Prior User Rights Defense

Later today I will be testifying in Congress at a hearing on Prior User Rights being held by the House of Representatives Subcommittee on Intellectual Property, Competition and the Internet chaired by Republican Representatives Bob Goodlatte of Virginia and Ben Quayle of Arizona along with Congressman Mel Watt as the ranking member of the Subcommittee. The hearing comes in the wake of the USPTO’s recent Report on Prior User Rights. The primary focus of my testimony is my estimation that prior user rights as circumscribed in the Leahy-Smith America Invents Act are unlikely to have any real or measurable impact on the market for US patents, demand for innovation, or process of patent litigation. I explain this as follows:

There are host of conditions that must be met before the prior user defense can be exerted. Most notably, an accused infringer must be able to show that it (or its predecessor in title based upon limited transfer rights) began to commercially use the invention at least one year before the patentee’s filing date (and even further in advance if the patentee publicly disclosed the invention before filing). In the new statute, the defense only applies if the prior user’s version of the invention was created independently and without derivation from the patentee’s version and the prior user acted in good faith. When formed together, these requirements look something like the eye of the needle and are difficult to pass through.

Further marginalizing the impact of prior user rights is the reality that the defense only adds actual value when the patent being asserted is valid. I.e., if the patent is invalid then there is no need for a prior user defense. The setup of a prior user situation suggests two likely scenarios that would lead to a decision of unpatentability. First, the existence of multiple independent creators of the same invention tends to suggest that the invention itself was obvious and therefore unpatentable. This is even more so in the prior use context because the later filed patent by definition will have a priority date of at least one year later than the user’s first date of commercial use. Using the language of the Supreme Court in its KSR decision: “market forces” likely prompted researchers to take the next step. In addition, the requirement that the prior user commercially used the invention is an indicator, albeit inconclusive, that anticipating prior art may be available to invalidate the patent. Conversely, if the prior user is successful in maintaining the secrecy of its commercial use for that time period, we’re left with the suggestion that the prior user may able to continue to operate in secrecy without being uncovered and thus without being charged with infringement.

My conclusion that prior user rights will have very little impact on innovation and access is also supported by comparative analysis of the impact of prior user rights in various trading partner nations and the already existing US prior user right for business method patents. The USPTO Report correctly indicates that these defenses have seen little to no successful assertion. In the US, prior user rights have been available since 1999 for the limited class of business method patents. During that time, there have been no reported cases where the defense was successfully asserted. During this time, the Court of Appeals for the Federal Circuit decided thousands of patent appeals on almost every imaginable patent doctrine – however the court did not address prior user rights. There was no need because the impact of that defense is so limited.

Two final concepts – lack of assurances and delay in patenting – push me to the same conclusion of little impact. First, I suggest that prior user rights will be given little ex ante consideration by would-be defendants because the defense does not offer any real assurances or any vested right until years after the first commercial use. As discussed in the previous paragraphs, prior user rights only come into play under a cone of secrecy. At that time, the prior user has no assurances that it made commercial use of the invention more than a year before someone else filed a patent application on the same subject matter. The expense of searching PTO records makes the task of discovering prior patent applications quite difficult. The delay in publication of applications and later-filing of applications based on foreign priority makes this task literally impossible to complete. And, the ability of patent applicants to radically amend claims during the patent prosecution process means that any assurances identified cannot not be considered vested.

The final point on this topic – based on delay in patenting – is that most qualifying prior uses may be irrelevant and out-of-use by the time that the USPTO issues the covering patent. Most recently issued US patents have an effective original filing date of more than four years ago. This provides a window of at least five years for most prior users to legally practice the invention without recourse even in the absence of the prior user defense. In many areas of technology, the original prior use will have become obsolete by the end of that five-year timeline – allowing the prior user to move to a new technology without ever needing to obtain a license or permission from the patent holder.

In the testimony, I then identify a number of particular ways that the defense could be expanded of Congress desired a more robust system of prior user right. My darling of the list is the establishment of a vested prior user right through a registration system. Although interesting, I do not at this point have real cause to call for this type of expansion.

My testimony also includes some consideration of the relative impact of prior user rights on US and non-US entities. The table below summarizes some of my thoughts.

Stakeholder

Help or Hurt by US Prior User Rights

US Universities 

Help: University derived inventions become relatively more valuable because their patents are excluded from the prior user defense.

US Manufacturers and Technology Companies 

Help and Hurt: US patents belonging to US manufacturers become less valuable because they are subject to prior user rights. However, US manufacturers have the potential of avoiding infringement charges based upon their own prior use.

US Non Practicing Entities (NPEs) 

Hurt: NPEs US patents become less valuable for NPEs because they are subject to prior user rights. By definition, NPEs do not practice the invention and therefore do not benefit from the prior user right defense.

Foreign Manufacturers and Technology Companies 

Hurt: Foreign entities US patents become less valuable because they are subject to prior user rights. Further, the foreign entities cannot assert prior user rights based upon activities in their home countries. However, foreign entities could benefit from the prior user rights if their prior commercial use of an invention was in the US.

 

Of course, my perception of the scope of prior user rights would change dramatically if the courts determine that (1) a prior user need only prove prior commercial use using a more-likely-than-not standard that (2) allowed oral testimony alone to prove the case and (3) ruled that neither secret sales nor secret uses constitute prior art under the new 35 U.S.C. § 102(a).

PTO Director Dave Kappos will also be testifying as well as Bob Armitage (Lilly), Dan Lang (Cisco), and John Vaughn (AAU).

 

 

 

137 thoughts on “Prior User Rights Defense

  1. STOP TAKING OUR STUFF. Hire Engineers and start your own company. You see how easy it is to find Creative People.. After all you claim I came off a Lily Pad. And another thing if my Atty that I get finds out YOU hired ????,”AND” I paid him for help in Mass., and it turns out he was helping someone in NH.. GET IT?

  2. AIA gives large companies the tools they needed to bankrupt domestic inventors. It allows them to misappropriate American ingenuity and take it to the same places they have been shipping jobs. It will create jobs, just not in America.

  3. The only thing missing from this new system or the old one for that matter is a requirement for psychiatric examination of anyone considering filing a patent. My business will be switching to pre conception pre paid guaranteed patents and dividing our patent conceptions among nations with integritious systems that guarantee patent awarding to actual concievers. And in the rest of the bandit countries like ours there share of conceptions will fall into the void and be lost

  4. Ianae there was no soft drinks at all until I invented them as a toddler 54 or 55 I did coke in 1958 at age 4.

  5. I think this is the new kenyan paraquasi patent system they dont even use the term inventor anymore wile obstructing justice in the office and congress.We need to organize counter legislation to put the country back on track this is heinious justice.

