4 ms·

Is there room for "convergent evolution" with patent law? It seems to me that the odds of developing similar systems are very high if two companies with light b

Is there room for "convergent evolution" with patent law? It seems to me that the odds of developing similar systems are very high if two companies with light based sensors try to develop pulse oximetery.

deleted 4y ago
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mmastrac 4y ago
Nope, you need to be quick to file. There is, however, an exception: if an invention is likely to be obvious to a person skilled in the art given access to prior art, the invention is not considered not patentable
- taeric 4y ago
  That exception is laughably weak in bleeding edge fields. That is, if "skilled in the art" is limited in audience, then that someone else "did it first" could be reduced to them being the first to need to do it. Which is terrible in the cases where everyone that goes down a route will have to solve the same problem.
- AlbertCory 4y ago
  For an in-depth analysis of "obviousness" as it applies to software: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2399580 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2399580 "obvious to try" is probably what you're imagining. This is a real legal doctrine, and it's deplorably underutilized with software, as I explain. I had a patent lawyer read over this carefully, and he took particular interest in the notion that, as he put it, "software engineers have a bag of tricks they use." We all know that we do. But the legal system needs some kind of official blessing for the contents of the bag, and "our" ACM and IEEE are never going to give us one.
- bradknowles 4y ago
  This method fails in fields where the patent office is explicitly forced to avoid hiring people in that field. So, they cannot reasonably know what prior art might be in that field, if for example they are not allowed to hire anyone with a CS degree, for example. Yes, that was the case for a long time. Only recently have they been allowed to hire patent examiners with CS degrees. So, yay -- fucked up USPTO, as per usual.
amelius 4y ago
No. According to patent law, independent discovery does not exist. And should it ever be proved otherwise, thousands of patent attorneys would be found crying on the floor in fetal position.
michael1999 4y ago
No. US patent law is quite explicit about that. First to publish wins. Deliberately infringing a patent can trigger punitive (3x) damages. "Convergent evolution" could be a defence against that kind of claim. That's a reason big-co lawyers tell devs to NOT read other companies patents.
- gnicholas 4y ago
  Just to clarify, it's first to file with the patent office, not first to publish publicly, in a journal, etc. The US used to have a first-to-invent system, but changed about a decade ago. The first-to-file system is more common in other countries, and generally favors large companies since they can spend lots of resources on filing patents.
  - tsimionescu 4y ago
    Public publishing and filing with the patent office do "compete", though there is (or was) a grace period. That is, if you file a patent for something you just read in a journal, the patent office is supposed to discover the paper that was made public before your filing and not grant your patent. However, I believe there is (or maybe just was?) a grace period of a few months, where you can claim it just took a few months to file and your patent can still be granted even if prior art appeared in these X months between your invention and the actual filing (I have no idea how this is adjudicated).
yarg 4y ago
Patent law should, but does not allow for independent derivation. It also fails to do anything about patent thickets.
- tsimionescu 4y ago
  Independent derivation would be the worse possible thing for patents. The ideal solution would be easing the criteria for obviousness, such that credible claims of independent derivation could be used to invalidate the patent entirely. Otherwise though, the purpose of patent law is to force companies to publish their discoveries instead of keeping them as trade secrets. If a drug company today tried to keep some process or substance as a trade secret, they would run the risk of another company discovering the same process and/or substance and blocking them from producing the thing they discovered first. So, they are essentially forced to publish it.

deleted 4y ago

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mmastrac 4y ago

Nope, you need to be quick to file. There is, however, an exception: if an invention is likely to be obvious to a person skilled in the art given access to prior art, the invention is not considered not patentable

taeric 4y ago
That exception is laughably weak in bleeding edge fields. That is, if "skilled in the art" is limited in audience, then that someone else "did it first" could be reduced to them being the first to need to do it. Which is terrible in the cases where everyone that goes down a route will have to solve the same problem.
AlbertCory 4y ago
For an in-depth analysis of "obviousness" as it applies to software: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2399580 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2399580 "obvious to try" is probably what you're imagining. This is a real legal doctrine, and it's deplorably underutilized with software, as I explain. I had a patent lawyer read over this carefully, and he took particular interest in the notion that, as he put it, "software engineers have a bag of tricks they use." We all know that we do. But the legal system needs some kind of official blessing for the contents of the bag, and "our" ACM and IEEE are never going to give us one.
bradknowles 4y ago
This method fails in fields where the patent office is explicitly forced to avoid hiring people in that field. So, they cannot reasonably know what prior art might be in that field, if for example they are not allowed to hire anyone with a CS degree, for example. Yes, that was the case for a long time. Only recently have they been allowed to hire patent examiners with CS degrees. So, yay -- fucked up USPTO, as per usual.

amelius 4y ago

No. According to patent law, independent discovery does not exist. And should it ever be proved otherwise, thousands of patent attorneys would be found crying on the floor in fetal position.

michael1999 4y ago

No. US patent law is quite explicit about that. First to publish wins. Deliberately infringing a patent can trigger punitive (3x) damages. "Convergent evolution" could be a defence against that kind of claim. That's a reason big-co lawyers tell devs to NOT read other companies patents.

gnicholas 4y ago
Just to clarify, it's first to file with the patent office, not first to publish publicly, in a journal, etc. The US used to have a first-to-invent system, but changed about a decade ago. The first-to-file system is more common in other countries, and generally favors large companies since they can spend lots of resources on filing patents.
- tsimionescu 4y ago
  Public publishing and filing with the patent office do "compete", though there is (or was) a grace period. That is, if you file a patent for something you just read in a journal, the patent office is supposed to discover the paper that was made public before your filing and not grant your patent. However, I believe there is (or maybe just was?) a grace period of a few months, where you can claim it just took a few months to file and your patent can still be granted even if prior art appeared in these X months between your invention and the actual filing (I have no idea how this is adjudicated).

yarg 4y ago

Patent law should, but does not allow for independent derivation. It also fails to do anything about patent thickets.

tsimionescu 4y ago
Independent derivation would be the worse possible thing for patents. The ideal solution would be easing the criteria for obviousness, such that credible claims of independent derivation could be used to invalidate the patent entirely. Otherwise though, the purpose of patent law is to force companies to publish their discoveries instead of keeping them as trade secrets. If a drug company today tried to keep some process or substance as a trade secret, they would run the risk of another company discovering the same process and/or substance and blocking them from producing the thing they discovered first. So, they are essentially forced to publish it.