148 thoughts on “Survey of the Disruptive Impact of a First-to-File Switch

  1. Ken Brooks:
    “Were the first to file system implemented while maintaining the best mode requirement, it will place U.S. inventors at such a disadvantage I would contend that I could render the statue invalid under several constitutional grounds”

    Nope, none of the stuff you mention would have any effect on any patent statute. Under the US Constitution, the federal government has no obligation to issue patents at all. Given that, it is unlikely to be required to have more than a rational basis in any of its rules, unless they’re facially discriminatory.

    However, there is one key rule under the Constituion first-to-file system *would* have to deal with: exclusive rights can only be secured “*to inventors*”. Accordingly, the proof that the first-to-file was in fact an inventor will remain essential.

    “In other words, does an Article III tribunal have the power at Summary Judgment to determine that a monopoly granted in accordance with Title 35 of the United States Code still fails to comport with Article I, section 8, clause 8 of the United States Constitution. In this manner the patent could be stricken by the court. It should be borne in mind that there should never be a presumption of validity when a patent is stricken on a constitutional challenge.
    I believe that the Courts would very much enjoy rendering lofty Constitutional opinions than the more mundane opinions of this prior art reference was missed and that Expert was that etc. In my opinion it would be a much cleaner way to clear up much of less than virtuous patents. the mess that is being created by the USPTO. ”

    This is a really excellent idea. Unfortunately the “progress of Science” clause is generally treated as surplusage by the courts. :-(

    “I still am amazed to read cases like O’Reilly v. Morse where Morse conceived of his invention in 1832 on a boat coming to America, but took eight years before he filed his patent application. During those eight years, he worked on his invention to develop it (he was a professor). Others independently invented virtually the same thing in the interim and filed or published first. Morse lost his overseas patents because of this and his own publications, but prevailed in the US due to his early invention dates.”

    Ah! But the purpose of the patent system is largely to promote the *publication* of inventions. Trade secrets can be retained forever, as an alternative. That is the “patent bargain”. Accordingly, from the utilitarian point of view, those who published first should get the rewards, and Morse should have published earlier — and the incentive system should be structured to encourage him to do so. The “Progress of Science and the Useful Arts” is generally assisted by fast publication so that people can build on existing knowledge, not by retaining something as a trade secret for 8 years.

    You’ve raised a number of very interesting things to think about.

  2. Regarding director Kappos’ references to the reform bills minimal changes to the process for inventorship determination that we now use, the reality is that the system is in a state of awarding patents into the incorrect name 100% of the time or nearly 100% of the time in instances where valuable patents are at issue. These patents of course are the only ones that are worth filing and the only ones that will result in new products coming onto the market. The fairly tale of simultaneous non-collaborative invention needs to be realized and be the subject of necessary legislation changes in addition to the 30 or 40 other methods that inventors are cheated out of their inventions and that are not dealt with in the present legislation. See our website to see all of the needed changes and why the present proposals are absolutely despicable. The fear of losing an invention to the deficiencies of the present and proposed system of inventorship determination represent an extreme detriment to human advancement through innovation and needs to be corrected immediately. Also civil rights violations of inventors must be corrected so they can breathe free as our other citizens do.
    link to inventingconsultantcreator.net

  3. Lionel, tricky question. Are you asking me to choose a jurisdiction, today, that will be the “most important” when the term is coming to an end, 20 years from now, and the subject matter is a blockbuster pharmaceutical that will keep folks alive? There are 600 million people under the jurisdiction of a European patent, and Europe has things called “supplementary Protection Certificates” that extend the term of pharmaceutical patents beyond 20 years from filing.

    And then there’s China, with more than double the number of folks willing to pay to stay alive.

    Conversely, the USA does triple damages and requires infringers routinely to “bet the farm”. So, having a patent in the USA opens up delicious opportunities to intimidate whole industries, that are denied to patent owners elsewhere in the world. That’s one reason why, historically, the US jurisdiction has been so “important”. Of course there are plenty of other reasons. That’s the trouble. It’s all so complicated, to separate out one reason from all the rest.

  4. Max,

    I believe if you look at my prior posts, I am not some raving jingoist. I also support the US moving to FtF.

    Having said that, would you actually argue with the statement that the single most valuable country in which to obtain a patent is the US? And if so, why.

  5. Let’s be clear, Mr Goodloe. FtF can’t eliminate fights between rival parties, who both invented much the same thing, at much the same time. There will (I hope) be just as big a fight with FtF as with FtI. The issue is the point at which investors can “take a view” which side will prevail in the end. With FtF, the docs that will decide the matter are all out there in the public domain, 18 months after the respective filing dates.

    As to “interesting”, life’s quite “interesting” enough for me under FtF. I don’t really want it any more “interesting”. Isn’t that the old Chinese curse “May you live in interesting times”?

  6. With FTF, life won’t be near as interesting…

    link to americanheritage.com

    However, it is not clear that FTF would have completely eliminated disputes over the scope of what was disclosed and claimed, and when… so you trade one set of problems for another set of problems…

  7. Ned, Ron, reading Mooney prompts the thought that many people still doggedly insist that, on fitness for purpose considerations:

    i) Betamax is “better” than VHS, and

    ii) HD-DVD is “better” than Blu-ray.

    Should we number you two amongst that number? Fitness for purpose is vitally important, of course. It explains why the dinosaurs got so big.

    Are you therefore advocating that the USA should stay with HD-DVD?

    But wait. Probably not, since it was invented in Asia/Europe wasn’t it.

    These things are what one calls “standards” right? Like GAAP. That sort of thing.

    Tell me, in a globalised world, how significant to a global player are these wretched “standards”?

  8. The majority of innovations and new technologies are introduced by startups and new market entrants.

    Gosh, that sounds nice but it smells a bit like crap, Ron. Are the terms “innovations” and “new technologies” defined? What exactly is a “new market entrant”?

    How large is this “majority”? 55%? 80%? What? Over what time frame are we talking?

  9. Zakaria: Is American Innovation A Thing Of The Past?

    Answer: no.

    But of course if the US government wanted people to discover more stuff, it should invest in education and research. Axiomatic.

    Maybe get the helll out of Iraq and Afghanistan where we never belonged in the first place and cut the military budget in half. Take that money and invest it in improving education, providing research grants to scientists, and rebuilding and development of infrastructure. You know, the sort of investments that actually pay off and don’t involve killing thousands of soldiers and tens of thousands of innocent people.

    Meanwhile, the “ordinary inventor” can stockpile ammo in his bunker in Idaho and develop exciting new iPhone “apps” for entertaining pet hamsters.

  10. Ned Cases such as Ebay have dramatically undermined the value of US patents to the entrepreneur. Ditto reexaminations.

    Oh, looks like Ned needs a kleenex.

  11. Ned, I still don’t understand. FtF is a giving to inventors, not a taking. You are able to find a taking only by setting FtI as your origin from which the analysis starts, whereas I see an advantage, relative to the real baseline of free competition, and no patent system at all.

    My US clients seem to be increasingly looking to Europe and Asia to make their profits. European industry these days looks East, as much as it used to look West.

    You write:

    “…the ROW needs to patent in the US. You may not like it, but it is a fact.”

    Hang on to that thought, by all means, if it comforts you. As for your tip, thanks but the amendment to 35 USC 104, all those years ago, did not go un-noticed by European industry.

  12. US: it is interesting that all the famous US inventors pictured in the linked are the very type of inventor being today hammered by big business in the courts and in congress. Cases such as Ebay have dramatically undermined the value of US patents to the entrepreneur. Ditto reexaminations.

    What did you expect, an increase in inventions?

    But the conclusion that it is a falloff in funding by congress and by big business as being the cause of the falloff in innovation simply proves that the people writing the article have no clue, or they are talking to the wrong people — government and big business.

    Now

  13. The U.S. is rapidly falling behind in innovation. It doesn’t have that much to do with patent law or USPTO practice, but rather the commitment which the federal government and U.S. businesses have towards investing in R&D. A patentlyo article on that topic might be interesting, Prof. Crouch. See

    Zakaria: Is American Innovation A Thing Of The Past?

    link to newsweek.com

  14. MaxDrei, if you disadvantage the inventor in any way to promote the interests of society, you are taking. This idea came from anon: the trade off for giving the inventor less security is the benefit to society of early disclosure. He favored it. You seem to as well.

    Back to Rule 131, it provides for a declaration of prior invention that can remove a reference not a statutory bar. Under the revised Section 104, anyone in a WTO country can prove prior invention showing acts in their own country. Europeans should be aware of this and act accordingly.

    In truth, the ROW the world is now first to invent just as much as is the US because the ROW needs to patent in the US. You may not like it, but it is a fact.

  15. You know Ned, that night follows day. But do you know that FTF “forces” premature disclosure, as night follows day? The FTF inventor doesn’t have to file on Day One. She can wait till she’s ready. As long as she likes. It’s her judgement. And she should anyway wait, at least till she’s got a disclosure that enables the scope of the claim, As I keep saying, if she goes before that point, she hands the invention on a plate to the public.

    And how do you know that, with FTF, there would be less innovation in the USA? Do you really think US inventors wake each morning and think “OK, we still have FtI. So, I’ll do a little inventing today” whereas after FtF comes in they would wake up, ask if it’s still FtF and, if so, go back to sleep again? I had thought the US inventor was single-minded and indomitable and would not be so easily put off but would instead adjust to the new world of FtF and go on inventing at least as incorrigibly as before.

    Dr K, does your Paper on Canada help us with this point. (Sorry but I’m reluctant to cough up my real identity).

    Ned, no, I don’t have much experience of instructing US lawyers to prosecute at the USPTO. I’m in here to learn.