  6. NPEs will be delt another death blow to there cival rights. Already dominated and squashed by big business influence domination and thievery there out to destroy any sembalence of fairness in the system and game it into there encumbant only non inventor system. Esentially there saying youll have to be crazy to file in this system because they will burry the little guy legally and actually.

  7. Yet another move to add to the growing arsenel of anti inventor thefting methods instead of immediate novelty check and lockering to estab lish a integritious patent system instad of the growing ball of corruption. The main point being that big business wants to back date to steal the invention claiming prior usage that never really occured

  8. “gracious” and “insufferable” confused.

    Says the poster with a pseudonym of “BigGuy?”

    Besides, it’s all relative.

    When Michael Jordan speaks, people don’t tell him he is insufferable. Anon has earned his stripes. Unless you think some point of his is off, give the man his due.

  9. finding a nut does not make him right. MM’s process (dissection) is still wrong.

    No credit for getting to a correct answer by the wrong path (and then proclaiming that it was the path that was correct).

    What’s with this love affair you have for MM? You try too< ?i> hard to find some good in a cretin.

  10. Anon, thanks.

    Just for the record, Malcolm has convinced me of a couple of points as well along the way.  I think he was right on Therasense (the case itself, not the overall rule).  I also think he is right on Prometheus: that ifone adds a mental step to an old process that the claim is unpatentable.  Even Justice agrees, but under 102.

    So give the guy some credit.  He figured this one out before anyone else here.

  11. So I do indeed graciously accept your accolade on “points” with the proviso that this is more your realizing that I am correct in my view on law (including Pennock) than my becoming correct with any change in law.

    I think you might have the terms “gracious” and “insufferable” confused.

  12. Ned,

    So there, Anon. You won a couple of points with Golan v. Holder.

    At the risk of sounding ungracious and like merely “I told you so”, well, I told you so. One should look at Golan as less a change in law and more as a confirmation of what I have long told you about in our discussions on Pennock.

    There is – and always has been – a great deal of deference to what Congress sets forth. To harken to an analogy put forth by others, the race is not just showing up at the starting line. The race is absolutely dependent on the parameters that Congress decides to include (be it the number of hurdles, the spacing of hurdles, or the height of the hurdles).

    So I do indeed graciously accept your accolade on “points” with the proviso that this is more your realizing that I am correct in my view on law (including Pennock) than my becoming correct with any change in law. Golan is a confirmation of my position.

  13. anon, Golan is now available on Google scholar. I had not been able to read the case before because the link from the SC site is broken.

    Impressive case.

    I tend to agree with you now that the SC would say that
    Congress has to power to authorize patents to trade secret users.

    Whether they clear did, with on sale still in the statute, remains to be seen. I do not agree that the new statute in any way derogates from the current on sale bar. If one commercially uses an invention in secret to produce public domain products, the invention is on sale and a personal bar.

    It might also be prior art, thereby reversing Metallizing.

    So there, Anon. You won a couple of points with Golan v. Holder.

  14. without telling us in some unambiguous way?

    I am pretty sure that the level of change in AIA was not in some ambiguous way. You are not serious about that question, are you?

  15. Ned,

    See the comment above regarding Pennock.

    As to keeping the concepts clear, you can only keep them as clear (that is distinct) as the law permits.

    As MUtOL notes, that law has changed, and Congress has put those concepts together. Don’t blame me for wrecking your paradigm, blame Congress (but keep in mind that they have the right to do so – see Golan).

  16. Referring to Pennock, that case was based somewhat on the Constitution and not on the statutory scheme because at that time

    Ned, we have gone through this before. Your version of Pennock is false. You see a Constitutional issue where there is none (at least now you are backing down to a “somewhat” tone – small steps are better than no steps I guess). You fail to see the deference given to Congress and how Pennock resolves to the rules in place – rules by Congress. Congress did come back and clarify – but that was the perogative of Congress to do.

    If you have any doubt, read Golan. Then re-read Pennock.

    Then realize that the AIA is Congress reshuffling the mix and that reshuffle is not limited to the case law you want to import.

    Then go back and re-read Golan once more for good measure.

  17. Maybe, but "on sale" has never been prior art to third parties.  Are you really suggesting that Congress changed this fundamental concept without telling us in some unambiguous way?

  18. , or in public use, on sale, or otherwise available to the public with the public use.”

    should read

    “, or in public use, on sale, or otherwise available to the public”

  19. Only if you bootstrap, bootstrap, bootstrap.

    Otherwise you will not and cannot find it in the New Law.

    On sale has been combined in the New Law 102 rewrite: “, or in public use, on sale, or otherwise available to the public with the public use.” That comma before the “or” has a distinct meaning. In the New Law you cannot treat any one portion of this phrase differently than the other portions because the Law is written as it is written.

    Then, after that is understood, then you need to understand that the PUR section 5(g) MUST be harmonious.

    If you somehow think the personal on sale bar remains in the statute, you have no basis for thinking that.

  20. There really is a difference between a public use which is prior art to third parties, and a trade secret use was is not, but remains and on sale bar.

    Not according to the New Law.

    That’s the point, my friend!

  21. Anon, regarding your point that there is no personal on sale bar a new statute, we will have to disagree in that. "On sale" remains in the statute. Therefore I think the personal on sale bar does remain in the statute.

  22. Anon, ever since Pennock, the courts have been mixing concepts of on sale with public use. The Metallizing case attempted to clarify the situation by making it clear that trade secret use was not prior art to third parties. If you say that trade secret use is public use, but at the same time say that it is prior not prior art to third parties, I think we we are not keeping the concepts clear. There really is a difference between a public use which is prior art to third parties, and a trade secret use was is not, but remains and on sale bar.

    Trade secret use is not in any sense a public use. Rather it is an on sale bar. If we keep these concepts clear despite prior court cases that used confusing nomenclature, we would do well.

  23. Maybe, on a broader point you may be correct that a whole rewrite of the statute does not necessarily important prior case law. But on the issue of "on sale bar," that case stems not from the Metallizing Engineering Case, but from Pennock v. Dialogue, even as judge Learned Hand acknowledged.

