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But You Discovered It First!

Posted June 29, 2009 1:00 PM

Congress is considering some significant revisions to patent law. The proposed provisions reward companies for filing patent applications first, regardless of whether or not they were actually the first inventors. Will this change encourage patent filings before researchers are sure that they have worked out all the kinks? Will it encourage filing ever-more patent applications and increase the resultant costs and bottlenecks to gaining patent approval? Other changes would affect the calculation of damages. Who benefits most from the proposed changes (aside from patent attorneys)? In what ways will the changes affect your ability to protect your intellectual property?

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#1

Re: But You Discovered It First!

06/29/2009 11:18 PM

Its the long standing questions of who built a working practical marketable product first, as the patent is supposed to protect businesses.

Did the wright brothers actually invent the first airplane? no, but the first working aircraft with a patent? yes.

Did Tesla invent the radio? absolutely. Was he the first to send a signal across the atlantic? no.

To keep it simple, it should be the original inventor who gets the patent.. but if the original inventor doesn't file, how is the patent office to know.. either way, arguments ensue. It is said that Edison had a crony in the patent office who would hold up processing of patents until Edison had an opportunity to file first, if he was interested. Thats wrong, if it occurs. Therefore, proof of prior invention should be able to overturn prior filing. (and granting)

Chris

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#2
In reply to #1

Re: But You Discovered It First!

06/30/2009 12:54 AM

Dear Chris, I am in particular concerned for you, as you have been very open and productive.

Apparently there is some codicil in current patent law that could cost you quite a bit for some of your openness here on CR4.

Years ago a very close friend of mine said, "Ideas are worth money."

Sure they are, as long as you've got an attorney!

You know I'm just as much a CR4 addict as you are.

In my last business event I made every effort to cross every T, and dot every I, and at one point, my attorney said until I see a signed contract from the company we are going to be talking to tomorrow, we ought not send them the full description of the proposed product.

He said, "You can blame it on me."

Then he said, "This is why God made Lawyers." I liked him more than ever, for often lawyers live with a bit of self hatred.

Even I wish I could go into the archives here on CR4 and transfer out to my own files some of the things I have written, or fully delete them.

In your case I am particularly concerned, since I'll not really lose any money if I say I don't like bombs, or I like the analogy to water when working with electricity.

Yours Truly, Russell P.S. The Quest for Flight by Jim Tobin is a very fine book about both inventing, and controlling what you have invented. Wilbur and Orville Wright were serious men doing serious things, and they changed the world. They even embarrassed the French simply by doing it right all the way round.

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#3
In reply to #2

Re: But You Discovered It First!

06/30/2009 2:29 AM

You know the principle of tithing is really a selfish principle, in that you will get back more of what you give. I personally feel better about myself when I give, and if that multiplies back with more creativity to invent... I'm up for that. If I can possess the power to create, surely that is more powerful than the creation. I am proud of the things I've put out here on CR4. It is better to have these ideas given to the world, for some future person to develop if they choose, than to rot away in my brain unrealized. I'm content with my choices. I'm also not finished creating. I think that we all have to keep on creating and giving away free, if we wish to overcome the financial chains placed upon us by those zillions of 'bailout' dollars.

Thank you Russell.

Chris

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#14
In reply to #3

Re: But You Discovered It First!

07/06/2009 2:18 PM

Yes. We've all become so infected with the "profit motive" that the idea of giving away an "idea" seems like a mistake. But it isn't. As I've gotten older I think giving away good ideas is not only a better way to live, but is more in line with the old "hacker" mentality and will lead to the greatest advancements. That is also why I like the idea of Linux vs. Windows. Giving rather than always receiving can also become infectious. What a different world it would be -- some would be horrified and call it... SOCIALISM!?!?

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#15
In reply to #14

Re: But You Discovered It First!

07/06/2009 2:36 PM

Hmm, I see a lot of people tend to be in favor of socialism and giving their ideas away for free right up until they have bills to pay. Somehow the concept that ideas should be free but etertainment should be expensive as hell (and subsequently those who participate should also be paisd greatly) is a problem of our current society. People would give ideas away for free as long as you do not expect them to work for years on developing the idea and go to college for 16 years just to learn how to do the science involved and begin their research. Not many people would get an education in engineering and science if we didn't pay them for their ideas, just like no one would become an actor if they had to act for free, and athletics would not have the same demand it has if the pay scale was nothing to the players. And then there is a measure of the value of the idea. Is an idea that changes the way we work and thereby the entirety of our societies for ever, worth more to humanity than Beckham playing for LA or something. On the balance, I think the discovery of the Polio Vaccine should receive better pay then Brett Favre. We should reward people for great discoveries that change our environment and better our lives substantively, and pay is that reward. We are saying that way that we perceive the vaccine is of more value to our society than some Quarterback. Unfortunately the opposite is true, except when people start to Die. The thing with our society, anywhere as a matter of fact, is that pay gains other returns in peoples lives, i.e. better housing, better health care, better sexual opportunities, better educational opportunites for themselves and their children, better toys, etc..

