Senate passes Patent Reform Bill | Hacker News Reader

Senate passes Patent Reform Bill

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113 pointsraymondh48 comments

From what I can tell, it does nothing to raise the "obvious" bar, especially where companies take every patent over the last 50 years and append "on the Internet" or "on a tablet" to them.

It also doesn't obviate the need for huge patent arsenals. Why is this a positive change, or is it only one for large companies with stables of patent lawyers?

As someone who has seen invention at the individual, small business, and large corporation level, this bill saddens me. Regardless of other complications with the system, I was always proud that our country stuck up for those who invented first but filed later. I understand that patent applications have quickly been dominated by large companies, but this legislation will only serve to solidify that trend all in the name of simplicity.

Corroborated by the fact that the biggest backers of this were all the big companies that can afford to spend $ trying to patent _anything_, while the little inventor may have to wait for a loan to come through, etc.

Additionally, clearly Senate Judiciary Committee Chairman Patrick Leahy is out of touch with the tech boom.

"...we could unleash the genius of our country and put our entrepreneur class to work and create jobs. It can let us compete with the rest of the world."

Oh, really, it's the entrepreneurs who are out of work right now? My, the HN crowd must be very desperate, then. /sarcasm

My understanding is the bill puts the decision of "who invented it first" to the courts instead of the patent office. You'd still have recourse to claim you invented it first.

This basically means we will have more trivial patents filled which can be used to extort small companies. Correct?

tl;dr -

  The measure would switch the United States from the
  "first-to-invent" system to the "first-inventor-to-file" 
  system for patent applications. That change would put 
  the U.S. in line with other industrialized countries.

It's unclear (at least in this article) whether the legislation makes much headway in the "little guy" vs. "patent troll" problem.

Will this allow companies to file like crazy--everything under the sun--and block the "first-to-invent" people? Or would the change allow smaller companies more power once they file so bigger companies can't come along later and claim something had really been invented earlier that was similar...?

Honestly, both possibilities suggested above sound like a win for patent trolls...

But aren't most patent trolls also "little guys"?

From the link I posted here -- http://news.ycombinator.com/item?id=2977066: The patent reform bill of 2007, which the current bill closely resembles[citation needed], was analyzed by the Deputy Director of IP division of Beijing High People's Court, Senior Judge, and he found that that the bill "... is friendlier to the infringers than to the patentees in general as it will make the patent less reliable, easier to be challenged and cheaper to be infringed. It is not bad news for developing countries which have fewer patents. Many of the Chinese companies are not patent owners in the U.S. market and their products are often excluded from the market because of patent infringement accusations. This bill will give the companies from developing countries more freedom and ﬂexibility to challenge the relative US patent for doing business in US and make it less costly to infringe."

Does anybody thing this is a good reform?

My understanding that this is a bill promoted by big law firms to make more money and to protect financial industry against patent trolls. Also, 'first-inventor-to-file' is something which big companies were pushing anyway.

We are doomed...

The mere fact that Democrats and Republicans seemed to agree that this is a good bill says to me that it's probably a shitty bill. Pardon my French.

Well...just to be play devil's advocate here for a sec...I don't know if that's the case, but just based on the vote it seems a bit fishy to me.

89-9 means many Republicans were on-board. The stereotype for the 'typical' Republican positions are torte reform and less interference with business process.

So just by that reasoning alone, if this was Big Law Firm (only) friendly, it seems to me that so many republicans wouldn't have supported it.

I am just putting forth a theory, as I was not party to the negotiations so I don't know for sure.

You really think that republicans and democrats are two different parties? (sorry for being sarcastic... I'm just frustrated with politics in US... It seems so corrupted beyond belief)

Exactly. There is "gays & abortion theater" (financial impact: $0.00), but otherwise, multi-national corps get what they want.

Citizens of this nation seem to no longer run their own country very much.

You and me both cHalgan... I figure that this law won't do much to the status quo - or else how could they pass it? Reminds me of: "If voting worked, it'd be illegal."

Regression to the mean at work, regardless of corruption.

Most people are unaware what exactly causes problems in the patent system; all they know is there might be something wrong with it. And here is a bill that they claim will "reform" it. The details, and effects of those details, are lost to the general public.

It is all too likely that this bill will benefit patent trolls and large corporations at the expense of everyone else, but there is no way the public will attribute these effects (which will happen years later) to the politicians who voted on this bill. It's really sad.

IANAL, but to me it sounds like patent trolls can now patent stuff other people invent, then sue the inventor.

"The measure would switch the United States from the "first-to-invent" system to the "first-inventor-to-file" system for patent applications."

The stuffs an inventor created would become prior arts. Patent trolls filing after seeing the invention would get its patent invalidated.

This doesn't change much with respect to prior art afaik.

"The measure would switch the United States from the "first-to-invent" system to the "first-inventor-to-file" system for patent applications. That change would put the U.S. in line with other industrialized countries."

