Most Silicon Valley company were fight down to the patent reform law that President Obama signed last workweek . Some reason that the America Invents Act prefer declamatory megacorps over smaller company , and could dampen conception in the tech sphere .
So we were wondering : Does this intend that Obama has prevent Skynet from developing and triggering Judgment Day ? We ask a clump of patent attorneys and expert , and here ’s what they tell us .
If President Obama has indeed prevented the rise of Skynet by wash instauration in the package and computer engineering fields , then he ’s a bully Heron . On the other script , this could also mean a delay in strive the Singularity , in which we develop artificial intelligence and everybody live forever . But what ’s the literal Sojourner Truth about the America Invents Act , which some are calling the most pregnant change to patent law since the 1800s ? Is it really going to vary the moral force of creation in calculation and related fields ?
“ If I were a hypothetical hereafter A.I. , I would n’t be worried , ” says Mark A. Lemley , a partner at Durie Tangri who ’s also the William H. Neukom Professor at Stanford Law School and theatre director of the Stanford Program in Law , Science , and Technology . “ The raw letters patent act makes a crew of change to the patent police force that will be a big deal to patent attorney , but it does n’t change the fundamental political economy of the letters patent system . ”
But Carlos Fisher , patent and trademark lawyer with Stout , Uxa Buyan & Mullins in Irvine , CA , disagrees , say :
As to A.I. and biotech , and “ Borg - like ” innovations , to the extent that these experiments are being done by small inventors / entity , it will slow up progress in these technologies . However , I would expect that there are Xerox PARC - comparable groups within the magnanimous well fund technical school companies ( and perhaps some tech - funded jump - ups in the Bay Area and elsewhere ) in which this kind of research is being done , and who will have the resources to continue the work . Thus , I would expect that there will be a narrowing of the playing subject area in this and many other theater as a resolution of the Act .
Technological uniqueness ? If such a thing is indeed potential , yes , I think the AIA cut the probability of it being accomplished earlier rather than after .
So which is it ? Has Skynet been dealt a annihilating setback , or is this just a minor prominence on the route to robotic domination ? To reply that interrogation , it ’s necessary to await at a few of the things the ludicrously complex America Invents Act actually does to exchange patent jurisprudence :
First to File This is the change that ’s start out the most attending , but it ’s not actually as much of a freehanded deal , harmonize to the patent attorneys we talked to . This change play the United States in line with most other state , including Canada — it basically says that the first person to file the patent , rather than the first to invent something , gets to own the patent . ( Legend has it that Alexander Graham Bell was the first to patent the telephony rather than the first to invent , but patent attorney we address to believe this is just a myth , since under the old rules Bell would have fall back out . )
We mouth toJohn M. Conley , the William Rand Kenan , Jr. Professor of Law at the University of North Carolina , and here ’s he excuse the “ first to file ” thing :
The rules for examine who ’s first to invent are some of the most complicated rules in police generally . You ’d have to be crazy to sit back and think , ‘ Well , I can always win a antecedence contest . ’ That just would n’t be a rational operating assumption . You might be able to say in certain situations , ‘ I can tap out my rival , ’ but being able to knock out your competitor does n’t mean you could get a patent yourself . [ But in the unconscious process ] matter are credibly go away to happen that will forestall you from catch your own letters patent .
So the move towards “ first to file ” does benefit whoever ’s fast about getting to the patent post — which could give an advantage to enceinte company that can afford to utilise an U. S. Army of attorneys to get a patent drafted quicker . But it also makes patent disputes less mussy and confusing , at least in possibility . And small operators can still file away a provision program or publish some anterior art , and that gives them 12 months to lodge a patent of invention .
Post - Patent Challenges The novel law include not one , but three fresh avenue for challenging a fresh file away patent , attorney Dennis Fernandez with Fernandez & Associates in Menlo Park , CA tells io9 . “ There were already available various follow-up and reprint subroutine that were fairly available for that intention . ” These young challenge procedure are n’t terribly useful for modest inventors — for instance , one of them only has a nine - month window to challenge a patent , so you have to be watch the patent role like a war hawk .
Says Julie Samuels , a stave lawyer with the Electronic Frontier Foundation , “ The additional subroutine , such as the new post - grant review window , voice sound in possibility , but really they are going to be really difficult to comply with ( a nine - month window is not nearly prospicient enough for people not already ‘ lawyered up ’ ) . ”
And Fernandez fears that these new procedures will make it sluttish than ever for the large corporations to knock out patents from small inventors , so they can “ carry on building products / Robert William Service that may or may not infringe certain patents , but [ they ] for sure do n’t like to be bothered with licensing fee or litigation cost . ”
The Prior Use Defense If you may essay that you were using some method acting within a company for “ interior commercial-grade enjoyment , ” then you ’re immune from any patent that are filed more than a year after . By all accounts , this will benefit larger tummy that can document that they ’ve been making manipulation of a method acting without actually patenting it .
