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>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 compa

by 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.
kragen 15y ago
It's arguable whether an algorithm implemented inside your program was published or secret.

by cube13 15y ago

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.

kragen 15y ago

It's arguable whether an algorithm implemented inside your program was published or secret.