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http://pesn.com/2012/08/22/9602165_First-to-File_negative_ramifications_for_free-energy-advancement/
You are here:
PureEnergySystems.com > News > August 22, 2012

"First to File" -- negative ramifications for free energy advancement

Last September, US Patent law changed from "first to invent" to "first to file", so now patent trolls can hunt down good IP that isn't patented, and take over ownership merely by filing a patent first. It has proven hugely demoralizing to the software industry. It could have similar effect in the energy industry, especially open source.


by Sterling D. Allan
Pure Energy Systems News


Last Saturday, when my brother, Nathan, was visiting us here for my daughter's birthday celebration, he told me about something I'd never heard before, which has huge ramifications for exotic free energy technology.


First to File; Not First to Invent

Last September, US patent law was changed, thanks to none other than our own Utah Senator, Orin Hatch, an attorney.

It changed US Patent law so that no longer is it "first to invent;" but rather "first to file."

So the party that is first to file for a patent is the one who owns the I.P., regardless of whether or not the inventor is involved with that party.

My brother, who is in the computer programming industry, said that what has happened is that now there are a bunch of patent trolls out there looking for valuable code that hasn't been claimed yet; they slap a patent on it, then sue the group that developed it.

This has been hugely demoralizing to programmers because 

  • nearly everything they do is new;
  • the patent process is expensive and painful;
  • the thought of having to patent everything they write is overwhelming, both from the point of view of time, as well as the point of view of expense;
  • and even if they did try to patent all the key things they do, they might overlook some permutation.

Before, if an inventor chose not to get a patent on his technology, he wouldn't be able to protect it if someone else used it, but at least he wouldn't be facing the loss of his ability to use it, and a major financial penalty which could sink him -- for using his own idea.

This law was pushed through with little resistance, and with huge support from lawyer lobbies, who stand to gain hugely from all the litigation that can arise.


Ramifications for Free Energy

Most energy inventors I've met plan on filing for patent protection on their work, if they have not already done so.

However, they usually only think of patenting the key ideas, not every little thing that might be new.

Now, a patent troll could sniff out something in the technology that isn't covered yet, file for a patent, then go after that.

This is not yet a problem for exotic technologies, since none of them have yet arrived in the marketplace to achieve profitability.

But down the road, this could be a huge impediment to development.

Probably where we are most vulnerable presently is in "open source" projects, where ideas are discussed and developed openly in a community manner. A patent troll could grab a key part of that, file a patent on it, say nothing about it; then later pop it out when the technology enters the marketplace.

I'm not sure who they would go after, since I would imagine it would be used by many companies and groups; but they certainly could try going after the most successful, where they are likely to get a payment.

It doesn't cost much money to file a patent. After a provisional, you have a year to file the utility patent, which is what is expensive. So the patent troll would just file the cheap provisional as a place holder, under the radar, and then, if it looked like one of the provisionals is going to be profitable, they could follow up with the utility filing.

This basically creates a scenario similar to people who purchase domains that might become valuable, then get paid big when someone wants one of their domains. It costs between $10 and 30 to purchase a new domain name; but if that name is valuable, it can fetch many thousands of dollars. Such players are called "squatters."

I talked about this with Gary Hendershot on The Alternative Energy Hour as part of the Rense Network last Monday, starting at 25:33.

[Next day note: Take a look at the comments below. They include some reasons for "first to file" that I didn't consider when writing this.]


Action

In my opinion, the "first to file" rule should be changed back to "first to invent".

I've called Senator Hatch's office to let them know of the above concern. I suggest you do the same; as well as contacting your own representatives, if you are a U.S. citizen.

Here is some of the research material my brother provided:

Here is an article talking about the invention-theft scenario:
http://www.fastcompany.com/1829563/how-protect-your-company-invention-theft 
(Summary: things will be bumpier… keep things much tighter to the chest (not really an option for software))

Article on federal case filed against the law:  
http://www.courthousenews.com/2012/07/24/48631.htm

Interesting report summarizing some of the arguments regarding first-to-file vs. first-to-invent:
http://www.inventionconvention.com/inventorsvoice/report/

(I don’t think this was seriously debated recently.  Hatch’s bill passed without any resistance, and our current group of senators didn’t likely do any real research.  I’m not even sure that real debate is possible in congress anymore).

