Kerry, What I have problems with is why you think it's worse now.
I Understand your view, and in a "by the rules" patent application vs patent application battle in theory you are right.
My main point is that here in the US it is so expensive to file patents, let alone defend them, that in many cases small innovators relied on 'prior' art to protect them from a big company stealing their idea and patenting it when they could not afford to.
If you got a product to market, and had clear priority documented, it gave you a little protection if an Apple patented your idea and then tried to stop you from using it. Now with first to file they no longer care that you already have the thing to market. They just patent it anyway and are 'first to file'.
Puts the originator in a totally different position legally. Instead of just proving they were "first to invent" to get relief they have to get the patent invalidated which is much more difficult. Remember Prior Art now really only covers if the idea was already patented, not that it was discovered and used prior to being patented and thus is no longer patentable.
Example from Apple: They saw inventions related to Multi-Touch screens that was documented long before they did it, but not patented. They then patented it anyway. In the old system 'first to invent' they were concerned that those patents might be tossed due to prior un-patented art. So they pushed first to file. Now since those 'technologies' were not patented, it is much harder for someone to invalidate their patent because they were 'first to file'.
Before we were in a Race To Invent, patent or not.
Now we are in a Race To File and you only win if you can afford to file.
Before - Unpatented art could prevent or invalidate a patent.
Now - Only prior PATENT art can prevent or invalidate a patent.
At least that is how my old company's patent lawyers explained it to us (I still do their product design work). Big boom in business for them, they are scare mongering everyone into filing for every possible idea "before someone else beats you to it and takes your idea" even for products that we have had on the market for years (without patents for).
I understand what you are saying now I think. Basically it's that the position may be more difficult now for those who cannot afford to (or for other reasons will not) patent. And that's not how it's supposed to work, it all goes back to the common problem where prior art is not considered by the patent office unless it's patented prior art (which is just wrong, but that's what they do in practice). Combined with implied costs in getting patents overturned.
I guess one could say that the law is good, but it doesn't help when reality doesn't follow.
Edit: I was going to add "but IIRC it's cheaper to patent now?", but I see Gordon already answered that - it is. Which should help, hopefully. It's always enlightening to read Gordon's informative posts.
Before - Unpatented art could prevent or invalidate a patent.
Now - Only prior PATENT art can prevent or invalidate a patent.
This isn't correct. In fact, the USPTO went to great lengths to include a 1-year grace period for the inventor between the time of any kind of public disclosure, and the first date of filing. This is fairly unique to the US. After the 1-year period, the idea basically becomes public domain, and is invalidated as a patentable idea. If it were true that only patents were considered prior art, there would be no reason for this grace period.
Under FITF, prior art is more clearly defined, and means any technology that was in the public domain prior to the applicant's filing date (except for the inventor's own disclosure, up to one year). What changed in prior art were things like being able to come back and patent an idea you had decades ago but never filed or disclosed, an old trade secret that was never disclosed, or a "secret sale" of a patentable product in this country or abroad.
While neither FTI and FITF are perfect, FITF brings US law more in line with international laws and treaty, and the revised filing fees for independent inventors makes it quite inexpensive for small players to protect themselves. There are also now better interference procedures for challenging the prior art of a patent application before it is issued, using standard forms that don't require an attorney's intervention.
As to lawyers using the change in patent law to their advantage, well, that's a separate issue. Not all are money-grubbing, though. As this is a brand new law with little case history to go on, most attorneys take the conservative view, and will advise on more protection, just in case. It'll be a good 10-15 years at least before the legal landscape gets used to the new process.
What changed in prior art were things like being able to come back and patent an idea you had decades ago but never filed or disclosed, an old trade secret that was never disclosed, or a "secret sale" of a patentable product in this country or abroad.
I wonder how Coca Cola feels about that? The "secret formula" has never been patented in order to keep it secret, since patenting means they publish the formula. With this change, that means the formula can not ever be patented. And if anyone figures it out they can steal it and use it, and since it's not patented and not patentable, Coca Cola can't do anything about it.
That doesn't make sense. Coca Cola would have been screaming to high heaven if they knew this was coming and would have spent millions to stop it.
Well, they could file the patent and be first to file, but then it's published too.
