Patents are about sharing information – don't shroud them in secrecy
eff.org
eff.org
Edit: Okay to be fair, there is maybe not 0% but 10% information in these patents, but it's encoded into unintelligible lawyer/patent talk that is not at all fit to convey technical information. They are written in a way to get a monoply on results without disclosing how these results are obtained.
On the flip side, patents exist probably in part exactly because trade secrets are incredibly hard to keep. People are pretty good at reverse engineering things.
(Note: I am not trying to convey an opinion about patents with any of this conjecture, but if you want mine, I think software patents are fully bunk and other patents should not last nearly as long as they do.)
In the "first to file" systems, you lose eligibility. In the "first inventor to file" system of the US, you have a grace period of one year from such disclosure before you lose eligibility, just like you did under the prior "first to invent" system.
To a decent first approximation, the change to the US system mostly just affects how things are handled if independent inventors try to patent the same thing.
Under the "first to invent" system, the patent went to whichever applicant invented the thing first. But when is something invented? When you first think of the idea? Or when you have reduced the idea to practice? Or sometime in between?
Under the US first to invent system, it was when you conceived the invention if you then worked diligently from that point to reduction to practice. If you stop so working and resume, your lose the prior invention date and your new invention date is when you resumed working diligently on reduction to practice.
When two or more inventors were claiming the same invention determining who was actually first under those rules could be difficult and messy, requiring hearings, and costing the inventors money for attorneys. Now with first inventor to file, we pretty much don't care who thought of it first--we just care which person who independently thought of it reduced it to practice and submitted their patent application first. That's a lot simpler, and requires no expensive hearings.
I do think the EFF's concern about claims and documentation already debunked/invalid being hidden behind seal is pretty serious and I think judges approving it are doing the public no service.
In my case, we submitted lots of prior art (some over 100 years old) to the court, and of course they shared this with the plaintiffs. I was certain we should be in the clear. However, in the time between receiving those documents and the actual court date, the plaintiffs submitted our list of prior art to the patent office as some sort of addendum. The patent office re-rubber stamped the new stack of paper, and the judge disregarded it during the trial. We lost. I doubt the patent office bothered to read, much less understand, any of it.
I feel very strongly that their patent was not novel, and since I wrote the algorithm which got us sued from scratch as a new college grad with only a bachelors degree, I doubt it was non-obvious to one skilled in the art. Maybe we could've won with better lawyers, but as a small startup, we didn't have that kind of money.
FWIW in the UK we have expert patent court judges; USA used to have that too, I gather.
>I doubt it was non-obvious to one skilled in the art //
You have to be careful here, "obvious" doesn't quite mean the same as in daily life. It's so easy to see a neat solution to a problem and go "that's so simple, anyone could have done it". Once you've seen things they often seem simple (ex post facto analysis).
I think this is particularly true in some arts where basically every day any ordinary worker invents solutions to problems.
The plaintiffs managed to get jurisdiction in their own city (across the country from ours), and the general belief was that the judge granted this because he wanted a change from the drug trials he normally dealt with. This made it very expensive for us, and they definitely had the home court advantage.
I could whine about a lot of other things. For instance the plaintiffs removed every juror candidate who had any college, leaving only locals who I don't think even understood trigonometry. The fact that you're not supposed to be able to patent math, but somehow math on a computer gets through the patent process, etc...
> ex post facto analysis
I'm not sure what definition of "obvious" survives then. I was out of college for less than 2 months, and I wrote the code in a single evening. The "infringing" algorithm was less than 10 lines.
The jury found that the plaintiffs patents for measuring roofs on aerial imagery were valid, even though every photogrammetrist in the world would say otherwise. Hopefully they'll appeal and have better council...
Not sure I understand this -- are you saying the judge took the PO rubber-stamp as proof that though the prior art might be related, it was not disqualifying?
I'm not a patent lawyer, but I've been involved in this stuff, often conducting extensive prior art searches. The gold standard for prior art is a single document that teaches everything in the claims of the patent. Often, folks think that they've found prior art if they find one thing in one document and another thing elsewhere. Nope.
Now if you happen to find the pieces of a claim in different prior documents, then you may be able to demonstrate obviousness rather than prior art. For instance it's generally considered obvious to take two patented ideas and combine them together. But obviousness is profoundly harder to prove than straightforward prior art.
