5 ms·

There is: Publishing it on a blog or in a scientific publication does that. At trial, your blog can be used to invalidate any patent claims that it predates.

ricksunny 2y ago
This is correct. And it is called ensuring 'Freedom to operate' - FTO.
kjellsbells 2y ago
That is supported by the article, but I would find it hard to imagine that an inventor who is trying to assert their rights against a much more well-resourced competitor would want things to go to trial. The article is pretty clear that filing first is what matters, not posting first, and first to file provides much, much, stronger evidence of your claim than a social media post.
- freejazz 2y ago
  You don't need to go to trial to invalidate a patent. It happens frequently at the motion to dismiss or summary judgment phases.
  - DowagerDave 2y ago
    you still need the resources to go through the courts though. This closes out the option for almost all.
    - echoangle 2y ago
      Well there’s literally nothing you can do about that when every party has a right to a trial. How are conflicts supposed to be resolved if one party doesn’t want to go to court?
      - tempfile 2y ago
        Some other, less expensive, less corrupt tribunal mechanism? I don't think GP is saying courts are bad because they're courts, they're saying US courts happen to be bad and expensive (which is not necessary).
        freejazz 2y ago
        Oh, like the PTAB? That worked out great for the Big Tech co's, less so for everyone else. Also, are you genuinely saying that US district courts are corrupt? On what basis?
        echoangle 2y ago
        How would that work legally? I’m pretty sure you can’t prevent someone from having to drag them to court with a tribunal, because the party you want to compel to do something has the right to a trial. If apple patents something you think you invented and published first, and you go to the tribunal, but apple says „no, I want a court order“, what is supposed to happen? I don’t think you can just remove the right to a trial (but I’m not a lawyer, so maybe that’s possible?).
    - freejazz 2y ago
      If you have good prior art, why would a patent holder litigate against you? They'd be almost guaranteed to lose their patent.
      - monocasa 2y ago
        Ask Sable wrt their spat with CloudFlare.
        freejazz 2y ago
        Perhaps you can make your point here so I don't have to go searching for something you have not even explained the relevancy of.
        tempfile 2y ago
        Literally what do you expect them to post? Sable is a patent troll who very famously sued Cloudflare, and recently lost. What else could they possibly mean? https://blog.cloudflare.com/patent-troll-sable-pays-up/ https://blog.cloudflare.com/patent-troll-sable-pays-up/
        freejazz 2y ago
        >Literally what do you expect them to post? What their point is. I don't know who sable is, I'm not a mind reader and searching would just require me to make an assumption as to what their point would have been. > Sable is a patent troll who very famously sued Cloudflare, and recently lost. What else could they possibly mean? I don't think that's what the word famous means! All things aside, I don't think pointing to one instance of this occurring is a great argument. Mind you that the invalidity issue went to a jury which means it escaped at least 3 rounds of determination by a judge, including a JMOL. Meaning that the judge felt there was enough evidence for a jury to be able to find the patents were valid. So, again, I don't think it's the slam-dunk some people seem to think.
- deleted 2y ago
  [deleted]
- zvr 2y ago
