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back to article Patent law passed in US, but Presidential veto could follow

A new US law which would reduce the damages to be paid out for patent infringement has been passed by one half of the US legislature. The proposed law was backed by large technology firms and banks but opposed by smaller tech companies and drug companies. The Patent Reform Act was passed by the House of Representatives on …

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hard one for Bush

Does he stay bought by Bill Gates and Microsoft, or does he stay bought by the pharmacorps? Wow, hard choice for him, as he's received millions from both camps.

Frankly, any law that Microsoft is in favour of CAN'T be good for competition or the health of the IT industry.

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Erroneous sub-title

Currently it says "House of Reps. approve smaller fines in copyright spats"

But law was entirely about patents, not copyrights, which are an entirely different matter. Not the first time I have seen media confuse the two, but they are really very different. For instance, you can infringe on a patent even if you develop similar technology completely independently, without even ever having heard of the patent-owners ideas. This makes them very dangerous for open source developers.

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Won't this make things worse?

I could have misread it but doesn't "first to file" mean we will get a lot more patents for things that are blindingly obvious and in common use just because no one has tried to patent them before? Has breathing been patented or will someone (having read my post) be "first" to file?

It seems to me this only benefits the big companies that can generate patents everytime someone on their payroll has an idea. The rest of us loose out because we don't have the budget to get patents for everything we do - to date we have believed that prior art protected our use of our ideas from subsequent patent applications.

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Ian

Re: Won't this make things worse?

Slight misunderstanding of "first to file" there, the invention still has the basic requirement of being new and inventive (not an obvious modification). The US currently have "first to invent" and that means you can have a new and inventive idea which is usurped by somebody who can prove that they invented the idea earlier but did not make it public.

This is possibly a moot point given that I have read that the "first to invent" has a commencement date 90 days after the President reports to Congress that the Europeans have implemented a one year grace period. (See: http://ipkitten.blogspot.com/2007/09/us-patent-reform-act-passed.html )

So probably not going to happen in near future.

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US.gov - Don't fix what's broken...

.. just make the problems created less newsworthy.

Everybody knows US patent law stinks but rather than risk upsetting one or other of the various business lobbies that bankrolls them the government tries to lessen the media impact by banning the multi billion dollar lawsuits they find so embarrassing.

'bit like shooting the messenger really.

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How is this better?

"awarded to the first person to file a patent application"

So you can patent someone elses invention if you file before them?

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could be good

Yes this could make things worse, like most things however, it could also make things better. As long as the proper checks are done during the appplication process. These checks would need to be thoruough, check that the application has enough detail, see if it is blindingly obvious to anyone, is common knowledge or infringes existing patents, etc.

It looks like this is just trying to set an official point that an invention is recognised, which is good. It stops arguments about who was first. But only if the application process is done properly.

The downside of this is that yes, a few people will create an invention first, but miss out by not filing in time, (Elisha Grey as a historic example)

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This is a good thing

This will avoid "ambushes" that could take place when someone would invent something that was bound to become widespread, and instead of patenting it waited for someone else to do it, and then came out in the open, proved they had the idea before, and wrecked the company that had no erason to know someone had already had that idea.

For imperfect that it is, the patent system has one clear aim: push people toward revealing their ideas. this "first to invent" clause was doing the exact opposite, as it pushed you to exploit an idea without telling the world, and you could get the added benefit that if someone ever used your idea, you could sue him, though he had no way of knowing (whereas with a patent, he could check the patent office, however hard that might be which is another problem).

The reform does have a drawback however, that could easily have been fixed: indeed, someone would had an idea, used it, but had no money to patent it will be stuck, wheras before he could claim the rights later.

A way of alleviating this would have been to add to the new "First to file" a clause saying that if someone would later prove he had invented it before, he would keep the right to use his invention, but not get the rights to sue the patenter nor to licence the invention to others.

That way, if you want to sell you idea to those who didn't have it, you file a patent, if you're a small inventor or company and don't have the money for filing a patent, chances are you don't have the money to market your idea to others anyway, but at least you can keep doing what you've always done even when some bigwig starts doing the same.

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Anonymous Coward

UK sidesteps most of these problems

"doesn't "first to file" mean we will get a lot more patents for things that are blindingly obvious"

It doesn't in the UK, where the patents system is a lot more diligent in rejecting applications that are either obvious, trivial frivolous or non-novel.

No way would the UK patent office have approved the bogus Amazon one-click patent because its trivial and an implementation of a business method and not a proper invention.

