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United States Transitions To A 'First-Inventor-To-File' Patent System
- GotAnyMegadeth 14y agoI don't really understand who benefits from this change? Doesn't everyone lose?
- nicktelford 14y agoI'm pretty sure the USPTO and Patent Attorneys win, given that it'll encourage more people to file patents, and sooner rather than later. Not sure of the impact on innovation, but my gut instinct isn't good.
- jrs235 14y agoThe number of applications consisting of just ideas, that haven't been implemented, tested, or tried, is going to sky rocket. And who can afford to file so many patents? The "big" established guys. Things just got worse.
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- unavoidable 14y agoFirst to file actually reduces amount and cost of litigation. It removes the need to prove that you invented something 'first', which invariably involves a lot of wrangling over when an invention was 'invented' and at what point something could even be considered 'invented'. Those questions were deemed to be distracting and not particularly helpful to the patent process. First-to-file may actually be more helpful in prior art searches because it reduces incentives to 'sit' on an invention and wait out the market, and increases certainty.
- icebraining 14y agoJust to clarify, since some people (not necessarily you) confuse this: first-to-file does not mean prior art doesn't count. If you publish something, it can stil be used to invalidate a patent or application. First-to-file just means that if two people apply for a patent, there's no possibility for the second to challenge the first with an interference proceeding[1] to attempt to prove using non-published evidence that you actually invented first. [1]: http://en.wikipedia.org/wiki/Interference_proceedings http://en.wikipedia.org/wiki/Interference_proceedings
- uvdiv 14y agoA previous thread answers this question: https://news.ycombinator.com/item?id=5211221 https://news.ycombinator.com/item?id=5211221
- scotty79 14y agoLawyers benefit. It'll be cheaper to extort. You don't have to be afraid that someone else comes and proves that he invented this first. Owning a patent becomes almost risk free goldmine. Also more this will lead to more patents because you have to patent to avoid someone else patenting your stuff bit later and extorting money from you. Also more patents means more cannon fodder for lawyers for use in future extortions.
- icebraining 14y agoActually, lawyers lose the money they got paid to prove/disprove that someone else invented it first. And no, you don't "have to patent to to avoid someone else patenting your stuff bit later". You can just publish it, which then counts as prior art.
- bediger4000 14y agoTo my mind, "first to file" removes some of the moral basis of patents. That is, even if someone invented something first, whoever gets to the PTO first gets rewarded with ownership of the idea. We've taken away the reward that should be given to the First Inventor based on that sacred, difficult act of Creation.
- Gormo 14y agoThere is no "moral basis" for patents: they're entirely a creation of positive law, which generates an artificial monopoly in an inherently non-rival good, for the explicit purpose of "promot[ing] the Progress of Science and useful Arts". No "sacred, difficult act of Creation" is recognized, nor has ever been recognized, as the source of patent law.
- bediger4000 14y agoI happen to agree, but in Europe, that's not 100% true: artists have some "moral rights" as to how and when their work is exhibited. Even in the USA, even though the legal underpinnings don't recognize a "moral basis", legislation for the last 30-odd years seems to lean towards an "ideas as property" basis. I realize I'm conflating patent with copyright here, but so does the idea of "Intellectual Property". Why else would we grant a nearly everlasting monopoly (via copyright, again) other than to reward a Sacred, Difficult Act of Creation?
- Gormo 14y ago> Why else would we grant a nearly everlasting monopoly (via copyright, again) other than to reward a Sacred, Difficult Act of Creation? You seem determined to find a moral root for what seem entirely to be pragmatic objects of law, but I don't think one exists to be found. If I were to eschew cynicism in answering your question, I'd propose that the legislators behind copyright extensions believe them to be the most effective means of pursuing the purpose of both patent and copyright law defined in the constitution, which I quoted in my previous comment. If we were to admit cynicism into the conversation, I'm sure you could anticipate what my answer might be.
- rayiner 14y agoAs mentioned elsewhere, this is narrower than it seems. It's a rule of decision for what happens if two parties file at the same time, claiming to have invented first. Before, they fight in court to see who invented first. Now, they just look at who filed first. It does not to anything about prior art. Inventing and disclosing first still bars future patents.
- lennel 14y agoOut of curiosity, what kind of protection does the system offer against companies in certain markets patenting against potential innovations in these markets by inventors?
- dthunt 14y agoIn theory, (normal) patents should only be granted when they describe an invention to the level of detail that someone versed in the art can replicate the invention after expiration. This property is unfortunately not generally present in patents once patent lawyers are done broadening the scope of possible 'embodiments' and rendering the language unintelligible.
- Nursie 14y agoI'd rather transition to a system where if two people try to file for the same thing within a few months or a year of each other, neither one gets it because it's probably pretty obvious.
