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"First to File" -- negative ramifications for free energy
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.
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
- 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
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.]
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:
(Summary: things will be bumpier
things much tighter to the chest (not really an option for software))
Article on federal
case filed against the law:
summarizing some of the arguments regarding first-to-file vs. first-to-invent:
(I dont think this
was seriously debated recently. Hatchs bill passed without any
resistance, and our current group of senators didnt likely do any
real research. Im not even sure that real debate is possible in
Here is an IP lawyers
mechanical view of it:
One of the top 10
petitions to the White House:
One of many cases made
against software patents:
Video making the case
against software patents:
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
Door Ban". USPTO Director David
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
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. Also,
critics complain that this bill will not do enough to curb
non-practising entities from engaging in Patent
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."
the Patent System Foster Innovation?
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
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.
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.
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.
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 firstname.lastname@example.org.
You must be at least 18 years old to participate
rant in the comments of WSJ:
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.
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?
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?"
patent monopolies work in reality (outside of fairytale land):
famous case against patents:
Okay, enough for
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."
# # #
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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