I hope that does not mean there is no longer prior art? What if I invent something and just publish. Now somebody else files a patent application for this.

I was the first to invent, but the other person was the first to file.

Generally I think the way out of this mess it to start to publish every little invention (however obvious it might seem). Then hopefully over time there will be no more room for obvious patents.

First to file vs. first to invent are procedural requirements that do NOT, in any way, alter the standards for patentability. In other words, you still have to prove novelty, utility, nonobviousness, and sufficiency of disclosure of an invention falling within the scope of patentable subject matter.

This change just brings us more in line with other members to the Paris Convention/Patent Cooperation Treaty. It's important to note that their definitions of patentable subject matter may differ from ours.

Generally I think the way out of this mess it to start to publish every little invention (however obvious it might seem). Then hopefully over time there will be no more room for obvious patents.

There's actually an industry that does exactly that. You can pay a small fee to insert pretty much anything you want into a compendium that gets published periodically and put on file with the Library of Congress. And, big tech companies used to have their own disclosure journals for this purpose -- Xerox Disclosure Journal and IBM Technical Disclosure Journal come to mind.

Seems like the wrong solution to the problem - maybe if there weren't so many ridiculous patents the patent office could handle patent applications in a timely fashion... people wouldn't waste time trying to patent "trivial consequence of nature number X" to start with like they currently do.

You got it. The biggest issue for patent reform is the scope of patents granted. Reduce the scope of patentable things for the biggest effect.

There are a lot of misconceptions, so some examples may help.

EXAMPLE 1

X comes up with an idea at time 0. X starts working to reduce the idea to practice.

At time 4, Y comes up with a similar idea, and also starts reducing to practice.

At time 10, Y gets it all working, writes up and files a patent application.

At time 15, X gets it all working (poorly), writes up and files a patent application.

Under first to file, Y wins. Under first to invent, Y is presumed to be the one deserving the patent, but X can initiate an "interference", which is an administrative procedure in the patent office to determine who has the earlier priority date. If X can prove that is him, he wins.

To prove this, X has to be able to show that there is some time before time 4 where X had conceived of the idea and had been continuously working diligently to reduce it to practice from then until time 15.

Proving this can be difficult and expensive. It depends on how good X was at keeping accurate, verifiable records.

EXAMPLE 2

X comes up with the idea at time 0. X starts working on reduction to practice.

Y comes up with the idea at time 4. Y starts reduction to practice.

At time 6, X takes time off to work on something else (maybe he needed money to pay for a sick kid or something, so had to take a regular job for a while). He gets back to working on the invention at time 8.

Y files his application at time 10. X files at 15. Y wins under both first to file and first to invent, because X lost his priority date of time 0 when he stopped working. His new priority date is time 6. Since Y was working diligently from time 4 to filing, Y's priority date is 4.

EXAMPLE 3

Same as example 2, except X files at time 10, Y files at time 15.

X wins under first to file. Y wins (after an interference) under first to invent. Note that in this example the guy who thought of the idea first loses under first to invent and wins under first to file.

The take away here is that under first to invent, the patent doesn't necessarily go to the first person to think of the idea, or to the first person to reduce it to practice. The advantage goes to the person who spent the longest time working on it in their last continuous period of diligent work before filing, so it can have a lot to do with what other things are going on the inventors life...and to make use of that advantage the person better have good documentation.

First to file is likely to "right" at least as often as first to invent, with a much smaller burden on everyone involved (and remember, this only even becomes an issue when you have two or more inventors with overlapping claims).

What's the impact on patent validity due to prior art or obviousness?

The main problem many have with the system is the large number of spurious filings (the patent on toast filed in the last decade, for one). I don't see how attaching premium benefits to filing could possibly improve that situation.

Greater efficiency is grand. The fairness between two competing inventors is situational, seems like lateral movement at best.

As to the flood of obvious patents crushing innovation? Three steps back.

Until I hear more details on the impact to patent review, I'm underwhelmed.

So, theoretically, I could run a patent troll shop without having to file any patents?

Just hire some engineers and scientists have each of them working on dozens of different projects (very slowly), and I can file an interference against anyone who later decides they want to make those things. Right?

I believe this is, in part, exactly how Intellectual Ventures operates.

Even if they don't have a patent on something, they can use interference to get some cross-licensing settlement going.

You'd have to show that you were engaged actively and continuously in working on the invention to maintain the ability to sue, and ultimately you'd have to show that you were entitled to receive the same patent that the other inventor filed for (in other words, that you actually invented the same thing). There is also the fact that it's often years from when a patent issues to when it becomes cash-flow-positive.

So, at the end of the day, if you're paying all of these scientists to invent, you'd do better to just file for patents on what they're inventing and license those out.

(and remember, this only even becomes an issue when you have two or more inventors with overlapping claims)

If you believe Kevin Kelly's book What Technology Wants, that is practically inevitable.

Here's the Bill. http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.1249:

Looks like there IS prior art. There's a LOT but I wish it was written in a simpler manner.

