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Comment by suprasanna | Hacker News Reader

I don't see how this isn't a bigger issue or hasn't been brought to light. As I understand it, large corporations (or anyone with the money, really) can simply file patents for future products they predict will come to market and then sue startups and entrepreneurs when they create the actual product.

Someone please tell me I'm misunderstanding this.

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yep, pretty much it.

The original idea of patents was along the lines: Person A develops a self propelled buggy moving with the speed faster than light. Without patent protection, there is a lot of incentive to keep the details of the technology secret. The patent protection would be awarded in exchange of him disclosing the details of the technology, thus enriching the human race's body of knowledge and furthering the technology advancement.

Modern day patent system - a Corporation A files a patent for the idea of a "self propelled buggy moving with the speed faster than light." Whoever comes with real implementation later, would be forced to pay license fee to the corporation or wouldn't be able to bring it to market. This is pretty much the innovation tax (though if a tax isn't extorted by a government then it is more correctly called extortion/racket).

In theory, a patent is supposed to be specific enough that the patent itself accurately describes the object, to the extent that a reasonably knowledgeable person could actually manufacture the object using only the patent as a blueprint. In other words, you would not be able to write the patent application unless you had actually invented the object in question, because otherwise you wouldn't know how to describe the theoretical object well enough for a person to manufacture it. Therefore you cannot patent imaginary future inventions.

In practice, this rule is effective only to the extent that the Patent Office enforces it.

Building on that, I pose a question. Has anyone here ever used a software patent as a reference to help solve a problem?

Software, no. Hardware, fairly often.

As you point out, the issue is that the UPO doesn't enforce that as rigidly as it should (or maybe, is reasonable to expect). As tjr pointed out in a separate thread, 'This American Life' did a great piece on software patents specifically, definitely worth a look if some of you are interested in learning more. Certainly gave me better perspective. http://www.fsf.org/blogs/community/tal-when-patents-attack

The key point is that "first to file" doesn't actually honor the idea of invention. It honors the idea of filing the patent first. So, now it's a race to file instead of invent. Perhaps the patent system has behaved this way for some time, but it's codified now.

From wikipedia: "In a first-to-file system, also called "first inventor to file" system, the right to the grant of a patent for a given invention lies with the first person (the first inventor(s)) to file a patent application for protection of that invention, regardless of the date of actual invention."

You aren't entitled to a patent unless your disclosure is specific and detailed enough to be enabling. If it's enabling (and novel, nonobvious, etc.), then why shouldn't you get a patent on it?

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