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As the author, I do appreciate that someone thinks I'm confused, but this sentence is hardly the point of my argument. My point is that large corporations are a

As the author, I do appreciate that someone thinks I'm confused, but this sentence is hardly the point of my argument. My point is that large corporations are at an even larger advantage with this system and that it hurts entrepreneurs. What has already been a tilted playing field will become even more so. The key with "First to Invent" is that someone could demonstrate that they had invented something but not actually patented it previously. For instance, if you came up with a novel software process, didn't patent it, and went about your business, it should theoretically be harder for another company to come along and patent your work. Since our patent system is broken, it hasn't always (maybe usually) worked that way. With "First to File" all you need to do is be first to file. And at a mere $15k to $50k to file, this is an undue burden on startups who are inventing things. As the author, I do appreciate that someone thinks I'm confused, but this sentence is hardly the point of my argument. My point is that large corporations are at an even larger advantage with this system and that it hurts entrepreneurs. What has already been a tilted playing field will become even more so. The key with "First to Invent" is that someone could demonstrate that they had invented something but not actually patented it previously. For instance, if you came up with a novel software process, didn't patent it, and went about your business, it should theoretically be harder for another company to come along and patent your work. Since our patent system is broken, it hasn't always (maybe usually) worked that way. With "First to File" all you need to do is be first to file. And at a mere $15k to $50k to file, this is an undue burden on startups who are inventing things. edit: Because some people clearly don't want to understand the point here, there are several steps (lawyers, patent searches, etc.) that cost you money before you can file. This is included in the $15k to $50k I'm talking about.