    And what’s all this “taking” guff? Nobody’s taking anything from anybody, as far as I can see. Suppose there was no patent system at all. Would there be a “taking” then? With FtF, is there i)more or ii)less “taking” than with no patent system at all? You’ll have to spell your theory out a bit more clearly for the likes of me.

  16. MaxDrei and anon, the point of the “brothers” parable is to point out the subtle effects of taking from the inventor and giving to society. As MaxDrei clearly pointed out, FTF systems force early disclosure in exchange for rights. We have tried to point out how early disclosure hurts the inventor by example and by logic. It hurts the large company less, because R&D is not closely coupled to protection. Thus the large company argues that FTF is the way to go to “harmonize” with the ROW. They are not in any position to understand let alone argue against the entrepreneur. But they do, nonetheless.

    Circling back, FTF gives to society and takes from the inventor. In any system, the more you reward society by taking, the less you get from the source and the less society has as a whole. It is provable by mathematics and is observable in everyday life.

    One can therefor prove mathematically, I suggest, that FTI systems are superior to FTF systems in terms of the number and quality of inventions produced.

  17. MaxDrei said: “I personally won’t mind if America stays with FtI indefinitely. I see that as reducing the chances of Americans being in a position to enforce their valid patent rights outside the USA. Americans file too late, you see.”

    But — the American or anyone else in a WTO country who properly keeps track of invention dates — gets the patent in the US. Today, US patents are by far the most valuable in the world (but the big companies backing FTF and other “reforms” are working on that “problem.”)

    It is weird, but companies located outside the US, in WTO countries, can now take advantage of the US first to invent system. Inventors in WTO countries can prove prior invention. If enough of them do (that is if we ourselves do not kill first to invent in the US) and if they perceived the advantages of a first to invent system, perhaps they too will lobby to change their own systems to FTI.

    MaxDrei, I know you are not a US patent attorney. But have you ever managed a US case on behalf of a European client? Have you ever considered filing a Rule 131 declaration showing prior invention in Europe?

  18. Dear Dr Katznelson, a pleasure to discuss with you. Thanks for a stimulating response. Yes, perhaps I should be scribbling elsewhere – but it would surely not be as much fun.

    We are arguing about rights to whomsoever invented “it” first, or filed for “it” first. But what is “it”?

    You speak about FtF forcing filing before one has identified:

    “..the claims one ultimately requires”

    which suggests that “it” is still not evident, even when one files at the PTO.

    I see the advantage of FtI for the start-up, in that it has the privilege to take as long as it needs, before having to file, disclose, and define “it”. I personally think (but then I would, wouldn’t I?) that this advantage is outweighed by those who are actual and potential employers of labour in the USA, the generators of national wealth, for whom the years of legal uncertainty are destructive of confidence to invest. I think a privilege of being able to take as long as one pleases is a privilege that people carelessly abuse.

    So, doesn’t society (the sponsor of any patent system) need a mechanism to keep that abuse in check? Yes, I know that in an interference the first filer is the senior party but, in reality, that’s not a very effective incentive to file any earlier, is it?

    I don’t know whether the transaction costs of FtI hurt the American economy more or less than its deferred disclosure privilege helps America to innovate. I’m not an economist.

    I personally won’t mind if America stays with FtI indefinitely. I see that as reducing the chances of Americans being in a position to enforce their valid patent rights outside the USA. Americans file too late, you see.

  19. Sorry about the link not working. I’ll be happy to send you a copy if you contact my email (provided on my Selected Works site).

    MaxDrei: “I repeat over and over again that, under FtF, filing too soon, when the disclosure falls short of enabling, will hurt the inventor and her investors. The other fella, filing after her, with a disclosure that is enabling, will get the monopoly, not she”.

    On that we agree. However, you do not seem take this observation to its logical conclusion. The trouble is, how does one predict up front when a filing is “too soon” and which disclosure is mature and enabling for the claims one ultimately requires? FTF increases the risk of missing some of these predictions, particularly for small startups that cannot afford to file more frequently. Do I understand correctly that you concede your point on “early disclosure benefit” of FTF? If not, please address specifically my point on reduced incentives to disclose under FTF due to the shifts in risks that I identified.

    You and others also appear to assume that small U.S. startups need to file internationally to succeed. We do not. For example, with 10X costs for obtaining a European patent compared to small-entity costs for a U.S. patent, we often forgo foreign filings that we cannot afford and the FTF consideration is irrelevant. No one is trying to make you switch to FTI – you can keep your FTF in your jurisdictions and harm your small businesses (if any are left). The argument here is not about whether the ROW should move to FTI – it is whether America should transition to FTF. In considering this question, one cannot “steer clear of start-up considerations so as not to stir the hornets’ nest again.” If you do not feel equipped to address this segment of the American economy that is central to America’s lead in innovation, than perhaps you should steer clear of this debate and begin your own thread on the merits of keeping the ROW under FTF. Given the vastly different legal systems that are impossible to change, I may even support your positions on that because your arguments make much more sense in those economic settings.

  20. Dr Katznelson, I tried to link to the Paper on Canada but the link failed and I reported that failure to you on this site. But I will try again now.

    I don’t doubt that your “tipping point” is different under FtI. Again, in an earlier posting, I said I would steer clear of start-up considerations so as not to stir the hornets’ nest again.

    ROW is not going to switch to FtI. So long as issue of an optimal US patent is your only consideration, take as long as you like to file your app. But, if your investors also want a monopoly anywhere else in the world then, as soon as you have enabled your invention over the scope of your claim (but not one day earlier), think about filing at the PTO.

    I repeat over and over again that, under FtF, filing too soon, when the disclosure falls short of enabling, will hurt the inventor and her investors. The other fella, filing after her, with a disclosure that is enabling, will get the monopoly, not she. I can’t remember your refuting me on that. Instead of complaining that I don’t address your points, why don’t you tell me where that statement is flawed, please.

  21. MaxDrei, you keep raising the early disclosure “benefit” of FTF every place. When you receive a direct answer explaining the flaws in your argument, you ignore it. Please respond to my post in another thread.
    link to patentlyo.com You can respond here.

    You and ‘Anon’ miss the adaptive behavior of applicants in the face of FTF’s perilous deviation from the patent bargain. By reading that post, you will also recognize that NAL’s analysis above is incomplete, as it keeps the trade secret variable as a “constant”. It is not, but not in the direction you posited. Contrary to your “theory”, under FTF, trade secret appropriation paths will actually displace some disclosure that would otherwise take place in an FTI system. This is because in its “beneficial” push for early disclosure, the FTF system causes an unintended deviation from the patent bargain. Because of the “race” with incomplete information, it forces applicants to prematurely disclose much more information than that relevant or necessary to ultimately support the required claims, putting startups at much greater competitive disadvantage compared to incumbents. Although many of the abandoned applications under FTF would not be relevant in supporting ultimately required claims, they will be relevant to competitors in obtaining information and trade secrets that would otherwise not be disclosed, had the applicant had more time for vetting and developing.

    Here comes the part you ignore: Have you been in a startup having to make the decisions on what to disclose in a patent application and what should remain a trade secret? Have you done this in an FTI environment? We do this at startups all the time and we balance probabilities and expected returns from both appropriation alternatives. Our tipping points may be different than that of larger incumbent firms. Under FTF we would stand a greater chance of making the disclosure without getting our required claims. As a result, our bias would be to forgo disclosure and patenting in cases that unfortunately would otherwise later prove important. Under FTI, our calculus is done later in the development process and is based on more information pertaining to the important inventions and on lower perceived risks for entering the patent bargain. In due course, we disclose only that which is required to support our ultimate claims – no more and no less. Thus, we are currently more comfortable in disclosing and patenting. FTF will upset this balance, as the risks of more disclosure could not be properly offset because of the reduced likelihood for obtaining patent protection. Thus, there will be relatively less disclosure from startups and new market entrants who risk more by disclosure. Disclosure from large incumbents will increase, but with reduced quality. Read the McGill University study on the 1989 Canadian transition to FTF – you will learn something from real empirical facts that contradicts your early disclosure “benefits” of FTF theory. Anon, that will inform you too as to the question you raised.

    You see MaxDrei, we talk past each other because you apparently speak from the European experience of established companies, who may not face risks of being crushed by incumbents. You may have no comprehension of what we go through in launching IP based startups. Even some of our outside patent counsels lack that comprehension. The majority of innovations and new technologies are introduced by startups and new market entrants. America’s lead in innovation is secured in large part by the American protection of small business and small entity inventors.

  22. MaxDrei,

    I’ll leave the further explanation of the “two brothers” parable to Ned, but wanted to express how pleased I am with your posting here – you’ve come a long way form the slinging crap to see what sticks approach, and I find myself enjoying your viewpoint. Kudos.

  23. Maybe it’s like driving on the roads.

    One brother lives in Japan, or England, and drives on the left. The other brother lives in North America, or in Europe, and drives on the right side of the road. Which side is “better”?

    Will the world continue to function, if each brother drives for evermore on the side of the road he uses now? Can they survive and both prosper?

    As long as they both remember what the Rules are when they visit their brother, surely.

    What is the likelihood of the UK adopting the European standard on this issue? Zero.

  24. “But the brother situation is like the trade off you suggest. You are giving less to the inventor and more to “society.” This actually results in less invention and hurts both.”

    I’m not sure that’s a fair characterization. Since we’re talking about FtF vs FtI, not patent system vs no patent system (don’t tax the one brother vs tax the one brother, give him exclusivity vs no exclusivity), I don’t think you’re hypothetical quite nails it.

    Let’s suppose both brothers are independently working on the same invention. Let’s ignore for the moment whether they are applying under FtF or FtI, and let’s just say that one brother likes to take his time (FtI), and one brother likes to get things done fast (FtF). The FtI brother will take longer to file, but theoretically/hopefully will use that time to further flesh out his invention, eventually resulting in more disclosure, and probably more scope to his eventual patent. The FtF brother is more likely to file once he has completed the base invention, and will disclose earlier, but probably with less disclosure than his brother, and also less scope to his patent.

