6 ms·

Obama Signs Patent ‘Reform’ Bill

97 points by ubasu 15y ago

mscarborough 15y ago
Can any of the legal eagles provide more context for how this is actually better for inventors? It just reads like different loopholes and lawsuit strategies.
tzs 15y ago
This bill contains a major blow to patent trolls. The new joinder rules make it much harder to sue multiple defendants in one suit. Companies like Lodsys that want to sue dozens of companies will have to do it in dozens of separate suits. This hurts them in three ways: 1. Their litigation costs will go way up. 2. Defendants will be much more successful in getting venue changes to a forum of their choice, instead of being force to defend where the troll files. (When there were multiple defendants in one suit, carefully chosen by the troll to be from all over the country, it was hard for a defendant to get a venue change to their home turf because the court would want to keep all the cases together for judicial efficiency, and there would be no district that would be better for all the defendants). This further drives up the costs to the troll because now they will not only be litigating dozens of suits, they will be scatted are over the country. 3. They have a much greater chance of losing their patent. Each trial provides an opportunity for a judge or jury to decide on any number of grounds that the patent is invalid. Once a patent is ruled invalid, that's it for that patent. There's a good post elaborating on those points from Red Hat's senior patent counsel here: http://opensource.com/law/11/9/new-patent-reform-law-could-reduce-lawsuits-non-practicing-entity?sc_cid=70160000000IDmjAAG http://opensource.com/law/11/9/new-patent-reform-law-could-r... Toss in the new rules making it easier to challenge a patent, and the new rules that increase the scope of prior art, and this is overall a pretty good bill from a programmer's point of view.
- marshray 15y ago
  s/patent troll/small inventor/ and all your logic remains valid. The only thing this significantly benefits is large companies' ability to kill off smaller competition. Patents should be completely abolished as a relic from the age of steam. This is the 21st century.
  - teej 15y ago
    Woah, wait a second. Small inventors are not filing suits against dozen of defendants in carefully chosen jurisdictions. Often, they'll just target the top few companies breaching the patent. They aren't looking to make a living on patent settlements, they're looking to make a living on the technology they invented. Soheil Sharafabadi sues 3 Universities over mustard seed patent - http://seattletimes.nwsource.com/html/localnews/2009794832_apidmustardlawsuit1stldwritethru.html http://seattletimes.nwsource.com/html/localnews/2009794832_a... Jim de Cordova sues one company over sleep mask patent - http://news.yahoo.com/dreamcloud-sleep-mask-inventor-sues-sleep-master-1-214609727.html http://news.yahoo.com/dreamcloud-sleep-mask-inventor-sues-sl... A retired engineer sues Clorox over bleach patent - http://ww2.gazette.net/stories/082407/businew12306_32368.shtml http://ww2.gazette.net/stories/082407/businew12306_32368.sht... A Pennsylvania woman sues Victoria Secret over bra patent - http://www.docstoc.com/docs/75307539/Pennsylvania-Inventor-Sues-Victorias-Secret-for-Patent-Infringement http://www.docstoc.com/docs/75307539/Pennsylvania-Inventor-S... There are dozens of stories like this. The profile of a small inventor case looks nothing like these patent troll cases.
    - alanX 15y ago
      there are... dozens? Are you seriously defending the billions that the patent system costs our economic system with the idea that it protects "dozens" of individuals and small businesses? Seriously, if you stack up the number of patent lawsuits and license fees extorted by IBM, TI, Microsoft, and others against small tech firms, the damage to small business by the patent system is overwhelmingly larger than the benefit some small businesses might gain from it.
      - jamesaguilar 15y ago
        His point is merely that the logic does not evenly apply to patent trolls and small inventors. He is saying nothing about the overall benefits of the patent system.
      - Helianthus 15y ago
        The point is not that the patent system is wholly sane, but that it is made somewhat more sane by a careful imposition of legal costs that by and large affect only patent trolls.
drewvolpe 15y ago
Is there any way in which first-to-file is better for innovators ? With the new law, if you invent something and someone else can patent it 5 years later, that person can sue you (the inventor).
- tzs 15y ago
  If you invent it an keep it secret, then yes, someone else might patent it later. However, the same was true under the old law. (And assuming you were using your invention, say as part of an internal process, you'd have a defense of prior user rights under both laws). If you invent and do not keep it a secret, then that person five years later (under both the old and new law) would be out of luck as your invention would be prior art.
  - alanX 15y ago
    Right. Because the patent office would never allow a patent on toast. Patent number: 6080436 Filing date: Jun 14, 1999 Issue date: Jun 27, 2000 What is claimed is: 1. A method of refreshing bread products, comprising: a) placing a bread product in an oven having at least one heating element, b) setting the temperature of the heating elements between 2500 F. and 4500 F., and c) ceasing exposure of the bread product to the at least one heating element after a period of 3 sec. to 90 sec. 2. The method of claim 1 including the step of exposing the bread product to electromagnetic radiation in the wavelength range between 1.2 and 3.4 microns. 3. The method of claim 1 including the step of selecting said bread products from rolls, muffin, buns and bagels.
    - learc83 15y ago
      Yeah, the patent office fails to find prior art all the time. But the OP wasn't saying any different. He was only pointing out that the first to file change doesn't affect prior art.
- Tuna-Fish 15y ago