- natermer 14y agoI'd like to transition to a system were a anonymous bureaucrat in Washington doesn't get to go out and annihilate innovative businesses because some competing monolithic corporation was the first one to pay his employer off.
- rplnt 14y agoWhat if both of them put real effort (money) into research and arrived at similar/same place? Should it be dismissed as well? Or is there something as joint patent?
- Nursie 14y agoMaybe a joint patent, if they can agree to cooperate. Like naughty children, either you share nicely or nobody's having any cake! :)
- bediger4000 14y agoI think in that case, the answer is "too bad, so sad". The patent system shouldn't guarantee some kind of monetary reward. If it does, it sets up the wrong incentives. Independent invention should be a sign that the idea isn't worth patenting, that it was "in the air" at the time.
- pc86 14y ago> The patent system shouldn't guarantee some kind of monetary reward. If it does, it sets up the wrong incentives. They don't, unless people use it and the patent holder wants to charge for licensing.
- bediger4000 14y ago
- hmottestad 14y agoI remember an article about SpaceX where Musk said that they didn't file many patents, because then other countries essentially had free access to their inventions if they didn't honour patents (China was mentioned). With this change in law, they may no longer have protection against a patent filed by someone else that they (SpaceX) invented first...simply because they were not the first to file. This may bring about more innovation because it forces "sharing" of ideas. Even if that "sharing" is done to stop real sharing.
- jvzr 14y agoRelated: https://news.ycombinator.com/item?id=4732671 https://news.ycombinator.com/item?id=4732671
- pbhjpbhj 14y ago>they may no longer have protection against a patent filed by someone else that they (SpaceX) invented first // They only had a very limited protection before. First year of use, only shown in public in certified trade shows IIRC. This is how patents work, they require publication to enrich the knowledge pool and the return for that publication is time-limited government granted monopoly. If SpaceX can demonstrate prior use then no later filed patent can, if the law is correctly applied, prevent their continued working of that specific invention. The point is to put pressure on inventors to file, that's one of the two major purposes of the patent system (the other being to ensure due compensation of inventors).
- jbondeson 14y agoYou are incorrect. Trade Secret laws and prior continuous use protect SpaceX very well if someone were to swoop in and patent a technology they use. It wouldn't necessarily prevent a patent from being obtained, but it would protect SpaceX from being found in violation. I know this from first hand experience.
- Daniel_Newby 14y agoHow does that work? The whole point is that the first filer wins regardless of prior invention.
- jschuur 14y agoDoesn't this put the pressure on companies to file even more patents on things quickly, in case someone else beats them to it?
- mtgx 14y agoExpect the big corporations to file even bigger swaths of patents now.
- rogueriver 14y ago1. My gripes with our patent, and trademark system comes down to fees. 2. I draft all my own patents(only 1), and found the process difficult, but doable. I also filed my own trademark. 3. I did have an issue with the filing fees. I contacted the offices involved and complained about the fees. I felt the fees might prevent many young inventors fron protecting their invention, or trademark. 4. They told me their was some programs for low income individuals, but I couldn't kind anything. The fees for filing a patent should be based on what a person makes?
- Nursie 14y agoThe fees are a deliberate barrier. The patent office must get funding from somewhere. If the fees don't at least mostly cover their staffing and research needs then huge companies that file a lot become a huge financial burden on the taxpayer, and the taxpayer is then paying for a business advantage for these companies. Obviously this sucks for the small inventor. I'm not sure how you get around it. The first X a year are free? But then the patents are always filed in individual names and then assigned to the company anyway, so I'm not sure that works.
- roc 14y agoWhile it's possible that too-low fees could hypothetically make the USPTO a drain on the federal balance sheet, it's currently a revenue source. [1] And there's long been a separate (reduced) fee schedule for "small entities". And it's long been recognized those are still fairly high for situations like the lone-inventor, and such situations make up such a small slice of the USPTO's total revenue, that they certainly could be tweaked to be more accommodating without much net impact. And because all that was well-known: The AIA included giving the USPTO some fee-setting authority. And one of their first proposals was to further reduce some small-entity fees and to create a new micro-entity status with commensurately-lower fees. So it's not only a problem that would be fairly easy to address, without much adverse impact, it's actually already being addressed. (Though not really in-effect until later this year). [1] Much ink has been spilt over the fact that the USPTO brings in more than it takes from the federal balance sheet, yet their budget has been left so low that they're chronically short on resources and thus backlogged.
- reader5000 14y agoIf an invention is invented twice independently, it should by definition be "obvious" and not patentable.
