by tptacek on 2/13/13, 4:45 AM
Contrary to popular opinion (because "first to file" sounds insidious), whatever marginal effect this change is going to have will likely be positive. The intent of the change is to harmonize the US with EU on a corner case of patent law, where two entities file for a patent on the same invention during the same window of time. The new rule says that instead of clubbing each other over the head with lawyers, the first filing simply wins. More importantly, the rule changes strengthen prior art challenges to applications.
by ComputerGuru on 2/13/13, 4:44 AM
Wow, if true this is huge. America's been pretty much the last to stick to the first to invent system (all of Europe is first to file, as well as most Asian countries I've looked into, though I could be missing some!) and it's been the cornerstone of zillions (ok, I exaggerate a little) of lawsuits and patent reversals.
Glad I got my patent application in last year (worry not HNers who are against software patents, 'twas an application for a mechanical doohickey).
by chmike on 2/13/13, 7:36 AM
The first to file was already the rule, at least in France, and in Europe too I guess. The US just closed a loop hole. An inventor hiding it's invention could invalidate a patent of a third party who may have invested to use it for business purpose.
In France, a prior inventor, who of course didn't disclose his invention otherwise it invalidates the patent, has still the right to freely use the invention without having to pay a license. But he can't license it and I think also make business out of it.
A really unfair difference between US and Europe's Patent rules is that in Europe the Patent protection starts at the time of deposit, thus prior it's valdation. In the US it starts when the patent is validated.
Thus the time between deposit and validation is an implicit patent lifetime extension which can be as long as 10 years for some patents ! Such long delays exist because it is in the interest of the inventor to delay the validation as much as possible. The pending patent also allows to license a potentially invalid patent or dissuade competitors to invest in the field because the pending patent is like a time bomb.
This is a really bad rule of the US patent system.
by c3d on 2/13/13, 6:52 AM
I wonder if this will put smaller companies at a disadvantage. They have less resources and can't afford to rush to the patent office every other day, whereas larger companies have staff doing just that.
by hayksaakian on 2/13/13, 4:50 AM
The title makes it sound bad, and in a perfect world it is bad, but in the real world filing a patent is more important than inventing (for better or worse). The only person who can prove the first inventor is a lawyer, and this is who the change is aimed at.
This change makes that fact the law.
by adamnemecek on 2/13/13, 4:45 AM
Call me the village idiot but is this good or bad?
by spc476 on 2/13/13, 4:47 AM
I would think that a second patent application would invalidate an existing patent application, as that proves the invention in question isn't novel enough (two or more people skilled in the arts came up with the same idea).
by josaka on 2/13/13, 2:29 PM
'first to file' is not quite right; it's 'first inventor to file.' You can show an earlier filing was derived from your disclosure and, thus, was not by an inventor. See
http://www.aiarulemaking.com/rulemaking-topics/group-3/deriv.... The distinction is noteworthy, in part, because most of the world is in a true 'first to invent' regime.
by jimfl on 2/13/13, 2:31 PM
This dynamic seems to give an advantage to corporations who have a systematic, always-full pipeline of patent applications. The barrier to entry for a single inventor for filing a patent is pretty large.
by randall on 2/13/13, 4:43 AM
by bane on 2/13/13, 11:26 AM
Yes, let's reward those who can navigate the bureaucracy better than those who can innovate, that'll definitely spur those garage tinkerers vs. corporate lawyers on permanent retainer.
by wissler on 2/13/13, 5:06 AM
It's interesting how many HN'ers think it's just fine that the actual first inventor gets screwed for not using the patent system.
by Daniel_Newby on 2/13/13, 6:55 AM
How is this constitutional? The IP clause of the U.S. Constitution gives patents to the "inventor", not to a person who jumps through bureaucratic hoops.