  Patents are not given as prizes for the act of invention -- they are given for prizes for the act of sharing your invention with the rest of the world. Also, so long as you can prove prior art, the patent is worthless.
benatkin 15y ago
This bill sounds like it does some good things. What nasty surprises came with it?
- gridspy 15y ago
  If you ignore the patent system and release your product without patents, your competition can arrive after you, patent your idea and then sue you.
  - chc 15y ago
    I don't think that's quite right. As I understand the law (and IANAL), you could still get their patent invalidated for lack of novelty — you just couldn't claim the patent yourself in that case.
    - cosgroveb 15y ago
      This Act changes the U.S. from a First to Invent system to a First to File.
      - ebiester 15y ago
        First to file doesn't mean anything if there's prior art.
        alanX 15y ago
        Prior art has very little to do with denying patents in the U.S.
        Symmetry 15y ago
        Unfortunately true, but it does make it really hard to sue you.
      - monochromatic 15y ago
        Under a first to file system, you still have to be an inventor. If you're trying to patent something that you copied from someone else, you're not an inventor. And even if you didn't derive your work from theirs, you still have a problem with prior art.
sunir 15y ago
I quite dislike that this bill places greater onus to locate prior art onto the public rather than the patent filer. I'm not sure how that protects the mythical small inventor. I mostly dislike that there is no move to make patents only defensive. Patent awards should be limited to only the cost of direct interference with the patent holder's business. That would be the most sensible given the intended purpose of patents of defending an inventor in return for publishing the discovery. Suing a business that has nothing to do with your own because it employs a similar solution logically is destructive to the economy, since their success does nothing to harm your own success. Patents should be limited to protect you against competitors who are in a zero-sum game for the same market.
- anamax 15y ago
  > Patent awards should be limited to only the cost of direct interference with the patent holder's business. So you think that inventors who don't practice shouldn't be compensated. I've done some work in computer architecture but I'm not in a position to build processors. How do I get compensated for my work? (Note that "be an employee" doesn't work.)
  - alanX 15y ago
    I don't know. I think everyone has to figure out how to make a buck in this world, and inventors that don't produce any products anyone wants should be (in a fair world) out of luck. Ethically, I think you have to do more than just file paperwork and leverage the government to extract money from others. It might be legal to tax people producing products, but it isn't moral or ethical. Besides, it isn't the inventors (generally) who troll. The patents are sold to lawyers (like Intellectual Ventures) that troll, and they are the inventors on very few of the patents they take to court. Maybe actual inventors can sue even if they don't have a product? I see no advantage in this, but I doubt this group is big enough to matter either.
    - anamax 15y ago
      > I think everyone has to figure out how to make a buck in this world, and inventors that don't produce any products anyone wants Who said I didn't produce products no one wanted? Folks like my inventions and are willing to pay for them. However, those inventions aren't complete products. > The patents are sold to lawyers (like Intellectual Ventures) that troll, and they are the inventors on very few of the patents they take to court. That's because many inventors don't have enough money to go that route. They'd much rather do it themselves (if only because IV takes a huge cut), but that is often out of the question. > Maybe actual inventors can sue even if they don't have a product? And how do you suggest that they do that? I'm completely serious. I've done the lawyer dance a couple of times and didn't see any way to do what you're suggesting. Details please. (You do know what you're talking about, right?)
lhnn 15y ago
My understanding is that someone can now patent teleporters and replicators, and sue the person who eventually invents it. True?
- tzs 15y ago
  Not true. Why would you think it would be?
  - lhnn 15y ago
    It's first to file, right? I've heard there's no requirement for any implementation details or intent to manufacture; you can just come up with an idea, patent it, and wait for others to make it and sue them for royalties.
    - monochromatic 15y ago
      Intent to manufacture, no. Implementation details, yes. Your disclosure has to enable a person of ordinary skill in the art to make your invention. If you don't know how your teleporter works, you can't get a patent on it.
      - lhnn 15y ago
        AH! Ok. That is a crucial distinction I hadn't known was the case. It's important this be made clear, since I've seen several discussions implying "no details" was the case. P.S. To Whom It May Concern, It is objectively unfair for my OP to be downvoted. It was a legitimate question.
        monochromatic 15y ago
        Yeah, I've seen lots of unfortunate confusion based on the "first-to-file" vs. "first-to-invent" distinction. Just doing my part as a patent attorney to clear it up when I notice it!
        15y ago
nazar 15y ago
I am sorry, for my question might sound shallow for those who know law deeper than me, but I want to clarify something. Lets say I invented something and never patented it, but was using it in my business for some period of time, and then someone patents my invention. Can he/she still sue me, provided I give proofs I've been using that invention even before he/she patented it?
- teyc 15y ago
  yes, the person can sue you. But if you can demonstrate that you have already been practising it before their patent lodgement date, then this is known as "prior art". However, it will still cost you money to defend yourself in court.

