Legal Issues

by Mike Masnick

Current Attempts At Patent Reform To Make The System Worse

from the indeed dept

While we believe strongly that the current patent system has some very serious fundamental flaws that hurt the ability of companies (big and small) to innovate these days, the current efforts at patent reform look like they will just make the situation worse. That's because they're trying to cure the the symptoms, not the disease. They know that there are too many patent lawsuits clogging up the courts and that it takes too long to get a patent, so they try to simplify some of the process. That doesn't actually solve the real problem, which is that the patent system isn't encouraging innovation in many cases any more. The new attempts at patent reform, especially moving to a "first to file" system will only encourage more people to file patents quickly -- with less research on prior art. That will only highlight the fact that patent examiners don't scale. Also, a first to file designation seems fundamentally opposed to the purpose of the patent system. By choosing a first to file system, it's admitting that others are likely to be inventing the same thing at the same time. If that's the case, then the product shouldn't be patentable. Patents are only supposed to go to products that are "non-obvious" to the "skilled practitioner." If others are creating the same thing, it certainly suggests that it's obvious enough, and a natural progression of the art. So, the entire designation of "first to file" goes against the concept of "non-obvious to the skilled practitioner." Who would have thought that, as bad as the patent system is today, our politicians are only trying to make it worse?

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  • identicon
    Steve Mueller, 18 Aug 2005 @ 6:44pm

    First To File

    First to Invent also can run into the same problem as First to File if one inventor's notebook is dated slightly before another's. In either case, I would have a range of time (60 days, 90 days?) where any competing patent filing would cause both to be invalid. Of course, you might have to keep the first one confidential for that time period to prevent people from finding it and claiming they also invented it.

    First to file has one big advantage, of course -- it's much easier to validate and administer.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous of Course, 20 Aug 2005 @ 9:07am

      Re: First To File

      Ok, first to file is easier to administer. Will it allow competent people additional time for more important work? Probably not since the competency isn't there to begin with.
      If first to file isn't coupled with the end of continuation filing it would be Lemmelson's dream. It seems to me the so called fixes are not addressing the problems and will only make things worse.

      reply to this | link to this | view in chronology ]

  • identicon
    dorpus, 18 Aug 2005 @ 7:18pm

    The Alternative

    Would you want Canadians, Europeans, etc. copying us the way Koreans copy Japanese, and then claiming it as their "own invention"?

    reply to this | link to this | view in chronology ]

    • identicon
      dorpus, 18 Aug 2005 @ 7:42pm

      Re: The Alternative

      Or worse, what if the Canadians/Europeans get their government to declare sanctions against "American imitations" of the products they stole? That has been happening a lot in China lately.

      reply to this | link to this | view in chronology ]

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