    It seems to me that both brothers have brought us something valuable, and although the FtI brother took longer to get it to us, he also gave us more with it.

    I still can’t say which is superior, FtF gets society information earlier, and FtI gets society (likely) more (and possibly better) information. Both systems clearly have advantages, but I can’t figure out how anyone could objectively determine whether the increased information under the FtI system is worth the added time to get it.

    For me though, the bottom line rests with something both American Cowboy and Max have hit on, which is that the transition would be extremely disruptive for everyone. Unless someone could find an objective way to demonstrate that the tradeoff is worth that disruption, I would rather not go poking bears with sticks.

  25. OK, NAL. I did that. I’m no further forward. I read that both brothers, both of them:

    “…can keep the whole fruits of his labors”

    So, is Ned saying:

    under FtI, and ONLY under FtI, the patent that the “first inventor” enjoys is unenforceable against the second inventor.

    Or, when he writes:

    “…you tax one and give to the other”

    does he have in mind:

    i) ANY and all patent systems are taxes, or

    ii) FtF but not FtI?

    Ned, NAL forgive me. I had jumped to the conclusion that Ned was saying:

    ALL patent systems constitute a tax.

    Sorry, I’m not there yet. More help please.

  26. MaxDrei,

    I think that you are not seeing the relevance of the “two brothers” story because you are conflating systems (patent and trade secret). You throw in the mix an option of NO patents, where the brother story does not have that option.

    Of course, BOTH FTF and FTI are better than the trade secret option – that is a red herring. Try thinking of the “two brothers” story ONLY between the two options of FTF and FTI. In such comparision, your path of trade secrets is left on the shelf, and does not affect the analysis.

  27. Ned, you write (as if it were incontrovertible fact):

    “the more invention, more disclosure”

    but that can’t be right can it? Think Google. Think MS. Think trade secrets, valuable know-how. If there weren’t a patent system in place, rational behaviour would dictate keeping as much know how as possible a close secret. In fact:

    The more invention, the less the disclosure.

    Now, which patent system gets the most info disclosed? Why, the one that secures the earliest enabling disclosure, by making that disclosure a more attractive option than keeping everything a secret.

    How to do that? Why, by promptly enforcing the valid exclusive rights of patent owners. That promise alone, and nothing else, is what will tempt the disclosures out into the open.

    I don’t see the relevance of your “two brothers” story, sorry.

  28. Anon: “I think the question should be whether the tradeoff for earlier disclosure is worth the cost to inventors, not just a question of which system is best for the inventive entities involved.”

    I’ve been thinking about this for a while now. I do not know exactly how one would determine the answer. Let’s think together.

    For one thing, the exclusive period is supposed to be the trade off for the disclosure. So all we are talking here is about which system truly incents invention, because the more invention, more disclosure. If one increases the risk of no reward for the investment the inventor makes in developing an invention from a raw idea to a finished design one can, in my opinion, cause a significant decline in both invention and in development. Society would have earlier disclosure, but of fewer inventions. Nothing else makes sense here.

    Imagine two brothers. You guarantee each brother that he can keep the whole fruits of his labors. You will, I submit, get a lot of labor from both.

    Now imagine that you tax one and give to the other. I submit you will get less work from both as the one will not need to work as hard to make money and the other sees less reward in work. At some point, the one brother will all but quit and the receiving brother will have very little to live on. Both will be poor. Such is socialism.

    But the brother situation is like the trade off you suggest. You are giving less to the inventor and more to “society.” This actually results in less invention and hurts both.

    So, anon, you did ask the right question and the answer is clear. FTF is a very bad system both for inventors and for society.

  29. Ned Brooks: Tho off-topic, I thank you for opining on the length of copyright protection. I totally agree it is way too long. I think the term should be limited in years from the original registration (or publication – tho that might be difficult to accurately ascertain). Either way, 50, now 70 yes?, years after death is extreme.

    Re the patent for a method of swinging on a childhood swing: I recall it from about 7 years ago or so. I heard/read a rumor that the Applicant was officially a kid but his father (a P. Atty) wrote it to put on the kid’s “resume” to help win a prize. I think I (and many others)reduced that method to practice long before the application – too bad I didn’t publish :-)
    I wonder if there was a claim for New use :-)

    Another patent I saw once was for a hat for a horse – yes, amusement. I was amused – by the Fig of the horse with the hat, but had to wonder who throws away money on patenting such junk.
    G’nite all.

  30. Noise,

    The problem is the Left Wing people usually back up what they say with facts and rational arguments. The Right rarely do so.

    Posted by: Lionel Hutz | Nov 13, 2009 at 02:46 PM

    LOLOLOL – you mean, like Malcolm?

    btw – left wing, right wing, both extemes are marked by the inability to actually be rationale, while deluding themselves that ONLY they are rational.

  31. Dear Lionel Hutz.

    You wrote:
    “Twocents is an id10t and a tr0ll. Anyone who thinks any part of the Obama administration’s goals are socialist is someone who is very ignor ant or slow. And I say that as a liberal.”

    And you wrote:
    “Noise,
    The problem is the Left Wing people usually back up what they say with facts and rational arguments. The Right rarely do so.”

    With all due respect, it is hard for me to believe that you could really be that mentally blind!

    You have the judgment of a snail, no offense to snails.

    Listen to Noise et al., they can steer you right if you will only take your totally biased blinders off.

    Puhlease, pull your head out and smell the coffee!

  32. Noise,

    The problem is the Left Wing people usually back up what they say with facts and rational arguments. The Right rarely do so.

  33. Sorry, Dennis. I can’t choose which of these two have the most impact because they are THE EXACT SAME THING!

    “Prosecution: Eliminate the Grace Period for an Applicant’s own Pre-Filing Disclosures”

    “Litigation: Eliminate the Grace Period for a Patentee’s own Pre-Filing Disclosures”

  34. As long as we can call you “Malcolm” I’d keep my name, but in case you can’t read, my other name is blocked because I disagree with Mooney, which apparently someone doesn’t like.

  35. Namechange/TwoCents/several-other-pseudonyms said “OK then. I guess you have no place bashing two perfectly good advocates.”

    Can we just call you “Ed” from now on?

  36. ******First to file was invented by me******

    MRT, You should totally patent that, and then enjoin anyone in the US from practicing it. For extra irony points, swear behind the European FTF system.

  37. “….But then, I’m not a ConLaw scholar either”

    OK then. I guess you have no place bashing two perfectly good advocates.

  38. “Your cynical attitude about American success stories is remarkable. Time and again to dismiss the individual inventor and denigrate the whole patent system. You consistently favor the interests of the big corporations who are actively working to undermine the patent system.”

    I think the (at least, my) problem with the Morse example you provided, is that you suggest that he is the rightful inventor because he conceived of it first, and that by extension, the patent system should protect him as the first to invent.

    However, you go on to say that while he toiled away in his lab, others also conceived of, and developed, similar ideas. Yet, you conclude that Morse was first to invent, and should be the rightful patent holder. However, aside from protecting the inventive entity, the patent system is supposed to advance the arts by eliciting disclosure. If Morse was not the first to disclose, then why should he still be rewarded with a monopoly?

    I can’t say that I think FtF is inherently more fair to the inventor, but from the point of view of the society granting the monopoly in exchange for information, it certainly appears to better incentivize quick disclosure. The patent system should not be solely concerned with granting monopolies, it should also keep in mind that the public desires as much disclosure as possible, and as early as possible.

    I think the question should be whether the tradeoff for earlier disclosure is worth the cost to inventors, not just a question of which system is best for the inventive entities involved.

  39. “Here is another excellent article that was proffered by Mr. Suominen and his partner, a Princeton and Harvard Law grad when FTF last raised its ugly head … I suppose you will casually dismiss this piece too.”

    As far as I can tell it’s the same piece, only with a cover letter signed by Suominen’s boss. For what it’s worth, simply graduating from Harvard Law doesn’t necessarily make you a ConLaw scholar either. With regards to the substance of the article, I think it’s interesting that Suominem only cites to one person that even resembles a ConLaw scholar (Walterscheid, who is generally described as a legal historian), and then only to note that this person DISAGREES with the notion that “inventors” in the Constitution means “first inventors.” Sorry, I’m just not impressed. But then, I’m not a ConLaw scholar either.

  40. NOTICE: apparently anyone who disagrees with Mooney will be banned by PatentlyO…

    George Soros is even more powerful than I thought.

  41. Sorry “BigGuy,”

    Here is another excellent article that was proffered by Mr. Suominen and his partner, a Princeton and Harvard Law grad when FTF last raised its ugly head:

    link to uspto.gov

    I suppose you will casually dismiss this piece too. No “BigSurprise”

  42. TwoCents, another possibility is the language you are using. Even something as simple as “h4te” (which by the way is slang for another word) might cause your comments to be filtered.

  43. TwoCents cited “Edwin A. Suominen, “Re-Discovering Article 1, Section 8 – The Formula for First-to-Invent,” September 2001, 83 J. Pat. & Trademark Off. Soc’y 641″

    After dismissing several commentors for not being “ConLaw scholars,” you cite for support of your constitutional arguments a patent agent / wanna-be “non-practicing patent licensing entity”? That’s pretty lame…

  44. There it is again, that same old line, by the same old poster with the name format OneTwo. Why not test your hypothesis and try posting with your old name again, TwoCents. Maybe you will realize that it is just a minor flaw with some web technology and your inability to recognize such and overcome such a minor hurdle.

  45. Malcolm, the benefits “we” get are inventions from people like Morse who have a bright idea on a boat and have the incentive to pursue it for years, spending his own money on tools, equipment and the like, with some guarantee that he eventually obtain a return on his investment.

