House Bill for Patent Office Reform Nearly Finished | Hacker News Reader

House Bill for Patent Office Reform Nearly Finished

nytimes.com

32 pointsjoshuacc25 comments

"The bill generally updates the process for challenging patents and would change the patent system to one thatawards a patent to the first inventor to file a specific claim.

Currently, the first person to invent something has patent priority, whether or not he is the first to file an application."

First to file trumps first to invent? That sounds awful and a step backwards.

Indeed! Now people would have motivation to file even the most obvious of the ideas they have so that someone else cannot file it later and sue them!

"First to file" was put in to bring US law into alignment with the rest of the world, not that I think it is a particularly good idea.

I think it's more like a step sideways. The main issue with patents right now is the low bar for new patents, and this bill doesn't seem to alleviate the problem.

That all depends on exactly what the bill says.

It could make prior art irrelevant (huge step backwards, but I think unlikely). Alternatively, it could leave prior art intact. In which case, if party B patents something party A invented a short time before, and someone can prove this, then nobody gets the patent. Party A's invention is prior art to party B's patent.

Under the current system, party A would get the patent.

edit: Tracked down the bill text. I am not a lawyer; this is not legal advice; read it yourself and make your own opinions: http://www.opencongress.org/bill/112-h1249/text

  (a) Novelty; Prior Art- A person shall be entitled to a 
  patent unless--

      ‘(1) the claimed invention was patented, described in 
  a printed publication, or in public use, on sale, or 
  otherwise available to the public before the effective 
  filing date of the claimed invention; or
  
      ‘(2) the claimed invention was described in a patent 
  issued under section 151, or in an application for patent 
  published or deemed published under section 122(b), in 
  which the patent or application, as the case may be, 
  names another inventor and was effectively filed before 
  the effective filing date of the claimed invention.

I'm still trying to track down the original patent act to compare with, but it looks like prior art continues to be valid in the form of a publication or product. The dubiously-valid trick of mailing a description of the idea to yourself would not seem to work, and it's questionable whether the Internet would count as "printed", but it shouldn't be too difficult to set up a "protopatent publishing journal" that exists purely to protect inventors from having their ideas patented later.

Mailing yourself anything is useless in all lines of IP.

> First to file trumps first to invent? That sounds awful and a step backwards?

How so?

Are you thinking it means that A can invent something, B can see it, and then B can rush to the patent office, get there before A, and get the patent? That's not a problem, because B is not an inventor in this case and is not entitled to a patent.

All first to file really means is that in the case of two independent inventors whose inventions overlap, the patent goes to the one who files first. That person is still subject to all the usual requirements for novelty, utility, non-obvious to one skilled in the prior art (and note that the other inventor's invention might be prior art if it was disclosed).

With first to invent, you have the problem of determining which competing inventor actually invented first--which is often quite subjective (many inventions develop over the course of a long stretch of research, and saying when exactly the inventor actually had the inventive step is not well defined), and involves a lot of interpretation of things like lab notebooks, recollection of discussions, and stuff like that.

First to file is much cleaner--just look at the timestamp on the filing.

Interesting. This along with amalcon's posting of the actual bill text seems a lot more fair than my previous notion of a first-to-file system.

Doesn't look like they are working on the real problems at all, and are instead creating others.

First person to invent won't matter, only who pays the fee first? UGH. Way to discourage innovation and encourage patent trolls. With that they'll be able to watch new products on the market and try to file patents on everything, then sue the person who actually invented it.

> they'll be able to watch new products on the market and try to file patents on everything, then sue the person who actually invented it

No, they won't. If something was on the market before you filed, you are not entitled to a patent. That's how prior art and statutory bars work.

FTA:

> The bill generally updates the process for challenging patents and would change the patent system to one that awards a patent to the first inventor to file a specific claim.

> Currently, the first person to invent something has patent priority, whether or not he is the first to file an application.

That sounds to me as if they are eliminating, or at least weakening, the idea of prior art preventing the award of a patent. Scary.

Of course, this was written by a journalist, not a patent expert, so who knows what the real situation is. But it's still scary.

Prior art is still prior art. What this particular element changes is basically the situation where two people independently come up with the same idea, and they both file for patents. (I'm leaving out some irrelevant complications, but) under current law, whoever came up with the idea first wins, even if the later inventor files first. Under this new law, whoever filed first would win, even if he had the idea later. It's to save the trouble of having to litigate about when you had an idea, what proof you have of that fact, etc.

But it doesn't change the fact that you can't patent an idea that you stole from someone else.

Well, that's good. Thanks for the clarification.

The bill generally updates the process for challenging patents and would change the patent system to one that awards a patent to the first inventor to file a specific claim.

Currently, the first person to invent something has patent priority, whether or not he is the first to file an application.

Wow, after 6 years of careful discussions and deliberations, they've finally figured out a way to make the patent trolling situation even worse. Good job, pat on the back!

This will have no effect on patent trolling whatsoever.

I'm honestly not sure that first-to-file vs invent is really that huge of a deal. The bigger issues in this bill appear to be the changes in grace period (bad) and the changes in the ability to challenge patents (good).

Even "reform" has become doublespeak now. It actually means "like it is now, only moreso."

Can we please stop calling the vivisection of the patent system "reform"? That is just what congress is calling it to make the ideas more palatable. I have contacted my congressman asking him to fight this, and I believe you should too. First to invent is what makes our system unique, and is what gives small inventors a chance to compete against patent farms like IBM.

I haven't read the proposed law, but from previous commentaries the big issue raised was that the invention didn't actually have to be on the market. You could patent an idea. If this is in fact the case, a new form of patent troll could emerge - think tanks that brain storm ideas and file preemptive patents.

You just described Intellectual Ventures exactly.

This is not new. Reform would be to have actually created the thing you are patenting and not a loose description of how one might/could build the thing. It shouldn't be patentable unless you have done it.

> You could patent an idea.

That's always been true. In fact, "an idea" is the only thing that you can patent. Why do you think that it shouldn't be true?

Suppose that my company makes airplanes and I invent a new kind of bearing. What kind of patent protection do you think that I should have? (Should I only be able to claim uses of that bearing in the planes that we make?)

I don't see any reference in here to reform of software patents and such. Is this reform purely financial?

This is the opposite of reform.

So it appears as if they're about to create a fund that they can appropriate to whatever cause they want instead of the underfunded patent office. Great... That's what they've done to infrastructure funds in many states.

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