[Fsfe-ie] "Economist" opinion on patent systems

Alex Macfie alex-list at ffii.org.uk
Fri Nov 12 02:44:15 CET 2004

On Fri, 2004-11-12 at 05:41, Aidan Delaney wrote:
> On Thu, 2004-11-11 at 21:18 +0000, Teresa Hackett wrote:
> > Useful piece in the Economist on patents, mentions European software
> > patents.
> > http://www.economist.com/opinion/displayStory.cfm?story_id=3376181
> > 
> Apart from the fact that patents generally suck, many articles on
> European patents miss a very important point.  In the US (if you've
> enough money) it is possible to overturn a patent if you can prove you
> invented something before the patent holder.  This principal of "prior
> art" does not hold in the EU.

Not true, prior art holds everwhere. The logical conclusion of your
comment, if it were true, is that I could patent the wheel and no-one I
sue would have any comeback even tho' wheels have been used since the
dawn of civilization ;)

You may be thinking of the distinction between American
'first-to-invent' and the 'first-to-file' rule that applies practically
everywhere else. But under first-to-file prior art is actually easier to
count. Under a first-to-invent system, a patent counts from a date
before the date of filing, when the inventor claims to have 'invented'
it. (There's a limit as to how long before filing the invention date can
be, and, obviously, penalties for lying about it.) Therefore prior art
has to be dated before this earler 'date of invention'. Under
first-to-file, the patent counts from the date the inventor handed his
claim to the patent office. Anything from before that, including any
attempt by the inventor himself to market it, is prior art.

Both have their advantages and disadvantages. F2i makes it more
difficult for someone else to steal your invention before you've
patented it, but makes submarine patenting much easier. Conversely, F2f
makes it easier to count prior art which may invalidate a stupid patent,
so from our PoV, f2f is the better system. One failed European
Parliament amendment to the cii directive, for a 'grace period' of 6
months before a patent would have to be filed, would have moved European
patent law closer to the American f2i system.


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