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Comment by fatdog789 | Hacker News Reader

Expense. What if the invention is very expensive to make but the inventor is a high school dropout living above his parent's garage? This one requirement now completely invalidates his rights to the invention he created; this means less incentive for people to invent. It also applies against companies as well, b/c now they have to invest resources in researching an invention and in developing the production line to crank it out if it works.

Timeline. You require them to build the product before it can be patented, which means a massive incentive before they even know if they'll get any protection.

REDUNDANT. Patent law already has a "reduction to practice" requirement. This requirement usually requires the inventor to build a working copy (and this is the most common way that the RTP requirement is met) or to provide detailed enough instructions that any person in the same art could build a working copy of the invention.

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How would it invalidate his right if he's made it? That wasn't really what I meant, though-- the requirement would be more that you need to actively be pursuing the thing you're patenting, instead of simply reserving the idea. I don't think requiring it do be made _before_ a patent to be issued would be a good idea, but just the _idea_ isn't worth much, unless it's _really_ nonobvious.

I don't think requiring it do be made _before_ a patent to be issued would be a good idea

The courts that have ruled on these things apparently think it is a good idea.

http://robertplattbell.blogspot.com/2007/10/file-early-file-...

In Pfaff, Justice Stevens wrote:

"Second, the invention must be ready for patenting. That condition may be satisfied in at least two ways: by proof of reduction to practice before the critical date; or by proof that prior to the critical date the inventor had prepared drawings or other descriptions of the invention that were sufficiently specific to enable a person skilled in the art to practice the invention." (Id., at 12)

Perhaps you do not know that patents are enforceable back to their original filing dates (making their issuing dates largely irrelevant), and that it takes several years for patents to issue. What is your reasoning that led to your conclusion that patents should issue before they are qualified to issue?

> What is your reasoning that led to your conclusion that patents should issue before they are qualified to issue?

The observation that there are a _ton_ of patents issued to "inventions" that aren't even developed yet. That might theoretically be a bar to a patent being issued, but in practice all you need is the idea, the money, and a write-up.

there are a _ton_ of patents issued to "inventions" that aren't even developed yet.

That is in the current climate of not legally needing to reduce an invention to practice. If, instead, patent-seekers were required to actually produce working copies of their inventions (reduce to practice), we might see them regularly do that before the critical dates. I believe that that was how it was traditionally done, until recent times.

the requirement would be more that you need to actively be pursuing the thing you're patenting, instead of simply reserving the idea.

Perhaps the patent-holder could be required to maintain a website that shows how to reduce the invention to practice. However, all US patents are already published online, and, by definition, they all show how to reduce to practice. A caveat is that patents can sometimes remain secret for a number of years before being disclosed by the USPTO. Besides that, patents are enforced at least back to their initial filing dates (not their issuing dates), and therefore a company could be working on a product for several years without having any way of knowing that a patent on that product had been applied-for before they started.

The USPTO does have a method in place for encouraging patent-holders to market their inventions. It is the patent maintenance-fee schedule:

http://robertplattbell.blogspot.com/2007/10/understanding-ma...

U.S. Maintenance fees are progressive, so each successive fee is much more than the previous one. The idea is to encourage inventors to allow their Patents to expire unless they are actually being used. The Government does not want inventors to “sit on” Patents with the hope that maybe somebody will someday infringe, and then they can sue. With the Maintenance Fees, it is “use it or lose it”.

Maintenance Fees are raised periodically along with all other Patent Fees, so it is hard to say exactly what they will be. At the time of this writing (July, 2005) the fees are as follows:

    YEAR      Large Entity     Small Entity
   3 Years:        $900             $450
   7 Years:      $2,300           $1,150
  11 Years:      $3,800           $1,900

If these maintenance fees are not presently doing the job, perhaps they should be raised. How about multiplying the figures above by 1,000? That way, the final maintenance fee for a large entity would be $3.8 million.

> A caveat is that patents can sometimes remain secret for a number of years before being disclosed by the USPTO.

That's true only if "a number of years" is intended to mean "one year". With the exception of national security stuff, US patents are now published one year after application. That change happened several years ago.

> Besides that, patents are enforced at least back to their initial filing dates (not their issuing dates),

Since US Patents' term (if issued) also starts with their filing date, why is that objectionable? (Yes, if a US application takes 5 years to go from filing to issue, filing to issue time counts as part of the 20 year term.)

With the exception of national security stuff, US patents are now published one year after application.

http://robertplattbell.blogspot.com/2009/01/prior-art-search...

If a Patent is "pending" it is kept secret for 18 months, then it might be published. Some are not published (it is an opt-out system) others filed under the old rules (pre 2001) are not published, period. So it is possible that a patent may be "pending" that you don't know about. If this product has been on the market for several years, the likelihood of it being "pending" diminishes accordingly. But some Patents take 5, 6 or more years to issue. So you may never have a concrete answer whether one of your competitors has filed for a patent or not.

Additionally, a patent can be reserved, almost two years before filing, by the following sequence:

  1. Perform an Invention Disclosure before a credible witness.
  2. Wait almost one year.
  3. File a Provisional Application for Patent.
  4. Wait almost one year.
  5. File an Application for Patent.

So, normally, there could be 3.5 years of secrecy. If USPTO publication is opted-out, or if the filing was done under the pre-2001 rules, the secrecy term could be longer, possibly to infinity.

"On filing of a plant or utility application on or after November 29, 2000, an applicant may request that the application not be published, but only if the invention has not been and will not be the subject of an application filed in a foreign country that requires publication 18 months after filing (or earlier claimed priority date) or under the Patent Cooperation Treaty. Publication occurs after the expiration of an 18-month period following the earliest effective filing date or priority date claimed by an application."

http://www.uspto.gov/web/offices/pac/doc/general/index.html#...

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