Meanwhile, anything that's taught in the body of the patent, can be added to the claims at a later date. Within some limitations of course. A patent can be invalidated in its entirety, and the holder can submit a completely new claim set based on the original body text.
> Often, folks think that they've found prior art if they find one thing in one document and another thing elsewhere. Nope.
Still, I think there must be something profoundly broken if you find the exact math in an old book, and the new patent basically says, "do that math on a computer".
If the executive branch always did its job correctly we'd hardly need courts.
USA came in to line with the rest of the World which uses first-to-file (first to invent means the litigious will always challenge inventorship which is exceedingly difficult to determine as there isn't necessarily a paper-trail).
USA patent seem, to me, to be worse than other places, and first to file works elsewhere suggesting that is not the problem.
Personally I feel the costs system, and low presumption of validity at grant seem more to blame.
Patents are not like registered marks where you can apply for the same thing over and over; only the original inventor or its employer can apply, otherwise lour patent would be invalidated due to prior art.
Someone, somewhere must have written the "SELECT shell_company_id ..." query that ensures the correct company is put on the litigation letter.
If you ever find yourself in that situation, stop and think for a second about what you are doing.
In my experience, the (lawyer) part of this fucks the document up so much that it's too depressing to contemplate, and I just let whatever meaningless bastardization of the original go the patent office.
These are pure evolutionary pressures from rational entrepreneurs that are subject and victim to this IP system
A trade secret can be kept secret indefinitely and can potentially be lost if the company loses interest or is shut down. Patents help encourage publishing advances in technology so that they eventually advance the public domain. If they weren't interested in that then they probably wouldn't make patents expire.
I’ll give you moon rockets and the pyramids.
The implementation of the goal is a hot mess. Because punitive damage is a thing, anytime working for some other form is generally discouraged from even reading them, lest the owner can prove willful infringement.
This seems unnecessarily stiffling. Can't we change this so that anyone can still use the patented tech, but at a reasonable price?
Further, Google and it's ilk changed the game in their favor when they lined the pockets of congressmen/women to change the law from first to invent(those with money) to first to file(the true inventors with little resources/power).
Where can I go about finding a lawyer that knows what they're doing? How much will their services typically run?
But it seems like the vast majority of the world uses first-to-file.
With the change in the system, my understanding is now it is 6 months after publication to challenge a patent with prior art. And thanks to the way they are worded... good luck actually finding one when it happens.
No, I've not at all done this but it would be interesting to see the percentage of patents in the US filed by individuals versus companies over the last 20-30 years.
Prior disclosure is any documented teaching of the embodied idea the patent seeks to protect. In the UK a classic example was a dog doorbell having a comic cited against it.
Also: > Encouraging people to share information so that others can use it to make further advances is the whole point of the patent system.
This is meant as a joke, right? Is locking down a field of engineering for 20 years promoting further progress? Maybe it promotes the invention of sub-optimal solutions to work around the patent but that's about it. The latest example I can think of is all-in-one liquid cooling designs: https://www.gamersnexus.net/hwreviews/3517-swiftech-h360x3-d...
Nope. Patents have always been about encouraging public disclosure of secrets. This has been the case since they were invented by the Venetians in order to break trade guilds and their literal on-pain-of-death secret maintenance.
The idea was to offer the secret-holder a deal: if you reveal your secret, you get a significant but temporary government-enforced monopoly on use of that secret. If you don't reveal your secret, then you'll just have to hope it doesn't get leaked.
The monopoly is the tool of patent law. But the purpose of patent law is disclosure of information.
I like that formulation. But in that case we shouldn't be granting patents on things that can be immediately (or even within 5 years) reverse engineered from working examples.
Are you sure that's not a joke.
[1] https://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.ht...
You can argue that the monopoly term is too long, or that patents are being granted on things that are already obvious, or that you don’t like the whole idea of it; but the fact is that the monopoly vs. disclosure trade-off, and its public utility, was and is the intention behind the patent system.
Umm, no.
That was the whole idea behind the system -- to make your information public in exchange for a limited time monopoly on your invention.
Before this people just kept things secret and tried to enforce a monopoly through things like guild memberships and whatnot.
The patent system today is not really what it was meant to be, but the original patent system I think was an improvement over the status quo of the day.
Patent law, like many other economic interventions relies on claims and arguments that have little to no evidence.