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Even if you created the idea first?Even if you created the idea first?Posted Aug 8, 2012 19:58 UTC (Wed) by Wol (guest, #4433)In reply to: SCO files for chapter 7 (Groklaw) by drag Parent article: SCO files for chapter 7 (Groklaw)
Is this the "new" American thing about "first to file"?
Actually, no. You *CAN'T* (lawfully at least, legally in a court is a different thing) infringe a patent if you invent *and* *publish* first.
All "first to file" means is that when arguing over who gets the patent, the date on the application trumps all.
When arguing whether the patent is valid it means NOTHING! So if I publish an idea on the web today, and somebody patents the same idea tomorrow, then according to the law they "filed second" and don't get a patent.
Yes yes, I know reality is different, they'll get the patent and sue me, but the law is clear their patent is invalid. If I were a yank that wouldn't stop me losing my shirt trying to prove that.
(Seeing as I'm a Brit, they'd probably get their head handed back to them on a platter, along with a VERY large bill.)
Cheers,
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Even if you created the idea first? Posted Aug 8, 2012 20:20 UTC (Wed) by drag (subscriber, #31333) [Link]
> Is this the "new" American thing about "first to file"?
There is nothing new or American about it. It's what most other countries use.
> Actually, no. You *CAN'T* (lawfully at least, legally in a court is a different thing) infringe a patent if you invent *and* *publish* first.
What the courts decide is what is 'lawfully and legally'. Whether or not this meshes with what you are reading into the law is irrelevant.
In fact it seems that primary purpose of high courts in the USA is to simply convince people that what is obviously illegal or against the spirit of the law is actually 'A-OK'.
> Yes yes, I know reality is different, they'll get the patent and sue me, but the law is clear their patent is invalid. If I were a yank that wouldn't stop me losing my shirt trying to prove that.
You would lose your shirt, your business, your ability to feed and care for your family along with causing everybody that depends on you for their jobs and their retirement to lose their shirts also. Fighting a patent and winning is still losing for the majority of people. This isn't a accident of history or just reflects a inefficiency or accident in the bureaucratic process. I am pretty sure that it's by design.
The best way to fight it is to get the maximum amount of people to acknowledge the illegitimacy of the concept of monopoly ownership of ideas.
Hopefully people will find effective ways to fight new regimes created by patent reform, but at best it's just a band-aid.
Even if you created the idea first? Posted Aug 8, 2012 20:23 UTC (Wed) by dlang (✭ supporter ✭, #313) [Link]
"First to File" is new in the US, however it was changed "to bring US law in line with how the rest of the world works"
and yes, even if you invent it first, and publish it first, if someone else applies for the patent and convinces the patent examiner that your publication is not "prior art" (say it was published after the patent application was filed for example), they can get a patent and you will have to stop using your invention or pay them for the privilege.
"Fileing" is not publication, "Fileing" is submitting a patent application to the government.
Even if you created the idea first? Posted Aug 13, 2012 11:23 UTC (Mon) by dps (subscriber, #5725) [Link]
In most the world, and even in the US to some significant extent, publication prior to the filing date makes it impossible to obtain a patent, I think the US, unlike most of the rest of the world, allows you to exclude your own publications but not any response to them by others.
IBM has been known to publish things that they think not worth patenting so nobody else can patent them. Some of the things disclosed became worth $$$$$$$ within a few years.
There is at least one instance when a charity, for the cost of a few airfares and hotel bills, managed to stop a vast company backed by the US government getting an EU patent. The airfares paid for travel for somebody who could prove prior art.
Even if you created the idea first? Posted Aug 13, 2012 18:04 UTC (Mon) by dlang (✭ supporter ✭, #313) [Link]
The problem is that the patent laws have a window to allow for the fact that it takes some time between invention and filing for the patent. As a result, using publications as Prior Art requires that the publications be a considerable time before the patent application. I believe that this window is two years.
Now they could also be used to try and disprove the patent applicants claim that this invention is not going to be obvious to people skilled in the art, but that's a harder approach to take.
Even if you created the idea first? Posted Aug 13, 2012 20:44 UTC (Mon) by Cyberax (✭ supporter ✭, #52523) [Link]
Nope. The US has switched to 'first to file' so a publication even 1 day before the filing date would be enough to be considered prior art.
Even if you created the idea first? Posted Aug 13, 2012 22:34 UTC (Mon) by dlang (✭ supporter ✭, #313) [Link]
actually, the Patent Office is just now publishing the proposed rules that will implement the "first to file" policies. You would have to check through their proposed rules to see how it is going to work going forward.
Right now, the old rules still apply.
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