97 points by ubasu 15y ago

Can any of the legal eagles provide more context for how this is actually better for inventors? It just reads like different loopholes and lawsuit strategies.

tzs 15y ago

This bill contains a major blow to patent trolls. The new joinder rules make it much harder to sue multiple defendants in one suit. Companies like Lodsys that want to sue dozens of companies will have to do it in dozens of separate suits. This hurts them in three ways: 1. Their litigation costs will go way up. 2. Defendants will be much more successful in getting venue changes to a forum of their choice, instead of being force to defend where the troll files. (When there were multiple defendants in one suit, carefully chosen by the troll to be from all over the country, it was hard for a defendant to get a venue change to their home turf because the court would want to keep all the cases together for judicial efficiency, and there would be no district that would be better for all the defendants). This further drives up the costs to the troll because now they will not only be litigating dozens of suits, they will be scatted are over the country. 3. They have a much greater chance of losing their patent. Each trial provides an opportunity for a judge or jury to decide on any number of grounds that the patent is invalid. Once a patent is ruled invalid, that's it for that patent. There's a good post elaborating on those points from Red Hat's senior patent counsel here: http://opensource.com/law/11/9/new-patent-reform-law-could-reduce-lawsuits-non-practicing-entity?sc_cid=70160000000IDmjAAG http://opensource.com/law/11/9/new-patent-reform-law-could-r... Toss in the new rules making it easier to challenge a patent, and the new rules that increase the scope of prior art, and this is overall a pretty good bill from a programmer's point of view.

