The author has the concept of a patent troll entirely backwards. The author is arguing that the trolls are people who have prior art to a patent and then come along and submarine legit patents after they have been issued. In the author's world, the victim is the patent holder who paid the money to get a patent.
In the real world, the patent trolls are the patent holders that don't actually use their patents, not the ones invalidating patents with prior art. This law only makes it worse, now the patent trolls don't even need to buy patents from legit inventors, they simply have to patent inventions before the inventors get around to it.
Before this you could keep good records of your work and be safe in the knowledge that if anyone patented your idea after you created it, you would at least have the prior art to prove you came up with it first. Now you must patent it in order to be safe. A troll can come along at any time and patent your idea and screw you out of your hardwork.
If I'm an un-employed patent lawyer, why don't I just sit around reading tech news all day and patent every un-patented startup idea that comes up and sue the companies for their VC money?
>Before this you could keep good records of your work and be safe in the knowledge that if anyone patented your idea after you created it, you would at least have the prior art to prove you came up with it first. Now you must patent it in order to be safe. A troll can come along at any time and patent your idea and screw you out of your hardwork.
This is only true if you apply for the patent at a later date, without publicly releasing the invention or giving out any details. In a first-to-invent case, you would have a prior art argument if you applied for the patent after the other party. However, if you don't ever bother patenting or releasing the invention, you do not have any protections in either a first-to-file or first-to-invent system. Those rules only apply when two patents for the same invention are applied for around the same time.
If you release the invention as a product, and someone files for the patent after you released it, that is a clear prior art case, and they should lose the patent.
> If you release the invention as a product, and someone files for the patent after you released it, that is a clear prior art case, and they should lose the patent.
Releasing a product does not constitute prior art. The invention must be documented and you must explain its use, in a public forum. Today, most inventions play supporting roles in the background. They are rarely seen or heard or documented.
In our current system, you have some protections as you can demonstrate that you are indeed the first to invent by using your product as evidence and you can publish your work down the road, if it becomes an issue. In the new system, nobody cares. He who files first wins.
>In our current system, you have some protections as you can demonstrate that you are indeed the first to invent by using your product as evidence and you can publish your work down the road, if it becomes an issue. In the new system, nobody cares. He who files first wins.
You have protections only if you apply for a patent. You do not have those protections if you do not. That has not changed. The only thing that has changed is what is used to grant two similar patents that are submitted around the same time. In the current case, it's the nebulous "invention date". In the new system, it's whoever files first.
If I'm an un-employed patent lawyer, why don't I just sit around reading tech news all day and patent every un-patented startup idea that comes up and sue the companies for their VC money?
In theory, there are two reasons why you can't do this: (1) Patents don't cover abstract ideas, but specific embodiments of them. And (2) if you could patent an idea, that idea being written up in tech news would constitute prior art.
In practice, nothing's stopping you from doing this. The patent system and patent law are only vaguely related beasts.
How very nice that they bury the horrible news toward the end of the article.
Getting a valid patent is an expensive prospect. Today, many times, small businesses innovate, use their innovation, but never file for a patent because of the prohibitive costs.
With this new law, there will be absolutely nothing to stop a large firm, a competitor, or just a random patent troll to notice your invention (which you are using) and then file a patent for it. And then, guess what? You're screwed.
> With this new law, there will be absolutely nothing to stop a large firm, a competitor, or just a random patent troll to notice your invention (which you are using) and then file a patent for it. And then, guess what? You're screwed.
Nope. From 35 USC 102:
A person shall be entitled to a patent unless -
...
(f) he did not himself invent the subject matter sought
to be patented
For it to be prior art, the entire invention must be publicly documented and published. You must also disclose how to use it.
In other words, you must release it to the public where everybody, including your competitors, can use it as they see fit. While that's better than getting your pants sued off by a troll or a big corporation for using your own invention, it's most certainly worse than the status quo.
On top of that, the courts have a funny way of defining what is and what is not obvious. You may think the process you created and use in your company is obvious, so you never bother to document it or publicly disclose it, and then you end up in court. With zero protection. Is that what we really want?
Third parties can now submit prior art to patent applications. This is huge, it means we can help intercept and readjust before patents get granted and people get sued.
What we need now is a website tracking patent applications and assignments by companies (specifically Intellectual Ventures and their cronies) and inform the public to submit prior art for these applications and now help the patent office do a better job than it's been doing, and prevent the courts from even having to be involved.
How will this change OSS development? Do we need additional patent lawyers filing patents for every open source idea? What happens when someone makes a commit today and then mega-patent troll notices this tomorrow? They certainly will beat me to filing the patent.
It won't, as long as you clearly comment your code and explain what everything is and what it does. You should be doing that anyway for an OSS project.
I really hope that this decreases the amount of patent trolling there is, I think that there is nothing worse than if you were to put your hard work into something and someone else comes along and sues you for your good idea.
In the real world, the patent trolls are the patent holders that don't actually use their patents, not the ones invalidating patents with prior art. This law only makes it worse, now the patent trolls don't even need to buy patents from legit inventors, they simply have to patent inventions before the inventors get around to it.
Before this you could keep good records of your work and be safe in the knowledge that if anyone patented your idea after you created it, you would at least have the prior art to prove you came up with it first. Now you must patent it in order to be safe. A troll can come along at any time and patent your idea and screw you out of your hardwork.
If I'm an un-employed patent lawyer, why don't I just sit around reading tech news all day and patent every un-patented startup idea that comes up and sue the companies for their VC money?