  No, posting things (for example on YouTube) counts very well as prior art and helps you invalidate (or limit the scope of) patents that appear later. For a well-known case, consider Hangprinter, by Torbjorn Ludvigsen: a 3D printer without a frame. He had built it and documented the whole thing in YouTube videos. Then someone heard of the idea and went ahead and got a patent on it. Torbjorn turned on the Internet for help, started a GoFundMe campaign to collect resources, and with the help of an experienced attorney, managed to have the patent limited so much that does not affect almost any other printer. The "experienced attorney" part was the most crucial, in my opinion, and he could not have chosen anyone better than the one he used. You can read all the details in the entry named "Patent Got Narrowed 5-8-2023" on Torbjorn's blog https://torbjornludvigsen.com/blog/ https://torbjornludvigsen.com/blog/
jauntywundrkind 2y ago
I'm confused because my understanding is that "first to file" rather than "first to invent" is now basically universal. My assumption was that tagline meant what to said, that it didn't matter when you create or publish something, that the government was open to giving a monopoly to whomever jumps through the legal hoops first. ...which has been a major load of salt I've carried around with me.
- hansvm 2y ago
  First to file determines who gets the patent, if anyone. Anything out in the public as verifiable prior art can invalidate all such patents, giving you (and your competitors) the freedom to operate.
- jcranmer 2y ago
  When you make a public disclosure (this includes things like "releasing a product that uses that method", fwiw), that starts a countdown clock [1]. When that clock reaches 0, that disclosure is now prior art, and anyone who files for a patent after that point is unable to get a patent for that method. Sufficiently old public disclosure invalidates any patent, independent of any filing system for patents. First-to-file and first-to-invent are instead what happens if you get two different people who try to file for a patent before that point. In a first-to-invent system, there's an adjudication process that's going to look at all of the internal records to figure out who "invented" the process first (which, in the absence of evidence, is going to default to the first person to file anyways). In a first-to-file system, the first person to get their paperwork in the door is going to get the patent. This doesn't mean that an unscrupulous person gets to look for public disclosures and rush their own patent applications to beat out the original inventor. You still need to demonstrate independent conception of the idea (although this would likely only be demonstrated in the context of an actual trial). [1] I don't remember it's length, but I want to say it's like a year.
  - querk44 2y ago
    A public disclosure becomes prior art as of the date it is made public, with no "countdown clock" in most jurisdictions. For example, if you publish a blog article on July 1 describing your invention X, it can serve as prior art for any patent applications claiming invention X with an effective filing date after July 1. There are nuances however with prior-filed patent applications. While such applications are not immediately public, once they are published (typically 18 months after filing), they become prior art retroactively, as of their filing date. Even if a person independently conceives of a patentable idea, they shouldn't be able to get a patent for it if there exists prior art (although it obviously happens sometimes because the patent examination process isn't perfect).