102. Conditions for patentability; novelty ‘‘(a) NOVELTY; PRIOR ART.—A person shall be enti- tled to a patent unless— ‘‘(1) the claimed invention was patented, de- scribed 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 sec- tion 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. ‘‘(b) EXCEPTIONS.— ‘‘(1) DISCLOSURES MADE 1 YEAR OR LESS BE- FORE THE EFFECTIVE FILING DATE OF THE CLAIMED INVENTION.—A disclosure made 1 year or less before the effective filing date of a claimed in- vention shall not be prior art to the claimed inven- tion under subsection (a)(1) if— VerDate Mar 15 2010 22:20 Jun 28, 2011 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1249.PCS H1249 jlentini on DSK4TPTVN1PROD with BILLS6 HR 1249 PCS ‘‘(A) the disclosure was made by the inven- tor or joint inventor or by another who obtained the subject matter disclosed directly or indi- rectly from the inventor or a joint inventor; or ‘‘(B) the subject matter disclosed had, be- fore such disclosure, been publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor. ‘‘(2) DISCLOSURES APPEARING IN APPLICA- TIONS AND PATENTS.—A disclosure shall not be prior art to a claimed invention under subsection (a)(2) if— ‘‘(A) the subject matter disclosed was ob- tained directly or indirectly from the inventor or a joint inventor; ‘‘(B) the subject matter disclosed had, be- fore such subject matter was effectively filed under subsection (a)(2), been publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed di- rectly or indirectly from the inventor or a joint inventor; or ‘‘(C) the subject matter disclosed and the claimed invention, not later than the effective VerDate Mar 15 2010 22:20 Jun 28, 2011 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1249.PCS H1249 jlentini on DSK4TPTVN1PROD with BILLS7 HR 1249 PCS 1 filing date of the claimed invention, were owned 2 by the same person or subject to an obligation 3 of assignment to the same person.

Soooooo we can still defensively publish yes?

In principle, absolutely. In practice, maybe.

If you defensively publish, the person who files the patent can still file within a year. If they learned about it from you, directly or indirectly, they are not supposed to do that. But now we're dependent upon their honesty, and their keeping sufficiently good records that we can prove that they did, in fact, learn it from us. People who'd be inclined to abuse that are unlikely to be honest, and are unlikely to keep good records of their dishonesty.

I disagree with your reading of the bill, and with your interpretation of the current law. The one year grace period to file -ONLY- applies for the inventor who is filing the patent, or if the disclosure happens from a related party to the inventor. If a third party discloses the information before you file, then you can't receive a patent over and above that prior art.

On re-reading, I think you're right.

The names of the client lobby list is speaking volume http://www.opensecrets.org/lobby/billsum.php?id=124645

Dale Carlson's article in the The National Law Journal makes some good points http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202513148515&...

indeed a sad day

Will not change anything about patent trolls... pffff

The solution appears to be to push patents faster by having more people working on them. If this effectively solve the patent quality problem, it might be a good thing.

I imagine that the large companies will keep filling hundreds of patents per year since they aren't as affected as a single patent shop.

Does anyone know if the US First to File system will come with a 12 month grace period? What about published prior art, aka Defensive publishing?

Next startup won't be in the US.

The loss of first to file means the end of American independent innovation. May God save us.

er... hasn't the US just gained first to file?

Read the fine article?

Yes I did. And all I needed from it was the fact that we are switching from first to invent from first to file(IMHO the rest was partisan fluff trying to positively frame the legislation)and the fact is that this will allow the Nathan Myhrvold's and Lodsys trolls of the world to file a tsunami of vague conceptual patents with no intent of using them to create products. They will wait for a real innovator to "infringe" on them and then seek damages. I absolutely guarantee that if and or when this bill is signed into law that there will be entire departments of tech corporations that will do nothing but think up ideas, patent them and wait. As I have said, first to invent was the single biggest stop gap keeping the small, independent inventor in the game. As an example, do you really think that Robert Kearns[1] could have possibly fought Ford Motor CO without first to invent? First to invent is what has set America aside and now that it's effectively destroyed I genuinely believe that the small, independent inventor(the backbone of american innovation from Eli Whitney, to Larry and Sergei) will be put out of business. And that will negatively impact American innovation. Downvote me if you must, but I speak the truth. This "reform" means the death of the independent American inventor.

[1]http://en.wikipedia.org/wiki/Robert_Kearns

EDIT: I mixed up the terms on my first post. My bad. I still feel the switch to first to file will decimate the small, independent inventor.

You can't patent ideas, you have to patent working solutions. It's up to the USPTO - and later to the courts - to sort the ones from the others.

The real problem here is "obvious" patents, not the first to file or to invent.

This is not really true. A description of a "solution" is common practice for modern software patents, which is legal gobbledydook that has nothing to do with implementation.

It's no diagram of a cotton gin these days.

I agree with you on this - this is THE problem. What I meant is that it shouldn't be so already with this legislation.

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