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Comment by Daniel_Newby | Hacker News Reader

Bad, horrifically bad. An insider can find a trade secret, that may not even be recognized as a trade secret, and leak it to another company for patenting. The true inventor then gets their business shut down.

Another failure mode is that computer spies steal the IP via a software security flaw, then patent it as their own independent reinvention.

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No. You should read the other comments before posting. DannyBee explains above: "It's about what happens when two people file patent apps for things they can both prove they invented." If I steal your invention and patent it, you still have the opportunity to show that it was your stolen idea.

Civil lawsuits use a balance of probabilities standard. If the IP theft was well conducted, and the patent holder forged a careful back story, then the true inventor loses almost automatically.

Remember that everyone except the US has been first-to-file for a long time. Can you provide evidence of this being a problem somewhere else?

That's not how civil lawsuits works...

Also, you're suggesting that if two criminal activities were well conducted, the inventor will lose a civil case? If this criminal activity is revealed, it invalidates the patent and subjects the executives and lawyers responsible to criminal sanctions and massive civil liabilities, including forfeiting all profits derived from the fraudulent patent and treble damages (i.e., 3x the actual damages the true inventor suffered). It's simply not ever worth the business risk to pursue this path.

That wouldn't be a problem if the original creator had published or patented the invention her/himself. Which is what the patent system is designed to encourage.

Suppose you come up with a jig for drilling holes in engine blocks. To you it is just a cost of doing business, like stocking the bathrooms with toilet paper. Your competitor can "invent" it fraudulently, file a patent, and blow your factory out of the water.

If you just want to protect yourself, just publish it somewhere. Prior art still exist with first-to-file, just not secret prior art. See Defensive publication[1], which isn't exactly a new concept, even in US patent history.

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

But then aren't you potentially giving away your competitive advantage?

Let's say I invent a new search engine, Poople. I don't have much money to patent it. But I can't keep the details secret either lest somebody else patent it. But by publishing the details defensively, my competitor with deep pockets, Paapo, goes and reimplements my algorithm and wipes me out of the marketplace.

Which part of the story did I get wrong?

I don't understand, why can't you keep it secret? Daniel_Newby talked about rogue employees, but you probably don't have them if you can't afford $10k for the patent. So, how exactly would your competitors get hold of it?

You still have a year after publishing to file a patent. During that year, you only lose out on the patent if other innovations are made and published with regards to the subject matter of your patent and your application includes those other innovations. (You can still receive a patent if you restrict yourself to the invention described in your publication, but threading the needle in such a fashion could be difficult.)

Commercial sales by competitors are not subject to patent during that interim period, and they can continue such sales after the patent application is filed, but once the patent application is filed they can only continue to sell without a license the exact same products they sold before the application. So if the competitor changes the product sold, they could be subject to the patent (assuming the patent is granted).

As for your specific example: algorithms can't be patented; they are trade secrets. Specific software implementations of algorithms possibly can be patented. The difficulty, of course, is that deep pockets Paapo can always engineer around the specific software implementation you specify in your application.

If you're making and publicly selling the jig, then that's prior art, and it cannot be patented by anyone else except for you.

That standard has not changed at all.

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