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

forbes.com

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

#71

Post by pbhjpbhj »

jbondeson wrote: post #21
pbhjpbhj wrote: post #17

Earlier quoted context omitted.

> they may no longer have protection against a patent filed by someone else that they (SpaceX) invented first // They only had a very limited protection before. First year of use, only shown in public in certified trade shows IIRC. This is how patents work, they require publication to enrich the knowledge pool and the return for that publication is time-limited government granted monopoly. If SpaceX can demonstrate p…

You are incorrect. Trade Secret laws and prior continuous use protect SpaceX very well if someone were to swoop in and patent a technology they use. It wouldn't necessarily prevent a patent from being obtained, but it would protect SpaceX from being found in violation. I know this from first hand experience.

Your post says the same as my third sentence.

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

#72

Post by ScottBurson »

Nursie wrote: post #52
feralmoan wrote: post #50

Earlier quoted context omitted.

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/exclusivi…

Yes, I think this is the operative point. If we as a society are going to make this deal -- we are giving the putative inventor an exclusive license to the technology for a substantial period of time in exchange for disclosure of how it works -- we want it to be a good trade. And it's only a good trade if the information in the patent is actually valuable. If there's evidence that that information would still become available in the absence of a patent grant, it becomes clearer that it's not a good trade in this particular case. Simultaneous filings are about as good a source of such evidence as one could hope for.

More broadly, I think the problems we have with the patent system can be seen as being rooted in the fact that there isn't anyone fully empowered to represent the public interest in this negotiation. The PTO is supposed to do this, in theory, but the examiners are overworked and have the wrong incentive structure.

And, there's a key problem: in a dispute over the obviousness of a claimed invention, the burden of proof is on the examiner to show that it's obvious -- which can be very difficult, particularly when the applicant can reply that anything seems obvious in hindsight. I propose that instead, the burden of proof should be on the applicant to provide objective evidence of nonobviousness.

Such evidence could take various forms: showing that others have tried and failed to solve the same problem; publication in a peer-reviewed journal or conference proceedings; showing that the need for a solution has been long and keenly felt.

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

#73

Post by Gormo »

bediger4000 wrote: post #43
Gormo wrote: post #26

Earlier quoted context omitted.

There is no "moral basis" for patents: they're entirely a creation of positive law, which generates an artificial monopoly in an inherently non-rival good, for the explicit purpose of "promot[ing] the Progress of Science and useful Arts". No "sacred, difficult act of Creation" is recognized, nor has ever been recognized, as the source of patent law.

I happen to agree, but in Europe, that's not 100% true: artists have some "moral rights" as to how and when their work is exhibited. Even in the USA, even though the legal underpinnings don't recognize a "moral basis", legislation for the last 30-odd years seems to lean towards an "ideas as property" basis. I realize I'm conflating patent with copyright here, but so does the idea of "Intellectual Property". Why else…

> Why else would we grant a nearly everlasting monopoly (via copyright, again) other than to reward a Sacred, Difficult Act of Creation?

You seem determined to find a moral root for what seem entirely to be pragmatic objects of law, but I don't think one exists to be found. If I were to eschew cynicism in answering your question, I'd propose that the legislators behind copyright extensions believe them to be the most effective means of pursuing the purpose of both patent and copyright law defined in the constitution, which I quoted in my previous comment. If we were to admit cynicism into the conversation, I'm sure you could anticipate what my answer might be.

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

#74

Post by pbhjpbhj »

jmatthew3 wrote: post #36
Daniel_Newby wrote: post #30

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…

[General support for jmatthew3 - http://www.uspto.gov/patents/resources/general_info_concerni...]

The period to file was supposed to be important though in non-conflicting applications. It allowed, for example, potential applicants to seek investment in various ways without fear of a specified disclosure causing loss of priority. Do you know how much inventors availed themselves of that ability?

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

#75

Post by mikeash »

ScottBurson wrote: post #72
Nursie wrote: post #52

Earlier quoted context omitted.

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/exclusivi…

Yes, I think this is the operative point. If we as a society are going to make this deal -- we are giving the putative inventor an exclusive license to the technology for a substantial period of time in exchange for disclosure of how it works -- we want it to be a good trade. And it's only a good trade if the information in the patent is actually valuable. If there's evidence that that information would still become…

> And it's only a good trade if the information in the patent is actually valuable.

Slightly different subject, but I think this the best argument for why software patents, at least in their current form, are bad.

With a useful patent system, the patent library should be a treasure trove of information. People with difficult problems to solve should be wandering through the archives to see what's out there. If the patent is still in force, the license fees should be well worth it, since it solves a hard problem!

Have you even heard of a programmer doing such a thing? I certainly haven't. In fact, the general advice I hear is the exact opposite: actively avoid looking at patents, because you're liable for more damages if you infringe willfully than if you do so by accident.

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

#76

Post by tzs »

reader5000 wrote: post #49

If an invention is invented twice independently, it should by definition be "obvious" and not patentable.

So if thousands of engineers independently worked for years trying to solve some important problem, and then finally a mere two of them come up with solutions around the same time that are similar, you'd say the solution is obvious?

That's a pretty weird way to define obvious. It is true that sometimes a term used in the law deviates a bit from the meaning of that term in ordinary English, but rarely as far as your definition of obvious does. In English, obvious means that it is easy to discover. It should be readily found by any reasonably competent person who looks.

