[Fsfe-ie] US Congress to Overhaul Patent Law

Alex Macfie alex at cgce.net
Tue Aug 23 13:13:14 CEST 2005

On Aug 23, 2005, at 18:52, Éibhear wrote:

> In a first-to-file scenario the dispute between who actually invented 
> the
> technology becomes moot.

However, the first-to-invent scenario pushes the date before which 
prior art has to be dated to some time before the filing. There is some 
confusion about what this means, with some people erroneously thinking 
that under first-to-file there's no such thing as "prior art". But 
prior art is information that is public knowledge --- "first-to-invent" 
means the patent belongs to someone who invented first it but kept it 

Under a first-to-file system, any prior art before the date of filing 
invalidates the patent. Under first-to-invent, it has to date from 
before the invention date. ISTM that first-to-invent makes submarine 
patenting easier --- a would-be patent troll can write about a 
technology he thinks might be big in the next 5 years or so, get 
someone to witness it (as evidence of the "invention date") keep it 
secret for a while then as he suspects it's going to be big file a 
patent on it. Much prior art will not be valid because even though it 
dates before the filing date, it is after the invention date when 
no-one was using it since it was not feasible at the time.

AIUI first-to-invent helps the Dysons of this world --- the idea is to 
allow the mythical small inventor in his garage to test-market an 
invention to see if it is worth patenting without big copycats stealing 
it. Our concern is almost exclusively that we need protection *from* 
patents, so from our PoV, first-to-file is better.

Alex Macfie, Taipei, Taiwan R.O.C.
alex at cgce.net

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