Keep in mind a 14 year old hacker in 1987 didn't care much about money or family needs, as his parent took care of him. While a 35 year old now needs to provide care and comforts for his family, and if your skill is that you have the ideas that change the world, you should get paid reasonably well basded on the value of that change to the people who use it.

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#4
In reply to #2

Re: But You Discovered It First!

06/30/2009 9:49 AM

Sorry for raising a slight controversy but as a side note, "History by contract" is another interesting book. As to the Wright brothers, one may take the time to search for "The who flew first debate" that was published on the web by the Aviation History magazine. That article relates the flight experience of Gustav Whitehead before the Wright brothers. You will also find the contract between the Smithsonian and the Wright's estate concerning the "Flyer". While the Wrights were obviously highly motivated by the financial returns they were hoping to achieve (through patents), Mr Whitehead obviously had no such ambition.

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#5

Re: But You Discovered It First!

06/30/2009 10:46 AM

When big government joins with big lawyers (Congress) and big business, the fix is in. Think about it. You come up with a 60% efficient engine (like what I am working on), you build it, it works, you get on CNN or FOX, the world knows that at least 60-90% of the fuel needs are no longer needed per person (USA standard of energy use..). What next?

To protect you patent you need the money to hire guys at $250/hr. You can easily burn $1-2 million per infringement. So a company copies it, or parts of it (gets real expensive here) and they are in...China...India...Timbuktu...what do you do?

If you are in the USA, do you chase them down in China just to prevent them from importing it to the USA? Most "customers" are NOT in the USA.

World patent? Who enforces it? UN?...need I say more? How much will that cost?

If you are big with lots of backing, and the world knows it, then that threat (like a nuclear legal bomb) stops (legal) wars. But if you are a small fry without government backing...there is no "mutual assured distruction" (MAD) policy that works, unless...

What if there were a MAD legal device for small guys to level the playing field? I think it is time, or stagnation will result due to the lack of small guys being allowed to start...

What if the government owns an auto company (GM?) and has a perverse self interest to make sure some start up does not pull the rug out of your $50 billion investment of taxpayer's money?

Say you do get the Judge to see you side of the case and the (one of perhaps many) company has to stop. Ok, what stops them from changing it a little, and forcing you in court again?

In a world of bailouts for "friends" of government thugs (law makers), all good work goes punished. You don't have rights anymore! (If we ever did?)

If it works (key), "they" will rip you off...

What to do?

Well, I have thought about that many many moons.

Any ideas CR4?

This is my approach...

First you have to have a way to make money from the product without having public disclosure or a patent filing. In my case, I will generate (just thinking here...) electricity for Apartments, and commercial building that I own. Once there is enough free cash being "generated" then I file for patents, after the intended "public" product is ready for production. Since I own them, they are not public, and are under lock and key...

What say ye?

Seaplaneguy

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#9
In reply to #5

Re: But You Discovered It First!

06/30/2009 1:16 PM

I don't know if you've seen the tv show "The Dragon's Den" on CBC, but it is a group of billionaires (Dragon's) who have inventors and business people present their ideas to the Dragons, hoping to garner investment.

So my idea would be to have a similar television studio and review panel, and the inventors have to bring their ideas to the studio (one in each city?) and have it reviewed on-air, and that review will present the details, documentation, and features of the invention, as well as officially lock in the date of invention. (the day of review)

The inventions wouldnt' have to have prototypes, just a thorough list of features, decriptions, and drawings. There would be drafters and documenters such as myself available on bulletin boards to assist inventors. There would be legal protection of the invention based on the fact that the methods of documentation would be mostly standardized, and could even have some oversight by big brother.

This would not be a court, and the lawyers/judges/moneymen don't get involved at this level. this is a thorough documentation, dating and review system underpinning the legal parts, but removing most of the garbage from the legal part. Just the same, if you have an invention presented, and then discover someone else manufacturing it, you have the basis to proceed to acquire a 'quick patent', (as someone else is already producing it, it is commercially viable. there is competetion) all the documentation would already be in a standardized format, and dating questions resolved.

What say ye?

Chris

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#11
In reply to #9

Re: But You Discovered It First!

07/02/2009 12:04 PM

Chris,

I will look at it. Sounds interesting.

I have looked at this issue for years. In today's world, if an idea is really good and is "disruptive" people will copy it, send it to China, and the original inventor (product design, officially) is put out of business, holding all the expenses of R&D and nothing to show for it.

With tax rates near 60% and much more in Europe, how do you captitalize? The government takes it all. If you are a continuing operation and can hide the expenses and offset taxable revenue, then you have a massive advantage. Our tax systems make it double hard for the venture.

If you borrow it, then you become a slave to the guy who printed it (bank cartel) as you cannot every pay it off because any retained earnings, which can pay down principal, are taxed away at 60%.