    Referring to Pennock, that case was based somewhat on the Constitution and not on the statutory scheme because at that time and "on sale bar" was not in the statute. It was added in 1836 in response to the Pennock case.

  24. Ned,

    I do not ignore “on sale” per se. And Trade Secret use is “public use,” at least as far as I thought that had been your position on the matter. Are you really saying that you think Trade Secret use is not “public use?”

    I agree with you that commercial use undoubtedly places the invention “on sale,” but the issue appears to be that there is no personal statutory bar in the new law. As noted by MUtOL, you have to bootstrap case law based on the old law into the new law to establish that requirement in the new law. That’s like assuming the premise that you are trying to prove, is it not?

    To me, this is why the entire concept of PUR is problematic. PUR introduces an inherent contradiction to US patent law. It is an ugly red-headed step-child based on a policy that is difficult to reconcile with granting a patent right based on someone else inventing the same thing.

    I get the equity angle of why – it is the pragmatic what that is the issue.

  25. Reading comprehension really isn’t your thing, is it?

    Comprehending what you say sometimes is a challenge, but not for reasons related to my capabilities.

    It would help if you learned how to speak plainly and directly. But for some reason, you have an aversion to doing so.

    Perhaps you can search your feelings on this and try to humor me (and all readers) by improving the comprehensibility of your posts.

  26. Anyway, it’s clear that the…

    The law of unintended consequences is even better than maxims (but arguably not better than Maxim).

    No, it mandates a litigation defense.

    It does more than that. That’s the entire point you don’t seem to be able to grasp.

    It certainly doesn’t say that the actions are unable to anticipate.

    It says expressly that.

    defense if his prior commercial use also made the invention available to the public.

    You need to read the section – that part is covered in the requirements of establishing PUR.

  27. Think of the maxim of that which comes before anticipates, that which comes after infringes, and adopt that mindset to the New Law.

    Why bother with the law, when we have maxims?

    Lots of would-be infringing activity doesn’t anticipate when it comes before, so long as it’s within the grace period, but only if it’s the right person who applies for the patent. This isn’t the first time the patent law gave special treatment to the first person who put the invention out there.

    The interaction between PUR and validity, at least, is less arbitrary. It’s impossible to raise a PUR defense against your own patent, which means that PUR will never have been raised against any invention where the prior user is the applicant/patentee.

    Anyway, it’s clear that the “PUR doesn’t invalidate” provision is only there so that the patentee can still assert his patent against other people who were not prior users, even when he’s lost an infringement suit on a PUR defense. Unless you’re the sort who thinks “directed to a human” covers pharmaceuticals, this should make perfect sense.

    PUR mandates certain actions as not able to anticipate or obviate.

    No, it mandates a litigation defense. It doesn’t even say that the actions are unable to infringe. It certainly doesn’t say that the actions are unable to anticipate. No court would deny the infringer an anticipation defense if his prior commercial use also made the invention available to the public.

  28. infringement of his own patent.

    You have to be able to get your own patent first.

    PUR clears the path for doing so.

    The different sections of the AIA cannot be internally inconsistent, thus that which cannot establish invalidity to defeat a patent under 102 or 103 cannot serve to defeat the attempt to gain a patent under 102 or 103.

    Think of the maxim of that which comes before anticipates, that which comes after infringes, and adopt that mindset to the New Law. PUR mandates certain actions as not able to anticipate or obviate. It must follow that those same actions cannot stand in the way of that person’s attempt to achieve a patent. The whole notion of “personal bar” is destroyed by the AIA section 5(g). You cannot create a right (and a non-effect on patents) and a bar (that would be that very effect on patents) out of the same cloth.

  29. See AIA Section 5(g) Invalidity. – A patent shall not be deemed to be invalid under section 102 or 103 solely because a defense is raised or established under this section.

    That’s right. The patent isn’t invalid because you made out a litigation defense. It’s invalid because the patentee had the claimed invention on sale.

    I’m curious as to what fact scenario you think would cause the patentee to raise a PUR defense against infringement of his own patent.

  30. Following EG, an example of the proper use of the word “bootstrap” appears. As Ned is a fan of that word, it would be interesting to see his reaction to the bootstrpping of case law based on a regulatory scheme that has been so substantially revised.

    The phrase: “And regarding point three – the whole point of my point was that ANY blanket assumption that prior case law (tied to a particular scheme put in force by Congress) is suspect when a new scheme is put in force by Congress. I alluded to Golan for a reason: Congress is simply more powerful than the courts when it comes to such a substantial changing of the system. I think that merely assuming that prior case law flows through (especially as it touches on one the changed aspects of patent law) is not a safe assumption. In other words, you CANNOT assume a continued validity of Metallized Engineering, because that case was grounded in a statutory scheme that no longer exists. You cannot bootstrap that the new system is just like the old system based on a case law tied to the old system.”

  31. you conflate and confuse the third party patent in suit with a different patent filed by the prior user himself.

    That’s no conflation and confusion. The new law does not say that the new patent cannot be by the party holding the PUR. There is no such limitation, express or implied (nor can there be if PUR were to survive). The 102/103 clearance is open-ended, and the new statutes cannot be read as to confllict with one another (Section 5(g) must be harmonious with the completely new 102 and 103).

    It’s a feature, not a bug.

    You have to try to be polite when someone disagrees with you? How old are you, 4?

  32. Maybe, you conflate and confuse the third party patent in suit with a different patent filed by the prior user himself. The prior commercial use may not invalidate the patent in suit; but it still might invalidate the prior user’s own patent by being on sale more than a year prior to filing his patent application.

    I am trying to be polite here, but I really have to restrain myself.

  33. Ned,

    Commercial use, required for PUR.

    See AIA Section 5(g) Invalidity. – A patent shall not be deemed to be invalid under section 102 or 103 solely because a defense is raised or established under this section.

    There is expressly no bar for this activity (thank you PUR).

  34. anon, but you ignore “on sale” to reach this conclusion.

    Trade secret use is not “public use.” However, commercial use undoubtedly places the invention “on sale” and constitutes a personal statutory bar against the commercial user.

  35. Yummy,

    I think that you mean that you can have your cake and it too – trade secret AND patent (if so desired at a later date) because the prior user right mess provides a path that “protects” you from any later patent, even your own – since your trade secret activities cannot invalidate any late patent effort (including your own).

