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Comment Re:Can you say "Copyright Infringement"? (Score 1) 196

That's an excellent point, and I'd mod up if I had points.

Facebook can sublicense your info to a third party ("you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook"), but that sub sublicense necessarily terminates when facebook's does - when/if you remove the info ("This IP License ends when you delete your IP content or your account..."), though there may be a loophole if you've "shared" the info with others ("...unless your content has been shared with others, and they have not deleted it"). What does "shared with others" mean? I dunno, but I imagine it means posting on a friends wall, or something of that sort.

Comment Re:I don't get "First to File" (Score 1) 244

"that one year exemption will only apply to win it's signed."

What does that mean?

"it will severally hamper in attempt I make to get investor in on my inventions"

What does this mean?

"that could, quite literally, take my idea and patent it and I have NO RECOURSE"

If they take your idea and try to patent it, you can sue them. When someone files a patent app, that person has to swear under oath that he/she invented the invention. If you can show that you invented it, and they stole your idea, then they're in deep shit. Their patent app is invalid, and you can file your own if you wish/if you have the money/investors.

So, you do have a recourse.

Plus, before you show a patentable idea to anyone, you need to get them to sign an NDA. This is standard practice.

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

Patent applications are rejected all the time. The problem is that the "inventor" (I.e., whatever company is backing the patent application) can revise the application, so as to avoid whatever got it rejected previously. Applications go through a lot of rejections - sometimes a dozen or more - before finally being approved. I've heard the statistic that 9 out of 10 applications are eventually approved... But it takes years and a lot of "rejections" to get there.

And, by the way, this means that patent examiners spend a lot of time reviewing applications. The process involves a lot of back and forth between the examiner and the inventor. I'm not going to vouch for their competency in the field, but it's unfair to say that examiners don't spend the time to understand the product, or don't know enough about it before approving the patent.

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

Prior art doesn't have to be on the market - it has to be available to the public in some way, whether via the market, or published somewhere, or patented already (not necessarily in the US), etc. Open source software, if it's available online, is published... Or at least available to the public. So, it would be prior art, if it is indeed prior to the supposed invention.

Comment Re:Publishing Suggestion (Score 1) 7

Right. A state government can hold copyrights; even the federal government can hold copyrights. For the Feds, it's a question of whether a government employee authored the work. The fed gov can buy or license copyrights just fine; but it can't copyright works that it authored. State governments are not so bound.

Clear the copyright first. You're not likely to get sued, but a publisher will likely refuse to publish anything for which the rights haven't been cleared.

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
-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."

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