marshray 15y ago
s/patent troll/small inventor/ and all your logic remains valid. The only thing this significantly benefits is large companies' ability to kill off smaller competition. Patents should be completely abolished as a relic from the age of steam. This is the 21st century.
- teej 15y ago
  Woah, wait a second. Small inventors are not filing suits against dozen of defendants in carefully chosen jurisdictions. Often, they'll just target the top few companies breaching the patent. They aren't looking to make a living on patent settlements, they're looking to make a living on the technology they invented. Soheil Sharafabadi sues 3 Universities over mustard seed patent - http://seattletimes.nwsource.com/html/localnews/2009794832_apidmustardlawsuit1stldwritethru.html http://seattletimes.nwsource.com/html/localnews/2009794832_a... Jim de Cordova sues one company over sleep mask patent - http://news.yahoo.com/dreamcloud-sleep-mask-inventor-sues-sleep-master-1-214609727.html http://news.yahoo.com/dreamcloud-sleep-mask-inventor-sues-sl... A retired engineer sues Clorox over bleach patent - http://ww2.gazette.net/stories/082407/businew12306_32368.shtml http://ww2.gazette.net/stories/082407/businew12306_32368.sht... A Pennsylvania woman sues Victoria Secret over bra patent - http://www.docstoc.com/docs/75307539/Pennsylvania-Inventor-Sues-Victorias-Secret-for-Patent-Infringement http://www.docstoc.com/docs/75307539/Pennsylvania-Inventor-S... There are dozens of stories like this. The profile of a small inventor case looks nothing like these patent troll cases.
  - alanX 15y ago
    there are... dozens? Are you seriously defending the billions that the patent system costs our economic system with the idea that it protects "dozens" of individuals and small businesses? Seriously, if you stack up the number of patent lawsuits and license fees extorted by IBM, TI, Microsoft, and others against small tech firms, the damage to small business by the patent system is overwhelmingly larger than the benefit some small businesses might gain from it.
    - jamesaguilar 15y ago
      His point is merely that the logic does not evenly apply to patent trolls and small inventors. He is saying nothing about the overall benefits of the patent system.
    - Helianthus 15y ago
      The point is not that the patent system is wholly sane, but that it is made somewhat more sane by a careful imposition of legal costs that by and large affect only patent trolls.

drewvolpe 15y ago

Is there any way in which first-to-file is better for innovators ? With the new law, if you invent something and someone else can patent it 5 years later, that person can sue you (the inventor).

tzs 15y ago
If you invent it an keep it secret, then yes, someone else might patent it later. However, the same was true under the old law. (And assuming you were using your invention, say as part of an internal process, you'd have a defense of prior user rights under both laws). If you invent and do not keep it a secret, then that person five years later (under both the old and new law) would be out of luck as your invention would be prior art.
- alanX 15y ago
  Right. Because the patent office would never allow a patent on toast. Patent number: 6080436 Filing date: Jun 14, 1999 Issue date: Jun 27, 2000 What is claimed is: 1. A method of refreshing bread products, comprising: a) placing a bread product in an oven having at least one heating element, b) setting the temperature of the heating elements between 2500 F. and 4500 F., and c) ceasing exposure of the bread product to the at least one heating element after a period of 3 sec. to 90 sec. 2. The method of claim 1 including the step of exposing the bread product to electromagnetic radiation in the wavelength range between 1.2 and 3.4 microns. 3. The method of claim 1 including the step of selecting said bread products from rolls, muffin, buns and bagels.
  - learc83 15y ago
    Yeah, the patent office fails to find prior art all the time. But the OP wasn't saying any different. He was only pointing out that the first to file change doesn't affect prior art.
Tuna-Fish 15y ago
Patents are not given as prizes for the act of invention -- they are given for prizes for the act of sharing your invention with the rest of the world. Also, so long as you can prove prior art, the patent is worthless.

benatkin 15y ago

This bill sounds like it does some good things. What nasty surprises came with it?

gridspy 15y ago
If you ignore the patent system and release your product without patents, your competition can arrive after you, patent your idea and then sue you.
- chc 15y ago
  I don't think that's quite right. As I understand the law (and IANAL), you could still get their patent invalidated for lack of novelty — you just couldn't claim the patent yourself in that case.
  - cosgroveb 15y ago
    This Act changes the U.S. from a First to Invent system to a First to File.
    - ebiester 15y ago
      First to file doesn't mean anything if there's prior art.
      - alanX 15y ago
        Prior art has very little to do with denying patents in the U.S.
        Symmetry 15y ago
        Unfortunately true, but it does make it really hard to sue you.
    - monochromatic 15y ago
      Under a first to file system, you still have to be an inventor. If you're trying to patent something that you copied from someone else, you're not an inventor. And even if you didn't derive your work from theirs, you still have a problem with prior art.