    IANAE and I agree on this.

  36. You cannot have your cake and eat it too.

    Why not? We have it both ways with the grace period – a public disclosure within the year prior to filing invalidates patents to some inventors but not to others.

  37. The unstated flip side of passing a prior user rights Defense for acts that DON’T otherwise invalidate a patent means that the entity performing those acts are not prohibited themselves from obtaining such a patent (their acts don’t invalidate).

    You cannot have your cake and eat it too.

  38. EG, still, it would be rather ludicrous for Congress to intentionally pass a prior user rights Defense for acts that would otherwise invalidate a patent. While one can think that Congress is not perfect, at least one can believe that Congress is not totally beyond rational thought.

  39. I agree with your point Ned that the interpretation of current 102(b), including that set forth in Metallized Engineering, isn’t necessarily inapplicable to the same phrases in new 102(a)(1), such as “public use.” Also, as was pointed out by a comment on Patent Docs, paragraph (5) of Section 5 of the AIA on the PURD expressly says that establishing a PURD, by itself, isn’t invalidating under new 102(a)(1). But as I also point out, it may not take much more beyond providing the PURD to reach the point of invalidating “public use” under 102(a)(1), for example, establishing that the product obtained by the allegedly secret process wasl sold and thus made “available to the public.

    But the big problem with the AIA is just how badly it was drafted. Section 3, and now section 5, just don’t mesh together well. That is a painful illustration of how Congress didn’t focus enough (and frankly likely didn’t care to focus) how each section/paragraph should mesh with the rest. Litigators are going to have a field day with how inartfully drafted the AIA is, and judges are going to get Excedrin headaches just trying to figure out what some of these sections/paragraphs mean with minimal help from whatever legislative intent exists (assuming the judges even look at such intent). Again the AIA is the Abominable Inane Act.

  40. Thank you, your acquiescence is confirmed.

    Do you think IANAE will understand this? (that’s a rhetorical question)

  41. So, varied reasons it is. Fair enough. I’ll buy that. Where to site a brand new chip fab or hugely expensive immobile rolling mill, and where to make cuddly toys, will be decided by rather different factors.

    As to “defending”, suspect away, all you like. My time is precious. That’s why I write anonymously, because then I can please myself each time, whether to go to the effort of composing a reply.

    And yes, you’re right again. More than one limitation does indeed afflict me. Sadly, all too true.

  42. Call me when you’ve been to Europe and returned with a mind willing to understand.

    Why do you assume that I do not have a mind willing to understand? There is no basis for your statment. None. Zero. Nada. Your feelings? Really? You are searching in the wrong area.

    As to the topic that spawned our exchange, you have supplied no answers for me to understand with. Why would I call you? To get more non-answers?

    I’m done playing conversational Calvinball with you

    You sound like Inviting Body Punches now. Taking your (Calvin)ball and going home because the conversation is not going your way. Wow, someone actually tried to hold you to giving an answer you said you would give.

    (Is it really that difficult for you to take an affirmative stand and give a clear cut answer? – that’s a rhetorical question)

  43. I have not professed a difficulty in understanding Max.

    No, but if I search my feelings I know it to be true.

    I’m done playing conversational Calvinball with you. Call me when you’ve been to Europe and returned with a mind willing to understand.

  44. I see why you have such difficulty in being straight forward (actually I don’t see the difficulty, just the fruits of that difficulty).

    I have not professed a difficulty in understanding Max. I have professed a disagreement with Max’s views. I have professed a level of misunderstanding that Max has.

    And still no answer from you – but now, delving into misdirection and obfuscation. Have you given up already on humoring me? Did the idea of being straight-forward prove to be too daunting for you?

    As for the examine down the hall comment, I thought the running theory was that you were an academic – you know, those who can’t do, teach ;-)

  45. I’m still waiting.

    I think I see why you have such difficulty understanding Max.

    Are you completely sure you don’t examine patent applications just down the hall from me?

  46. Again, squinting at bottles of coke on ashelve does not give an answer.

    Your questions are not an answer.

    You said you would give an answer.

    I’m still waiting.

    (Is it really that difficult for you to take an affirmative stand and give a clear cut answer? – that’s a rhetorical question)

  47. MaxDrei,

    The quotes around “all” was deliberate, as there are new factories built in varied places for varied reasons.

    If you understand business, you would not question that cost drivers are the number one driver for factory placement. The fact that third world facotry development has slackened, again, has nothing to do with IP or PUR considerations. The driver there is more one of quality control, where the foreign factories simply cost too much in relation to poorer quality outputs and controls.

    You seem to be “buggered” quite often in defending your views. I suspect that may be more due to what views you hold and less to your ability to explicate those views, but I do not refrain from the belief that more than one limitation affects you.

  48. Coca Cola is an item in the public domain. Has been for a century or so. If you squint hard enough, you can see it on store shelves.

    Now, suppose you get a patent on Coke’s secret blend of herbs and spices. Then you sue Coca Cola Co. for infringement.

    What result with PUR? What result without? Should the patent properly be revoked in either situation?

  49. So labor costs are lowest in Germany then, are they? Only yesterday everybody was predicting the demise of Germany because labor costs are lower in the far East. Today, in between all the new factories, not.

    Sorry if for you my thoughts don’t connect. Buggered if I know how to make it clearer to you though.

  50. Every infringer will manufacture evidence that they are a prior user.

    AIA promotes domestic manufacturing. You heard it here first.

  51. “as necessary to prove PUR – the item was in public domain.”

    When did that become necessary?

    I’ll humor you, though. Suppose the item was in the public domain.

    “In that case the patent should be revoked. Not ketp alive.”

    You patent a recipe for a soft drink. You sue Coca Cola. They clearly infringe. Now what?

  52. I had supposed that, in the USA, all evidence is witness evidence and that, whenever there is witness evidence, there has to be cross-examination.

  53. My suggestion was that they are not averse to creative accounting, or creative presentation of experimental data. However, fabricating prior use when, in fact, there was none, is rather more of a challenge, a challenge which my experience in Europe suggests is a step too far, for multi-nationals in general.

  54. MaxDrei, I do not see the connection between the two thoughts in your statement of

    Another way though is that the patent system does not do its promoting of the progress of useful arts by forcing every manufacturer to open up every factory into a public park, where everything is open to free inspection by all and sundry. Those contemplating investing in a new manufacturing enterprise are not going to derive any encouragement to do so from the thought that their venture could be enjoined (and bankrupted) by some Johnny Come Lately patent owner who only got round to filing after the factory was up and running.

