[Discuss] The America Invents Act

[mark at buttery.org (Shirley Márquez Dúlcey)]

On 9/27/2011 3:55 PM, Hsuan-Yeh Chang wrote:
> I don't understand how "first to invent" favors entrepreneurs, while "first to file" favors trolls.  If independent inventors do not commercialize their own inventions, they would be considered as "trolls."  AIA still keeps provisional application practice, with which you can basically file any disclosure document you prepared.  There's no provisional application practice in most of the first-to-file countries.

Independent inventors typically don't bother with the patent system at 
all; they don't have the resources to play the patent game effectively. 
But first to file eliminates the one advantage that small players have, 
which is agility and speed to market; if they don't cough up the money 
for legal protection, some big company patents their invention and then 
squeezes them out of the market. In a first to invent system the small 
player at least theoretically has recourse; if they documented their 
prior art they can use it to get the patent thrown out. (And behind the 
scenes they can show the prior art to Big Corporation and not get sued 
in the first place; Big Company might agree to quietly not sue the 
little guy rather than get involved in a patent battle they would 
eventually lose.) In a first to file system the small player is up the 
creek without a paddle.

The patent reform we need is one that makes it easier to get bad patents 
thrown out and harder to get them issued in the first place.  The patent 
office and the courts need to get a clue about prior art and about 
"obviousness", a test that the majority of software patents fail. The 
America Invents Act fails to address this problem and introduces a new 
one that makes the patent system worse.