Comment by pnw_hazor | Hacker News Reader

Comment by pnw_hazor | Hacker News Reader

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First to invent is indicative of a policy that favors individual inventors over well-funded corporations.

Little inventors might like to shop an idea first and then file a patent application if they find traction or funding. US law allows for a one year grace period after disclosure. Fail to file within one year, all US patent rights are lost. Outside of the US, any public disclosure before filing bars a patent.

Big Corp has the money to file patent applications early before disclosure.

Now with first-to-file in the US, there still is a one-year grace period in the US, but the first applicant to file is the winner not the first to invent.

Among other things, this is bad for small inventors because bad actors can file patent applications on the small inventors' inventions first. Trolls can and do scour websites to identify inventions that may be worthwhile sniping. In the old days the inventors just need to show that they invented their invention before the troll filed their patent application. Now, you have to prove that the troll literally stole the idea which the USPTO doesn't really look into.

So, my understanding of first-to-file is that any public disclosure counts as prior art for anyone else. So the only time you would have to prove the troll literally stole the idea is if your disclosure to them was non-public.

In either case, it's likely that the USPTO isn't going to notice before issuing the patent, but under first-to-file it is way easier (read: cheaper) to show that "X document was published on Y website on Z date" than it is to start doing discovery to compare private lab notebooks or whatever to decide who really invented the thing first.

This only ever affected a minor number of cases anyway, and the change mostly just made litigation costs cheaper and more predictable.

It also seems really great for open source software (where I personally work), since everyone publishes everything they do immediately anyway.

First to file, simplified some processes and bring US patent law closer to international patent law. But you are correct that it removed what amounts to an edge condition.

Public disclosure is great for making prior art to block future patents. That's why some big corps white paper just about everything whether they intend to patent it or not.

First to file has nothing to do with prior art. It’s about what happens when two companies claim to have invented the same thing.

One might easily believe that based upon the name, but a number of changes to how prior art worked in the US were required to implement it. Please consider https://www.uspto.gov/web/offices/pac/mpep/s2152.html

In particular, the paragraph starting with "Although some of the provisions of AIA 35 U.S.C. 102(a) and (b) are similar to pre-AIA 35 U.S.C. 102(a), (b), and (e), the AIA has introduced a number of important changes with respect to prior art ..."

Edit: And more importantly, Section 2152.01 right below it.

Ah, you’re right. The critical date for a patent is now the date of filing rather than the date of invention. Apologies for jumping the gun—I misread your comment as suggesting that first to file somehow changed how you calculate the date as of which a non-patent disclosure (such as an article) is prior art.

No worries. It is rather the date that you compare it to that changed (filing rather than invention). I could have expressed that more clearly.

It actually does change the dates for when patent documents are considered prior art (as described in the first paragraph I referenced), so it is easy to get the issues confused.

The effects of first to file on how prior art works are, in my opinion, way more important than the litigation edge condition it eliminated.

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