[ih] patent licenses, not Why the six month draft expiration ?

[Bob Purvy]

Jack, we dealt with this sort of thing all the time at Google. What is and
is not "prior art" : as lawyers say, *it depends.*

sometimes an old reference uses different words for concepts that we would
consider "the same thing."  The words shouldn't matter, but they do. You
have a much harder time proving that an old reference is still relevant.

At Google, we had a special room where we kept old hardware and software.
Having a working model of something old is really, really powerful; also
really hard to pull off! We actually went to this place
<https://www.themade.org/?gclid=Cj0KCQiA5fetBhC9ARIsAP1UMgGWtqS33XvZKBLiAbeQTpYvjnE1bcFaerQsbNsJkNRwf4Ry89yvFuMaAolYEALw_wcB>in
Oakland and had them on retainer! Old game hardware is perfectly valid as
prior art, and they have lots of it.

On Sat, Feb 3, 2024 at 6:32 PM Jack Haverty <jack at 3kitty.org> wrote:

> Interesting, thanks - that makes a bit more sense.   First to file still
> has to consider prior art to get a patent granted.
>
> There's still a question of what it means to "publish".  In the case I
> dealt with, we used the Arpanet IMP code to show that an algorithm used in
> the IMP was prior art.    That code was certainly in wide use, but it
> wasn't "published" in any traditional sense (except in the code written in
> Honeywell 316 assembler).
>
> BTW, DCEC (Defense Communications Engineering Center) patented some
> netork-related technologies (protocols, algorithms) in the early Internet
> days (early 80s), explicitly to make sure they were not patented later but
> would be always publicly available for use.   Sorry I can't remember
> exactly what they patented, or what triggered them to go through the patent
> process, or who orchestrated the process.  Maybe someone else remembers the
> history.
>
> Perhaps some government(s) organizations could similarly take on the role
> of protecting technology today?
>
> Jack
>
>
>
> On 2/3/24 16:43, Bob Purvy wrote:
>
> Correct, Scott. First to file just eliminated "I thought of this and wrote
> it in my notebook, but never published it."
>
> Jack's statement
>
> At the time, I heard lots of discussions in the lawyer world about the
> apparent upcoming switch to "First To File" structure, and the
> impression I got was that the new structure would take away a lot of the
> complexity of finding prior art and litigating a patent's validity for
> 20+ years.  Prior art wouldn't matter.   The first patent filed would
> rule, and couldn't be invalidated by presenting some previously unknown
> (to the Examiners)  prior art.
>
>
> is wrong. Prior art is still anything published.
>
> On Sat, Feb 3, 2024 at 4:32 PM Scott Bradner via Internet-history <
> internet-history at elists.isoc.org> wrote:
>
>> if someone challenging a patent can find prior art from a year or more
>> before the patent application
>> was filed then patent can be invalidated - first to file does not change
>> that - first to file just means
>> that the person who thought of the invention first may not be the one
>> getting a patent on the invention
>>
>> Scott
>>
>>
>>
>> > On Feb 3, 2024, at 7:17 PM, Jack Haverty via Internet-history <
>> internet-history at elists.isoc.org> wrote:
>> >
>> > About 12 years ago I was involved as an expert witness in a patent
>> fight that had been going on literally for 20+ years.  The Patent Office
>> had issued the patent and it had been invalidated and revalidated several
>> times as the lawyers battled over the decades.
>> >
>> > That was when the US system was "First To Invent", and prior art played
>> a large role in challenging the validity of patents.  We use the Arpanet
>> IMP as an example of prior art to invalidate the patent (actually just one
>> of many claims).  The issue of whether or not the patent was actually valid
>> (even though it had alrready expired after 17 years) was never resolved,
>> because the litigants settled out of court.
>> >
>> > At the time, I heard lots of discussions in the lawyer world about the
>> apparent upcoming switch to "First To File" structure, and the impression I
>> got was that the new structure would take away a lot of the complexity of
>> finding prior art and litigating a patent's validity for 20+ years.  Prior
>> art wouldn't matter.   The first patent filed would rule, and couldn't be
>> invalidated by presenting some previously unknown (to the Examiners)  prior
>> art.
>> >
>> > I'm not in that world now, so I don't know how things actually changed
>> after the 2013 switch to "First To File".  It seemed that such a change
>> would make filing a patent much more important to establish ownership of
>> some innovation.   It wouldn't help to search and find someone who had done
>> it before, but failed to file a patent.  Whoever filed first legally owned
>> the technology.
>> >
>> > My impression of how the IETF operates now is that it creates
>> technology (protocols, algorithms, etc) and puts them "on the shelf" for
>> anyone to use.  But does the IETF (or anyone else) protect such innovations
>> by filing a patent?
>> >
>> > What's to prevent some patent troll now from taking whatever IETF puts
>> "on the shelf" and filing a patent application for it?
>> >
>> > Jack Haverty
>> >
>> >
>> >
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>>
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