Here is an IP lawyers mechanical view of it:
http://ocpatentlawyer.com/first-inventor-to-file-system-under-the-america-invents-act/

One of the top 10 petitions to the White House:
https://petitions.whitehouse.gov/petition/direct-patent-office-cease-issuing-software-patents/vvNslSTq  

One of many cases made against software patents:
http://en.swpat.org/wiki/Arguments

Video making the case against software patents:
http://patentabsurdity.com/

Interesting excerpt from Wikipedia:

Other issues

Critics of the bill have expressed concern that the administration has been guided by the same people who previously lobbied for patent reform on behalf of IBM and Microsoft, and that their appointments were a violation of the Obama Administration's "Revolving Door Ban". USPTO Director David Kappos represented IBM, Marc Berejka (Senior Policy Advisor, Office of the Secretary, U.S. Department of Commerce) lobbied on behalf of Microsoft, and Secretary of Commerce Gary Locke, to whom the USPTO reported until Locke was made Ambassador to China on August 1, 2011, also has extensive ties to Microsoft.[56]

Opponents have raised the concern that the bill could cause the USA to lose its leadership position in innovation, particularly as a result of the adverse impact on small companies, who have not been represented in the negotiations leading up to this bill.[57] Also, critics complain that this bill will not do enough to curb “non-practising entities” from engaging in Patent Trolls behaviors.[58]

Critics have pointed out that the new bill fails to address a glaring issue that will seemingly continue to exist under the new system: the extensive backlog of existing patent applications. Instead of hiring more examiners to process this backlog, "...Congress chose to multiply the alternative dispute-resolution procedures at the PTO, giving the office more work to do without a guarantee of more money. The result is a muddle as well as a missed opportunity."[58]

Interesting study:

Does the Patent System Foster Innovation?

Does the U.S. patent process encourage or discourage innovation? While the answer depends on who you talk to, the traditional view has generally been that patents are good for innovation. Not willing to accept this prevailing view at face value, Bill Tomlinson of the University of California-Irvine and Andrew Torrance of the University of Kansas developed PatentSim, an online game that simulates the U.S. patent system.

PatentSim features an abstract model of the innovation process, a database of potential innovations, and a network through which users can interact with one another to license, assign, buy, infringe, and enforce patents. PatentSim was created using standard web protocols including Ruby on Rails and MySQL.

The software lets players simulate the innovation process under: a traditional patent system, a "commons" system in which no patent protection is available, or a system with both patents and open-source protection. Tomlinson and Torrance measured the effectiveness of the three systems by comparing the rate of innovation, productivity, and value to society.

So what's the answer? According to the researchers in their paper Patents and the Regress of Useful Arts, a system that combines patent and open-source protection for inventions (like modern patent systems) generates lower rates of innovation, productivity, and societal utility than does a commons system.

A round in the game only takes about 1 hour to complete. If you'd like to participate in the study by playing PatentSim, send email to dhann@ku.edu. You must be at least 18 years old to participate

-- Jonathan Erickson

jerickson@ddj.com  

My rant in the comments of WSJ:
[link]

"Only the lawyers are winning in all of this.  Business owners need to stand up and demand real patent reform.  The gulf between the intent of patents and the realities of patents (especially on Software) has never been greater.  If we are serious about competing globally, we need to quickly stop this nonsense before we kill off one of the few industries in which we still compete internationally. 

 

As an innovator myself this trend is hugely demotivating; I know I'm not alone.  Is this what we want... our inventors demotivated to invent?  In what other enterprise can you purchase something that gives you the legal right to go around and take hard-earned money from whomever you can extort it from?

 

It's sad that we even *need* to reform the law to prevent this.  Just because you *can* do something doesn't mean you *should*!  When people do every self-serving thing they can get away with, then there can be no real freedom; government must demarcate every aspect of our lives.  Is that the society we want?  I know I'd rather live in a free society with others who believe in the golden rule.  The U.S. became great due to good, hard-working people.  How do we measure up today?"

How patent monopolies work in reality (outside of fairytale land):

http://falkvinge.net/2012/03/12/how-patent-monopolies-work-in-reality-outside-of-fairytale-land/

Stallman’s famous case against patents:

http://www.cl.cam.ac.uk/~mgk25/stallman-patents.html

Okay, enough for tonight.  J

-Nate

A commenter, "Scienceguy", below pointed out:

"Europe has been first to file for quite a while. In fact, that has been one of many driving factors that has led to this decision. I know it's a new thing, but I don't think the sky is falling. Just be sure to protect your IP, people."

# # #

Related

  • Featured: Tools > Legal > Patent Resources >
    Intellectual Passport Bypasses Convoluted Patent Journey - The Intellectual Passport CB is said to provide stronger security than a patent, while being much easier and cheaper to file for international coverage, with no renewal fees, lasting longer, and dating to when the idea can first be proven to have been originated. Best of all, it is not contingent upon the political whims of a patent office, set against exotic modalities. (PESN; March 7, 2011)

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Page composed by Sterling D. Allan
Last updated October 02, 2012 18:09:55 -0400 

 
 

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