- meepmorp 14y agoOf course, then you get into a argument about proving independent invention. Given that applications for patents are published, it's hard convincingly show you weren't aware of another person's invention. FWIW, I agree with the principle. There's a lot of obvious stuff that gets patented, particularly in software.
- tzs 14y agoSo if thousands of engineers independently worked for years trying to solve some important problem, and then finally a mere two of them come up with solutions around the same time that are similar, you'd say the solution is obvious? That's a pretty weird way to define obvious. It is true that sometimes a term used in the law deviates a bit from the meaning of that term in ordinary English, but rarely as far as your definition of obvious does. In English, obvious means that it is easy to discover. It should be readily found by any reasonably competent person who looks.
- Glyptodon 14y agoI still think that the occurrence a of situation where multiple parties file for patents on essentially the same thing in a short period of time independently should be considered unassailable evidence of obviousness and consequently unpatentable subject matter. Whatever happened to a "person having ordinary skill in the art"?
- adventured 14y agoEven if this were a better approach, all I see it doing is forcing an even bigger torrent of patents into a system already so overloaded that it hardly functions as it is. How is the patent office going to manage the increase? It's not, the system is going to slow down even further. This also increases the cost of innovation. If I have a business, invent something, and don't patent it - I'm screwed regardless of if I prove I created it three years prior to the filing. In other words, now you have to file patents for everything to protect your ass (because it's not good enough to be able to prove you invented it first X years ago), and that's a very expensive proposition, particularly for small companies. This encourages the patenting of every little detail possible, even more so than today. Because if you don't patent every little detail, now you will have no right to self defense on the basis that you were the original inventor - they can come after you for every rounded corner you failed to patent, so to speak. This forces everybody into the patent game. The rationalizations being offered up, such as that this will be good because it forces openness on innovation are not only wrong (all it actually does it make it easier to steal technology for countries that already don't respect foreign patents), but the negatives are going to far outweigh any supposed benefits. In five years everybody here is going to be complaining about how they really botched this piece of legislation and how it created more problems than the old system. This will turn out to be an extraordinarily expensive and destructive change; it is not the right approach.
- RexRollman 14y agoDo the manage it now? From my observation, it seems they are more interesting in the filing fees than vetting applications.
- rayiner 14y agoThere are a lot of concerns about first to file, but I think they're overblown because they ignore the context in which "first to file" versus "first to invent" comes into play: when there are two simultaneous patent applications. What the AIA does is two-fold: 1) It changes the rule from "first to invent" to "first to file" when two inventors simultaneously seek a patent for the same invention; 2) It expands the "prior user rights" defense so that if you've been using a technology commercially for a year before the patent filing, you're not liable for infringement. So if you weren't going to patent something, and keeping it as a trade secret instead, it's not clear that under AIA you have a new incentive to go patent it. If you weren't going to patent it anyway, there wasn't going to be a "dueling applications" situation, and "first to file" wasn't going to come into play anyway. And if you disclosed the technology instead of keeping it secret, then prior art comes into play and AIA expands the cases in which prior art can be used to invalidate a patent. I'd personally like to see a merging of the "prior user rights" and "prior art" defenses. It should be possible to invalidate a patent by showing that someone else was using the technology before the patent was filed, even if that other person didn't publish. Of course, one way to achieve that effect under current rules is to publish instead of keeping technology secret. If the tech community is really opposed to patents, especially software patents, then it should take additional measures to publish exactly how all their technologies work. This is something Google, etc, can take the lead on without waiting for legislation. Establish a rich database of prior art that can be used to invalidate future patents.
- kylered 14y agoPatents are a necessary evil and a little bit addicting once you get your first taste. First to file simplifies a lot of the issues with prior art (ie the challenge of proving your idea was original), but I believe this system stifles small companies even further because of the costs associated with the patent system. We've made a decision to pursue key patents given how important some of these technologies are for our product, but I don't think that applies to most startups. Here are some thoughts, cost overviews, and what to think about for a startup patent strategy: http://kylethered.tumblr.com/post/45273614239/good-rules-of-thumb-for-a-software-startup-patent http://kylethered.tumblr.com/post/45273614239/good-rules-of-...
- gcr 14y agoI'm confused by their example. How does this change the rules of public disclosure? Before this law, public disclosures prevent the inventor from giving patents. In a conference I attended, the scientists were very careful to avoid publicly disclosing the details of their inventions for fear of removing their ability to file for a patent. But the brief blurb in the article mentions that if inventor A publically discloses their invention before inventor B files, then inventor A gets the patent. Could someone clarify?
- gamblor956 14y agoPublicly disclosing an invention does not prevent a patent...it simply puts a deadline for filing (1 year under the old rules, not sure under the new rules) starting with the date of disclosure. Thus, the purpose of avoiding disclosure is to prevent giving yourself a deadline.