ricksunny 2y ago

This is correct. And it is called ensuring 'Freedom to operate' - FTO.

kjellsbells 2y ago

That is supported by the article, but I would find it hard to imagine that an inventor who is trying to assert their rights against a much more well-resourced competitor would want things to go to trial. The article is pretty clear that filing first is what matters, not posting first, and first to file provides much, much, stronger evidence of your claim than a social media post.

freejazz 2y ago
You don't need to go to trial to invalidate a patent. It happens frequently at the motion to dismiss or summary judgment phases.
- DowagerDave 2y ago
  you still need the resources to go through the courts though. This closes out the option for almost all.
  - echoangle 2y ago
    Well there’s literally nothing you can do about that when every party has a right to a trial. How are conflicts supposed to be resolved if one party doesn’t want to go to court?
    - tempfile 2y ago
      Some other, less expensive, less corrupt tribunal mechanism? I don't think GP is saying courts are bad because they're courts, they're saying US courts happen to be bad and expensive (which is not necessary).
      - freejazz 2y ago
        Oh, like the PTAB? That worked out great for the Big Tech co's, less so for everyone else. Also, are you genuinely saying that US district courts are corrupt? On what basis?
      - echoangle 2y ago
        How would that work legally? I’m pretty sure you can’t prevent someone from having to drag them to court with a tribunal, because the party you want to compel to do something has the right to a trial. If apple patents something you think you invented and published first, and you go to the tribunal, but apple says „no, I want a court order“, what is supposed to happen? I don’t think you can just remove the right to a trial (but I’m not a lawyer, so maybe that’s possible?).
  - freejazz 2y ago
    If you have good prior art, why would a patent holder litigate against you? They'd be almost guaranteed to lose their patent.
    - monocasa 2y ago
      Ask Sable wrt their spat with CloudFlare.
      - freejazz 2y ago
        Perhaps you can make your point here so I don't have to go searching for something you have not even explained the relevancy of.
        tempfile 2y ago
        Literally what do you expect them to post? Sable is a patent troll who very famously sued Cloudflare, and recently lost. What else could they possibly mean? https://blog.cloudflare.com/patent-troll-sable-pays-up/ https://blog.cloudflare.com/patent-troll-sable-pays-up/
        freejazz 2y ago
        >Literally what do you expect them to post? What their point is. I don't know who sable is, I'm not a mind reader and searching would just require me to make an assumption as to what their point would have been. > Sable is a patent troll who very famously sued Cloudflare, and recently lost. What else could they possibly mean? I don't think that's what the word famous means! All things aside, I don't think pointing to one instance of this occurring is a great argument. Mind you that the invalidity issue went to a jury which means it escaped at least 3 rounds of determination by a judge, including a JMOL. Meaning that the judge felt there was enough evidence for a jury to be able to find the patents were valid. So, again, I don't think it's the slam-dunk some people seem to think.
deleted 2y ago
[deleted]
zvr 2y ago
No, posting things (for example on YouTube) counts very well as prior art and helps you invalidate (or limit the scope of) patents that appear later. For a well-known case, consider Hangprinter, by Torbjorn Ludvigsen: a 3D printer without a frame. He had built it and documented the whole thing in YouTube videos. Then someone heard of the idea and went ahead and got a patent on it. Torbjorn turned on the Internet for help, started a GoFundMe campaign to collect resources, and with the help of an experienced attorney, managed to have the patent limited so much that does not affect almost any other printer. The "experienced attorney" part was the most crucial, in my opinion, and he could not have chosen anyone better than the one he used. You can read all the details in the entry named "Patent Got Narrowed 5-8-2023" on Torbjorn's blog https://torbjornludvigsen.com/blog/ https://torbjornludvigsen.com/blog/

jauntywundrkind 2y ago

I'm confused because my understanding is that "first to file" rather than "first to invent" is now basically universal. My assumption was that tagline meant what to said, that it didn't matter when you create or publish something, that the government was open to giving a monopoly to whomever jumps through the legal hoops first. ...which has been a major load of salt I've carried around with me.

hansvm 2y ago
First to file determines who gets the patent, if anyone. Anything out in the public as verifiable prior art can invalidate all such patents, giving you (and your competitors) the freedom to operate.
jcranmer 2y ago
When you make a public disclosure (this includes things like "releasing a product that uses that method", fwiw), that starts a countdown clock [1]. When that clock reaches 0, that disclosure is now prior art, and anyone who files for a patent after that point is unable to get a patent for that method. Sufficiently old public disclosure invalidates any patent, independent of any filing system for patents. First-to-file and first-to-invent are instead what happens if you get two different people who try to file for a patent before that point. In a first-to-invent system, there's an adjudication process that's going to look at all of the internal records to figure out who "invented" the process first (which, in the absence of evidence, is going to default to the first person to file anyways). In a first-to-file system, the first person to get their paperwork in the door is going to get the patent. This doesn't mean that an unscrupulous person gets to look for public disclosures and rush their own patent applications to beat out the original inventor. You still need to demonstrate independent conception of the idea (although this would likely only be demonstrated in the context of an actual trial). [1] I don't remember it's length, but I want to say it's like a year.
- querk44 2y ago
  A public disclosure becomes prior art as of the date it is made public, with no "countdown clock" in most jurisdictions. For example, if you publish a blog article on July 1 describing your invention X, it can serve as prior art for any patent applications claiming invention X with an effective filing date after July 1. There are nuances however with prior-filed patent applications. While such applications are not immediately public, once they are published (typically 18 months after filing), they become prior art retroactively, as of their filing date. Even if a person independently conceives of a patentable idea, they shouldn't be able to get a patent for it if there exists prior art (although it obviously happens sometimes because the patent examination process isn't perfect).