That said, trade secrets are sometimes preferable. Many patents can be engineered around. It takes publishing to establish the ownership protection, and said protection is only for a limited time.
Coke really doesn't care. They are planning on selling Coke for a very long time. Much longer than any patent protection would benefit them.
So it's their call to maintain secrecy, and that's a simple value / risk judgment.
I'll wager that the list of ingredients, and the exact recipe, is well known. Reverse engineering something like cola is not that difficult.
The value in coke isn't the taste; it's the brand.
It'seems the taste is important too. Remember how well New Coke went over? People didn'the like it. Personally, I prefer Diet Pepsi because of the taste. Regular Pepsi is nasty, fountain Diet Pepsi tastes a bit "off", Diet Pepsi poured from a bottle over ice is closer, Diet Pepsi straight from a chilled 24 oz bottle is j
That doesn't make sense. Coca Cola would have been screaming to high heaven if they knew this was coming and would have spent millions to stop it.
It's the opposite of what you presume. Now someone CAN patent an undisclosed trade secret of their own years after the fact. Coca Cola is by no means required to now patent their formula if they don't want to (and they likely don't want to). Trade secret protection still exists.
It's the opposite of what you presume. Now someone CAN patent an undisclosed trade secret of their own years after the fact. Coca Cola is by no means required to now patent their formula if they don't want to (and they likely don't want to). Trade secret protection still exists.
I must have misunderstood you meant. I thought (regarding patenting secrets) that before you could and now you can't. So you are saying it's the other way around, that now you can whereas before you couldn't?
One thing for sure, patent laws haven't got any more understandable.
There is at least one person in the world who can tell the difference between Coke and Pepsi.
His coworkers would try and play tricks on him by putting Pepsi in his Coke bottles whilst he was away. He always noticed.
It's worse than that. He could tell which factory in Tel Aviv had made a particular Coke !
What's so hard about that? Pepsi and Coke taste nothing alike. Unless you've burned your taste buds off drinking Tabasco sauce. Although I've never tried telling the difference between bottling plants.
Anyone remember the Pepsi Challenge back in the 80's?. I took that and said, "This one is Pepsi. That one is Coke."
And now Pepsi has started selling a "Made with Real Sugar" version. Tastes MUCH better (to me) than the stuff with high fructose corn syrup. So much so that when I first tried it I was immediately flooded with memories of my childhood when my parents would let me have a Pepsi while were were out on some special trip for the day. BTW, my father worked in the trucking industry and the company he worked for had PepsiCo as a client. There were usually a few free cases laying around the office.
It'seems the taste is important too. Remember how well New Coke went over? People didn'the like it. Personally, I prefer Diet Pepsi because of the taste. Regular Pepsi is nasty, fountain Diet Pepsi tastes a bit "off", Diet Pepsi poured from a bottle over ice is closer, Diet Pepsi straight from a chilled 24 oz bottle is j
I thought (regarding patenting secrets) that before you could and now you can't. So you are saying it's the other way around, that now you can whereas before you couldn't?
Before the new law, "secret prior art" used in a commercialized product was prior art just the same, and considered to invalidate a later patent claim. Now, many patent watchers say, language in the new law (Section 102(a)(1)) removes the notion of secret prior art. At least that's the growing conclusion.
The aim of the AIA was to streamline the ideas behind prior art, and I think for the most part it did that. But as I said before, this is a brand new law. It takes 3-5 years for most patent litigation to go through the courts, so there is virtually no case law to go on.
In any case, I'll summarize some of the things I tried to bring up:
* For a micro entity (your basic independent inventor working from home), filing a patent has become dirt cheap. It's just a few hundred dollars to get it to the examination phase, $95 just to file for the basic "I was first" protection. The costs are about 70% less than they used to be.
* Prior art still includes books, magazines, journals, and other material released to the public, and is not limited to just what's in a patent. From the AIA: "A person shall be entitled to a patent unless (1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention."
Gordon... The problem with patents is that they have to be correctly worded. Otherwise, it is easy for a big company to get around the patent. So, those cheap filing fees are just a waste if not properly worded. And those insignificant fees are significant to a hobbyist who is just building a few designs.
