Posted on 06/23/2011 1:26:42 AM PDT by newzjunkey
...The legislation, supported by the Obama administration and a broad range of business groups and high tech companies, aims to ease the lengthy backlog in patent applications, clean up some of the procedures that can lead to costly litigation and put the United States under the same filing system as the rest of the industrialized world.
The Senate passed a similar bill last March on a 95-5 vote. If the bill makes it to the White House for the president's signature, it could be one of the first congressional actions this year to have a concrete effect on business after months of the GOP-led House voting on bills that head straight for the political graveyard of the Democratic-controlled and slow-moving Senate...
The legislation also sets up a process for third parties to submit information regarding a patent application and establishes a new administrative framework called post-grant opposition that allows disputes involving patent quality and scope to be settled, ideally without lawsuits...
(Excerpt) Read more at newstimes.com ...
This bill is a pure crony capitalism play. It will pass, and it sucks.
Ms. Schlafly warned that the new system could clue in IP thieves.
Of course, the only way to "settle" it without suit is to create a process which somehow denies that course.
I could see two willing parties choosing binding arbitration if the amount at stake is small, but commonly when a patent dispute gets to this level neither one wants anything short of a full court press because the stakes are so high, which in turn commonly forces a licensing compromise.
Then again, I’ve heard complaints from holders of patents worth thousands but not millions of dollars that enforcing their patent is well nigh impossible because the legal process is too expensive. I don’t know whether the “new” process will help this situation at all.
I'm not sure what all is in the proposed legislation, but I am against changing from "first to invent" to "first to file."
From the description, the post grant opposition process helps infringers, but not patent holders. Well, in a way it "helps" both, but the infringer would be the entity that would start the process by filing a post-grant opposition. All the law provides for now, is filing of the prior art in the patent file. [35 USC 301; 37 CFR 1.501]
There is a way to file a pre-grant "opposition" in the form of a protest, and post-grant, in the form of reexamination.
The U.S. Constitution, Article I, Section 8, Clause 8, gives Congress the power to grant patents to inventors, not document-filers.
The process was never intended to override the creative work of the inventor.
The capitalistic power of this country resides in the creators, not in the lawyers and paper shufflers.
Corporations and their lawyers come out on top in this theft of creative rights.
This drives a stake into the heart of American creativity.
Bureaucracy has won the battle over creative genius.
Hey HOUSE......get rid of the LIGHT BULB BAN....NOW!!!
Of all the things going on in this country that need action NOW, is this really at the top of Congress’ list? Sheesh. We’re doomed.
I’m not sure what all is in the proposed legislation, but I am against changing from “first to invent” to “first to file.”
First to file is the current law and always has been.
It is total misconception that if you can prove that you invented something before someone else your invention can be patented over an earlier FILING by someone else. If you can prove that the first filer was not the inventor of the item or process patented, you may be able to void the application through process but you can’t do anything if the filer is the actual inventor.
If the “first to invent” was the law, everyone and their dog could claim to be the first. How could they prove it? I’ve heard of a thousand wacky ways to establish proof but none of them “hold water.” The first to actually prove to the patent examiner that the “invention” is practical and works is by way of actually filing a patent application. As far as “proof” is concerned, there is no question that the invention is real and the date of that filing is the date of proof that it exists. There is no other legal way to establish the fact.
That statement may sound confusing but it is possible that several people may have been simultaneously, and independently, inventing the same thing as you during the same time interval without collaboration or knowledge of the other inventors’ endeavors.
The date of filing is EVERYTHING. I know. I am an inventor and write (and hold) patents so I have to know the laws.
No, first to invent, although as you point out, first to file has a leg up in an interference proceeding - where there is more than one inventor. First to invent can LOSE his right to patent, but so can the first to file, if the first to invent can show a prior invention date, coupled with diligence. See 35 USC 102.
Decent evidence of earlier conception and reduction to practice can be obtained with a bound, dated and witnessed notebook.
I'm registered to practice before the USPTO.
First to file is the current law and always has been.
The proposal is blatantly unconstitutional. The Constitution empowers Congress:
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
The key word is “inventors.” There’s no way a first filer who wasn’t the first inventor qualifies for this.
As a side note, this is the only appearance of the word “right” (or rights) in the original Constitution, until the Bill of Rights came along. It is the recognition by the signers that one’s property is a God-given right.
There is nothing wrong with the patent system that couldn’t be fixed by having Congress stop raiding the fee proceeds, and let the PTO keep the fees, to hire and retain more and better examiners. Congress’ raid on these fees is a shameless innovation tax that generates minuscule revenue, but cripples this critical Constitutional function of government.
...coupled with diligence...
If the original inventor did not actively pursue patenting of his idea, let it sit there for years and finally attempted to patent it, but...someone else independently came up with the same idea and filed a patent on it, too bad..so sad.
The key word is “inventors.” There’s no way a first filer who wasn’t the first inventor qualifies for this.
How many times have you heard someone say “hey, I thought of that back 25 years ago. That’s my invention!”
However, if they did not develop the idea nor pursue patenting it. Now you say they can? The only way that the could is if they had disclosed their patentable idea to some other individual or company, and they stole the idea and patented it. In that case a crime was committed and the original inventor has recourse......that is.....if he has the original idea (and more importantly...a working model of it) witnessed (as you said) with documents that can prove his invention and date of invention.....along with PROOF that he disclosed the idea to others, who in turn, stole the idea.
This is one of the reasons that most companies will not even open the envelope that someone sends without patent rights established.....to protect themselves against exactly what I described above.
As I said in a prior response to another poster, DILIGENCE is the key factor. From the original idea, to the model, to the actual working invention, to the patent searches, to the writing of the patent and filing thereof. If those steps are not taken in that order with DILIGENCE, another inventor who independently came up with the idea and followed the progression to patent in the manner described (but with DILIGENCE) will be the first to file.
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