Starting today, the USPTO is a "first to file" system
0. phoneArena 16 Mar 2013, 14:40 posted on
One of the more troublesome aspects of patent law is worrying about if something that you want to patent may have existed before you filed the patent, but starting today, that will no longer be a worry, because from here on, the US is moving to a "first to file" system, rather than the old "first to invent" system, which was much more difficult to defend...
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3. AFnerdTP (Posts: 85; Member since: 15 May 2012)
i thought we were trying to go the way of preventing patent trolls??
wouldn't this only encourage patent trolls to just patent whatever they can think of?
help me out here, i'm NOT seeing a positive side to this...
5. MichaelHeller (Posts: 2668; Member since: 26 May 2011)
Sorry, meant to add the bit about trolls. It's in there now. Trolling is discouraged. Not exactly sure how the system defends against patents filed simply to have the patent, and without intention of creating the product detailed. I'm doing more research.
13. roscuthiii (Posts: 1788; Member since: 18 Jul 2010)
That's probably why it's only "halfway" to where the reform needs to be. I don't think the first-to-file system should have been enacted until they'd hammered out a whole system.
Patents should flat out favor the innovator... first-to-file as this is just flat out favors the innovator with the most resources. I'm not sure I can abide by that caveat.
So what if they trolls can only file suit against one defendant at a time, filing first is a sure lock to gain the patent. Less defense against it now. Which means they can steamroll one defendant and move on to the next. After all, they did this to streamline legal proceedings. So these year(s) long cases get cut to a few months. They succeeded only in speeding the pace patent trolls can prey upon their targets. It was one step forward, two steps back.
Hmm... not sure I saw it in there (and I'm too lazy to scroll back up), but if it's limited to only one defendant at a time, is there any limit to how many patents can be named per suit? Seems like a troll going all out at filing patents can arm up to the teeth pretty quickly.
If prior art is no longer a consideration, can one still defend against the validity of the patent? (And if that is the case, then doesn't that not help speed things along as intended then?)
Final thought... are there any provisions for ensuring the clerks reviewing the patents are able to execute their jobs properly?
16. roscuthiii (Posts: 1788; Member since: 18 Jul 2010)
Another issue... under the pressure to file first, or lose out altogether, what about the quality of research put into products, or properly vetting them with adequate testing? Won't that impact overall quality of the products?
If Company A gets word that Company B's similar idea is near completion, won't Company A strike preemptively; just throw together what they can in order to get to the patent office first, then work out the kinks later?
I'm foreseeing a lot more patents with the modifiers, "on a >insert medium here
24. Droid_X_Doug (Posts: 5719; Member since: 22 Dec 2010)
There is no requirement to develop a working prototype as a condition of receiving a patent, if that is what you are asking. The principal impact of first to file is going to be a rush to slap together patent applications that cover some elements of what is to be patented, rather than everything that is needed for an invention to work.
For example, if competitors to the Wrights had known most of the elements to controlled flight (pitch and yaw were pretty obvious), one of them could have filed an application that conceivably could have blocked the Wright brothers from filing a patent for the complete process that included roll.
I predict a mess is going to result. In retrospect, this is more of a full employment opportunity program for patent attorneys.
25. Droid_X_Doug (Posts: 5719; Member since: 22 Dec 2010)
Patent trolls typically aren't the original inventors. A patent troll is generally an entity that has purchased a patent that it believes it can enforce for a financial return. Under first to file, patent trolls won't enter the process until a patent has actually been issued. Even the requirement to file individual lawsuits, won't slow down a troll. Intellectual Ventures has plenty of cash to fund individual lawsuits.
29. remixfa (Posts: 13903; Member since: 19 Dec 2008)
First to file is meaningless without some sort of prototype clause to back it up.
Otherwise, I could simply draw 100 different diagrams for anything I can think of that I think might come down the pipe in a few years and go patent them.
Now I own the future for pennies on the dollar.
36. rallyguy (Posts: 541; Member since: 13 Mar 2012)
Everything Obama has done has been to help his buddies. Follow the money and you will see why these changes were made. His friend Al Gore is on the board of directors for Apple. Might be a coincidence, but it's definitely to help someone, and not just the averages person.
4. som (Posts: 768; Member since: 10 Nov 2009)
First come first serve Patent Laws even an ideas without product now you own that patent. What is a Crazy Patent Laws.
10. weinerslav (Posts: 126; Member since: 31 Jul 2012)
I'm affraid this will do more bad than good...