Equally, you can't take out a patent in the UK on an "idea" -- you have to actually implement it first -- and if anybody finds out about your idea before you apply for the patent, other than as a confidential disclosure in the course of implementing the idea, the patent is likely to be voided as information "already in the public domain".

So, you most certainly can't simply patent something that already exists but hasn't yet been documented. You actually need to have INVENTED something yourself.

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Prior Art still applies.

Even with the 'First to File' system, a patent can still be overturned if there is public evidence of 'prior art'.

If you invent a new kind of bicycle and ride around on it then, some time later a Cycle manufacturer patents the same kind of bicycle, that patent will, almost certainly be overturned due to prior art.

If, however, you had the idea for the new bicycle, scribbled it on a piece of paper and stuck it in a drawer, then there would be no publicly verifiable evidence of prior art and the patent would stand.

The 'Windsurfer' case is the classic example:-

http://slcc.strath.ac.uk/scotslawcourse/ip/ip/patent/windsurf.html

The fact that there was physical and public evidence of prior art blew the patent away.

Its also the application date of the patent that is important, not the date it is actually awarded. If you come up with a new idea and take it to some company to see if they would like buy the idea and demo it to their MD, THEN decide to apply for a patent then you are in trouble. The company can start making your gizmo AND blow away your patent because the minutes of the meeting where you demoed your gadget pre-date the patent application. If you had applied for the patent beforehand then your patent should be safe.

The flip side is that if the Gizmo company decides to do the dirty and patent your invention themselves your evidence of prior art will shoot down their patent. If you were sensible and applied for your patent before making your invention public then your patent will invalidate theirs as your application date was earlier (even if they managed to get the actual patent awarded before yours).

Though this all does, to a large extent, depend on who can afford the best lawyers......

NB, this is all from my memory of UK IP law. I haven't dabbled in it for 4 or 5 years so all of this may now be completely bogus......

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Ian

Re: UK sidesteps most of these problems

Lets not get ahead of ourselves here. You do not have to implement an "idea" in the UK to get a Patent. As an example, I would like to introduce you to Arthur Paul Pedrick: http://www.patent.freeserve.co.uk/pedrick.html . He never let practicalities get in the way of a good idea! Piping snow and ice balls from Antarctica to irrigate the Australian desert is my favourite.

That said I do think we have a more "sensible" [read practical] system than the US.

Saying that, a variant of Amazon's one click patent is in force in the UK. See http://v3.espacenet.com/textdoc?DB=EPODOC&IDX=EP0927945 and check it here: http://www.patent.gov.uk/patent/p-find/p-find-number.htm

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Worst idea since sliced bread.

Lets enable the abusive companies in corporate America to be more abusive.

1. This will bring the cost of infringement down to a level at which large companies will be willing to infringe smaller companies patents. Smaller companies will not fight actual-infringement due to the marginal payoff.

2. The idea that someone could file and be awarded a patent for something you have been doing/providing commercially for years yet have not filed for a patent on is borderline criminal. The argument that the person should have filed a patent is ridiculous, if someone wants to provide a new product without requiring everyone else to ask them before providing the same product, then so what. We should have no responsibility to document and file our production/trade methods with the federal government.

3. This legislation is more about controlling and tracking start up businesses then it is about protecting start up businesses.

4. Put on your tinfoil hats.

Not only should we slice the bread, we should remove all nutrients, add some sugar, wrap it around a bit of sweet cream like plastic paste and feed them Twinkies to the fat cats.

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@ Sean Thompson

RE: "The idea that someone could file and be awarded a patent for something you have been doing/providing commercially for years yet have not filed for a patent on is borderline criminal. The argument that the person should have filed a patent is ridiculous, if someone wants to provide a new product without requiring everyone else to ask them before providing the same product, then so what. We should have no responsibility to document and file our production/trade methods with the federal government."

If someone files a patent for something you have been doing/providing commercially for years, the application will be denied on the existence of prior art.

You shouldn't and in fact do not actually have any resposibility to document and file your production/trade methods with the federal government. It's when you want protection that you must. For example, inherent copyright is attained whenever you create something, but to effectively enforce it, it's in your best interest to register it with the government. It's the same principle here. You don't HAVE to register, but if you want the rotection that "I did it first" provides, a third party has to know about it. You can do what you like, but if you don't tell anyone about it, you have no right to yell at someone else for doing it too. Hence the PTO.

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