Unfortunately, the sad truth is that those with the deepest pockets will almost always win
Gordon... The problem with patents is that they have to be correctly worded. Otherwise, it is easy for a big company to get around the patent. So, those cheap filing fees are just a waste if not properly worded. And those insignificant fees are significant to a hobbyist who is just building a few designs.
The initial filing does not have to stand up to examination scrutiny, and only needs to disclose enough of the invention to satisfy a claim of prior art (just as publication in a journal might). The actual examination is several layers deeper in the process. Agreed that if the initial filing is poorly worded it could be a waste, but is that always a foregone conclusion?
As for the fees for hobbyists, why are hobbyists filing for patents? That doesn't make sense. You file for a patent because you think you think it makes business sense.
Comments
I Understand your view, and in a "by the rules" patent application vs patent application battle in theory you are right.
My main point is that here in the US it is so expensive to file patents, let alone defend them, that in many cases small innovators relied on 'prior' art to protect them from a big company stealing their idea and patenting it when they could not afford to.
If you got a product to market, and had clear priority documented, it gave you a little protection if an Apple patented your idea and then tried to stop you from using it. Now with first to file they no longer care that you already have the thing to market. They just patent it anyway and are 'first to file'.
Puts the originator in a totally different position legally. Instead of just proving they were "first to invent" to get relief they have to get the patent invalidated which is much more difficult. Remember Prior Art now really only covers if the idea was already patented, not that it was discovered and used prior to being patented and thus is no longer patentable.
Example from Apple: They saw inventions related to Multi-Touch screens that was documented long before they did it, but not patented. They then patented it anyway. In the old system 'first to invent' they were concerned that those patents might be tossed due to prior un-patented art. So they pushed first to file. Now since those 'technologies' were not patented, it is much harder for someone to invalidate their patent because they were 'first to file'.
Before we were in a Race To Invent, patent or not.
Now we are in a Race To File and you only win if you can afford to file.
Before - Unpatented art could prevent or invalidate a patent.
Now - Only prior PATENT art can prevent or invalidate a patent.
At least that is how my old company's patent lawyers explained it to us (I still do their product design work). Big boom in business for them, they are scare mongering everyone into filing for every possible idea "before someone else beats you to it and takes your idea" even for products that we have had on the market for years (without patents for).
I understand what you are saying now I think. Basically it's that the position may be more difficult now for those who cannot afford to (or for other reasons will not) patent. And that's not how it's supposed to work, it all goes back to the common problem where prior art is not considered by the patent office unless it's patented prior art (which is just wrong, but that's what they do in practice). Combined with implied costs in getting patents overturned.
I guess one could say that the law is good, but it doesn't help when reality doesn't follow.
Edit: I was going to add "but IIRC it's cheaper to patent now?", but I see Gordon already answered that - it is. Which should help, hopefully. It's always enlightening to read Gordon's informative posts.
-Tor
The Micro Entity initial filing fee is just $95. Many of the subsequent fees are reduced 50-75% from what they were.
This isn't correct. In fact, the USPTO went to great lengths to include a 1-year grace period for the inventor between the time of any kind of public disclosure, and the first date of filing. This is fairly unique to the US. After the 1-year period, the idea basically becomes public domain, and is invalidated as a patentable idea. If it were true that only patents were considered prior art, there would be no reason for this grace period.
Under FITF, prior art is more clearly defined, and means any technology that was in the public domain prior to the applicant's filing date (except for the inventor's own disclosure, up to one year). What changed in prior art were things like being able to come back and patent an idea you had decades ago but never filed or disclosed, an old trade secret that was never disclosed, or a "secret sale" of a patentable product in this country or abroad.
While neither FTI and FITF are perfect, FITF brings US law more in line with international laws and treaty, and the revised filing fees for independent inventors makes it quite inexpensive for small players to protect themselves. There are also now better interference procedures for challenging the prior art of a patent application before it is issued, using standard forms that don't require an attorney's intervention.
As to lawyers using the change in patent law to their advantage, well, that's a separate issue. Not all are money-grubbing, though. As this is a brand new law with little case history to go on, most attorneys take the conservative view, and will advise on more protection, just in case. It'll be a good 10-15 years at least before the legal landscape gets used to the new process.