    Your cynical attitude about American success stories is remarkable. Time and again to dismiss the individual inventor and denigrate the whole patent system. You consistently favor the interests of the big corporations who are actively working to undermine the patent system. Anything they like, you like. And yet you have the gaul to call people who favor the small entrepreneur “tea bagging” shills of corporate America.

    It is you, Malcolm, who are on that side against the small fry.

  46. I agree with Jules and Exasperado, but the CAFC deserves a lot of the blame for this state of events. Limiting claims based on discussions of advantages or problems solved is going to lead to practitioners removing those kinds of discussions. I mostly work for small companies and inventors, so I can draft how I think is best, but when I do work for larger companies they often have rules like “don’t use the word ‘invention.'”

  47. My vote is no politics unless it relates to patents. Talking about which senators live in states with a lot of software development = good. Talking about socialistic health care or illegal wiretapping = go somewhere else.

  48. Dear Mr. Mooney:
    Your discussion of O’Reilly v. Morse is much appreciated. I think that the short answer to your query is that Mr. Morse was comporting with the only power in Congress that allows the grant of a monopoly in the useful arts: to advance the useful arts. With that said, could it be that a lawfully obtained patent, with no IDS issue and no other infirmities be held invalid by a Court as an improper grant of a monopoly, because it does not advance the useful arts. In other words, does an Article III tribunal have the power at Summary Judgment to determine that a monopoly granted in accordance with Title 35 of the United States Code still fails to comport with Article I, section 8, clause 8 of the United States Constitution. In this manner the patent could be stricken by the court. It should be borne in mind that there should never be a presumption of validity when a patent is stricken on a constitutional challenge.
    I believe that the Courts would very much enjoy rendering lofty Constitutional opinions than the more mundane opinions of this prior art reference was missed and that Expert was that etc. In my opinion it would be a much cleaner way to clear up much of less than virtuous patents. the mess that is being created by the USPTO.

    If someone could help me identify the patent, I refer to the patent that was obtained for a method of swinging on a childhood swing that involved mere changing your weight to cause rotation. Let’s not discuss the well known knowledge of the same. However, even assuming that this was not known to anyone whoever used a swing . . . that method, in my opinion is not of the requisite utility to warrant a monopoly, because it is only for entertainment. I do not believe patents directed solely for entertainment should be granted. There must be an industrial applicability. Along those lines I find repugnant that Copyright is longer than the natureal life of a person; however, that body of law merely reflects a failure of our democratic functions, i.e., Campaign finance activities.

  49. Exasperado: that was completely off topic, but I agree with you completely. And when the claim has no special features then it probably leans towards obviousness.

  50. Ned: I still am amazed to read cases like O’Reilly v. Morse where Morse conceived of his invention in 1832 on a boat coming to America, but took eight years before he filed his patent application. During those eight years, he worked on his invention to develop it (he was a professor). Others independently invented virtually the same thing in the interim and filed or published first. Morse lost his overseas patents because of this and his own publications, but prevailed in the US due to his early invention dates. A greater example of the benefits of a first to invent system to the inventor could not be made.

    This makes no sense whatsoever unless we assume that when Morse was born he was “supposed to be” the first “legal” inventor of the telegraph in the US. Other than getting the name of the inventor “right” under that wacky assumption, what are the “benefits” you are referring to? As you admit, “others independently invented virtually the same thing in the interim.”

    Same holds true, by the way, for nearly everyone of those “old” inventions: the phone, the electric light, the phonograph, motion pictures, etc. The history books many of us grew up with tell a simple story about “ordinary inventors” but the reality is that our most famous inventors were also tireless promoters of their own fame and (at least in the case of Edison) quite ruthless about destroying or buying the silence of dissenting competitors.

  51. Well, I gotta say that the average US-drafted app that I see coming down the turnpike mowadays is painful to read.
    Page after page of “in an embodiment, x may be y.”
    #So what is it you’ve invented?
    -Read the claim – that’s what.
    #Um, OK, that looks like fairly arbitrary collection of features. What’s good about it?
    -Not sayin’
    #What’s different about it?
    -Not sayin’
    #What problem does it solve?
    -Not sayin’
    #Which bits are important?
    -Not sayin’
    #Which bits did you know about already?
    -Not sayin’
    Sheesh!

  52. “The patent clause need not explicitly state “first” inventor to have the issue of first inventor arise in a constitutional context”

    We know that two people can have a copyright for exactly the same literary work. So when Art.1 sec. 8 says “authors” it doesn’t seem to care about who the first author is. Is there a basis to read in “first” for inventors and not for authors? Or is our copyright statute unconstitutional because it doesn’t care who is first?

  53. “This article analyzes the command of Article 1, Section 8 of the U.S. Constitution that Congress may grant exclusive rights to “inventors” for their “discoveries.” The conclusion of this analysis is easily overlooked in the “horse trading” atmosphere of international treaty negotiations, but it is of critical importance. The U.S. should not, and must not, abandon the uniquely American, and uniquely successful, first-to-invent system of patent protection prescribed by Article 1, Section 8 and maintained for over two centuries.”

    ~ Edwin A. Suominen, “Re-Discovering Article 1, Section 8 – The Formula for First-to-Invent,” September 2001, 83 J. Pat. & Trademark Off. Soc’y 641

  54. Troll: The garbage right wing propaganda on this site is required to balance the garbage left wing propaganda on this site.

    What is the “garbage left wing propaganda” you are referring to? I seem to have missed that somehow.

  55. Has it ever occurred to you, TwoCents, as you preen yourself, that “Calling it like you see it” and “Right wing propaganda” are not mutually exclusive?

    I don’t watch Glenn Beck every night. I don’t watch any propagandist, any night. I know a little of the USA and I know a little of Europe. When you write:

    “..individual rights are essentially non-existent..”

    you reveal yourself as a gratuitously offensive and simple-minded victim of propaganda.

    Can you debate patent law on the merits? Can you tell us what meaning you deliberately intended to impart to your sentence by including the word “essentially”? I’m most curious to know. Did you mean 1)”of necessity” or 2) “more or less” or was it because 3) it sounded good, or 4) you didn’t really think about it ? Or are you not even sure which of these it was?

    Can you even write grammatically correct sentences? If not, please leave. You are embarrassing your fellow Americans here.

  56. Malcolm, er, um, Publius,

    The garbage right wing propaganda on this site is required to balance the garbage left wing propaganda on this site.

    This is the trainwreck – without the balance, the site would merely be an uniteresting left wing cesspool.

    As it is, we get the colorful interplay of the csomic battle between good and evil.

  57. “The inventor is the first person to invent the claimed invention.”

    The inventor is anyone who comes up with the invention.

    Both Kilby and Noyce are correctly credited with the invention of the integrated circuit. Kilby did it first, but that doesn’t mean Noyce didn’t also invent it.

    You are reading limitations into the definition of inventor that just aren’t there.

  58. David Boundy,

    Your conclusion that FTF is constitutional is glib and unsupported.

    The patent clause need not explicitly state “first” inventor to have the issue of first inventor arise in a constitutional context, simply if for no other reason, to demonstrate who the “inventor” is. The inventor is the first person to invent the claimed invention.

    I guess you are not a ConLaw scholar either. But I like the fact that you seem to be against FTF.

  59. Two Cents/Marx:

    Turn off Glenn Beck and back away from the TV.

    Seriously, do we really need garbage right wing propaganda on this site?

  60. Dear Ned, and Cowboy, of course you are both right, that transition will be painful. So, I think you are right. Best not even to think about it.

    What I was on about, with my “ratchet”, is that FtI courts expect perfect drafting, perfect, knowing that the event of filing doesn’t occur till the invention is mature. FtF courts understand the reality, that drafting can’t be perfect, when every inventor has to choose between drafting more perfectly or losing the race to the Patent Office.

    As to Morse, sorry but I don’t get it. If it was the fact, that many people had independently reduced dot dash communications code to practice, and published, in the years before Morse got to the PTO, what public benefit accrued by belated award of a monopoly to Morse? Heresy to write it, I suppose, but it strikes me that the Morse story (as you tell it) provides a good example of the wrongheadedness of FtI, and the damage it does to promotion of the progress.

    If there’s more technological progress in the USA than in all the ROW put together, that just might be for some reason other than the FtI patent system.

  61. Max says: “Answer: Under FtF, validity (clarity, enablement, sufficiency of disclosure) is judged by different standards. When everybody involved, from the Supreme Court down, has had a hundred years of experience of FtF, everybody factors into the law the consequences for real inventors of a race to the Patent Office.”

    So, my fellow Americans, from the voice of experience we learn that the implications of changing from Fti to ftf involves more than just changing how we decide priority contests, but the whole pantheon of issues involved in how one writes a patent application, examines a patent application for sufficiency of disclosure and interprets the scope of the claims and DOE of a patent. Under stare decisis, we will, however still be using the same rules of examination and litigation and therefore not get what Max suggests would be the right result. To get the right result immediately upon adoption of FTF, then we apparently need to re-write section 112 and lord know what all else. I don’t see that the proposals to convert the US to ftf including all of that.

  62. MaxDrei: “Question to you now Ned. Whether or not FtF encourages crappy apps, doesn’t FtI act like a ratchet, driving app lengths ever longer? Seems to me that, under FtI, no specification is ever long enough. Who pays for that feature of FtI? Can we agree that it’s not patent attorneys who are paying for it? But maybe small inventors do?”

    I think the problem lies elsewhere. Best mode is one reason we have to describe more. We might also be a bit more extreme on requiring a written description. But as to the vagueness of what we say, that can also be attributed to courts limiting the scope of the claim to exactly what is in the preferred embodiment if we talk too much about what the invention is.

    All this will not go away with FTF per se. They can be addressed separately, probably in the courts, without going to a first-to-file system.

