Patent issues with crowd funded projects

[eneuro]

Hello,
What about wiki: Patent rights when someone starts his crowd funded project?
Are there any  intellectual property rights when someone publishes his idea and who is the owner of these rights if any?

Let us assume someone starts new crowd funded project and there is some kind of an invention.
Project fails and there is no reached goals, but idea is showed, and some time later another company uses the same idea but has bigger marketing resources and can bring it to the market-even may try to patent it for themself.
Is it something showed in such crowd funded projects (web pages like a document) can be used in courts or patent offices to not allow patent the same thing by someone else while it was already published in one of these crowd funded projects before?

Or maybe simply before trying funding any project with possible novel ideas one have to patent it themself (worldwide? internet is everywhere), but this is the cost that someone might wanted to be funded and included in backed money, while it easy and quite cheap make working prototype, even prepare to production, but patents worldwide are the biggest cost.
How those patent claims are resolved in those crowd funded projects published in its description-sometimes detailed product reviews and future development?   

[CanadianAvenger]

any publicly available archive [like a crowdfundung site] displaying a particular technology can be used as "prior art" in combating a patent.

[EEVblog]

Rock solid example of prior art that would invalidate a patent.
Of course it may not stop them actually getting the patent, because prior art searches usually suck.

[coppice]

Rock solid example of prior art that would invalidate a patent.
Of course it may not stop them actually getting the patent, because prior art searches usually suck.

"We have a way of doing X" is not prior art. "We can do X by ...." is rock solid prior art. Nobody is going to provide rock solid prior art in a project description for crowdsourcing.

[Corporate666]

Keep in mind that, at least in the USA patent system, prior art must be from more than one year before the patent application date to make the idea unpatentable.

In other words, if someone showed off something on a crowdsourcing website, someone could come along and patent it, and the fact that it was disclosed on the crowdsourcing website would not be considered prior art that invalidated the patent claims.

Keep in mind that the USA, now anyway, is "first to file", not first to invent.  So even if you can prove you invented something before someone else filed for a patent on it, that doesn't invalidate their claims.

Also keep in mind that the USPTO does not search the public domain for prior art, they only search the list of previously filed patents.  So even if your idea is obvious, it will likely still be patentable unless it's already been patented (the fact that it may be known in the trade won't matter).

And finally, keep in mind that you can only patent inventions, not ideas.  So you can't patent (for example) using NFC tracking for monitoring shoppers in a store.  But you can patent a device that uses NFC tracking to monitor shoppers in a store.

[coppice]

Keep in mind that, at least in the USA patent system, prior art must be from more than one year before the patent application date to make the idea unpatentable.

In other words, if someone showed off something on a crowdsourcing website, someone could come along and patent it, and the fact that it was disclosed on the crowdsourcing website would not be considered prior art that invalidated the patent claims.

Keep in mind that the USA, now anyway, is "first to file", not first to invent.  So even if you can prove you invented something before someone else filed for a patent on it, that doesn't invalidate their claims.

I've heard several American engineers make similar claims about the new US patent laws. I've also heard several American patent attorneys say its rubbish.

[f5r5e5d]

you can read up on it - several IP attorney's have blogged, posted articles..

my engineer's understanding is that there is still language that "the inventor" is the only one allowed to file on a published idea within the 1 year period that US law has kept - EU has stronger prohibitions on disclosure prior to filing
so its still not a race to patent office with someone else's published work in hand to file "first"

[eneuro]

Keep in mind that the USA, now anyway, is "first to file", not first to invent.  So even if you can prove you invented something before someone else filed for a patent on it, that doesn't invalidate their claims.

So, when for example you have working device and have happy customers, but do not patented it, and then one of those "customers" make its teardown and patents it, makes copy of this device and sells as his own product under diffrent name and worse... tells you stop selling your oryginal one while he is patent owner.. it is nonsense  or maybe there are other ways to deal with such claims?

I do not believe in that someone will be forced to stop makeing and sell his own invented device by someone who patented the same later only becaouse of he was the first to fill patent application-how is it possible?

I'm not fan of pattents, but I'd like to ensure, that I will be able to sell my invented product-not to be forced to stop doing it, so the only way is to patent it worldwide before someone else who will try to "copy paste" it ?   

What about paper publications in known magazines, where someone presents his invented  thing - I'm not talking about idea-real working device and it is published in many copies and archives easy available?
Or this thing is shown in national TV with inventor review?

