This article briefly touches upon first to file. I think it's clear that the change to first to file will result in the greatest threat to open innovation we have ever seen in our lives.
Think about it -- suddenly you will have swarms of lawyers and executives at pharmaceutical companies paying visits to research labs, and you'll have people from large software companies forwarding ideas posted on open source developer mailing lists to their legal departments. It won't be safe to suggest ideas openly anymore. It won't be safe to talk about "what if" or "have you considered" or "someone should really." We are going to see a flood of really bad patents based on other people's ideas -- and that's exactly what our lawmakers have provided to their friends in large businesses.
Things are about to get a lot worse. But you know, maybe that's what it's going to take -- maybe we have to suffer economically, suffer culturally, before we as a society realize we are building ourselves an intellectual prison for which there is no justification.
Yes, I know that patents are a temporary thing, only lasting 18 years or so; but really, do you think people such as the guy cited in this article are going to say to themselves, "oh, you know, maybe I'll just return to coming up with innovative stuff in the voice recognition field in 18 years, after Nuance can't come after me anymore" -- do you really think that will happen? No, of course not. We're going to see a lot of brilliant people forced to abandon brilliant projects and ideas, and we'll never know what might have been, what could have been done.
I don't think anyone is fighting this in a particularly constructive way -- the whole "abolish all patents" camp is going to get about as much of a serious audience as the "abolish the Fed" and "abolish the labor union" camps -- and perhaps that is exactly what our large-scale adversaries want. We need to be more incremental, more nuanced; that's what they've done, and that's why they are getting everything they want. You think sneaking first to file was something that happened over a chain of emails somewhere? No -- if anything, I bet there is a protracted, multi-decade fight among a lot of very persistent corporate attorneys and executives that has lead to this "win."
In any case, I really hope people in our industry can stop the useless arguments of "end all patents!" for long enough to realize they should be rallying together to fight this simple yet very destructive change that is right over the horizon. You sure as hell won't hear/read my thoughts on future technologies once this first to file thing goes into effect; and I am sure that savvy legal counsels everywhere will be telling their star engineers and employees to remain similarly silent. This is not going to be fun.
First-to-file is basically meant to get rid of "interference" lawsuits.
And, in general, it's not the apocalypse you might expect because prior art can still invalidate a patent.
The USA is basically on its own with first-to-invent. Everyone else is on first-to-file. And generally speaking, it works pretty well. There are absolutely anomalies, but there are mechanisms to deal with them. The payoff is a simply abolishing a massively expensive and difficult field of litigation.
It's a lot like how the Torrens land title system dramatically increased the security of land title, while also driving out whole classes of litigation and fraud. It changed real estate, land ownership and development for the better.
Other countries force the loser in a lawsuit to cover the costs. Perhaps that's why they don't have so many companies using patents that shouldn't have been issued in the first place.
In Australia, depending on the case, it is usually at the judge's discretion to "award costs". Not precisely the same, but it's a risk you run as litigant.
> It won't be safe to suggest ideas openly anymore. It won't be safe to talk about "what if" or "have you considered" or "someone should really." We are going to see a flood of really bad patents based on other people's ideas -- and that's exactly what our lawmakers have provided to their friends in large businesses.
That's not how first to file works. It just changes is what happens if two or more otherwise eligible people apply for the same patent. What I mean by "otherwise eligible" is that they would be entitled to the patent if there was not a conflict with another inventor claiming the same invention.
When there is a conflict (which does not happen for the vast majority of application), then first to file changes the resolution so that the winner is the first inventor to file, rather than the inventor with the earliest constructive invention date. (The constructive date is not necessarily the date you came up with the idea. If you come up with the idea, start working on reducing it to practice, but then stop for a while and then start again, your constructive invention date jumps from the date you came up with the idea to the date you resumed working on it. Each time you stop and start, your date jumps forward).
If you come up with some idea and have no intention of patenting it, you want to talk about it publicly under first to file just as much as you do under first to invent, in order to get it out there as prior art.
It's not the discussions around "I came up with an idea" that are at risk here -- it's the discussions that may precipitate ideas that might be patentable. Those are far more nuanced, and harder to present as evidence of invention, or obviousness.
Prior art is a very nuanced thing. When I have a lot of money, I can have my talented legal staff persuasively argue that "many of us were doing similar things in the field at the time of this invention, and other public disclosures did not provide proof of invention, but rather an interest in similar applications," or something of that nature. Our new patent regime will be "First Inventor To File," so you just have to convince the patent examiners that the genius engineers at your LargeCo were clearly thinking about the ideas and creating the same inventions as anything else a prior art search might turn up.