    These appear to be non sequiturs. Can you develop the link a little?

    As for where are all the new factories being built, the answer does not support your thesis. “All” the new factories are being built where the labor costs are lowest, and have very little – if any – relationship to IP and PUR considerations.

  55. TypePad HTML Email

    What is lunacy is how our so called
    representatives run a protection racket where whomever hands them the most cash
    gets their legislative agenda passed. 
     
    While small entities can still get patents,
    very few will be able to handle the new costs imposed by AIA when big business challenges
    their patents.  AIA was written by and for transnational invention thieves
    so that they can bankrupt inventors and their small businesses.  Anyone
    who claims that AIA will create jobs is either a fool or a liar.  Clearly,
    congress and academia have both in spades.
     
    Ronald J. Riley, 
     
     
    Affiliations:
    President – http://www.PIAUSA.org – RJR at
    PIAUSA.org
    Executive Director – http://www.InventorEd.org -
    RJR at InvEd.org
    Senior Fellow – http://www.PatentPolicy.org
    President – Alliance for American Innovation
    Caretaker of Intellectual Property
    Creators on behalf of deceased founder Paul Heckel
    Michigan * Washington, DC
    Direct 810-597-0194 * 202-318-1595 – 9 am
    to 8 pm EST.
     

    From: TypePad

  56. I would like to see IANAE answer this:

    Real bad – especially if – as necessary to prove PUR – the item was in public domain. In that case the patent should be revoked. Not ketp alive. And not having soem sui generis right created for the benefit of someone who has “not yet decided to tell anybody.”

    How would you feel if you were a third party with this public domain stuff, but not the patent holder and not the PUR holder, but you are shut down and have your job un-created?

  57. LOL. Are you making that argument, sockie?

    Malcolm,

    Not for your benefit, since asking you to pay attention and to read something would be a waste of time…

    But first I wrote that the relative placement of the Patent Clause should be considered in the weight that the founding fathers attributed to the concept. The fact that the placement was in the main body as opposed to being placed in an amendment does carry weight.

    Second, I wrote that this should be thought about. Thinking, a strange concept to you, is something that most people will do when faced with a new idea. They will think, examine, contemplate, and consider before making an off-the-cuff inane statement, which statement evidences a closed and shallow mind.

    Lastly, the fact that I indicate that the position has arguably more intent is a phrase that means that the position can be a reasonable one, taken after thought is put into it. It does not mean that it is a position I hold.

    Your penchant for trolling me is noted. However, your continued posting without any depth of mental processing is also noted. And asking you to grow up, like asking you to think, would, as experience has shown, be asking too much. But perhaps asking you to simply STFU may make you climb the mental ladder a rung or two and elevate your future contributions to this blog.

    At least, one can hope so.

  58. Ah, the smell of raving lunacy in the morning.

    One would (correctly) think that that would be a familiar scent to you, MM, since you are drenched in the scent.

  59. Fact is though, in their real world, they don’t actually do what Mr Wily Riley tells us they will do.

    No, Corporations are model citizens.

    Sorry – Not. Buying. It.

  60. You see, with discovery and cross-examination of evidence

    Is that provided for in the AIA? Where?

  61. Mr Riley writes:

    “Every infringer will manufacture evidence that they are a prior user.”

    which shocks me. You see, with discovery and cross-examination of evidence, the true facts are hugely more likely to come out in America than when there is a patent dispute in mainland Europe or Asia, where there is no discovery or cross-examination. Just look at the cock-eyed “evidence” of comparative experimental result data that EPO applicants from Asia file in support of their chemical inventions. Believe it all, do you?

    With a right of continued use having been the law in patent litigious countries like Germany, since time immemorial, you would have thought that, at least there – “Every infringer will manufacture evidence that they are a prior user”-for the reason that false evidence manufacturers can get away with it so much more easily in civil law jurisdictions.

    Fact is though, in their real world, they don’t actually do what Mr Wily Riley tells us they will do.

  62. AIA was the second bailout, representing a staggering loss of new job creation and prosperity, a loss which dwarfs what the sleazy banks already caused.

    Ah, the smell of raving lunacy in the morning.

  63. Prior User Rights are a huge windfall for big companies to commit fraud. Every infringer will manufacture evidence that they are a prior user.

    In fact, all of AIA was designed to facilitate big business theft of inventions.

    They claim that AIA will create jobs and they are right. Transnational corporations will take American ingenuity to the same places they have been exporting jobs. They will use AIA to create jobs outside America.

    AIA was the second bailout, representing a staggering loss of new job creation and prosperity, a loss which dwarfs what the sleazy banks already caused.

    Since only big companies will now be able to enforce patents they will no longer have to worry about some upstart coming along and displacing them. The whole point of AIA was to transfer invention based new wealth creation from people to big companies. It is a job killer, at least in America.

    Walmart serves as an example of what we can expect our future to be like. They make a killing while workers make peanuts. That is the new world order under AIA.

    Ronald J. Riley,

    Affiliations:
    President – http://www.PIAUSA.org – RJR at PIAUSA.org
    Executive Director – http://www.InventorEd.org – RJR at InvEd.org
    Senior Fellow – http://www.PatentPolicy.org
    President – Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Michigan * Washington, DC
    Direct 810-597-0194 * 202-318-1595 – 9 am to 8 pm EST.

  64. Yeah, sure.

    And, just how many times did the Supreme Court interpret the 1952 act as consistent with its prior case law? Only where it was manifestly clear that congress intended to overrule or modify one of its prior holdings did the Supreme Court acquiesce.

    Even 103(c) that had no counterpart at all in prior legislation was interpreted to codify its prior case law.

  65. Griswold long advocated, and apparently Congress agreed, that PURs are necessary in a FTF system when prior invention (prior reduction to practice) is no longer available to invalidate a patent. Griswold and Congress apparently believed that prior secret commercial use was not prior art to third party patents under the AIA. That is entirely consistent with current law.

    Thus I believe that the very existence of PURD exhibits a congressional interpretation that secret commercial use is not prior art to third parties (albeit, it could be a statutory bar to the inventor/prior commercial user as being “on sale”).

    If one notices that 102(a)(1) is a simple rewrite of current 102(b), with the catch all phrase attached, I think that any interpretation that congress intended to change the current interpretation of 102(b) is completely wrong. PUD is a data point that helps prove this case.

