On the flip side, patents exist probably in part exactly because trade secrets are incredibly hard to keep. People are pretty good at reverse engineering things.
(Note: I am not trying to convey an opinion about patents with any of this conjecture, but if you want mine, I think software patents are fully bunk and other patents should not last nearly as long as they do.)
In the "first to file" systems, you lose eligibility. In the "first inventor to file" system of the US, you have a grace period of one year from such disclosure before you lose eligibility, just like you did under the prior "first to invent" system.
To a decent first approximation, the change to the US system mostly just affects how things are handled if independent inventors try to patent the same thing.
Under the "first to invent" system, the patent went to whichever applicant invented the thing first. But when is something invented? When you first think of the idea? Or when you have reduced the idea to practice? Or sometime in between?
Under the US first to invent system, it was when you conceived the invention if you then worked diligently from that point to reduction to practice. If you stop so working and resume, your lose the prior invention date and your new invention date is when you resumed working diligently on reduction to practice.
When two or more inventors were claiming the same invention determining who was actually first under those rules could be difficult and messy, requiring hearings, and costing the inventors money for attorneys. Now with first inventor to file, we pretty much don't care who thought of it first--we just care which person who independently thought of it reduced it to practice and submitted their patent application first. That's a lot simpler, and requires no expensive hearings.
I do think the EFF's concern about claims and documentation already debunked/invalid being hidden behind seal is pretty serious and I think judges approving it are doing the public no service.
In my case, we submitted lots of prior art (some over 100 years old) to the court, and of course they shared this with the plaintiffs. I was certain we should be in the clear. However, in the time between receiving those documents and the actual court date, the plaintiffs submitted our list of prior art to the patent office as some sort of addendum. The patent office re-rubber stamped the new stack of paper, and the judge disregarded it during the trial. We lost. I doubt the patent office bothered to read, much less understand, any of it.
I feel very strongly that their patent was not novel, and since I wrote the algorithm which got us sued from scratch as a new college grad with only a bachelors degree, I doubt it was non-obvious to one skilled in the art. Maybe we could've won with better lawyers, but as a small startup, we didn't have that kind of money.
FWIW in the UK we have expert patent court judges; USA used to have that too, I gather.
>I doubt it was non-obvious to one skilled in the art //
You have to be careful here, "obvious" doesn't quite mean the same as in daily life. It's so easy to see a neat solution to a problem and go "that's so simple, anyone could have done it". Once you've seen things they often seem simple (ex post facto analysis).
I think this is particularly true in some arts where basically every day any ordinary worker invents solutions to problems.
The plaintiffs managed to get jurisdiction in their own city (across the country from ours), and the general belief was that the judge granted this because he wanted a change from the drug trials he normally dealt with. This made it very expensive for us, and they definitely had the home court advantage.
I could whine about a lot of other things. For instance the plaintiffs removed every juror candidate who had any college, leaving only locals who I don't think even understood trigonometry. The fact that you're not supposed to be able to patent math, but somehow math on a computer gets through the patent process, etc...
> ex post facto analysis
I'm not sure what definition of "obvious" survives then. I was out of college for less than 2 months, and I wrote the code in a single evening. The "infringing" algorithm was less than 10 lines.
The jury found that the plaintiffs patents for measuring roofs on aerial imagery were valid, even though every photogrammetrist in the world would say otherwise. Hopefully they'll appeal and have better council...
Not sure I understand this -- are you saying the judge took the PO rubber-stamp as proof that though the prior art might be related, it was not disqualifying?
I'm not a patent lawyer, but I've been involved in this stuff, often conducting extensive prior art searches. The gold standard for prior art is a single document that teaches everything in the claims of the patent. Often, folks think that they've found prior art if they find one thing in one document and another thing elsewhere. Nope.
Now if you happen to find the pieces of a claim in different prior documents, then you may be able to demonstrate obviousness rather than prior art. For instance it's generally considered obvious to take two patented ideas and combine them together. But obviousness is profoundly harder to prove than straightforward prior art.
Meanwhile, anything that's taught in the body of the patent, can be added to the claims at a later date. Within some limitations of course. A patent can be invalidated in its entirety, and the holder can submit a completely new claim set based on the original body text.
> Often, folks think that they've found prior art if they find one thing in one document and another thing elsewhere. Nope.
Still, I think there must be something profoundly broken if you find the exact math in an old book, and the new patent basically says, "do that math on a computer".
If the executive branch always did its job correctly we'd hardly need courts.
USA came in to line with the rest of the World which uses first-to-file (first to invent means the litigious will always challenge inventorship which is exceedingly difficult to determine as there isn't necessarily a paper-trail).
USA patent seem, to me, to be worse than other places, and first to file works elsewhere suggesting that is not the problem.
Personally I feel the costs system, and low presumption of validity at grant seem more to blame.
Patents are not like registered marks where you can apply for the same thing over and over; only the original inventor or its employer can apply, otherwise lour patent would be invalidated due to prior art.
Edit: Okay to be fair, there is maybe not 0% but 10% information in these patents, but it's encoded into unintelligible lawyer/patent talk that is not at all fit to convey technical information. They are written in a way to get a monoply on results without disclosing how these results are obtained.