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Comment Re:No more prior art? (Score 1) 368

Read the statute like this:

Prior art is an invention that
-was patented
-described in a printed publication
-in public use
-on sale
or
-otherwise available to the public.

The courts have determined that offering an invention for sale - regardless of whether it's openly on sale to consumers or only sold in private contracts - constitutes prior art, because otherwise, an inventor could sell the invention privately for a long time, and only patent it (and get the full patent term) when the inventor fears that someone else is close to patenting the same thing.

In other words, construing "on sale" to mean only "public sales" would allow an inventor to benefit from patent law for longer than the patent term. You have a choice - you can protect your invention by patent law, or you can protect it by trade secret law. Not both.

Comment Re:No more prior art? (Score 1) 368

Then how would this be different from what we already have?

Compare the new law, posted in GP, with the current law:

A person shall be entitled to a patent unless—
(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or ...
(d) the invention was first patented or caused to be patented, or was the subject of an inventor’s certificate, by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application for patent or inventor’s certificate filed more than twelve months before the filing of the application in the United States, or
(e) the invention was described in (1) an application for patent, published under section 122(b), by another filed in the United States before the invention by the applicant for patent or (2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent, except that an international application filed under the treaty defined in section 351(a) shall have the effects for the purposes of this subsection of an application filed in the United States only if the international application designated the United States and was published under Article 21(2) of such treaty in the English language;

Comment Re:I'd like to take this time to patent.... (Score 1) 368

That's where the "lawyereze" comes in. Is my "I invented a banana peeler" provisional patent the same thing as "1) a device for peeling elongated fruits utilizing a metallic thingamabobber 2) Claim 1 wherein the thingamabobber is made of plasic 3) Claim 1 wherein the thingamabobber is made of magma 4) ..."?

Provisional applications contain only the specification, not the claims. All you have to do is describe the invention, you don't have to pin down exactly what the patent would protect. A patent lawyer is still a good idea when writing up the spec, but such help is not nearly as crucial as writing claims.

Comment Re:I'd like to take this time to patent.... (Score 3, Informative) 368

first-to-file systems generally have "prior use" defenses.

That does not appear to be the case in this new legislation, which I think is a serious problem. However, the legislation does call for the USPTO director to issue a report on prior use defenses in other countries. Maybe the report will prompt congress to add a prior use defense.

As far as I know, first to invent only goes back one year. That it the most you can back-date an invention.

Nope, you can backdate an invention as far as you have records for, though you might run the risk of having "abandoned" the invention if you invented it 10 years ago, sat on it, and only bothered to patent it recently.. The year requirement you're thinking of is probably related to the grace period, in which inventors can sell or publicly disclose their invention up to a year before filing a patent. That grace period appears to be preserved in the new legislation.

Comment Re:Will it stop frivolous patents and patent wars? (Score 1) 368

It is almost invariably not a "scumbag".

I was using the parent's language. And as you say, the situation we're talking about only occurs when there's a race to reduce to practice and file.

In proper patent reform, when one party can show that they invented the idea before another party, but was unable to patent it before the other party did... that is prima facie evidence that the idea does not meet the non-obviousness requirement

Meh. I'm lukewarm on this. There have been a lot of major important inventions that were invented simultaneously - the telephone, the radio, etc. Maybe there should instead be a rebuttable presumption that the invention is obvious. That would be fun, because the two parties would likely have to work together to rebut the presumption.

The patents should be automatically invalidated, and neither party should get to have a patent on the invention....

I disagree. I think the better solution is to grant both inventors a nonexclusive patent. The inventors could then choose to work together, keeping the patent exclusive as between them; or one could buy out the other; or they could both hold weak, nonexclusive patents, which of course they could only issue nonexclusive licenses for - I think is the best outcome.

Comment Re:No more prior art? (Score 1) 368

Note that prior art is limited to earlier patents and release to the public. If I sell my program under contract only, i.e. I don't release it to the public, it doesn't count as prior art, and others can patent my invention.

Nope. Something is prior art if it is "on sale." The patent law doesn't allow you to sell your invention for more than a year before filing for a patent.
Doesn't have to be on sale to the public - It's settled caselaw that selling the invented product under contract and not to the public generally is still a "sale." The new legislation doesn't appear to disturb this.

From the new legislation:
" 102. Conditions for patentability; novelty
(a) NOVELTY; PRIOR ART.—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"

Comment Re:No more prior art? (Score 1) 368

What if a company's new technology is leaked and widely distributed to the public prior to the patent filing?

If the leak was more than a year prior to the patent filing, that company is screwed. If less than a year, then the company is probably okay, due to the grace period. If the company loses the patent because of the leak, they can sue the shit out of the leaker (for violation of trade secret laws), probably for the value of the patent.