You made me think about something, however. Maybe one of our solutions to this problem should be a very well organized, completely open source, "open registry." One of the other changes -- a concession, really -- that will come into place along with the new patent system will be a much-expanded definition of prior art. Now, as things currently stand it will become very easy to shoot down searches of discussion list postings and the sort as being relevant, but what if there was a true open, public registry of ideas/inventions? And moreover, what if we as a collective community encouraged ideas to go in there through social incentive; i.e., if I add a new invention to the registry that is actually awesome, people vote it up and I gain cred in the industry -- and if it's already in existence or something, others can comment/explain I'm not the genius I thought I was. You could also have some sort of a system whereby you could see inventions that are "forks" of others' ideas -- basically, a software version of the citations on a patent application.
Once we built this, and started using it, we could get the patent office (and patent offices around the world) to incorporate it into their workflow when evaluating applications. This could really help us in cutting down bogus filings, while making their job easier (music to every government employee's ears).
I know people have been making moves in this area, but perhaps it's time we get really serious about it. We seem to be better at coding things, than at lobbying, so maybe this is the way to go...
+1 because I agree. Though, how many more battles must we win?
Maybe it's this lightspeed cultural advancement that makes it all seem so drawn out, but it sure feels like nothing is or has changed for the long term better.
I think nothing less than a revolution in the way humans think is going to solve these problems. I mean, science solves problems better than witchcraft for a reason. Mankind is still using the equivalent of witchcraft in the legal realm.
It's not like they sat together in 1960 and decided to agree upon a set of latin terms for everyday occurrences - these are mostly inherited.
The idea is to keep the language reasonably stable that we can still confidently interpret legalese from 1812, and that in 2412 the legal body of 2012 can still be of some use without having historians fight over how we might have meant things.
This is particularly true in letter-of-law + case law jurisdictions - in spirit-of-law jurisdictions, interpretation is always required, while in non-case law jurisdictions, rulings don't have as much impact so you don't have to care about what was ruled 200 years ago.
More through inertia than desire, i.e. past performance is no guarantee of future returns. Change accelerates, and feudal times was not much more than 400 years ago in the scheme of things.
It's very rare to see Latin in any modern legal document. And legal documents are hardly arcane. They're verbose and specific, full of terminology, but not purposefully arcane.
As I was reading through the legalese for the MPLA, I realized that the typical practices of the legal profession have about as much to do with reality as Dungeons and Dragons. They are playing games with words, the only difference is that they're dealing not with game pieces but with your very life.
Think about it -- suddenly you will have swarms of lawyers and executives at pharmaceutical companies paying visits to research labs, and you'll have people from large software companies forwarding ideas posted on open source developer mailing lists to their legal departments. It won't be safe to suggest ideas openly anymore. It won't be safe to talk about "what if" or "have you considered" or "someone should really." We are going to see a flood of really bad patents based on other people's ideas -- and that's exactly what our lawmakers have provided to their friends in large businesses.
Things are about to get a lot worse. But you know, maybe that's what it's going to take -- maybe we have to suffer economically, suffer culturally, before we as a society realize we are building ourselves an intellectual prison for which there is no justification.
Yes, I know that patents are a temporary thing, only lasting 18 years or so; but really, do you think people such as the guy cited in this article are going to say to themselves, "oh, you know, maybe I'll just return to coming up with innovative stuff in the voice recognition field in 18 years, after Nuance can't come after me anymore" -- do you really think that will happen? No, of course not. We're going to see a lot of brilliant people forced to abandon brilliant projects and ideas, and we'll never know what might have been, what could have been done.
I don't think anyone is fighting this in a particularly constructive way -- the whole "abolish all patents" camp is going to get about as much of a serious audience as the "abolish the Fed" and "abolish the labor union" camps -- and perhaps that is exactly what our large-scale adversaries want. We need to be more incremental, more nuanced; that's what they've done, and that's why they are getting everything they want. You think sneaking first to file was something that happened over a chain of emails somewhere? No -- if anything, I bet there is a protracted, multi-decade fight among a lot of very persistent corporate attorneys and executives that has lead to this "win."
In any case, I really hope people in our industry can stop the useless arguments of "end all patents!" for long enough to realize they should be rallying together to fight this simple yet very destructive change that is right over the horizon. You sure as hell won't hear/read my thoughts on future technologies once this first to file thing goes into effect; and I am sure that savvy legal counsels everywhere will be telling their star engineers and employees to remain similarly silent. This is not going to be fun.