sunir 15y ago

I quite dislike that this bill places greater onus to locate prior art onto the public rather than the patent filer. I'm not sure how that protects the mythical small inventor. I mostly dislike that there is no move to make patents only defensive. Patent awards should be limited to only the cost of direct interference with the patent holder's business. That would be the most sensible given the intended purpose of patents of defending an inventor in return for publishing the discovery. Suing a business that has nothing to do with your own because it employs a similar solution logically is destructive to the economy, since their success does nothing to harm your own success. Patents should be limited to protect you against competitors who are in a zero-sum game for the same market.

anamax 15y ago
> Patent awards should be limited to only the cost of direct interference with the patent holder's business. So you think that inventors who don't practice shouldn't be compensated. I've done some work in computer architecture but I'm not in a position to build processors. How do I get compensated for my work? (Note that "be an employee" doesn't work.)
- alanX 15y ago
  I don't know. I think everyone has to figure out how to make a buck in this world, and inventors that don't produce any products anyone wants should be (in a fair world) out of luck. Ethically, I think you have to do more than just file paperwork and leverage the government to extract money from others. It might be legal to tax people producing products, but it isn't moral or ethical. Besides, it isn't the inventors (generally) who troll. The patents are sold to lawyers (like Intellectual Ventures) that troll, and they are the inventors on very few of the patents they take to court. Maybe actual inventors can sue even if they don't have a product? I see no advantage in this, but I doubt this group is big enough to matter either.
  - anamax 15y ago
    > I think everyone has to figure out how to make a buck in this world, and inventors that don't produce any products anyone wants Who said I didn't produce products no one wanted? Folks like my inventions and are willing to pay for them. However, those inventions aren't complete products. > The patents are sold to lawyers (like Intellectual Ventures) that troll, and they are the inventors on very few of the patents they take to court. That's because many inventors don't have enough money to go that route. They'd much rather do it themselves (if only because IV takes a huge cut), but that is often out of the question. > Maybe actual inventors can sue even if they don't have a product? And how do you suggest that they do that? I'm completely serious. I've done the lawyer dance a couple of times and didn't see any way to do what you're suggesting. Details please. (You do know what you're talking about, right?)

lhnn 15y ago

My understanding is that someone can now patent teleporters and replicators, and sue the person who eventually invents it. True?

tzs 15y ago
Not true. Why would you think it would be?
- lhnn 15y ago
  It's first to file, right? I've heard there's no requirement for any implementation details or intent to manufacture; you can just come up with an idea, patent it, and wait for others to make it and sue them for royalties.
  - monochromatic 15y ago
    Intent to manufacture, no. Implementation details, yes. Your disclosure has to enable a person of ordinary skill in the art to make your invention. If you don't know how your teleporter works, you can't get a patent on it.
    - lhnn 15y ago
      AH! Ok. That is a crucial distinction I hadn't known was the case. It's important this be made clear, since I've seen several discussions implying "no details" was the case. P.S. To Whom It May Concern, It is objectively unfair for my OP to be downvoted. It was a legitimate question.
      - monochromatic 15y ago
        Yeah, I've seen lots of unfortunate confusion based on the "first-to-file" vs. "first-to-invent" distinction. Just doing my part as a patent attorney to clear it up when I notice it!
        15y ago

nazar 15y ago

I am sorry, for my question might sound shallow for those who know law deeper than me, but I want to clarify something. Lets say I invented something and never patented it, but was using it in my business for some period of time, and then someone patents my invention. Can he/she still sue me, provided I give proofs I've been using that invention even before he/she patented it?

teyc 15y ago
yes, the person can sue you. But if you can demonstrate that you have already been practising it before their patent lodgement date, then this is known as "prior art". However, it will still cost you money to defend yourself in court.