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

#77

Post by icebraining »

scotty79 wrote: post #22
GotAnyMegadeth wrote: post #2

I don't really understand who benefits from this change? Doesn't everyone lose?

Lawyers benefit. It'll be cheaper to extort. You don't have to be afraid that someone else comes and proves that he invented this first. Owning a patent becomes almost risk free goldmine. Also more this will lead to more patents because you have to patent to avoid someone else patenting your stuff bit later and extorting money from you. Also more patents means more cannon fodder for lawyers for use in future extortio…

Actually, lawyers lose the money they got paid to prove/disprove that someone else invented it first.

And no, you don't "have to patent to to avoid someone else patenting your stuff bit later". You can just publish it, which then counts as prior art.

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

#78

Post by bediger4000 »

Gormo wrote: post #73
bediger4000 wrote: post #43

Earlier quoted context omitted.

I happen to agree, but in Europe, that's not 100% true: artists have some "moral rights" as to how and when their work is exhibited. Even in the USA, even though the legal underpinnings don't recognize a "moral basis", legislation for the last 30-odd years seems to lean towards an "ideas as property" basis. I realize I'm conflating patent with copyright here, but so does the idea of "Intellectual Property". Why else…

> Why else would we grant a nearly everlasting monopoly (via copyright, again) other than to reward a Sacred, Difficult Act of Creation? You seem determined to find a moral root for what seem entirely to be pragmatic objects of law, but I don't think one exists to be found. If I were to eschew cynicism in answering your question, I'd propose that the legislators behind copyright extensions believe them to be the most…

As it happens, I do not believe in a moral basis for copyright: independent invention ruins all "property" aspects of most creations, as does the way almost every "invention" comes about, which is by incremental advances on some one else's ideas or creations. Another way that ownership fails is that the "owner" can't really tell if his or her idea has been "stolen", and has to have the state enforce property-style rights.

What I'm pointing out is that at least in the USA, legislation since 1976 has moved away from the constitutional basis for copyright or patent, and towards an "ownership" basis. "Copying is theft" type slogans and commercials prove that wealthy entities in the USA are pushing ownership as a moral basis for "intellectual property". The fact that a "World Intellectual Property Organization" exists proves that for a lot of people, "ownership" is a good moral basis for "intellectual property".

I've even heard my 6-year-old daughter complain that one of her classmates 'stole' my daughter's idea for the format of a book report. Ownership, like the idea of a "just price" is just one of those illogical things built in to human nature.

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

#79

Post by Gormo »

bediger4000 wrote: post #78
Gormo wrote: post #73

Earlier quoted context omitted.

> Why else would we grant a nearly everlasting monopoly (via copyright, again) other than to reward a Sacred, Difficult Act of Creation? You seem determined to find a moral root for what seem entirely to be pragmatic objects of law, but I don't think one exists to be found. If I were to eschew cynicism in answering your question, I'd propose that the legislators behind copyright extensions believe them to be the most…

As it happens, I do not believe in a moral basis for copyright: independent invention ruins all "property" aspects of most creations, as does the way almost every "invention" comes about, which is by incremental advances on some one else's ideas or creations. Another way that ownership fails is that the "owner" can't really tell if his or her idea has been "stolen", and has to have the state enforce property-style ri…

Well, the slogans used by proponents of more restrictive copyright policies aren't themselves the basis of the law, and even if many people seem to be amenable to the notion of ideas as property, actual copyright and patent law still don't work that way.

I don't agree that ownership of ideas is something built into human nature; physical property as been with us from time immemorial, but the modern notion of copyright is only a scant few centuries old, having been established by positive law and not recognized under common law. The notion of "intellectual property" is even newer.

Perhaps your daughter is being influenced by the current milieu, and not expressing an intrinsic equivocation between copying and theft that originated within her own mind.

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

#80

Post by rogueriver »

jmatthew3 wrote: post #34
rogueriver wrote: post #27

1. My gripes with our patent, and trademark system comes down to fees. 2. I draft all my own patents(only 1), and found the process difficult, but doable. I also filed my own trademark. 3. I did have an issue with the filing fees. I contacted the offices involved and complained about the fees. I felt the fees might prevent many young inventors fron protecting their invention, or trademark. 4. They told me their was s…

Disclaimer: I am a former software engineer, now a patent attorney. But, I am not your lawyer, nor am I the lawyer for anyone who reads this. (Sorry, I have to say that). Anyway, the USPTO has had 50% lowered fees for "small entities" for some time now. The patent office will soon add a new "micro entity" classification (paying 75% of fees) that might help individuals without a lot of money. The total filing cost as…

Thanks! I do think they could lower fees for individuals, but put a limit on the number of patents, or Trademarks a person could file--maybe just one at the reduced fee?

Corporations and LLC's would not get the discount.

I don't think their would be a rush of individual inventors overloading the department with frivilious, Nolo Press enabled patent requests.

Plus, if that became reality; they could drop the program.

If anyone reads this, avoid any patent service that advertises on t.v.. Research your patient before you hire a attorney, or DIY.

My main gripe was with the Tradmark fees. I don't remember the fee, but even if it was $300.00--that's still too high--especially for a www.mywebsite567.whatever?

I personally think the larger the company, the higher the fee. Didn't Apple try to patent rounded edges?

Anyway--I appreciate micro entity reduced fee info.

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