President Obama signed the so-called “America Invents Act” on Friday, September 16, 2011. After a Senate vote of 89 – 9, with two Senators not voting, H. R. 1249 was passed to the President, who enthustiastically endorsed the Leahy-Smith America Invents Act.
The courageous 9 that voted nay are a strange team of cross aisle senators. The nays are: for the dems: Boxer (D-CA); Cantwell (D-WA); McCaskill (D-M); and for the pubs: Coburn (R-OK); DeMint (R-SC); Johnson (R-WI); Lee (R-UT); McCain (R-AZ); and Paul (R-KY). Hats off to you ladies and gentlemen, for whatever reason you made the right choice. The surprise of Boxer to wise up to the infiltration of special interests into the act, was heartening.
We at the bleeding edge of technology are wise to the unintended consequences of enacting compromising rules to what was a flawed but largely honest system. We now let those very institutions that brought world finance to its knees, to write exemptions for their flawed business model, at the expense of the rest of American, roll-up-the-sleeve business.
First to File is 4F, because first to file fosters fraud. While the drafters of the Act were careful to now call it “first inventor to file,” the claim of inventorship is no more than a name on an application. Interferences in the USPTO to determine inventorship have never been a large problem. Certainly, first to invent will become a stronger defense to validity of the patent, since the other laws under 35 USC 102 will remain. Suddenly, we drop down one layer in the IP protection hierarchy to the swamp of unindexed, badly written, poorly illustrated, formless disclosures that are going to be bootstrapped into documentation of first invention. If you thought trials were complicated before, wait till all the provisionals ever written and to be written must be examined. What a joke.
At least “first to invent,” as mandated by our Constitution, led to earnest and spirited discourse among the inventors, as flesh and blood people, that inevitably led to the truth of the matter. The big question is, first to invent what? Typically, Patent Office Examiners don’t examine provisional applications to determine if the disclosure can support the claims of a later filed formal application. We are thus back to square one, without the control gate of the formal utility application to limit submissions, and as a bonus from a relatively recent change in the patent law, the timeline for publication for those applicants that want to go international.
As a result, we are at a point that will soon demand that applications be filed before disclosure to anyone (there is a high hurdle) and that every provisional application be published within, say, six months of filing, with the pressure really on, to file the formal within the year. With this in place, the giant data bases of those concerned will analyze and churn the information and spit out automatic “white papers” in the form of provisional patent applications to stake out small increments of technological advancement in “their space.” It is all going to be very robotic.
With the “retirement” of Steve Jobs, there is a huge vacuum that is instantly filled by Larry (big shoes) Ellison. With the taste of blood in the SAP affair, (which, boo-hoo, was reduced to a quarter billion dollars) Oracle will be fast on the heels of Google. Larry is now the big dog in the neighborhood. After digesting its acquisition of Sun, Oracle’s copyright success with SAP has whet its appetite to monetize Java and chomp at the heels of Android. The reach of its quest is to claim that the very API’s of Java, are copyright protectable. What next? MySQL? That is really scary.
But, hope is near.
The recent Part I article by Andrew Schulman in New Matter, vol.36, no. 2, entitled, Open to Inspection: Using Reverse Engineering to Uncover Software Prior Art, Part I, reminds us that the strings of “0’s” and “1’s” whether the “family jewels” source code or the occult object code, is traceable, just as text strings.
As Schulman concludes, “Code is not only ubiquitous, used to control a remarkable amount of modern activity; code is also text which is readable and searchable at various levels. This text includes the object or binary code deployed in public.”
The next step is to define what is public domain. Not just “Open Source,” but PUBLIC DOMAIN!
Patents expire 20 years from the date of first filing. Copyrights, on the other hand, are easier to get and last a lot longer. As the Golden Age of Patents, fades into a dysfunctional dispute over who was first to file what, the age of Copyright in the field of intellectual property will rise simply on the strength of Larry Ellison, (with a little help from Justice Douglas, a Supreme Court writer who favored copyrights over patents any day).
The task of the new age is to determine what code is public domain. Building on that kernel, a new virtual machine and new core language will arise that is free.