Sometimes, someone could even not realize he invented something new, but simply started to use it, finds customers and makes it for living...
If everyone could fill and get patent without inventor permision it could be very bad  and hopeless

[miguelvp]

I don't recall exactly what it was but one of the crowd funded project had a patent filed and denied for previous art, and the prior art wasn't a patent it was a published paper.

Had to do with a power supply or something similar, I'll try to find it later but it has to be somewhere in here around 3 months ago or so, maybe more recent.

[miguelvp]

Found it from a comment I made here:

https://www.eevblog.com/forum/crowd-funded-projects/vhf-laptop-power-supply/msg430991/#msg430991

The prior art shows IEEE publications:

https://www.google.com/patents/related/EP2606564A1

But not sure if those are google patent search, or if the same applies to the USPTO.

[Corporate666]

Keep in mind that, at least in the USA patent system, prior art must be from more than one year before the patent application date to make the idea unpatentable.

In other words, if someone showed off something on a crowdsourcing website, someone could come along and patent it, and the fact that it was disclosed on the crowdsourcing website would not be considered prior art that invalidated the patent claims.

Keep in mind that the USA, now anyway, is "first to file", not first to invent.  So even if you can prove you invented something before someone else filed for a patent on it, that doesn't invalidate their claims.

I've heard several American engineers make similar claims about the new US patent laws. I've also heard several American patent attorneys say its rubbish.

Sounds like you're talking to smart engineers and shitty patent attorneys.  What were the names/offices of these patent attorneys?

The one-year thing is an established fact, tons of sources online for it.  One would be

http://www.cooley.com/changing-boundaries-of-prior-art-under-AIA-what-your-company-needs-to-know

The "first to file" is also an established fact, after the passage of the America Invents Act.

[Corporate666]

I don't recall exactly what it was but one of the crowd funded project had a patent filed and denied for previous art, and the prior art wasn't a patent it was a published paper.

Had to do with a power supply or something similar, I'll try to find it later but it has to be somewhere in here around 3 months ago or so, maybe more recent.

The USPTO only searches the body of patents (I believe it includes applications and maybe also denied applications?) as "prior art".  Anyone is free to send in information to the examiner though, to weigh in on whether the claims are valid or not.  In most cases, the patent sails though without much public debate - part of the reason for that being that the PTO often doesn't publish it until it's already quite far along in the process.  But in this case, I'd theorize that making it as public as they did (on Kickstarter or IGG or whatever), they opened themselves up to a lot of well read engineers saying "bullshit!", and perhaps a manufacturer or two realized they had a vested interest in the patent not getting granted.

The view of the PTO has always been that they will grant patents unless they have a solid reason not to - and to let the corporations duke it out in court.  So they willfully grant a lot of bogus patents and patents for stuff that is already in the public domain, and their attitude is that the court system can work out the details of who owns what IP, specifically.

Which really sucks for the small guys who don't have the $$ to "work it out" with Google or Apple or NXP or whomever.

[coppice]

http://www.cooley.com/changing-boundaries-of-prior-art-under-AIA-what-your-company-needs-to-know

That link seems to say the opposite of what you said. It says publications prior to the filing date are valid prior art under the new law. This is in line with European law, and I have been told that the new US laws mostly follow the European model. Thinks makes sense, as US companies want a one patent law fits all model for the global market.

[eneuro]

Thank you very much for this link to US article The Changing Boundaries of Prior Art under the AIA: What Your Company Needs to Know

http://www.cooley.com/changing-boundaries-of-prior-art-under-AIA-what-your-company-needs-to-know

...It says publications prior to the filing date are valid prior art under the new law.

It looks like there are still some "IF"s  in the case of US
For example this is one use case shown in this link published on 2013-02-21 (YYYY-MM-DD) before new first-inventor-to-file patent system in the United States become effective on March 16, 2013 :

"Our company made an invention, and before we filed a patent application, our marketing team published an article (e.g., press release, web site, journal article) describing the invention. Will the article be prior art? Yes in many foreign countries and maybe in the U.S., depending on when the application is filed. The article will not be prior art in the U.S. if your application is filed within one year of the article's publication date. However, it will be prior art against applications filed outside of the U.S., including European applications. "

It is not clear and looks like in US one can still get patent for something that will not be able to patent in Europe or maybe it require  2nd, 3rd and 4th reading and I missed something?