  66. What is up with commenters Sarah and MM filling these boards with junk? Does no one value real communication anymore?

  67. Noonan:

    there are canons of statutory construction that support the countervailing position, that the statute does not eliminate forfeiture of patent-eligibility by secret commercial use, including the concept that when Congress intends such a dramatic shift in the law it does so explicitly (one of the grounds used by the Supreme Court in interpreting the metes and bounds of university’s patent rights under the Bayh-Dole Act in Stanford v. Roche).

    Remember when sockie was runnning around freaking out that all pharmaceutical claims were going to be ineligible because they “related to” a human organism? Good times.

  68. Further, the patent system exists for a reason, and whether you like it or not, our founding fathers felt so strongly about it that they wrote the power into the constitution – arguably with more intent than anything found in the bill of rights.

    LOL. Are you making that argument, sockie?

  69. Do you think I don’t know that Canada also got a copy.. RENE? I thought you knew every time I was there so was Gloria Ray and Ramona.. And that is when my stuff came missing.And do they think for one moment I don’t know we are related?
    And do you think I won’t go International when I collect on all these Torts? And Ray I don’t give a Rats Arse if you are my Father.. how’s that! Why else would I be the spitting image of Ramona? Why else would their Child.. who was probably mt twin sister be with them.. so maybe You threw me away? Do you think I give a rats patoutie. You would have been an even worse situation. It’s obvious you are just like Guerwood EVIL!

  70. What “tradition” is that then?

    You are kidding, right? I don’t think anyone here wants to hold your hand and teach you the history of the US Patent system.

  71. What “tradition” is that then? That only goes so far, doesn’t it, and only covers certain sorts of things (and definitely excluding the fruits of their personal labours). Seems to me a great many “self-made” people that society has made mega-rich don’t want to share with anybody except their spoilt progeny but nevertheless do complain, long and loud. Are they too not aware of this “tradition” you cite?

  72. Well, no. Unless the USA right of continued use works out exactly opposite to how it has worked all over the rest of the world for the last century.

    Is the Coca-Cola recipe real; secret or apochryphal?

    Friedrich Krupp used to keep his recipes secret in the Middle Ages. He doesn’t now though. Look at process metallurgy. If ever there were patent thickets, it is here. Every little tiny change gets patented. Why, because the Right of Continued Use (outside the USA) is useless to rely upon.

  73. or enjoin manufacturers from making what they had already in good faith tooled up to make, before the day on which the inventor brings his enabling disclosure to the Patent Office, for that would inhibit rather than promotes progress

    Except for the other tradition that if you do not share you do not get to complaign.

    There was always both a carrot and a stick.

    And it has absolutely nothing to do with vested interests of some lawyers.

  74. I heard a story of a bunch of monks in the middle ages who invented a new manufacturing process of making iron stronger and less brittle. The process was kept secret for a hundred hears or so and nobody could improve it because, well, nobody knew how they were doing it. It helped the monks because they were the only supplier, but it certainly did not promote the progress.

    Is that where we’re going with prior user rights?

  75. Before there were patents, everybody kept everything secret, so far as possible.

    Then there were patents. To promote the progress, you need inventions to be made available to the public, by release of an enabling written disclosure. So, to encourage that release, Governments grant a 20 year exclusive right, in return for the release of the enabling disclosure at the start of the period of exclusivity. The scope of the claims ought to be commensurate with the extent of enablement.

    The exclusivity ought not to cover that which is old or obvious, or enjoin manufacturers from making what they had already in good faith tooled up to make, before the day on which the inventor brings his enabling disclosure to the Patent Office, for that would inhibit rather than promotes progress.

    How does that sound? It is the AIA. It promotes progress in useful arts, job creation and technological innovation but not in the vested interests of some lawyers.

  76. which is the exact opposite of a PUR case.

    Completely wrong – the PUR must prove by C&C.

    I sense a cloud coming from the dark side (obtuseness is spreading in).

  77. How would you feel if you were a third party with this public domain stuff,

    You’d feel like suing your lawyer, I think. Assuming you’re talking about someone with good prior art, which is the exact opposite of a PUR case.

  78. This is a basic patent question from a curious non-lawyer, but if new inventions are protected by secrecy, how can others build upon them to promote the progress?

  79. How would you feel if you were a third party with this public domain stuff, but not the patent holder and not the PUR holder, but you are shut down and have your job un-created?

    Oops – a question too close to the death star, better make an amusing notation that sockpuppets are running amuck.

  80. siding with the power-hungry imperialists

    Except that they are not. It is the power-hungry imperialists that are cloaking in secrecy.

    You have your scorecard upside down.

  81. there are those in the game trying to reinvigorate the guilds. Can’t forget about them.

    Anybody else find it amusing that the Star Wars-themed sockpuppets are siding with the power-hungry imperialists who are trying to take over the Senate?

  82. because there’s apparently no middle ground.

    After the lead dog, the view is the same for everyone.

  83. They’d have sorted out those bugs much quicker.

    It’s too bad that they are not the only ones in the game – there are those in the game trying to reinvigorate the guilds. Can’t forget about them.

  84. Yes – to them it is a secret. If it is not a secret, they can find it out. If they can find it out, then WHY THE HELL is someone else getting a patent on it?

  85. How is that difference than a secret?

    When you meet somebody, do you immediately tell them every single fact you know? Of course not. Does that mean everything you don’t tell them is a secret?

  86. America is considered the bastion of the self-made man, the rugged individual, the home of the anti-Guild.

    Bastion of the self-made entrepreneur and the rugged, happily oppressed worker? Be sure to choose wisely between those two roles, because there’s apparently no middle ground.

    Too bad those self-made men were made in America, instead of in some bastion of quality workmanship. They’d have sorted out those bugs much quicker.

  87. They might have just not decided to tell anybody yet.

    ???? How is that difference than a secret?

    how would you feel about someone suing you for an injunction based on a feature they invented a whole year after you started using it? Something like that might even un-create your job.

    Real bad – especially if – as necessary to prove PUR – the item was in public domain. In that case the patent should be revoked. Not ketp alive. And not having soem sui generis right created for the benefit of someone who has “not yet decided to tell anybody.”

    How would you feel if you were a third party with this public domain stuff, but not the patent holder and not the PUR holder, but you are shut down and have your job un-created?