monochromatic 15y ago
> For instance, if you came up with a novel software process, didn't patent it, and went about your business, it should theoretically be harder for another company to come along and patent your work. First to file doesn't change this. Prior art is still prior art. This is slightly simplified, but here's the gist. The only change is when Inventor A comes up with an idea first, Inventor B comes up with the same idea (independently!) later, and they both file for patents, but Inventor B has the earlier filing date. Under the old law, Inventor A wins; under the new law, Inventor B wins. If you're not in that situation, first to file doesn't change things.
- WiseWeasel 15y ago
  That's ridiculous! Inventor A should obviously always win, since he actually implemented his idea before B did. B could have seen A's idea and filed a patent on it.
  - monochromatic 15y ago
    I'm not sure that's obvious. (And by the way, we're talking about conception of the idea, not actual implementation. You can patent something that you haven't yet prototyped.) Anyway, the entire rest of the world uses a first to file system, so bear that in mind when you say that first to invent is obviously correct.
    - kragen 15y ago
      Don't you have to prototype it to "reduce it to practice"? I thought you couldn't patent ideas that hadn't been reduced to practice.
      - monochromatic 15y ago
        Filing a patent application is a constructive reduction to practice.
        tzs 15y ago
        Just to make sure no one gets the wrong idea, it should be noted that the law requires: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention. (35 USC 112). So, even though filing counts as constructive reduction to practice, that doesn't mean you can just come up with a vague idea, write it up with no clue how to actually make the device, and get a patent. (Well, you aren't supposed to be able to--the examiners sometimes slip up!). You don't actually have to have built a working prototype, but you have to be telling people in the patent how they can actually build the thing.
cube13 15y ago
>For instance, if you came up with a novel software process, didn't patent it, and went about your business, it should theoretically be harder for another company to come along and patent your work. Since our patent system is broken, it hasn't always (maybe usually) worked that way. With "First to File" all you need to do is be first to file. And at a mere $15k to $50k to file, this is an undue burden on startups who are inventing things. Did you publish it? Was it put out into the public space? If so, it's prior art, and evidence that the patent should be invalid. This HAS NOT CHANGED. If I make a piece of software, put it out for sale, then someone files a patent after my software has been out in the open, the patent is not new and novel. It should be thrown out. Again, like tzs said, this only applies if two inventors invent something simultaneously. Under First to Invent, each inventor needs to prove that they thought of the invention before the other. Under first to file, the patent is granted to whoever patents it first.
- WiseWeasel 15y ago
  The problem also applies if one inventor invents something, then another individual gains access to it before the inventor distributes it publicly, and files a patent on it. But in the more general case, I find it difficult to believe that the notion of Prior Art is unaffected by the elimination of first-to-invent. Under the new rules, if the PTO considers two patents determined to cover the same invention, they will accept the one filed first and decline the one filed later, even if the first-filed invention was invented at a later date. If a patent lawsuit can reverse this decision by finding prior art, then how can these be reconciled? Maybe the idea is simply to shift the burden of determining the earliest invention date from the PTO before the patent is filed to the courts after the fact?
  - cube13 15y ago
    >The problem also applies if one inventor invents something, then another individual gains access to it before the inventor distributes it publicly, and files a patent on it. No. This would be fraud(because the "inventor" that filed didn't actually invent the thing) or could be theft of trade secrets(if an NDA is involved). Both of which are covered under US law. >But in the more general case, I find it difficult to believe that the notion of Prior Art is unaffected by the elimination of first-to-invent. Under the new rules, if the PTO considers two patents determined to cover the same invention, they will accept the one filed first and decline the one filed later, even if the first-filed invention was invented at a later date. If a patent lawsuit can reverse this decision by finding prior art, then how can these be reconciled? If there is clear prior art before either were filed, then the patent would be nullfiied in either a First to File or First to Invent scenario. I think that you're confusing prior art and what first to file/invent means. First to File and First to Invent means that if two people file for an identical patent, the patent is granted based on either the filing date or the invention date. The only time that First to File applies is when two independent inventors file for the same patent in the same timeframe. Ovbiously, one cannot try to patent an idea after the patent has been accepted, even if they did invent first. Prior art applies to all patents, based on the date of the filing of the patents. If I try to patent something that someone else is selling, like a mousetrap design, then it should get thrown out, no matter when I actually invented it, because it's already in production by someone else.
tzs 15y ago
> With "First to File" all you need to do is be first to file. No. You have to invent, and then you can file. You seem to think that "first to file" removes the requirement for invention. It does not. It just changes the priority determination in the case where two independent inventors have both invented overlapping inventions.
- jeremymims 15y ago
  It's not very hard to "invent" things if your sole reason for being is to copy entrepreneurs' work before they can afford to file, before they can afford to hire a lawyer, pay the USPTO an $8800 fee to ask for a review, and you've got only a short window (which you probably won't know about) to do so. Look, we need real patent reform and this (even if you think it's only marginal) tilts things yet again in the wrong direction.
  - monochromatic 15y ago
    > pay the USPTO an $8800 This is a small thing, but filing fees (for a small entity) are $462. The fact that you think USPTO fees are this much indicates to me that you have never had anything to do with an actual patent application, have no real idea what you're talking about, and are basically making shit up. But then, your article conveyed that pretty clearly as well.
    - jeremymims 15y ago
      Wow. Usually we try to keep things a little more civil here. This filing fee is the smallest portion of what you need to pay in order to file a patent. First, you need to get a patent attorney to help you put your filing together. I don't know what lawyers you use, but this can typically run more than $15k and up to do it right. Edit: Since I don't seem to be able to reply to your comment, thank you for your sort of apology. You can read at length about this particular bill here: http://en.wikipedia.org/wiki/America_Invents_Act http://en.wikipedia.org/wiki/America_Invents_Act. It's not all sunshine and equivalencies. Perhaps we can have a discussion about it some time, but as someone who has both been in startups that have pursued patents and been in a company sued by a patent troll, you're just going to have to accept that we have different views on the issue.

monochromatic 15y ago

> For instance, if you came up with a novel software process, didn't patent it, and went about your business, it should theoretically be harder for another company to come along and patent your work. First to file doesn't change this. Prior art is still prior art. This is slightly simplified, but here's the gist. The only change is when Inventor A comes up with an idea first, Inventor B comes up with the same idea (independently!) later, and they both file for patents, but Inventor B has the earlier filing date. Under the old law, Inventor A wins; under the new law, Inventor B wins. If you're not in that situation, first to file doesn't change things.

WiseWeasel 15y ago
That's ridiculous! Inventor A should obviously always win, since he actually implemented his idea before B did. B could have seen A's idea and filed a patent on it.
- monochromatic 15y ago
  I'm not sure that's obvious. (And by the way, we're talking about conception of the idea, not actual implementation. You can patent something that you haven't yet prototyped.) Anyway, the entire rest of the world uses a first to file system, so bear that in mind when you say that first to invent is obviously correct.
  - kragen 15y ago
    Don't you have to prototype it to "reduce it to practice"? I thought you couldn't patent ideas that hadn't been reduced to practice.
    - monochromatic 15y ago
      Filing a patent application is a constructive reduction to practice.
      - tzs 15y ago
        Just to make sure no one gets the wrong idea, it should be noted that the law requires: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention. (35 USC 112). So, even though filing counts as constructive reduction to practice, that doesn't mean you can just come up with a vague idea, write it up with no clue how to actually make the device, and get a patent. (Well, you aren't supposed to be able to--the examiners sometimes slip up!). You don't actually have to have built a working prototype, but you have to be telling people in the patent how they can actually build the thing.