However, there are interesting recomendations (for US in this article):

"For instance, any earlier-published articles on your invention (even your own) will be prior art against applications filed outside of the U.S., and available for evaluating both the novelty and inventiveness (or non-obviousness) of that invention. We believe the best strategy for world-wide patentability is to file a complete patent application as soon as your invention is ‘ready.'"

Do I need/should file a complete patent application in Europe and at the same in US to have world-wide patentability or it does not matter where first or the same time?
Does US patent offices respect Europe filed patents or there is also 1 year  delay like in the case of published articles that can be prior art in US but a year after its publishing date ?   

[coppice]

It looks like there are still some "IF"s  in the case of US
For example this is one use case shown in this link published on 2013-02-21 (YYYY-MM-DD) before new first-inventor-to-file patent system in the United States become effective on March 16, 2013 :

"Our company made an invention, and before we filed a patent application, our marketing team published an article (e.g., press release, web site, journal article) describing the invention. Will the article be prior art? Yes in many foreign countries and maybe in the U.S., depending on when the application is filed. The article will not be prior art in the U.S. if your application is filed within one year of the article's publication date. However, it will be prior art against applications filed outside of the U.S., including European applications. "

It is not clear and looks like in US one can still get patent for something that will not be able to patent in Europe or maybe it require  2nd, 3rd and 4th reading and I missed something?

That is referring to a transitional case. Of course, patents can take many years to work their way through the system, so these transitional arrangements aren't going to disappear overnight. However, US lawyers have said repeatedly that any patent application filed after the new law came into force could be invalidated by an article published the previous day.

[Marco]

You can get a patent in the US which isn't valid in first to file regimes without a grace period ... but unlike the pre-AIA days any third party publication before the filing date is now always prior art.

The date of invention is now completely irrelevant.

PS. first to file with grace period is probably the best system ... patent lawyers hate it though (a scientific paper conveying what's novel in an invention ... blasphemy, only patents can do that).

[Corporate666]

http://www.cooley.com/changing-boundaries-of-prior-art-under-AIA-what-your-company-needs-to-know

That link seems to say the opposite of what you said. It says publications prior to the filing date are valid prior art under the new law. This is in line with European law, and I have been told that the new US laws mostly follow the European model. Thinks makes sense, as US companies want a one patent law fits all model for the global market.

No, the website says what I said.

I said that if your idea is published more than 1 year before you file, then it's unpatentable (theoretically - in reality they would likely grant the patent and it would be overturned in court).   The website says..

"the article will not be prior art in the U.S. if your application is filed within one year of the article's publication date"

If you publish your idea (or someone else publishes it), better get the patent filed within a year of that publication, or it could be used against you if the patent is granted after 1 year.

It also jives with the idea that one could publish an idea and then have someone else go and patent it, even though the original inventor disclosed it.

[Corporate666]

US lawyers have said repeatedly that any patent application filed after the new law came into force could be invalidated by an article published the previous day.

Who has said this and where has it been said?

The new law offers protection to an inventor who discloses his idea and has someone else come along and patent it - but only if that can be proven.  In the eyes of the USPTO, the inventor is the one who files the patent.   An inventor can disclose their idea and still file a patent, provided less than a year has passed.

http://ventureatlanta.org/2013/04/patents-first-to-file-and-grace-period/

[snoopy]

why patents are not such a good idea

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        One reason for this is the outrageously wrong urban lore involving
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        inevitably surround "inventions" and "inventing".

        A third is that the economic breakeven needed to recover patent costs
        is something between $12,000,000.00 and $40,000,000 in gross sales.

        It is ludicrously absurd to try and patent a million dollar idea.

        This library explores many tested and fully proven real-world alternates
        to patents and patenting.

http://www.tinaja.com/patnt01.shtml

[coppice]

US lawyers have said repeatedly that any patent application filed after the new law came into force could be invalidated by an article published the previous day.

Who has said this and where has it been said?

The new law offers protection to an inventor who discloses his idea and has someone else come along and patent it - but only if that can be proven.  In the eyes of the USPTO, the inventor is the one who files the patent.   An inventor can disclose their idea and still file a patent, provided less than a year has passed.

http://ventureatlanta.org/2013/04/patents-first-to-file-and-grace-period/

Your first link says exactly what I said, and says it on the very first line of their table of changes. Your second link makes things sounder greyer, and not really compatible with laws outside the US. It says that prior art immediately kills patentability, but then lists exceptions. Those exceptions are quite specific things. Things like someone getting illicit access to your ideas, and publishing them before you can apply for a patent in order to kill your anticipated patent. I think most places have laws to deal with that kind of industrial espionage.

