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Comment by snarfy | Hacker News Reader

That's how the US patent system works now.

"The first inventor to file (FITF) provision of the America Invents Act transitions the U.S. to a first-inventor-to-file system from a first-to-invent system and became effective on March 16, 2013"

https://www.uspto.gov/patents/first-inventor-file-fitf-resou...

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To be clear, first-to-file just means that in the event that the patent is granted, it's awarded to the person who filed first instead of the "actual" inventor. However, the patent can still be invalidated for prior art. The net effect of this is that AMD lost their ability to patent their invention by not filing first.

Perhaps this was the entire point of Intel's work here??? Worst case scenario for Intel they block AMD from patenting (and allowing Intel to use it).

Presumably if AMD hasn't patented it by now, they weren't ever going to patent it. CPUs take years to develop, so by the time something shows up in marketing slides (ie. release is imminent in a few months) it would have been years since the idea was first conceived.

And first to file doesn't mean first to file with the USPTO.

If you have a great idea for air-conditioned socks, you file your initial notes/work with your patent attorney, and that is sufficient (general hand-waving about officer of the court and so on.)

> The net effect of this is that AMD lost their ability to patent their invention by not filing first.

It can explain Intel's move to file the patent, which seems stupid at a first glance.

Anti-Hanlon Razor: never attribute to a stupidity anything that was done by an intelligent entity.

Perhaps known as Gray's Law:

“Any sufficiently advanced incompetence is indistinguishable from malice.”

In particular this interpretation [1] may be best applicable

"In other words: If you find someone acting so stupid that you can’t believe she’s doing it without the slightest chance of knowing that it’s stupid, then she might act out of malice."

[1] https://agiletrail.com/2011/12/20/hanlons-razor-comfort-in-t...

something I’ve wondered for a while:

Suppose someone invents something and uses it for their products, but never publishes anything about the invention, and then someone else (years later) independently develops the same thing and gets a patent that covers the first invention.

Is the first person now infringing the patent, or can the fact they were doing it first (even though there is no published info to serve as prior art) give some rights to keep using it?

(I understand any responses are not legal advice and I should ask a lawyer, etc, etc)

‘It depends’ - but generally the first person is now infringing.

IANAL. This is my current understanding. If I'm wrong, feel free to correct.

Using it in a product counts as "public disclosure". If you've shipped it, that's a public disclosure for patent purposes.

But it's more complicated than that, because you can file for a patent on something within one year after the first public disclosure. That also means that you can file within one year after someone else publicly discloses something, if you lack morals and decency.

So if person A develops something and starts shipping it, and person B files more than one year after the first shipment, then the device is now "prior art" that invalidates the patent. Person A faces a legal fight, but they shouldn't be infringing, because the patent should be invalid.

Just to be clear, in the US you must be an inventor to file. You can't take someone else's invention, once publicly disclosed, and then patent that within the one year period. But if two people have same invention the first to file usually has precedence.

Of course in practice there are thousands and thousands of trash patents but technically those are the rules.

Relevant statute:

https://www.law.cornell.edu/uscode/text/35/273

Real answer though is "it depends", so ask a lawyer about specific facts.

If first person has proof through dated notebooks, schematics, or internal documents they would likely be fine. However, second person may still have valid patent to assert elsewhere if there was never anything qualifying as public disclosure by first entity. Particularly under current doctrine.

You seem to think AMD has no patent on Ryzen. Don't worry, they have. Hopefully not containing loads of diagrams from Intel :D

That isn't what first to file means. First to file doesn't change AMD's publication from being prior art. You cannot create a valid patent by filing patents on other people's publications.

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