cube13 15y ago

>For instance, if you came up with a novel software process, didn't patent it, and went about your business, it should theoretically be harder for another company to come along and patent your work. Since our patent system is broken, it hasn't always (maybe usually) worked that way. With "First to File" all you need to do is be first to file. And at a mere $15k to $50k to file, this is an undue burden on startups who are inventing things. Did you publish it? Was it put out into the public space? If so, it's prior art, and evidence that the patent should be invalid. This HAS NOT CHANGED. If I make a piece of software, put it out for sale, then someone files a patent after my software has been out in the open, the patent is not new and novel. It should be thrown out. Again, like tzs said, this only applies if two inventors invent something simultaneously. Under First to Invent, each inventor needs to prove that they thought of the invention before the other. Under first to file, the patent is granted to whoever patents it first.

WiseWeasel 15y ago
The problem also applies if one inventor invents something, then another individual gains access to it before the inventor distributes it publicly, and files a patent on it. But in the more general case, I find it difficult to believe that the notion of Prior Art is unaffected by the elimination of first-to-invent. Under the new rules, if the PTO considers two patents determined to cover the same invention, they will accept the one filed first and decline the one filed later, even if the first-filed invention was invented at a later date. If a patent lawsuit can reverse this decision by finding prior art, then how can these be reconciled? Maybe the idea is simply to shift the burden of determining the earliest invention date from the PTO before the patent is filed to the courts after the fact?
- cube13 15y ago
  >The problem also applies if one inventor invents something, then another individual gains access to it before the inventor distributes it publicly, and files a patent on it. No. This would be fraud(because the "inventor" that filed didn't actually invent the thing) or could be theft of trade secrets(if an NDA is involved). Both of which are covered under US law. >But in the more general case, I find it difficult to believe that the notion of Prior Art is unaffected by the elimination of first-to-invent. Under the new rules, if the PTO considers two patents determined to cover the same invention, they will accept the one filed first and decline the one filed later, even if the first-filed invention was invented at a later date. If a patent lawsuit can reverse this decision by finding prior art, then how can these be reconciled? If there is clear prior art before either were filed, then the patent would be nullfiied in either a First to File or First to Invent scenario. I think that you're confusing prior art and what first to file/invent means. First to File and First to Invent means that if two people file for an identical patent, the patent is granted based on either the filing date or the invention date. The only time that First to File applies is when two independent inventors file for the same patent in the same timeframe. Ovbiously, one cannot try to patent an idea after the patent has been accepted, even if they did invent first. Prior art applies to all patents, based on the date of the filing of the patents. If I try to patent something that someone else is selling, like a mousetrap design, then it should get thrown out, no matter when I actually invented it, because it's already in production by someone else.

tzs 15y ago

> With "First to File" all you need to do is be first to file. No. You have to invent, and then you can file. You seem to think that "first to file" removes the requirement for invention. It does not. It just changes the priority determination in the case where two independent inventors have both invented overlapping inventions.

jeremymims 15y ago
It's not very hard to "invent" things if your sole reason for being is to copy entrepreneurs' work before they can afford to file, before they can afford to hire a lawyer, pay the USPTO an $8800 fee to ask for a review, and you've got only a short window (which you probably won't know about) to do so. Look, we need real patent reform and this (even if you think it's only marginal) tilts things yet again in the wrong direction.
- monochromatic 15y ago
  > pay the USPTO an $8800 This is a small thing, but filing fees (for a small entity) are $462. The fact that you think USPTO fees are this much indicates to me that you have never had anything to do with an actual patent application, have no real idea what you're talking about, and are basically making shit up. But then, your article conveyed that pretty clearly as well.
  - jeremymims 15y ago
    Wow. Usually we try to keep things a little more civil here. This filing fee is the smallest portion of what you need to pay in order to file a patent. First, you need to get a patent attorney to help you put your filing together. I don't know what lawyers you use, but this can typically run more than $15k and up to do it right. Edit: Since I don't seem to be able to reply to your comment, thank you for your sort of apology. You can read at length about this particular bill here: http://en.wikipedia.org/wiki/America_Invents_Act http://en.wikipedia.org/wiki/America_Invents_Act. It's not all sunshine and equivalencies. Perhaps we can have a discussion about it some time, but as someone who has both been in startups that have pursued patents and been in a company sued by a patent troll, you're just going to have to accept that we have different views on the issue.