I wonder how Coca Cola feels about that? The "secret formula" has never been patented in order to keep it secret, since patenting means they publish the formula. With this change, that means the formula can not ever be patented. And if anyone figures it out they can steal it and use it, and since it's not patented and not patentable, Coca Cola can't do anything about it.
That doesn't make sense. Coca Cola would have been screaming to high heaven if they knew this was coming and would have spent millions to stop it.
I must be missing something.
Brian
That said, trade secrets are sometimes preferable. Many patents can be engineered around. It takes publishing to establish the ownership protection, and said protection is only for a limited time.
Coke really doesn't care. They are planning on selling Coke for a very long time. Much longer than any patent protection would benefit them.
So it's their call to maintain secrecy, and that's a simple value / risk judgment.
I doubt they care one little bit.
I'll wager that the list of ingredients, and the exact recipe, is well known. Reverse engineering something like cola is not that difficult.
The value in coke isn't the taste; it's the brand.
It'seems the taste is important too. Remember how well New Coke went over? People didn'the like it. Personally, I prefer Diet Pepsi because of the taste. Regular Pepsi is nasty, fountain Diet Pepsi tastes a bit "off", Diet Pepsi poured from a bottle over ice is closer, Diet Pepsi straight from a chilled 24 oz bottle is j
It's the opposite of what you presume. Now someone CAN patent an undisclosed trade secret of their own years after the fact. Coca Cola is by no means required to now patent their formula if they don't want to (and they likely don't want to). Trade secret protection still exists.
His coworkers would try and play tricks on him by putting Pepsi in his Coke bottles whilst he was away. He always noticed.
It's worse than that. He could tell which factory in Tel Aviv had made a particular Coke !
I must have misunderstood you meant. I thought (regarding patenting secrets) that before you could and now you can't. So you are saying it's the other way around, that now you can whereas before you couldn't?
One thing for sure, patent laws haven't got any more understandable.
Brian
What's so hard about that? Pepsi and Coke taste nothing alike. Unless you've burned your taste buds off drinking Tabasco sauce. Although I've never tried telling the difference between bottling plants.
Anyone remember the Pepsi Challenge back in the 80's?. I took that and said, "This one is Pepsi. That one is Coke."
And now Pepsi has started selling a "Made with Real Sugar" version. Tastes MUCH better (to me) than the stuff with high fructose corn syrup. So much so that when I first tried it I was immediately flooded with memories of my childhood when my parents would let me have a Pepsi while were were out on some special trip for the day. BTW, my father worked in the trucking industry and the company he worked for had PepsiCo as a client. There were usually a few free cases laying around the office.
Before the new law, "secret prior art" used in a commercialized product was prior art just the same, and considered to invalidate a later patent claim. Now, many patent watchers say, language in the new law (Section 102(a)(1)) removes the notion of secret prior art. At least that's the growing conclusion.
The aim of the AIA was to streamline the ideas behind prior art, and I think for the most part it did that. But as I said before, this is a brand new law. It takes 3-5 years for most patent litigation to go through the courts, so there is virtually no case law to go on.
In any case, I'll summarize some of the things I tried to bring up:
* For a micro entity (your basic independent inventor working from home), filing a patent has become dirt cheap. It's just a few hundred dollars to get it to the examination phase, $95 just to file for the basic "I was first" protection. The costs are about 70% less than they used to be.
* Prior art still includes books, magazines, journals, and other material released to the public, and is not limited to just what's in a patent. From the AIA: "A person shall be entitled to a patent unless (1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention."
Gordon... The problem with patents is that they have to be correctly worded. Otherwise, it is easy for a big company to get around the patent. So, those cheap filing fees are just a waste if not properly worded. And those insignificant fees are significant to a hobbyist who is just building a few designs.
Unfortunately, the sad truth is that those with the deepest pockets will almost always win
The initial filing does not have to stand up to examination scrutiny, and only needs to disclose enough of the invention to satisfy a claim of prior art (just as publication in a journal might). The actual examination is several layers deeper in the process. Agreed that if the initial filing is poorly worded it could be a waste, but is that always a foregone conclusion?
As for the fees for hobbyists, why are hobbyists filing for patents? That doesn't make sense. You file for a patent because you think you think it makes business sense.