  88. The only thing I truly don’t and will never understand, is when you saw the third one. And it too was like no other, didn’t you just once feel shame? Of course not you were to busy getting accolades for crushing me. And having me live like a pauper while you sucked me dry. Let go Berkenstock NOW!

  89. You say I missed a part. True. I did. Where is it?

    You draw my attention to Tears 8. And?

    How do we know that “the Guild mentality is stronger in ROW”? News to me.

    Amused to read that bias is “innate” in me. Sharp at spotting that sort of thing, are you?

    I’m only calling it (a CPC Right of Continued Use, that is) as I have seen it here, in use since the 1970′s, and AIA PUR is inspired by CPC RCU.

  90. and had decided to keep it secret.

    They might have just not decided to tell anybody yet.

    If you were developing (or selling) a complex product, how would you feel about someone suing you for an injunction based on a feature they invented a whole year after you started using it? Something like that might even un-create your job.

  91. Nothing. Who said he couldn’t get a patent?

    Lolz – nothing. In fact, this is even better for Big Business.

    Let the fxxl get a patent, spend the time and money to get a right that can clear the rest of the market before the secret user marches in and enjoys his free-rider spoils.

  92. Any view being expressed about the impact of PURD is simply speculation and guesswor at this point. The data is simply nonexistent or insufficient (including that from current 35 USC 273 which affects only “business method” patents, as well as foreign PURD provisions). The USPTO in its report on PURD would have done better to simply label its views as “conjecture” because there is insufficient data in existence at this point to make any factually based determination on the impact of PURD.

    Another misconception I see being expressed here relates to the interplay between the new PURD provision and new 102(a)(1) of the AIA (the Abominable Inane Act) as to what “otherwise available to the public” means. That issue is being explored on Patent Docs through a very thoughtful article posted by Kevin Noonan. There seems to be the assumption that PURD equates to an invalidating act under new 102(a)(1). That’s not necessarily true as PURD could exist, but would not be available to others who aren’t privy to the prior user who can assert the PURD because the PURD is based on “secret use” which is deemed not make the invention “otherwise available to the public.” It’s also possible that new 102(a)(1) will be read to make events that are available as a PURD a patent invalidating event under 102(a)(1) based on the Metallized Engineering case remaining good law. In this regard, new 102(a)(1) retains the phrase “public use” which was the basis for the Metallized Engineering case.

    The problem is that section 3 in particular of the AIA is so inartfully drafted that it leaves open these language “landmines” that we won’t know how the courts will interprete them (or whether they’ll interprete them correctly) for years after the “first to file” regime becomes effective next March. These various provisions of the AIA (e.g., PURD and new 102(a)(1) don’t mesh together well at all. The interplay between PURD and new 102(a)(1) is just one glaring example of this problem. (Another is what is the “effective date” of a particular patent claim for the purposes of what is or is not prior art, which involves a mind numbing consideration of at least new 100(i)(1), 100(j), 102(a)(1)&(2), and 3(n)(1)of the AIA relating to the effective date of the “first to file” regime.) So to call the AIA “patent law reform” is oxymoronic in my view.

  93. could be enjoined (and bankrupted) by some Johnny Come Lately patent owner who only got round to filing after the factory was up and running

    You missed the part where this is easily defeated – or – Johny come Lately’s patent should be wiped from the books.

    They might well conclude that their funds are more safely invested in a new factory in a country that does have a PUR.

    See the comment by Tears from Section 8.

    Perhaps that is why ROW does PUR?

    And perhaps this is because the Guild mentality is stronger in ROW. There is a reason why America is considered the bastion of the self-made man, the rugged individual, the home of the anti-Guild.

    Every point you make works against you, evincing an anti-American viewpoint – no surprise at all considering your innate bias.

  94. Particularly small inventors who invent something that a big company was already using a year ago and had decided to keep it secret.”

    Fixed.

    The Guilds strike back.

  95. bja–

    Agreed, see my post below.

    This militates in favor of operating under a university CRADA rather than under a private agreement.

    When this advantage is combined with the access to government money that association with a university can bring, it can be seen that there is a movement afoot by the universities to effectively capture certain kinds of research, or at least to have access to a piece of the pie.

    This movement is abetted by organizations like NIH, who often reserve funding for university destinations.

    You said it very well:

    “Big winner: University research and tech transfer offices.”

  96. It is clear that the small inventors are hurt the most.

    Particularly small inventors who invent something that a big company was already using a year ago.

    Also, what is wrong with a small inventor who cannot bring a product to market seeking compensation for their invention?

    Nothing. Who said he couldn’t get a patent?

  97. Key employees move around. The secrets of the factory seldom stay secrets forever.

    One way of looking at PUR is as written above. Thus:

    “But if you want to hide your stuff under a bushel, keep it from society and then whine and complain that someone else has shared it with the hopes of patent rights, well, then your tears are lost (and should be lost) in the wind. In those cases, you deserve no pity, and it is only well-monied interests that have made it different.”

    Another way though is that the patent system does not do its promoting of the progress of useful arts by forcing every manufacturer to open up every factory into a public park, where everything is open to free inspection by all and sundry. Those contemplating investing in a new manufacturing enterprise are not going to derive any encouragement to do so from the thought that their venture could be enjoined (and bankrupted) by some Johnny Come Lately patent owner who only got round to filing after the factory was up and running.

    They might well conclude that their funds are more safely invested in a new factory in a country that does have a PUR.

    Perhaps that is why ROW does PUR? Where are all the new factories being built, these days?

  98. Dennis–

    “My conclusion that prior user rights will have very little impact on innovation and access…”

    How do you reconcile this with Vaughn’s testimony that assertion of prior user rights against university-held patents would be detrimental to university interests?

    Your conclusion that prior user rights would help universities because “University derived inventions become relatively more valuable because their patents are excluded from the prior user defense.” is inadequately one-sided…universities themselves WILL NOT be able to assert prior user rights against other universities, which fact seems to be completely ignored in your above analysis.

    BTW I don’t accept the logic behind the university exemption. It is another IP land-grab by what now should be considered to be a heavily-publicly-subsidized industry sector. Yes, it is regulated to some extent, but not to any extent greater than any other large-scale, sophisticated undertaking.

  99. The prior user right is about secrecy

    Fixed.

    Level playing field versus the Constitutional clause to promote….

    Yes, we see who is the loser here.