    I further think a lot of the argument takes place out of context. When one judges which is better, a lot of time it depends on whom you are talking about: the inventor or the potential infringer; the large company vs. the small company; the professor in a university that has a large budget for patents vs. the smaller budget U; and it also depends upon technology to a degree.

    But, at the most fundamental level, I think, personally, the system should be designed best to protect the inventor and inventions; otherwise we loose sight of the purpose for a patent system. From that point of view, US history has shown that allowing the inventor or the scientist to develop the invention ’til he is satisfied before he files. If others publish at any time, he has one year to get a patent application on file. But when he is ready, he has one year to promote his invention, obtain backing or revenues and get a patent application on file.

    This system has stood the test of time and it works.

    The pressure to file first in FTF systems cannot but short-circuit this process. One cannot tinker in the lab until he is ready, as there is no grace period for a statutory bar to take place. Without a first to invent system, grace periods don’t make much sense which is why the push in the US to go right away to the European system with no grace period.

    I still am amazed to read cases like O’Reilly v. Morse where Morse conceived of his invention in 1832 on a boat coming to America, but took eight years before he filed his patent application. During those eight years, he worked on his invention to develop it (he was a professor). Others independently invented virtually the same thing in the interim and filed or published first. Morse lost his overseas patents because of this and his own publications, but prevailed in the US due to his early invention dates. A greater example of the benefits of a first to invent system to the inventor could not be made.

    The same financial concerns do not affect very large companies or well financed universities. Nor do they affect drug or chemical companies. Both are effectively on a first-to-invent timetable because they have to file across the world. To them, the small inventor is a threat and whatever they say about the small inventor has to be taken with a grain of salt as they are heavily biased and conflicted. Imagine consulting drug companies about the best interests of generics! What would you expect? Honesty?

  63. So,Observer, let’s see if I have understood it right. It’s everybody else in the ROW that’s off the beat. Glad we’ve got that sorted out.

    The English knee-jerk reaction to that alien entity “Europe” is that whatever it comes up with is unacceptable. The English often forget that “Europe” includes The British Isles. Sometimes I think that America views “The World” in much the same way as England does “Europe”. It’s the water in between, I suppose.

    What’s to become of living standards in England? It’s more and more difficult to be optimistic.

  64. Well thanks for that observation Observation. If those European-originating apps do the business everywhere in the world except the USA well then I think you just confirmed my point didn’t you?

    May I ask: is it just “European” originating cases that are so useless? And amongst those European-originating cases, do you include all those from European-based global titans like Nokia or VW/Audi/Porsche or Sanofi/Novartis? Where in your hierarchy do you place Asian-originating apps?

  65. Ned Heller asks a searching question: how is a race to the Patent Office compatible with the real needs of real inventors, who can’t afford to pay for a formal US patent application before they start seeking investmernt in their invention (and before their Professor publishes).

    Answer: Under FtF, validity (clarity, enablement, sufficiency of disclosure) is judged by different standards. When everybody involved, from the Supreme Court down, has had a hundred years of experience of FtF, everybody factors into the law the consequences for real inventors of a race to the Patent Office.

    Ever wondered why apps from the rest of the world are half the length of apps originating within the USA (unless they emanate from a global titan that writes one app for filing everywhere, including the USA)?

    In Europe, small filers get their 20 year monopoly even with an app half the length of Titan’s. Ask Titan how frightened he is, in Europe, of small filer, with a short app but with a good new idea, clearly expressed. Ask the courts in Europe which app they are more likely to enforce, one that’s short and to the point, or one that never says what the invention is. Ask how the scope of protection is determined in Europe. You in the US might not have a functioning DoE any longer, but we do. Ask what it is that Europe has, that’s different but better than “Best Mode”, and which sets the scope of monopoly to that which is commensurate with the scope of the contribution the inventor made to the art.

    Question to you now Ned. Whether or not FtF encourages crappy apps, doesn’t FtI act like a ratchet, driving app lengths ever longer? Seems to me that, under FtI, no specification is ever long enough. Who pays for that feature of FtI? Can we agree that it’s not patent attorneys who are paying for it? But maybe small inventors do?

  66. Can you incorporate by reference another document (e.g., a patent) in a provisional application?

    Provisional applications aren’t examined for such formalities. If you wish to incorporate something by reference, it should be incorporated in your provisional and in your utility app. Your real issue is: when is incorporation by reference not sufficient to support a claim?

  67. Can you incorporate by reference another document (e.g., a patent) in a provisional application?

    (I know that you can in a regular non-provisional application, but I seem to remember reading some place that you could not in a provisional application.)

    Thanks

  68. Mooney once again, quite naively, discounts the real source of progress, the marketplace.

    No big surprise here, pass the Birkenstocks…

  69. investors who are deciding whether to put capital into startups,

    Ah yes, the most important people in the universe. We must do what pleases them.

  70. Marxist wealth redistribution

    Oooooh, so scary! Maybe I should file a patent on a method of redistributing wealth.

    Speaking of which:

    “Here’s how it works. They configure the phones to have multiple easily hit keystrokes to launch ‘Get it now’ or ‘Mobile Web’—usually a single key like an arrow key. Often we have no idea what key we hit, but up pops one of these screens. The instant you call the function, they charge you the data fee. We cancel these unintended requests as fast as we can hit the End key, but it doesn’t matter; they’ve told me that ANY data–even one kilobyte–is billed as 1MB. The damage is done.

    “Imagine: if my one account has 1 to 3 bogus $1.99 charges per month for data that I don’t download, how much are they making from their 87 million other customers? Not a bad scheme. All by simply writing your billing algorithm to bill a full MB when even a few bits have moved.”

    link to pogue.blogs.nytimes.com

    Call Professor Duffy and let him know about this awesome business method. Promote the progress!!!

  71. I think FTF is, unfortunately, constitutional. The text only says “rights to inventors,” some inventors, any inventors. Not “first inventors.”

    I also think FTF is an incredibly dumb idea, supportable only if you are in a blinkered world like the PTO, where all you see is patents that are filed (not the ones where everybody saved a lot of money because the idea was found to be a bad one before a lot of money got spent), or some similarly-narrow slice of the patent world.

    If you represent startups, or represent investors who are deciding whether to put capital into startups, it’s easy to see how crucial the strong 102(b) grace period is to the future of the innovation economy.

  72. Dennis, the term disruptive seems subjective and nebulous. Perhaps ranking by which we think is the most inappropriate – or some other term.

    BTW, I forgot to put Malcom Mooney in the group with Max, Ad and interloper – i.e. those making comments with a worldly vision.
    Good nite – it’s late over here.

  73. Since revealing my new patent reform act foreign countries know even more about fair and honest methods of determining inventorship so they will win the economic battle to attract inventors to their countries and leave our corruption of jackles in the dust.

  74. The first thing wrong is using the term disruptive to describe correcting fraud and corruption First to file was invented by me to eliminate being frauded for inventions. Foreign countries wanted to know how to get me to mfile in their country.

  75. You guys waving the U.S. flag and shoving the pole end at non-Americans are scary – and a bunch of whiners !
    The FtF system is alive and well and working just great for 7 billion minus 300 million people.
    Max is right on (as usual) re (patented) technology being disclosed asap via the FtF system. I do not, nor do I know anyone else racing to file crappy applications because of FtF, but I do not mean that is the basis for any strong arguments – I’m just saying.
    Ad Astra, thank you also for making some intelligent comments as well (and based on those comments, I presume you are even a U.S. P.A.). No system is perfect, and I really like the American patents law thoughtfulness toward the inventor, but the FtF is a good and fair system. I represent many individual inventors and I don’t see them losing out by FtF.
    Re-read what Max, Ad and interloper have stated and slow down that flag waving before your strain a muscle.
    Ken Brooks – I had a hard time slogging thru your comment, but, you seem to imply that U.S. filings from non-American priority filings don’t have to disclose best mode in their U.S. applications ? I advise my clients to disclose best mode in case they want to file in the U.S. Am I giving bad advice ? Does the USPTO overlook Best Mode for “foreigners”.

  76. Two cents, the socialist philosophy I expressed originated from Rousseau. He wrote a couple of texts, the first one published in 1759 on the sources of inequality, and one later known as the Social Contract. He wrote at a time and place where the French Nobility controlled all property in France. Rousseau believed that all societies would eventually become like the French Kingdom given time once one member was allowed to own property and was able to pass it on to his heirs.

    Rousseau’s philosophy was a major reason for the way the French revolution devolved the way it did. His follows were prominent from the beginning and eventually became preeminent. Robespierre was a socialist.

    Marx only extended the concepts of the French Revolution one step further. Where the Revolution would have banned exclusive ownership of real property in perpetuity, Marx extended it to all bourgeois property, meaning the right to own businesses and the tools of commerce.

    I imagine that I might have been somewhat swayed by Rousseau had I lived in France in 1792 when the monarchy fell and the Republic took its place. But today I find myself firmly in the camp of the opponents of socialism.

  77. Liberals are too quick to fix what ain’t broke, and conservatives are too scared to entertain any notion of change. In my eyes,it is as simple as that.

  78. Yes, listening to you whining about non-existent ad hominem attacks and your sophomoric, back-of-the-cereal-box Constitutional paraphrasing is not my idea of a debate. Go back to your Twinkies.

    Now THAT is an ad hominem attack.

  79. @TwoCents:

    “Not sure what part of my response was ‘ad hominem’ Ad Astra (I think I just said that you are not a ConLaw scholar, which is pretty apparent, so it’s a waste of time to debate you on this point), but you seem to be on the verge of tears and so I don’t really want to offend your delicate sensibilities any longer.”

    Wow. Ok, I now completely agree that it’s a waste of time to debate you. Have a nice day.