Here's the provision in the new legislation concerning the grace period:

"A disclosure made 1 year or less before the effective filing date of a claimed invention shall not be prior art to the claimed invention under subsection (a)(1) if:
(A) the disclosure was made by the inventor or joint inventor or by another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor; or
(B) the subject matter disclosed had, before such disclosure, been publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor."

Comment Re:It's About Time (Score 2) 368

The main difference this brings is that you cannot publish something prior to patenting it, as your own publishing can act as prior art, invalidating your own patent.

Not so. IIRC from law school, inventors get a year-long grace period after they publish their invention before they have to patent it or lose it.

In fact, this provision appears to be in the new legislation. From HR.1249:

"A disclosure made 1 year or less before the effective filing date of a claimed invention shall not be prior art to the claimed invention under subsection (a)(1) if:
(A) the disclosure was made by the inventor or joint inventor or by another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor; or
(B) the subject matter disclosed had, before such disclosure, been publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor."

Comment Re:Brilliant! (Score 2) 368

Mod parent up.

First to invent appeals to the notion that little guy inventors will get screwed over by big companies, because the big companies can afford to file patent applications quickly. This is sort of a short-sighted argument, though - because figuring out who invented first is a messy factual inquiry (can you prove you invented it in your garage? Are we supposed to just take your word that you had a working prototype years ago?), extensive, expensive litigation is necessary to pin down who invented first. Little guy inventor cannot win massive litigation against a big company - the little guy just can't afford the necessary lawyers and expert witnesses.

Its much cheaper to file an application than it is to win a patent lawsuit.

Comment Re:No more prior art? (Score 4, Informative) 368

So this means the concept of prior art is moot?

No.

It appears that the bill in question is H.R.1249 (TFA doesn't actually specify which bill they're talking about - and there are several versions floating around congress). The text of the bill concerning prior art is:

‘‘ 102. Conditions for patentability; novelty
(a) NOVELTY; PRIOR ART.—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; or
(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention."

Thus, prior art under the new law would be anything that 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.

Comment Re:Will it stop frivolous patents and patent wars? (Score 3, Informative) 368

Did you patent every conceivable aspect of your invention? Will some slimy scum bag come in behind you and patent some trivial aspect of your product and then sue you?

If your product is on the market before the slimy scum bag files for a patent, he'll be rejected at the patent office, because your product is prior art. Every aspect of the product is prior art, whether it was patented or not. Under a first to file system, you can't sue someone (successfully) for patent infringement if their product was for sale to the public before you filed. Under a first to invent system, the slimy scum bag might win, if he actually invented the "trivial aspect of your product" before you did, plus various other conditions. Under the first to file system, that messy problem of proving who invented first is removed.

Comment Re:Victory? No (Score 3, Interesting) 51

How is this NOT a huge victory?

From the point of view of mp3tunes, this decision is not a huge victory because it's liable for at least hundreds, if not thousands, of separate acts of copyright infringement (the decision is surprisingly imprecise as to exactly how many acts of infringement mp3tunes is liable for). If EMI chooses to have statutory (as opposed to actual) damages awarded, then mp3tunes is on the hook for between $750 to $150,000 per infringement (to be decided by the judge or a jury if EMI demands it). If somehow EMI is awarded the max statutory damages (unlikely but possible), that's 15 million dollars for every 100 songs infringed; EMI is claiming 3189 songs are at issue - if that's right, then mp3tunes max liability is $478,350,000 - half a billion dollars.

It's also not a huge victory for mp3tunes because there are a number of unresolved issues - including whether it's founder Michael Robertson is personally liable for songs he personally added to the mp3tunes service. Unreolved issues will go through more litigation, including possibly an actual trial. That, of course, is expensive and sucks for mp3tunes.

From the point of view of the public, google, and amazon, this is great, for all the reasons you mentioned.

Comment Re:Does anybody even understand the Constitution? (Score 1) 775

Qualified immunity is a legal term. Look it up on wikipedia:

"Qualified immunity shields government officials from liability for the violation of an individual's federal constitutional rights. This grant of immunity is available to state or federal employees performing discretionary functions where their actions, even if later found to be unlawful, did not violate "clearly established law."

Comment Re:unreasonable pricing encourages copyright viola (Score 1) 209

I see you your 1914 district court opinion and raise you one 1994 Supreme Court opinion, Campbell v. Acuff-Rose Music, Inc., 510 US 569, 577 (1994)

The fair use doctrine thus "permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster."

The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis. The text employs the terms "including" and "such as" in the preamble paragraph to indicate the "illustrative and not limitative" function of the examples given, which thus provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses. Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.

(citations omitted) (emphasis added).

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