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April 14, 2008

"patent reform" idiocy

This is an old story but one not very well covered.

...Yet, what may be the most dramatic change of the pending legislation is the shift from a "first-to-invent" to a "first-to-file" criterion for issuing patents. At present, even if a patent has already been filed for a particular invention, another inventor can win the patent if he can successfully demonstrate that he invented it first. Passage of the patent reform bill would award a patent to the first person to file for it, thereby eliminating a time-consuming court process...
One of the long standing principles of IP has been that if "prior art" can be shown to have existed, then then any patents awarded subsequent to that prior arts creation date can be invalidated. The whole notion of patent involves YOUR new and novel ideas, not pirating someone else's prior work and claiming it as your own.

I filed for several patents while at IBM and had a few awarded, and the others were considered by the internal patent app review committee to be in the "publish" catgory -- something valuable enough that IBM didn't want anyone else to patent it, but not valuable enough to bother going through the whole patent process. This was one of the reasons why publications like the IBM Systems Journal existed -- to document "prior art" so some moron couldn't come along later and try to patent an idea that IBM came up with years before. A Systems Journal article was proof positive that said moron's idea was neither new nor novel. That covered IBM's ass when a "publish" grade idea was used in products.

Outfits like BountyQuest were offering rewards for anyone who could prove prior art on an existing patent to either invalidate it, or support its claims to being new and novel if nobody could prove any prior art. You never knew who was offering the bounty, it might have been someone looking to challenge a patent, or the patent owner looking to ensure that their patent really was solid.

This particular "reform" strikes me as a disaster waiting to happen. There could be a "gold rush" of patent filings on all sorts of old and well documented ideas that have essentially been in the public domain for ages. People will be swamping the already overworked and thinly skilled USPTO with a bunch of ill researched quickies trying to be the first to file.

USPTO logistics aspect aside, there seems to be something fundamentally unfair to having a patent awarded to someone who wasn't the first to have an idea. That is very very bogus.

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posted by Purp at 11:29 PM

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