6. MartyK (Posts: 706; Member since: 11 Apr 2012)
Crap!...I need to get busy and file!!.....
"Numbers" will be my first patent files...look out PA remove all numbers form your site or expect a C&D letter soon...hahaha
7. Taters (Posts: 2819; Member since: 28 Jan 2013)
That is horrible. I thought Obama was supposed to help not hinder.
8. Aeires (unregistered)
Goes halfway? This is a step backwards, nothing more. We need to get back to the first to invent days.
15. Zero0 (Posts: 583; Member since: 05 Jul 2012)
WE HAVE A WINNER!
Congress was given the authority to issue patents to protect innovation, not to protect idea-stealing copycats with loads of money to hire lawyers.
11. InspectorGadget80 (Posts: 6371; Member since: 26 Mar 2011)
Would be better if we can stop talking bout apples bogus patent & patents in general
12. tedkord (Posts: 4636; Member since: 17 Jun 2009)
What, they decided the patent system wasn't a big enough mess already? This is nothing more than the government abdicating its responsibility so it won't have to do the work involved with researching patents.
14. Zero0 (Posts: 583; Member since: 05 Jul 2012)
YES! This law is fantastic, and will solve all of the issues America faces.
I've already called in a lawyer to help me write my first patent. The invention I'm patenting actually has a bit of prior art, but it is an exceedingly useful technology. It's for a method of retrieving diatomic oxygen from air and utilizing it for cellular respiration. I think people will love this technology.
17. roscuthiii (Posts: 1788; Member since: 18 Jul 2010)
You done screwed up. I live a block away from the patent office. Guess who's gonna file first?
Hmm, I guess offices located near patent offices now become prime real estate.
18. -box- (Posts: 3778; Member since: 04 Jan 2012)
Too late, someone else just filed for that. You're out of luck now. Better luck next time
21. Zero0 (Posts: 583; Member since: 05 Jul 2012)
But what if I breathed first?!
Oh wait. I forgot that that is irrelevant now.
20. Slammer (Posts: 999; Member since: 03 Jun 2010)
If the law is only half of what it should be, then maybe it should have been shot down. Without knowing the full spectrum of this law, I would hope a required time period should be in place to culminate the final product after the filing. Any info on whether this is the case?
22. sprockkets (Posts: 1160; Member since: 16 Jan 2012)
THIS ARTICLE IS ABSOLUTELY INCORRECT. PRIOR ART STILL MATTERS.
Please read up on it instead of spreading mis information!
26. Droid_X_Doug (Posts: 5719; Member since: 22 Dec 2010)
You missed the most important part of the Wiki article - potential unconstitutionality of FIrst-to-File: "Many legal scholars have commented that such a change would require a constitutional amendment."
Lotsa litigation on the horizon.... Anyone with a kid who isn't sure what profession they should pursue - tell them to become a patent attorney.
35. sprockkets (Posts: 1160; Member since: 16 Jan 2012)
That still doesn't change what I said - prior art still matters.
23. kanagadeepan (Posts: 664; Member since: 24 Jan 2012)
Bad becomes Worst... There is more harm than good in this new system... Good for lawyers only and NOT for consumers...
27. Mr..J (Posts: 17; Member since: 01 Feb 2013)
Oh my god let me patent
the circular shape of a tyre
28. dragonscourgex (Posts: 307; Member since: 16 Jan 2012)
I am no expect in this area. But I don't see how this would help. I believe a person/company should be required to present a working prototype before it can be rewarded a patent. Also, I believe it should be a required that said person/company are actively using the patent to produce a service/product for the consumer. Not just sitting on a group of patents for the solo purpose to sue anyone that making something similar.
30. rsaunders917 (Posts: 9; Member since: 19 Jul 2012)
"Starting today prior art no longer matters in patent cases."
This really naive generalization is quite misleading. Changing to a first-to-file system doesn't render prior art irrelevant in patent cases. Technically, prior art may not be relevant in determining who has priority over the right to patent an invention, but in patent cases such as in invalidity litigation, prior art can invalidate what USPTO has granted based on a prior art's rendering the patented invention invalid for lack of novelty or for obviousness. Please do your homework first, or consult someone knowledgeable before coming up with a baseless all-encompassing grandiose conclusion to blind all with its seeming scope and importance.
34. gwuhua1984 (Posts: 1237; Member since: 06 Mar 2012)
Wow... this is so bull...
Time to start another petition...