No Multiple Plaintiffs According to Fernandez , there ’s a “ joinder ” rule change in the new law that “ foreclose patent of invention owners from action multiple infringing party in the same action . ” This variety “ is especially onerous to individual inventors , who already had real hurdles in affording to litigate previously , but will now be prohibitively blocked from enforcing their patent rights against multiple infringers . ”
Patent Trolls . The new law does almost nothing to fight the “ patent round ” problem , according to the lawyer we sing to . The good tidings is , ship’s company are no longer able to patent incremental improvements in technology or processes as easily as they used to , thanks to a 2007 Supreme Court opinion inKSR International Vs . Teleflex , which fundamentally put the kibosh on letters patent that are too “ obvious . ” ( Also , Conley state that people used to think “ business method acting patents ” would “ end Western Civilization as we do it it , ” but “ courts usually refuse to enforce them on the dry land of noticeableness . ”
Bottom railway line : Even with the “ first to file ” rule , you still ca n’t patent something unless you could evidence you manufacture it , tell Conley . “ If you have this innovation , and I beat you to the patent of invention government agency , the only agency i can get a patent is if i have the invention too . ” And if you have a rotatory invention , and it turns out that someone else is claiming a small part of that excogitation , “ that does n’t mean you ’re out of the game on patent . ”
Or here ’s another mode of looking at it , returning to the doubt of Skynet . We were wonder how Cyberdyne Industries would go about patent the technology that they got from the first Terminator who travel back in time . How could Cyberdyne “ prove ” they invented this technology ? We asked Stanford ’s Lemley , and here ’s what he tell :
I have a comedian on my office threshold that is a court scene in which a attorney says “ I intend to prove that my customer invented a time motorcar , then went back to 1989 , where this man slip the approximation and patented it first ! ” In the real mankind , while there would be no prior art in such a case , both the old and the new patent laws prevent awarding a letters patent to someone who was not the true artificer , but who derived it from someone else .
Patents forestall not only simulate but also independent development . Indeed , more than 90 % of letters patent case are n’t filed against hoi polloi alleged to have copy , but against sovereign developer . That fact , match with farseeing lead times in the PTO , a fairly lax touchstone for allowing patent , and the notoriously fuzzy definition of design , intend that it is all too prosperous to get sued for doing something you developed yourself by someone who arguably did n’t formulate it at all .
All in all , there are good reasons why tech companies like Apple and Google , plus many smaller IT companies , opposed the new jurisprudence , while Microsoft and some large , more accomplished companies brook it . Says Fernandez ,
I ’ve talk latterly w several Silicon Valley patent practitioners , and none of them like the unexampled patent of invention law , unanimously because it not only favour large corporal interests ( in protecting their ongoing job activity ) but perhaps more importantly does nothing to help the ‘ slight guy ’ – which was the original motivation to have patent to begin with ( see US Constitution , Article 1 , Section 8) .. anyway if you ’re familiar with Atlas Shrugged , well , then this unexampled letters patent law unfortunately only reflects a genuine - life expression of Ayn Rand ’s worst nightmare .
What should little inventors and creators do ? Some experts rede getting to the patent of invention authority as quickly as potential , or protect your excogitation with a public revelation that gives you the 12 - month window to patent . But Fisher advises the antonym :
A smaller inventor / company can choose to ab initio opt out of patenting and work in secret ( i.e. , ab initio keeping the termination as a trade secret ) , to pitch one ’s results under confidentiality to prospective spouse / venture capitalists who can afford to patent , and to thus turn “ small ” research into well - funded “ big ” , patent - ready research . Under the AIA , there is no longer a legal punishment for delaying filing a patent program ( “ forsaking ” of an invention under the old police force ) , except , of course of instruction , the fact that someone else may file a patent program program or publicly disclose the invention first .
The above would therefore be my advice to such a small entity : in 18 month , when most of the substantive provisions become effective , munificently expend confidentiality agreements , do n’t print or pitch publically , seek a spouse when you trust you’re able to strike a good licensing / partnership / funding mickle , then intend about file a patent app . But emphatically file as shortly as you could yield it . Note that this proposed manoeuvre may well top to less net public dissemination of technical data , and thus slower overall introduction .
A.I.Barack ObamaComputerspatentsPoliticsTerminator
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