[eneuro]

Read more about European (EPO) patent procedures and found also such way to patent things internationally:
PCT – The International Patent System on WIPO web pages.
I will have LiveChat next week with European patent office experts, so it is time to prepare and ask more, while we have not only USPTO and European patents but Japanise JPO and China SIPO 
In my country will be soon support for quicker way to obtain USPTO and already exists for JPO & SIPO, but do not know details yet.
I hope I will get familar with those after visiting or calling good pattent office, but who knows which one is good? 

My main concern for the moment is something that can happen in US:

An inventor can disclose their idea and still file a patent, provided less than a year has passed.
http://ventureatlanta.org/2013/04/patents-first-to-file-and-grace-period/

From this link in the middle we can see this:

"With regard to third party disclosures, the exceptions apply only to disclosure of the SAME subject matter as was obtained from the inventor.  Conversely, the exceptions do NOT apply to variations of the subject matter.  For example, an inventor could disclose subject matter and, before the inventor files a patent application related to the disclosure, a third party could disclose subject matter that builds on the inventor’s disclosure or otherwise modifies it in some way.  Now, the third party’s disclosure can be prior art for an obviousness rejection against the subsequent application of the inventor.  The inventor cannot rely on the date of invention to overcome prior art in a first-to-file system."

I'm not sure for the moment if official public exhibitions worldwide of not patented devices, especially those organized by WIPO can be used as prior art and not allow third party’s patent exactly the same thing, while might be possible modifiy it in some way, but that would be fine if my goal were to make public demonstration to avoid patenting such thing.
Forgot about patents, while you must make detailed descriptions of used solutions and in the case of patent violation one have to have huge amount of money to pay patent lawyers for...basically nothing and one can still loose depending how good it is not if someone was right or not

So, I do not like idea of patents at all, while sometimes one will have to have huge spy or inteligence agency and monitor if someone else is not violating.

Crowd funding is not a bad idea while sometimes people need the same DIY thing cheaper, but I'd like to ensure somehow that device I show will be difficult to patent by someone else world-wide and this publishing prior art looks like a some way to achieve this goal, but strange US exceptions and 1 year grace periods make this more complicated-do not verified JPO & SIPO patent rules for the moment.

why patents are not such a good idea
http://www.tinaja.com/patnt01.shtml

Thx, for those links, too 
So, another strategy might be publish something and try to make difficult patent something you crowd funding, but maybe it require special kind of international publication or trade shows organized authorized by  WIPO and patent offices world-wide? 
Idea behind it is if it is difficult protect something by patent without risking a lot of own money make it available to every one to see it and buy it by keep its details as secret as possible, so you still have advantage above others who wants to "copypaste" it and patents itself protects somehow something which was disclossed by the goal can be make this disclossure prior art in as many countries possible to make difficult patent exactly the same thing which you invented and sells yourself.

I do not want nobody tell me stop selling my own invention and it is highest priority for the moment before publishing anything or any kind of crowd funding...

[coppice]

PCT – The International Patent System on WIPO web pages.

WIPO is becoming a big part of the patent picture. A lot of Chinese companies, in particular, seem to focus on this route to patenting, as it gives them the broadest coverage. However, those people are awful for not considering anything but patents as prior art.

Why patents are not such a good idea
http://www.tinaja.com/patnt01.shtml

If you look at the history of patents in Europe, several countries introduced a patent system, then killed it, then reintroduced it, each time responding to pressure from interest groups. Unsurprisingly, the main advocates of patents were typically lawyers.

[StefanHamminga]

I've been doing some research on using defensive patents for projects that are not worth patenting in full, but might be interesting enough for someone with deeper pockets to hijack.
In the Netherlands one can file their own patent for about 240 euros (USD 310). This includes an (as far as I can tell) obligatory search, but the patent will be awarded no matter the result of this search (according to the government officials I spoke to the reason is that the yearly volume of patents is too small to have experts in each field and almost every patent gets upgraded to EU or PCT later, so they let either the court, EPO or WIPO sort it out).
It's a reasonably affordable way of creating well documented prior art. The claims need to be submitted in Dutch, but the rest of the document can be in English. Sure is a lot cheaper than trying to invalidate a patent later on.