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Comment by jinushaun | Hacker News Reader

"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.

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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.

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.

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.

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