  80. “relative economic equality”

    in otherwords Marxist wealth redistribution from those who are productive to those who aren’t; essentially punishing productivity and incentivizing sloth and freeriding.

    “not like the land based economies…” Nothing has changed between then and now. Socialism is just as immoral now as it was then.

    Since when is taking from someone who earned something and giving it to someone who didn’t “just?”

  81. Not sure what part of my response was “ad hominem” Ad Astra (I think I just said that you are not a ConLaw scholar, which is pretty apparent, so it’s a waste of time to debate you on this point), but you seem to be on the verge of tears and so I don’t really want to offend your delicate sensibilities any longer.

  82. No one is really sure what to make of your statement, Mooney.

    Oh, let me explain it to you. You appear to be a childish teabagger who enjoys reading scripts handed to you by FOX News and Rush Limbaugh. One of the commonly-recited scripts of wingnuts and teabagger types (see, e.g., Bill O’Lielly) is that millionaire George Soros provides most of the funding for various organizations that debunk and otherwise mock the aforementioned liars and idi0ts. I thought I would have some fun by playing into the typical wingnut fantasy.

    Anyway, I’ll let you get back to pretending that the Constitution is at odds with a first to file system. I thought we’d ended that baloney last year but sockpuppets die hard.

  83. Twocents is an id10t and a tr0ll. Anyone who thinks any part of the Obama administration’s goals are socialist is someone who is very ignor ant or slow. And I say that as a liberal.

    In addition to misunderstanding the Constitution, Twocents has no idea what socialism actually is. Heck, he probably believes that libertarianism is an ideology on the other end of the political spectrum instead of an outgrowth of socialism.

  84. Thanks for the uninformative ad hominem. Can you point out exactly where my argument breaks down? Where I got my Constitutional law wrong? I have yet to see a responsive critique that actually engages with both the Constitution and my argument simultaneously.

    “And any system certainly does not have to be ‘perfect.’ An almost perfect system (FTI) is far better than a much less perfect system (FTF).”

    We’re not arguing about whether it’s “better”. We’re arguing about whether it’s Constitutional. I’m asking you to tell me where in AIS8 it says that the most accurate system available must be used, regardless of other considerations.

    “Under FTI, any inventor who beceomes party to an interference has to be able to prove his claim. The only ‘error’ in FTI, would be a situation where a true inventor who could not prove his priority, loses his claim. Since a party that could not produce evidence could not prevail under any circumstances, it really doesn’t even count as error.”

    I’m not quite sure what you’re saying here. It doesn’t count as an error when, under a system called “First to Invent”, the person who was factually first to invent is denied the patent in favor of one who was *not* first to invent? That’s just redefining reality based on the law, which seems to me to be something that should be anathema to someone who dislikes “deconstructionists” and the like. What about the inventor who invents something, and then dies soon after, taking the knowledge with him? Who never does anything with the idea, and just lets it sit in his workshop gathering dust? The basic problem with your argument is that you’ve defined the word “inventor” in the Constitution to mean, “person determined to be the inventor by the interference process we currently use”. Can’t you see that’s circular?

  85. Socialism, in my view, is a doctrine that espouses (relative) economic equality in society on the theory that economic inequality is unjust per se. Like land, the more one member has of it, the less another can have of it.

    Practical applications of socialism seek to use government and law to promote economic equality. They do this in a number of ways all of which have the attributes of reducing economic freedom.

    But the obvious problem with reducing economic freedom is that overall wealth is less even though it is more equally shared. This might be acceptable if all the premises of socialism were in fact true. But it easily demonstrable that modern economies are not like the land-based economies of the time when socialism was first invented. A growing economy does in fact bring greater wealth to everyone.

  86. A further difference is that, while FTI may, from time to time, grant priority to a party who is not actually the first inventor (e.g. when the first inventor cannot PROVE they are the first inventor), FTF systematically excludes otherwise true first inventors based on a mere procedural defect (failure to be the first filer in time) and FTF is therefore unconstitutional. I would bet that a sound deprivation of Due Process argument could also be made with equal ease.

  87. …it’s pretty clear you don’t have any better idea of what socialism is than Stalin did

    Because ALL the answers look good while they are still in my head and little things like reality only get in the way of my correct theories.

  88. Sorry Ad Astra, but since you are clearly not a Constitutional Law scholar, I can’t really spend much more time on it with you.

    And any system certainly does not have to be “perfect.” An almost perfect system (FTI) is far better than a much less perfect system (FTF).

    Under FTI, any inventor who beceomes party to an interference has to be able to prove his claim. The only “error” in FTI, would be a situation where a true inventor who could not prove his priority, loses his claim. Since a party that could not produce evidence could not prevail under any circumstances, it really doesn’t even count as error.

  89. MaxDrei, I agree that FTF forces one to file complete applications the very first time, before the product is released or the professor publishes. But it also requires significant resources to draft a good patent application and the small inventor typically does not have the money just at the time he begins offering his product to the market or he publishes in some fashion.

    The small guy also knows that so long as he keeps developing his invention he can file a patent application on it when it is fully developed without losing his priority date. I cannot understand, for the life of me, how that works in the same way in a FTF country. It would seem the incentive at all times is to rush to the patent office.

    Anyway, these ideas are well known from ancient times in the US, which is why we have the system we do. FTF is not inherently better than FTI from the point of view of inventors.

    It IS however, MUCH MUCH better from the point of view of infringers, cutting off prior invention when analyzing the validity of an adverse patent, which is the real reason big money in the US is so forcefully advocating FTF.

  90. @TwoCents:

    “If the current first to invent system provides better redress for the true inventor, then it, by that definition alone, works better then a system that cares only about who filed first not who invented first.”

    I never denied that FTI is a more accurate system of determining first inventors than FTF. However, that’s not really the question. AIS8 does not say “securing for limited times to authors and inventors, whose identities shall be determined by the most accurate means available”. It just says “inventors”. You can convict someone of capital murder using less than the most accurate methods available, because to require that in every case would be time- and cost-prohibitive. To my mind, in the absence of an authoritative SC ruling, the only requirement on Congress here is that they not blatantly disregard any reasonable meaning of the word “inventor”, and start granting patents on random inventions to Chuck Norris, because he’s a pretty cool guy.

    Regarding the statistics you mention, it doesn’t really matter. The 1% includes swearing behind, which isn’t relevant to the Constitutional question at all, and as I’ve said before, the particular error rate of the current process, or the predicted error rate of FTF (assuming it isn’t absurdly wrong) isn’t what we’re talking about either. Either it has to be perfect, in which case no real-world system is constitutional, or there’s some leeway, and Congress can strike a balance between error and efficiency. The only Constitutional question, then is whether the error is so large or the selection criteria so arbitrary as to implicate the Chuck Norris scenario above. It doesn’t seem patently obvious to me that a sub-one percent error rate is at that level.

  91. “By Dennis’ rough calculations of those that swear behind references, that is roughly 1% of all filers and as a class, 30% of all parties to interferences where the issue of true inventorship is the exact question of inquiry.”

    100% of applicants who care to know that they have the opportunity to prove their prior invention of the subject matter claimed in case a piece of prior art or a rival’s filing slightly precedes their filing. Therefore, they do not feel like they have to rush to get an early date and can take the time it takes to do it right. Their patent attorneys can take off at 5pm to go see their kids play soccer without worrying that they are losing their client the right to get the patent and possibly exposing themselves to malpractice liability.

  92. “it’s pretty clear you don’t have any better idea of what socialism is than Stalin did.”

    Well anon, if you really wanted to make a complete post, you would have enlightened all of us on what socialism “really is.”

  93. Ad Astra, you are doing a lot of huffing and puffing about something that is in the statistical residue. If the current first to invent system provides better redress for the true inventor, then it, by that definition alone, works better then a system that cares only about who filed first not who invented first.

    By Dennis’ rough calculations of those that swear behind references, that is roughly 1% of all filers and as a class, 30% of all parties to interferences where the issue of true inventorship is the exact question of inquiry. On that basis alone, I say the current system does an excellent job of getting to the true inventor. If there is error associated with FTI it is very small and if the claim of first inventorship was susceptible of proof, the party would have prevailed in interference as 30% of interference parties do.

    Your arguments simply do not make sense.

  94. @TwoCents

    “‘Since the current system of interferences does not guarantee that the absolute historical inventor is awarded the patent,’

    How is that true? And if there is a small error rate, that error is far less significant than a sweeping (unconstitutional) first to file regime.”

    How can that not be true? It relies on the true historical inventor speaking up and challenging the patent, or someone who is aware of that inventor getting the information out. Neither of those things is guaranteed, thus the current system is not guaranteed to produce the true historical inventor. We don’t know what the error rate is, but even assuming it to be vanishingly small, it exists. Once the error exists, then by your reasoning the current system is also unconstitutional, since it doesn’t ensure that the “true inventor” gets the patent. The problem is that you’re taking the current error rate and assuming, arbitrarily, that it is the only Constitutionally permissible one, which isn’t supportable. All this assumes, of course, that later independent inventors can’t be considered inventors for the purpose of AIS8, which I don’t necessarily agree with.

    Keep in mind, also, that I don’t necessarily think the US should be going FtF – there are advantages both ways, and I haven’t spent enough time analyzing the issue to have a firm opinion. However, I do have a pretty firm opinion on whether the switch would be unconstitutional – it wouldn’t be.

  95. “They don’t know how to work or think or invent, but they sure know how to party and spend other people’s money while doing it.”

    You sir, are the height of hilarity. From your statements, it’s pretty clear you don’t have any better idea of what socialism is than Stalin did.

  96. chirp….. chirp…..

    No one is really sure what to make of your statement, Mooney. It seems maybe you just wanted to mention someone’s name.

  97. You are probably a product of public school education, which is a liberal (socialist) institution designed to dumb you down and take away your power of critical reasoning so that your rights can be slowly taken away from you.

