[Discuss] The America Invents Act

[Hsuan-Yeh Chang]

In reply to Mark's points, I would note the following:


1)  Algorithm by itself is not patentable.  To get a patent from a new algorithm, the new algorithm must be combined with or used in a patentable method or product.

2)  If A made an idea available to the public (by, e.g., journal publication) before B submitted a patent application in the Patent Office, under AIA (i.e., first-to-file), A's publication would readily hunt down B's patent.  Under the old law (first-to-invent), however, B would be able to establish evidence (if there is indeed evidence) and "swear behind" A's publication.  That is, the old patent law allows B to assert a much earlier priority (invention) date.  This has caused a lot of trouble and created a lot of jobs for B's lawyer, trying to establish evidence to safe guard B's patent right.


3)  Information on Github or Sourceforge (or anything posted on the internet) can be considered as publication and thus may be used as "prior art" against an issued patent.  The trouble is, however, that the things posted on Github are lines and lines of source codes.  It is difficult, if at all possible, to extract the design concept and idea from thousands even millions of lines of source codes.  So, even if Gibhub may be used as a source of prior art, it would take a huge amount of effort to apply those "prior art" against the claims of issued patents.


4) Other web postings are also troublesome, because people cannot confidently rely on the posting date, and thus hard to make sure whether such postings constitute as "prior art."
5)  I believe that the open source community should at least try to have some better understanding of what patents really are, and what public interests do the patent system serve.  As I said previously, patents and open source can coexist peacefully.  Ultimately, this business world is operated under certain sets of laws and rules, and only those who knows the laws and rules well can play a better game...

HYC



________________________________
From: "markw at mohawksoft.com" <markw at mohawksoft.com>
To: Richard Pieri <richard.pieri at gmail.com>
Cc: discuss at blu.org
Sent: Tuesday, September 27, 2011 9:07 PM
Subject: Re: [Discuss] The America Invents Act


There are two things that are needed to improve patents for open source.

(1) A codification that publication prior to patent submission of
algorithms eliminate patentability. I think the AIA explicitly states this
as an exception of first to file.

(2) A recognition that "publication" means publicly available and not only
through noted journals. Sourceforge, github, etc should serve to provide
prior art.



> I favor a return to the model requirement.  When one submits a patent for
> an invention one must include a functioning model of the invention.
>
> --Rich P.
>
>
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