[Fsfe-ie] "Economist" opinion on patent systems

Alex Macfie alex-list at ffii.org.uk
Fri Nov 12 16:04:04 CET 2004

On Fri, 2004-11-12 at 05:41, Aidan Delaney wrote:
> Apart from the fact that patents generally suck, many articles on
> European patents miss a very important point.  In the US (if you've
> enough money) it is possible to overturn a patent if you can prove you
> invented something before the patent holder. 

To be clear: this has nothing to do with prior art, as prior art refers
to what was /public knowledge/ before the claimed invention, not to what
someone developed in a cave but didn't tell anyone about. A patent
system which did not take account of prior art would be completely
irrational, and I doubt it would survive long even under today's
grossly-inflated IPR regimes.

The American first-to-invent principle does theoretically mean that if
you developed an invention but didn't bring it to public attention, then
if someone else subsequently patents it you can challenge the patent. I
think then that if you can prove you were the original inventor the
court or patent office hands the patent over to you. This does not seem
likely to be much help in overturning bad patents, given that it seems
very difficult to prove you 'invented' something if you did so in a
cave. In any case all patent revocations that I'm aware of are on the
basis of prior art, and as I previously mentioned, under first-to-invent
prior art probably has to dated earlier than under first-to-file.

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