    George Soros would never let that happen.

  98. “Those socialists really know how to party.”

    They don’t know how to work or think or invent, but they sure know how to party and spend other people’s money while doing it.

    How admirable.

  99. “your inability to find a response that is in any way relevant to the point”

    I have made many relevant points including that people who have “grown up” under socialist regimes, can’t even begin to understand what it is like living in a country of laws. The U.S. Constitution and its contents (country of laws not men) was an answer, borrowing from ancient wisdom, to the kind of oppression that arises out of countries of men not laws, where the individual is a mere subject.

  100. “…while I did indeed go to a public school before college, I think I must have been absent on socialist doctrination day.”

    I was there – it was awesome. Those socialists really know how to party.

  101. “Since the current system of interferences does not guarantee that the absolute historical inventor is awarded the patent, ”

    How is that true? And if there is a small error rate, that error is far less significant than a sweeping (unconstitutional) first to file regime.

  102. Whoa there, TwoCents. You’re just coming off as a troll now. I’m not a sock for Mooney, and while I did indeed go to a public school before college, I think I must have been absent on socialist doctrination day. And someone really should have told my very conservative, Constitutional originalist American History teacher about the Party line.

    Anyway, the thing I thought was “mostly pointless” was arguing over whether the word “inventor” requires that the person be the first person in history to come up with the idea. I do not think the question of how we should decide inventorship is pointless, seeing as it’s kind of the whole point of my argument. Since the current system of interferences does not guarantee that the absolute historical inventor is awarded the patent, it seems to me that a different system which strikes a slightly different balance between accuracy and efficiency would not be unconstitutional.

    If you could respond on that point, preferably without calling me a socialist patsy, I would be much obliged.

  103. “Agreed on both points. My point is that the public benefits from the disclosure, and need not really care who invented first. two cents’ comments notwithstanding, a patent monopoly is neither a natural right nor a constitutional one.”

    What a load of hogwash.

    “to secure to authors and inventors the exclusive right to their respective writings and discoveries”

    Let me try to walk you through this at dumbed down speed “Authors and inventors” are individuals; “exclusive right” is a patent monopoly.

    There, does that help?

  104. No need to apologise Two. Me, I’m quite happy. I’m happy with your inability to find a response that is in any way relevant to the point. I’ll take that as an indication that I’m winning the argument. And before we go any further, let’s get one thing clear. I’m not saying about “her” that she should switch to FtF. Haven’t I been writing in other contributions that she is welcome to stay with FtI. Whatever makes her happy. Me, I just like arguing.

    Oh, and can’t you stop posting that grotesque torture photo. How many more times are you going to deploy it? You’re embarrassing.

  105. Ad Astra (probably Mooney) says: “but frankly, I think that’s mostly pointless. ”

    Of course, because the difficult inquiry of who is the actual inventor is the whole freakin’ point. And, in typical deconstructionist (socialist, facist) fashion, you gloss over the inconvenient details that stand in the way of pushing a strong arm agenda.

    And even if Congress has the power as articulated in Article 1, a constitutional amendment would be required to contravene the literal language of Article 1, section 8, clause 8, which specifies that exclusive rights of individual inventors are to be secured.

  106. Excuse me, Mr. vary your name in the format OneTwo. You’re getting out of hand again. Time to schedule another appointment with your shrink.

  107. Sorry Max, I don’t have time for people from vestigial monarchies, where individual rights are unheard of, pontificating about something that, like most everything else about her, is unique to America – and should stay that way.

  108. “I’ve noticed that RedMonkey tries very hard not to understand a lot of things.”

    LOL here is a picture of Mooney trying to understand things…

    Mooney

  109. So lets see Mooney, you are at least three 1diotic posters today? BigGuy, Ad Astra and Mooney.

    How clever. And how is that teabag thing with Anderson Cooper working out for you two?

  110. Ad Astra, you and “BigGuy” should have your own little DumbedDown pow-wow

    You say:

    “From what I know of the history of the patent clause, and more importantly from the very first few words, it seems to me that the patent system is about promoting engineering science for the benefit of the nation.”

    The first part is meaningless without the second part.

    The first part:
    “to promote progress…”

    The second part:
    “to secure to authors and inventors the exclusive right to their respective writings and discoveries”

    You are probably a product of public school education, which is a liberal (socialist) institution designed to dumb you down and take away your power of critical reasoning so that your rights can be slowly taken away from you.

  111. “The patent clause gives Congress permission to grant patents, it doesn’t require it to. That’s a pretty peculiar individual right.”

    BigGuy, what part of “…to authors and inventors the exclusive right to their respective writings and discoveries” don’t you understand?

    Are you as obtuse as Mooney or are you Mooney pretending to be a “BigGuy?”

  112. BigGuy: The patent clause gives Congress permission to grant patents, it doesn’t require it to. That’s a pretty peculiar individual right.

    This is waaaaay too nuanced for the software teabaggers.

  113. Red Monkey finds it–“hard to imagine how construing “inventor” to mean “the particular inventor who can file an application the most quickly” in the patent clause could “promote progress of science and useful arts.”

    I’ve noticed that RedMonkey tries very hard not to understand a lot of things.

  114. Red Monkey finds it–

    “hard to imagine how construing “inventor” to mean “the particular inventor who can file an application the most quickly” in the patent clause could “promote progress of science and useful arts.”

    I can ease his difficulty.

    Promoting the progress of useful arts is achieved by a patent system that trades limited term exclusive rights against release to the public of an enabling disclosure. What promotes is not the enjoining of infringers but the early release of the information. So, the best patent system (other things being equal) is the one that gets the enabling disclosure out to the public fastest.

    FtF, by rendering nugatory any filing that isn’t enabling, and awarding the rights to the first filer, is the best way there is, to get that enabling disclosure out there to the competitors as fast as possible.

    But, I know. You’re going to tell me that promoting the progress is exclusively about the public giving up its freedom preferentially to inventors who (save only that they must be diligent) can take as long as they like to drag their arses through the doors of the PTO.

    But do keep the thread going, with all these Chicken Little stories about the dire consequences of FtF. They are so amusing. Of course, they would be more convincing (and far less amusing) if you could tell us of all those real cases outside the USA, where real inventors have suffered real hardship as a result of one or another iniquity of the FtF system.

  115. “Just because they try to file at the same time does not mean that they invented at the same time. Only in a FTF system could they be adjudged to have equal merit.”

    Agreed on both points. My point is that the public benefits from the disclosure, and need not really care who invented first. two cents’ comments notwithstanding, a patent monopoly is neither a natural right nor a constitutional one.

  116. I’d be wary of policy based just on efficiency. There are many other efficient ways to allocate the right to exclude.

    For example, if two people claim the same invention, you could have just have an auction. The theory would be whoever is investing the most up front for his patent rights would be more motivate to commercialize to recoup his investment, and doing so would promote progress as A1S8 tells us to do.

    It’s not clear why granting the right to exclude to whoever is willing to put the most skin in the game would be any less effective at “promoting progress” than granting the same right to whoever can throw together a plausible patent application the most quickly.

  117. “… And it is such an important individual right that it was put in the original constitution, not stuck in a Bill of Rights after the fact. … Big Guy gets it WAY wrong here.”

    The patent clause gives Congress permission to grant patents, it doesn’t require it to. That’s a pretty peculiar individual right.

    “BigGuy probably also thinks its OK for a foreigner to be president of the U.S. …”

    Good argument.

  118. @TwoCents

    I’d love to see where the SC has validated any of the legal arguments you just made. The patent right certainly isn’t a constitutional right in the same way the Bill of Rights guarantees are – that’s why they’re in Article I. As a refresher:

    AIS8: “Congress shall have power…To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”

    On the face of it, it sounds like Congress can elect to secure that exclusive right, or not, as it pleases. Since it has so chosen, you’re right that it is somewhat limited, in that it must “promote the progress of science and useful arts”, and it must secure the “exclusive right” for “limited times” to “inventors”. We can get into a long exegesis on whether “inventor” necessarily implies “first to invent”, but frankly, I think that’s mostly pointless. As part of the grant, it seems to me that Congress has some latitude in its method of determining inventorship. Under the current system, there is no guarantee that the winning inventor in an interference really was the absolute first to invent – merely that he was the earliest to invent who contested. First to invent somewhat increases the likelihood of finding the true “first inventor” over first to file, but in most cases we’ll end up with the same result. And if Congress finds that large savings in efficiency will result from switching, I have a hard time seeing how it’s outside the scope of its power to do so.

    Additionally, I’m not sure how you know that the patent system “absolutely” is about rewarding individuals. From what I know of the history of the patent clause, and more importantly from the very first few words, it seems to me that the patent system is about promoting engineering science for the benefit of the nation. The benefits that accrue to individual inventors in the process are simply a nice bonus for them. Government-backed monopolies are a necessary evil, not a good in themselves.

  119. Moving to first to file would not survive a constitutional challenge, since it would deprive a first inventor a guaranteed Constitutional right.

    The patent clause, Article I, Section 8, Clause 8, of the Constitution itself (remember THAT little document people) grants an individual right to authors and inventors. By going to first to file, certain inventors would be deprived of that right (the 30% of later filing inventors who win in interference, or the roughly 1% – according to Dennis’ statistics – of all inventors that swear behind reference).

    What people forget that, especially in the industrial centers of the world, in Asia and Europe, in stark contrast to America, and the principles upon which America was founded, people DO NOT enjoy constitutionally mandated individual rights as we do here.

    “Neither the patent clause nor the patent system we currently have are about rewarding or punishing individuals”

    It absolutely is. And it is such an important individual right that it was put in the original constitution, not stuck in a Bill of Rights after the fact.

