from Hacker News

Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public

by otp124 on 8/24/18, 7:32 PM with 68 comments

  • by austincheney on 8/25/18, 3:11 AM

    > EFF and R Street’s brief emphasizes the need for the Supreme Court to confirm what should be uncontroversial: to be patentable, inventions must be new.

    New is not good enough. In theory patents must be novel and this should be applied to practice as well. The difference between new and novel is the degree of originality. New can mean taking an existing idea and putting a fresh spin on it. Novel means the idea never existed before and the current invention is original opposed to a modification or extension. Normally novelty is documented against an inception date, but inception dates are hard to qualify in court.

    Also, while on this subject patents should be limited to inventions deliberately excluding discoveries. An invention is something a person made or formed with some degree of deliberation. A discovery is something that already existed and that a person merely found for the first time. This distinction would invalidate attempts to protect genetic sequences and organic chemicals present in nature. It would continue to allow protection of drugs that are more than merely chemical isolations.

  • by dumbfounder on 8/24/18, 8:03 PM

    So this new version of patent trolling is to find old valuable patents that can be invalidated in some way, and patent them again, then sue everyone in the world that "infringes" because they thought the patent was long expired? Wow, that is a new level of scumbaggery.

  • by ABCLAW on 8/24/18, 8:58 PM

    I think the EFF's note is a bit confusing, because it glosses over a key nuance in the evaluation.

    Here's a bit more information about the case: https://patentlyo.com/patent/2018/07/diagnostics-provisional...

    Briefly: Granted patents count as prior art from their filing date. The question is what happens to provisional filings. The court has split the treatment of those documents depending on whether or not the prior art is claimed or not.

    The Federal court's position is interesting, as it is a compromise position. It recognizes that the documents are not published to the public, and accordingly afford the opportunity to create so-called submarine rights, and limits the scope of these rights to the specific 'stuff' of the patent in question, while preventing the non-public remainder of the filings from popping up and cutting prospective patents down.

    What's the right course of action here? Well, that heavily depends on the behavior of filers across an industry.

    It is, however, clear that the federal court's position is not borne out of a consistent, principled approach. For some, that's enough for them to claim the baby needs to be tossed out without trying to address the threat of the submarines directly.

  • by cityzen on 8/24/18, 10:32 PM

    I recently watched the documentary The Patent Scam with the XPlane guy... it was disturbing to say the least. My question is this... With "method" patents being an absolute joke, what would stop me from patenting, "A method of acquiring patents for the sole purpose of litigating infringement without actually creating a licensable alternative"? I'm serious, these patents seems so stupid, I don't see why you couldn't just get that patent and sue all of these people?

    Then again, if it is patentable, I'm sure some troll owns that one too.

    Good documentary, though. It's currently on Hulu.

  • by opportune on 8/24/18, 8:47 PM

    The entire patent system needs to be redesigned. Lawyers always seem terrified at the prospect of throwing away decades of case law but in this case, considering the nature of what patents represent and how they are used has changed so much from their original purpose, it’s probably necessary.

    Of course, big business incumbents don’t mind the system because they have corporate lawyer teams that understand how it works and how to play it, so I don’t have any hope that it will ever become a political issue

  • by rayiner on 8/24/18, 11:41 PM

    This post is really quite misleading. Better coverage here: https://patentlyo.com/patent/2018/07/diagnostics-provisional...

    The EFF writeup makes it sound like material appearing only in the specification of an earlier published patent does not count as prior art, that it must appear in the claims. That’s not true in the general case:

    > In the simple case outlined above, the courts all agree that the disclosures found in an issued patent or published application count as prior art as of the patent’s filing date.

    Ariosa addresses a very different issue. Generally, patent applications are prior art even before they are publicly disclosed—they count as prior art starting from the day of filing. Ariosa addresses what happens when you have a provisional patent application:

    > In this case, the Federal Circuit ruled that a published application can count as prior art as of its provisional filing date — but only as to features actually claimed in the application. According to the court, features disclosed in the provisional but not claimed in the published application will only be prior art as of their date of public disclosure.

    The EFF writeup is in fact completely inaccurate, because it starts by talking about a “published” patent application. Once the application is published, all agree that it is prior art. This case is about what happens between the date if filing of a provisional, and the date of publication.

  • by pitaj on 8/24/18, 10:05 PM

    I haven't seen anything good about patents in years. Maybe the government should just get rid of them, along with copyright. The idea of granting someone a monopoly to an idea is crazy to me.

  • by squozzer on 8/24/18, 8:25 PM

    Wouldn't an invalid patent still be considered prior art?

  • by combatentropy on 8/25/18, 4:48 AM

    I thought that the reason for the patent system was that otherwise people would keep their ideas secret, and society would not benefit. The very word "patent" means "open" --- like when you say "it's patently obvious" it means "it's openly obvious" (it's like really, really obvious). So a patent is meant to bring an idea into the open. But if the idea is already in the open . . . ?

  • by monochromatic on 8/24/18, 11:22 PM

    This is basically the result of a poorly drafted statute. More discussion (and less polemic) here: https://patentlyo.com/patent/2018/07/diagnostics-provisional...

  • by howard941 on 8/24/18, 8:53 PM

    Anyone have a link to the Fed Circuit's Ariosa opinion? I could only find their amicus brief at the EFF link.