation are not only wrong (all it actually does it make it easier to steal technology for countries that already don't respect foreign patents), but the negatives are going to far outweigh any supposed benefits.

In five years everybody here is going to be complaining about how they really botched this piece of legislation and how it created more problems than the old system. This will turn out to be an extraordinarily expensive and destructive change; it is not the right approach.

Re: United States Transitions To A 'First-Inventor-To-File' Patent System

#55

I remember an article about SpaceX where Musk said that they didn't file many patents, because then other countries essentially had free access to their inventions if they didn't honour patents (China was mentioned). With this change in law, they may no longer have protection against a patent filed by someone else that they (SpaceX) invented first...simply because they were not the first to file. This may bring about…

SpaceX is in a very distinct position that its products are launched into space, making it very hard for a third-party to dissect and reproduce them.

Re: United States Transitions To A 'First-Inventor-To-File' Patent System

#56

I remember an article about SpaceX where Musk said that they didn't file many patents, because then other countries essentially had free access to their inventions if they didn't honour patents (China was mentioned). With this change in law, they may no longer have protection against a patent filed by someone else that they (SpaceX) invented first...simply because they were not the first to file. This may bring about…

SpaceX is in a very distinct position that its products are launched into space, making it very hard for a third-party to dissect and reproduce them.

Industrial espionage is still very powerful, and recovery of boosters is also possible.

Re: United States Transitions To A 'First-Inventor-To-File' Patent System

#57

Earlier quoted context omitted.

How does that work? The whole point is that the first filer wins regardless of prior invention.

Disclaimer: I am a former software engineer turned patent attorney. However, I am not your lawyer, nor am I the lawyer of anyone who reads this. (Sorry, I have to say that) Anyway, another thing that many people miss on the "first to file" issue is that it's the first INVENTOR to file. So, employee can't leave company, steal the invention, then file if employee was not the inventor. The law really is only changing in…

What happens when the patents are invented in isolation? Is one considered "derived from" the other, despite no information passing between them?

Re: United States Transitions To A 'First-Inventor-To-File' Patent System

#58
post #46

I remember an article about SpaceX where Musk said that they didn't file many patents, because then other countries essentially had free access to their inventions if they didn't honour patents (China was mentioned). With this change in law, they may no longer have protection against a patent filed by someone else that they (SpaceX) invented first...simply because they were not the first to file. This may bring about…

I honestly thinks that's for the better. Basically, you patent, tells everyone how it works, and have the rights. The move your described, you don't tell anyone anything and still have the rights... And that means i may be investing a lot of work on something only you will be able to profit from because i didn't know you invented it. Basically this stops people from having the cake and eating it too. Too bad about Ch…

You don't still have the rights, others can independently invent it and you can't stop. You can only stop them if you file a patent. This is way worse.

Re: United States Transitions To A 'First-Inventor-To-File' Patent System

#59
Patents are a necessary evil and a little bit addicting once you get your first taste. First to file simplifies a lot of the issues with prior art (ie the challenge of proving your idea was original), but I believe this system stifles small companies even further because of the costs associated with the patent system. We've made a decision to pursue key patents given how important some of these technologies are for our product, but I don't think that applies to most startups.

Here are some thoughts, cost overviews, and what to think about for a startup patent strategy: http://kylethered.tumblr.com/post/45273614239/good-rules-of-...

Re: United States Transitions To A 'First-Inventor-To-File' Patent System

#60

Earlier quoted context omitted.

Disclaimer: I am a former software engineer turned patent attorney. However, I am not your lawyer, nor am I the lawyer of anyone who reads this. (Sorry, I have to say that) Anyway, another thing that many people miss on the "first to file" issue is that it's the first INVENTOR to file. So, employee can't leave company, steal the invention, then file if employee was not the inventor. The law really is only changing in…

(Sorry, I have to say that) If you think that you have a poor understanding of the law.

No. We are afraid that someone will read what we say and think that we represent them or are giving them legal advice. We have to be very careful about what we say we are doing and what we say we're not doing. If you go to your doctor and he says you need to have a mole removed, if you don't schedule an appointment to have the mole removed, it's your fault. With legal services, if I tell someone they need to file a patent or what not, if it's not really clear that I'm not doing it unless they engage me to, then they might have an argument that they thought I was taking that action.

So, on most legal blogs, you'll see something that says "I'm not the reader's lawyer."

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