Then the government takes "bailout" money and sends it to their "friends" (GM) and then is a partner/shareholder. With the government now a partner with GM, the inventor is now in competition with the government. Nobody seems to see a massive problem with this picture. The government cannot "partner" with anybody, as it excludes one against another and violates "equal treatment under the law" setting up a tyranny, with tax payers paying for their own demise, especially the inventor that is competing. He pays taxes that go to the competition... Insane...

I could make my roadable airplane without the new engine (previous discussion we had), but I would have to file a patent for the airplane before I took it out of the shop due to the fact that anybody who looks at it can copy it and quickly claim it.

But to make the airplane work well it needs the new engine. Until the engine is ready for production (how to I get to that point...volume...with what?) I cannot afford to make the airplane with an off the shelf engine (I have one in my shop...). I need both ready for production and being ready to supply to customers.

Could you imagine the risks? Who would bet on that? Such is a 5-10 year investment. Most venture capitalists want their money in and out ASAP, and 2 years is very long term. 5-10 years? forget it...

The central issue is control. Who has the right of control? Do you have the right to control YOUR own inventions, or will the system favor the establishment and kill off a new generation in favor of old. Does the government have a say? Did they invent it? No. I don't know anybody in Congress who has even a remote clue as to what is needed to get 80-90% of the fuel requirements out of our system....I do...they don't...yet they have the right to make rule that block development... Insane...

Unless new start ups can try new things, we will stagnate and go into war.

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#12
In reply to #11

Re: But You Discovered It First!

07/02/2009 1:56 PM

this is scripture you are writing.. every word. GA.

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#6

Re: But You Discovered It First!

06/30/2009 10:57 AM

It seems most legal issues and contests (and resulting costs) are related to the the difficulty of proving when the "invention" occurred versus the actual filing. Small companies and individuals tend to put off the cost of filing until they are sure of a payoff for the invention and have something to protect, whereas most large companies (in my direct experience) unburden the inventors by turning the patent process over to other staff as soon as they believe that the invention is useful, novel and unique.

The push to have immediate searches and applications will cause the need for greater R & D security and more initial administrative cost, but in the long run will likely be a legal and organizational blessing in disguise.

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#7
In reply to #6

Re: But You Discovered It First!

06/30/2009 12:06 PM

I think a lot of the issues identified above could be simply handled by making patent infringements a federal criminal offense, then the government would prosecute infringements and it wouldn't matter how big or small you were, the government is always big enough. Also a prosecution for criminal offense basically proves a civil law suit that follows. Also, we should not allow corporations to hold patents, only inventors. This promotes invention and discovery. The rights to manufacture and distribute can be licensed to a corporations then under limited term contracts.

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#8
In reply to #7

Re: But You Discovered It First!

06/30/2009 12:17 PM

RCE,

I agree, except, the government usually is not good at much and very costly. It would take 4-5 years to get a ruling.

What is needed is a complete overhaul with real accountability for all government employees. If you work for the government you may not work there more than 4 years, then you have to go to the private sector. After 4 years in private work, then you can work in government again.

The government needs a "bowel movement" as it were.

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#13
In reply to #8

Re: But You Discovered It First!

07/06/2009 11:36 AM

use their money to try and drag it out until the inventors can not afford to continue the suit, so they win through attrition. They would settle a criminal case much faster and cheaper, because they really can not try and drag it out until the US government goes broke, so they don't bother spending the money just to drive the cost up. A criminal case would maybe take on the outside 4 to 5 years to prosecute, no need for a ruling it is a jury. Though at first they would try to drag it to appeals until the law was well established.

Patent infringement has nothing to do with government workers, has to do with corporations willing to use their money to overpower the ability of the patent holder to sue. The problem with the private sector, is that many portions like government contractors and the building trades are full of highly unethical and borderline criminal behaviors intended to earn greater profits. This kind of training not aprticularly useful in the government sectors, because they get paid by the public. Who wants the private sector practice of bait and switch becoming more prevalent in the government. Controlling change orders are already a problem. Plus then they would be lining up easy high paying private sector jobs all the time by "working" with the contractors all the time.

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#10
In reply to #7

Re: But You Discovered It First!

06/30/2009 1:59 PM

I'm not sure that making infringement a federal criminal offense would be the deterrent we would like. International infringement (even with a costly international patent) would be no more enforceable. The government (in my opinion) is already past "big enough" and I am not sure the taxpayers are ready to pay for the legal protection of private assets.

I am pretty sure that the patents on my inventions would not have existed had I not made use of the company's resources and intellectual environment. I could not have taken on the expense to search and apply. I agree there should be some shared benefits rather than the complete "sign over" at the time of employment. The promotions and increased compensation looked pretty good to me at the time.

I think Chris has it right - the best hedge against infringement of long term protection is continued innovation which obsoletes the need for protection. As I face retirement, the (business) financial accomplishments have been personally beneficial, but can not compare in value to the excitement of invention!

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