    Sounds like something Mooney would say

    Big Guy gets it WAY wrong here. BigGuy probably also thinks its OK for a foreigner to be president of the U.S. or that the Second Amendment is not about individual rights, as the Supreme Court ruled that it was.

  120. Big Guy–

    Your determination of merit is tautological.

    Just because they try to file at the same time does not mean that they invented at the same time. Only in a FTF system could they be adjudged to have equal merit.

  121. “Besides, given that EFS is open all day from all time zones, how would you deal with split second timing issues. Are we so in love with certainty that we are willing to punish someone whose computer didn’t boot up quickly enough, or who had a slow connection one day?”

    Yes. Why should we care, unless such an occurence is so frequent as to undermine the system entirely? Neither the patent clause nor the patent system we currently have are about rewarding or punishing individuals – they’re about motivating disclosure of new technology. A concern that 8 or 9 worthy inventors might get screwed because of sluggish Interent connections is a poor basis for a policy discussion, especially when they get screwed in favor of 8 or 9 inventors of apparently equal merit, who were otherwise only a “split second” behind.

  122. Big Guy–

    Yes, I thought about that immediately after writing the post, although I decided to post it anyway.

    All I can offer is this: if there was nobody VOLUNTARILY filing patent applications, nobody would be sued on a patent claim in the ED Tex.

    And, if you’re NOT INFRINGING, you’re arguably not involved in the patent system, you’re involved in the litigation system–even if you’re sued on a patent theory, you don’t have to raise a patent defense to successfully defend.

    Give me a break–you know what I meant!!!

    Here is the crux–infringement of patents is civil, violation of the tax code can be criminal. We all know the difference.

    Besides, that wasn’t even the main thrust of my argument.

  123. “2) participation in the patent system is VOLUNTARY …”

    Interesting. I’ll have to raise this as an affirmative defense the next time I’m sued in the Eastern District of Texas.

  124. There are two advantages I know of for first to file:

    (1) peer pressure: everyone else does it;
    (2) it promotes certainty.

    The idea that (1) is a valid basis for setting national policy is sad, and if we had followed it in the 1700’s we would still have a monarchy.

    Although (2) is a sound basis for deciding who gets a patent, it suffers from the flaw of not rewarding the first inventor. Although the patent clause does not say “first inventor”, its preamble does not say anything about promoting certainty. It’s hard to imagine how construing “inventor” to mean “the particular inventor who can file an application the most quickly” in the patent clause could “promote progress of science and useful arts.”

    Besides, given that EFS is open all day from all time zones, how would you deal with split second timing issues. Are we so in love with certainty that we are willing to punish someone whose computer didn’t boot up quickly enough, or who had a slow connection one day?

  125. Stephan,

    I understand your point, although I find your IRS agent analogy flawed in a number of ways:

    1) at the very least, it would be better to ask if we value the opinion of a tax attorney as to what tax rates should be, and

    2) participation in the patent system is VOLUNTARY, participation in the tax system is COMPULSORY.

    As attorneys, we are privy to information provided to us by our clients in confidence. When, as an attorney, you reach the level where you regularly integrate with firm principals and owners, you really begin to hear everything about business owners’ and industry players’ worries, concerns, and wishes.

    When that information is combined with an “inside” legal understanding afforded by practicing attorneys of how any policy change is likely to be effected “on the ground” and whether that activity is likely to further the policy goals, we most certainly should care what attorneys think about policy changes.

    Sure, people may have specific interests–someone whose practice focuses on interferences may be biased towards preserving interference practice. A very small minority, to be sure.

    On the other hand, if the questions were aimed more at the central question of whether or not we should have a patent system at all, then the general bias of patent attorneys could rightly be considered to be a factor.

    But not in this case.

  126. Dennis,

    You may want to clarify to voters that only one checkmark can be placed in each column ??

  127. Stephan.

    I agree with you that anyone taking a survey will exhibit some bias. And, US patent professionals will likely exhibit systematic bias because their (our) chosen careers depend upon a strong patent system. Further, in-house counsel typically respond with a different bias than folks at law firms. Within law firms there is a split between prosecution and litigation. Likewise, biotech & pharma focused attorneys typically have a different viewpoint than do attorneys who work in other areas of technology.

    I don’t know if you have actually taken the survey. The survey asks a detailed question about particular potential changes in US patent law. That question does not ask whether it is good/bad policy. Rather the question asks about how disruptive a potential change would be. This is the type of question that is well suited for a patent professional to answer. Using your analogy, I believe that it would be appropriate to ask a Tax Professional to answer a question about the disruptiveness of a change in IRS form or filing date requirements.

    Here, I do also ask whether the professional supports the potential changes. That response will be used to tease-out potential bias. Although there is still room for strategic behavior in the responses, I believe that I have designed the survey in a way that at least eliminates the most direct avenues.

  128. I agree with fish bones. As if the claims and specs we get now aren’t crappy enough.

    I agree with a first to invent but I believe that more swear behind information should be given upfront. Rather than having to wonder about a tenuous 102(a)/(e), I should be able to feel confident about it.

    I think the earliest possible swear behind date or reference should be provided upfront. I feel like it would be less of a poker game wondering what cards your opponent has on their side. They know what we have, it’s only fair.

  129. Mr. Kinsella:
    I speak not as a patent attorney, but as a American whose family has fought for nearly 4 centuries on the North American continent under five different flags. I do not want to see the current cadre of individuals espousing to represent the American people to further destroy our national sovreignity in furtherance of efficiency. As I write we are still struggling with independence from Great Britain for it is the British Banks, which control our monetary systemt, that have caused the current economic crisis. George Washington, Stonewall Jackson, Abraham Lincoln, Teddy Roosevelt and Ronald Reagan are turning in their graves.

  130. Dennis, as mentioned here, link to stephankinsella.com , I’m not sure why we should care what patent attorneys, of all people, think about patent policy. Why is there an assumption that their opinions on patent policy are especially relevant? If anything, patent professional are biased because of built-in incentives to favor maintaining a patent system. They are not objective at all. And training in engineering and law school in no way provides one with any special knowledge of policy or ethics issues. By analogy, do we care what an IRS agent thinks the tax rates should be?

  131. Before any Europeans comment further: just imagine the outcry from every patent attorney in Europe, if the legislature over here were contemplating switching the First to Invent. Our American friends would be urging us “Don’t be afraid. Come on in. The water’s just fine”. And would we believe them? Nooooooooo!!!!

  132. Hey, Americans, look over here! There’s a whole world out here. And they do some things differently, and some things are better than in the US! Who knew?

  133. “I’d love to take the survey, but at least on my machine (Vista Bus. and IE 8) I could not enter check marks for each question.”

    Same problem here, Ned; using Windows 2000 & Firefox.

  134. “…I would contend that I could render the statue invalid under several constitutional grounds including, but no limited to, the First Amendment’s right to free association…”

    Really? I’d like to see an outline of that argument. Extra credit if you can work in a 13th Amendment argument as well.

  135. Just a couple of points, first to invent clearly gives American inventors an advantage vs. foreign applications; the grace period is essential; when patents cover only one country, prior use outside that country is irrelvant; universal public use without adequate discovery can be disasterous; interferences are not a problem even under FTI.

    Finally, given the disadvantages to Americans to abandon the current system, we need to clearly understand the benefits we will obtain in exchange. As of today, I can see no benefits being offered by the world community. Now, if we had a treaty we could all sign granting a world patent; but in exchange we would have to give up FTI, I would consider that worthwhile.

  136. I’d love to take the survey, but at least on my machine (Vista Bus. and IE 8) I could not enter check marks for each question.

  137. Were the first to file system implemented while maintaining the best mode requirement, it will place U.S. inventors at such a disadvantage I would contend that I could render the statue invalid under several constitutional grounds including, but no limited to, the First Amendment’s right to free association, the privileges and immunities clause, the due process clause of the Fifth Amendment and the like. Due to the extra care that U.S. applicants must undertake to satisfy that criteria, it places a more significant tiime-hurdle during preparation of a patent application that a U.S. applicant must be subjected when compared to non-U.S. applicants. It seems to me that the ratification of the PCT by the U.S. is already on tenuous grounds, if foreign applicants are acquiring patents based upon earlier filed non-U.S. applications that do not satisfy the best mode require due the same aforementioned constitutional infirmities. As a result, it readily appears that the first to file system is the last piece that must be put in place for a one world patent. Once we go first to file, the best mode requirement would have to be abrogated and then there would be no reason to have individual nation states examine individual patents. I can tell ya, I am not so secure about having entities of which we, as a body politic, have very litte say over telling us what we are precluded from doing. The concept of foreign-owned monopolies that are not reviewed before being granted having an impact in the U.S. has not proven too beneficial for citizens of the U.S.. Take for example RIAA and its lawsuits against U.S. citizens. There are three major copyright holders on the planet and only one of them is U.S. The consolidation of may U.S. generated copyrights into the hands of non-U.S. companies has substantially strained our civil liberties, particularly our most cherished civil liberty, the First Amendment. The Supreme Court has issued absurd interpretations of the intellectual property clause to serve the investment goals of these foreign interests. I really do not want patent rights to be devoid of scrutiny by the citizens of the United States. It is for this reason that I oppose first to file and any further harominization. We should strive to bring back the term of patent to be 17 years from issue. With this power the U.S. could be turned into a technologically second rate nation by precluding certain technology from being available here, based upon patent rights.
    This has happened in the past. I look to the 1970s when on ship as a sonarman on a Spruance class destroyer. A japanese manufacturer of car stereos produced a pre-amplifier with such high fidelity that the distortion provided by the same was beyond comparison with anything available in the U.S. So much so that we discovered we realized that we could filter or signals through it and assist in detecting soviet submarines off of Pearl Harbor and the coast of california. We could not purchase it, because the company denied sales of the same in the U.S. It was only when on Westpac that we visited Japanese ports could be acquire the technology.

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