What The New Patent Reform Act Means For Innovation
fastcompany.com
fastcompany.com
In the real world, the patent trolls are the patent holders that don't actually use their patents, not the ones invalidating patents with prior art. This law only makes it worse, now the patent trolls don't even need to buy patents from legit inventors, they simply have to patent inventions before the inventors get around to it.
Before this you could keep good records of your work and be safe in the knowledge that if anyone patented your idea after you created it, you would at least have the prior art to prove you came up with it first. Now you must patent it in order to be safe. A troll can come along at any time and patent your idea and screw you out of your hardwork.
If I'm an un-employed patent lawyer, why don't I just sit around reading tech news all day and patent every un-patented startup idea that comes up and sue the companies for their VC money?
This is only true if you apply for the patent at a later date, without publicly releasing the invention or giving out any details. In a first-to-invent case, you would have a prior art argument if you applied for the patent after the other party. However, if you don't ever bother patenting or releasing the invention, you do not have any protections in either a first-to-file or first-to-invent system. Those rules only apply when two patents for the same invention are applied for around the same time.
If you release the invention as a product, and someone files for the patent after you released it, that is a clear prior art case, and they should lose the patent.
Releasing a product does not constitute prior art. The invention must be documented and you must explain its use, in a public forum. Today, most inventions play supporting roles in the background. They are rarely seen or heard or documented.
In our current system, you have some protections as you can demonstrate that you are indeed the first to invent by using your product as evidence and you can publish your work down the road, if it becomes an issue. In the new system, nobody cares. He who files first wins.
You have protections only if you apply for a patent. You do not have those protections if you do not. That has not changed. The only thing that has changed is what is used to grant two similar patents that are submitted around the same time. In the current case, it's the nebulous "invention date". In the new system, it's whoever files first.
In theory, there are two reasons why you can't do this: (1) Patents don't cover abstract ideas, but specific embodiments of them. And (2) if you could patent an idea, that idea being written up in tech news would constitute prior art.
In practice, nothing's stopping you from doing this. The patent system and patent law are only vaguely related beasts.
Getting a valid patent is an expensive prospect. Today, many times, small businesses innovate, use their innovation, but never file for a patent because of the prohibitive costs.
With this new law, there will be absolutely nothing to stop a large firm, a competitor, or just a random patent troll to notice your invention (which you are using) and then file a patent for it. And then, guess what? You're screwed.
IBM happy about the new law? What a shock.
Nope. From 35 USC 102:
A person shall be entitled to a patent unless -
...
(f) he did not himself invent the subject matter sought
to be patentedIn other words, you must release it to the public where everybody, including your competitors, can use it as they see fit. While that's better than getting your pants sued off by a troll or a big corporation for using your own invention, it's most certainly worse than the status quo.
On top of that, the courts have a funny way of defining what is and what is not obvious. You may think the process you created and use in your company is obvious, so you never bother to document it or publicly disclose it, and then you end up in court. With zero protection. Is that what we really want?
What we need now is a website tracking patent applications and assignments by companies (specifically Intellectual Ventures and their cronies) and inform the public to submit prior art for these applications and now help the patent office do a better job than it's been doing, and prevent the courts from even having to be involved.