[Discuss] The America Invents Act

[hsuanyeh at yahoo.com (Hsuan-Yeh Chang)]

1. Here is the quote in newly promulgated AIA, Sec. 102(a):? "A person shall be entitled to a patent unless (1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention."


So, if someone lacks resources to play the patent game, prior public use or on sale would still bar others from getting a patent right.? Even in the first-to-file system, little guys can still use their documented "public use" or "on sale" to knock down other people's patents.? Big companies would squeeze? little guys out of the market by a gazillion number of ways.? Unfortunately, patent is one of them.


2.? Have you tried to file and prosecute a software patent application with the Patent Office?? You would then know how difficult it is to pass mustard with those Examiners to get a software patent allowed.? I support strongly the open source community.? However, it doesn't necessarily mean that all software patents should be invalid.? Patents and open source can coexist in a very nice way.? Open source developers should be able to pursue patent protections in the same manner as proprietary software developers.? 


3. The standard of obviousness has been a hot topic over the years.? Supreme Court in its recent KSR decision has already loosen up the "obvousness" standard.? The AIA did not change this part of the statute.? It looks to me that the general public's fear of AIA is a mere dread of changes.? 


HYC



________________________________
From: Shirley M?rquez D?lcey <mark at buttery.org>
To: discuss at blu.org
Sent: Tuesday, September 27, 2011 5:06 PM
Subject: Re: [Discuss] The America Invents Act

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.
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