  100. Robert,

    I do not believe that your point of those who choose to not patent are somehow disadvantaged by those who do patent is sustainable.

    The point being made with the lapse in time (from PUR to someone else’s filing) is that any such resulting patent must be invalid and should be wiped from the books. Strangely though, the law is written to expressly make this not so.

    Further, the patent system exists for a reason, and whether you like it or not, our founding fathers felt so strongly about it that they wrote the power into the constitution – arguably with more intent than anything found in the bill of rights. Think about that for awhile.

    The actual issue here is the cloak of secrecy enabled by Prior User Rights. This cloak is anathema to anyone who understands the philosophy behind patents. It comes down to a simple choice: secret or not secret – note that it is not a choice of secret or patent. Patenting can be expensive and there is some truth to the position that one may not want to patent all of one’s advances. But there is a relatively cost-free way around that – merely make that which you do not want to patent public and no one then can patent that material.

    But if you want to hide your stuff under a bushel, keep it from society and then whine and complain that someone else has shared it with the hopes of patent rights, well, then your tears are lost (and should be lost) in the wind. In those cases, you deserve no pity, and it is only well-monied interests that have made it different.

  101. Why are individual inventors not in your list?
    The rights of individuals over large business continues to erode. It is clear that the small inventors are hurt the most.

    Because “This bill answers the urgent need to create jobs right away” – Obama.

    And everyone know that it is the small businesses that create jobs.

    No wait, something is not adding up here.

    Who paid for this AIA?

  102. Hypothetical
    So if a persons Trade Secret was stolen.. ? Then a University or someone that gives the Trade Secret to the University now claims it as their Idea and it’s free because they got a hold of it. Is that what you are saying? NOT.. So if the Government knows where the holes are, then why are their holes?
    But what if this Trade Secret is not an easy LOLOLOL design around (believe me when I tell you how long it took to make it this simple)then this becomes even more dastardly and more dangerous for the University to claim as theirs. GOOD LUCK!

  103. Why are individual inventors not in your list?
    The rights of individuals over large business continues to erode. It is clear that the small inventors are hurt the most. Yet the focus on big business and universities (actually similar to large organizations with time and money to effect legislation)is causing the biggest problems for inventors.
    Also, what is wrong with a small inventor who cannot bring a product to market seeking compensation for their invention? In the hurry to squash “Patent Trolls”, we squash the small inventor. Often, the only source of return for him/her are the firms that are classified as trolls.

  104. I think it’s a boon to universities who have joint research deals with companies. If the university holds the patent and licenses exclusively to the company, the company can now get around ALL prior user rights. Under the old statute, prior user rights only applied to software, and no one could pierce it.

    For R&D processes such as test procedures and setup (biotech), this makes partnering with your university to use them as a holding company very valuable. If you patent lab processes (which were frequently trade secrets before), you can retain the ability to shut down your competitors’ R&D, regardless of the expanded prior user rights.

    Big winner: University research and tech transfer offices.

  105. The world is not made of patents.

    A substantial proportion of technical know-how used to make products in today’s market is not patented. Why should the first to commercialize (i.e., create jobs) be penalized under a patent applied for more than a year after preparations to commercialize? Shouldn’t the one who takes the risk of bringing a new product to market be rewarded over someone who files a document with an administrative agency more than a year later?

  106. The prior user right is about choice. Now you choose whether or not to disclose information you would rather keep as a trade secret rather than be forced to apply for a patent as a defensive measure.

    This is good for US business, because US companies no longer forced to tell the world about their valuable trade secrets while the rest of the world does not tell us their trade secrets due to prior user rights in their countries. Congress has now levelled the international playing field :).

  107. most qualifying prior uses may be irrelevant and out-of-use by the time that the USPTO issues the covering patent. Most recently issued US patents have an effective original filing date of more than four years ago. This provides a window of at least five years for most prior users to legally practice the invention without recourse even in the absence of the prior user defense. In many areas of technology, the original prior use will have become obsolete by the end of that five-year timeline – allowing the prior user to move to a new technology without ever needing to obtain a license or permission from the patent holder.

    This indicates that he granted patent rights are siomply a dead wight on society because they take too long to issue. Either this is true and patents are worthless entirely, or this is not true and there is something wrong with the Prior user bouncign around from one technology to another and never “paying” for their use of technology that belongs, as a right, to someone else. Either way – something is not right here.

  108. All NPE’s must do to get around the “weakness” is to shop from Universities.

    I foresee a new cottage industry of Univeristy Spinnoffs. I wonder how many universities have “Trolls” as a mascot?

  109. Two final concepts – lack of assurances and delay in patenting – push me to the same conclusion of little impact.

    Another 180 degree conclusion. These items create more uncertainty and as your table illustrates the net effect is that patents are devalued. The uncertainty is exasberated because the clarity will not be acheived until well after a patent is obtained and only then in the act of enforcing that obtained patent. Only after the time effort and expense has been put forth can this devastating “right” slink forth out of the shadows of secrecy and ruin the value of an earned patent right. ALL patents are devalued with the inherent rise in uncertainty because of PUR.

    Why are we embracing such changes to devalue patents? Who gains from weaker patents? (established companies that’s who). Who spent the big bucks in lobby efforts on these items? (connect the dots).

    Academics (and there are more than one) who pipe up and say “meh, not much will happen” remind me of the ivy league professors in economics who were swept up in the banksters wholesale rape on Wall Street. Where is the critical analysis of how this weakens the system?

  110. Exactly. This is all about what was filed and what I was entitled to, not what they whittled it down to. And that is why I got so many cover Letters claiming it was filed… How many exactly? And how different they were.

  111. are unlikely to have any real or measurable impact on the market for US patents,

    and

    these requirements look something like the eye of the needle and are difficult to pass through.

    Then why have the Prior User Rights at all? Why was there such a huge Big Money push that PUR had to be there? This smells too fishy. Follow the money.

  112. Further marginalizing the impact of prior user rights is the reality that the defense only adds actual value when the patent being asserted is valid. I.e., if the patent is invalid then there is no need for a prior user defense.

    This is dead wrong backwards.

    The prior user rights defense only comes about when the patent being asserted is invalid. This is because the necessary steps to prove a prior user rights defense includes (more than a year prior to filing the public was involved with the invention – a de facto statutory bar that somehow is being twisted into a private and personal exemption rewarding a party who has chosen not to share the details of the invention (the prior user).

    Either the patent is legitimate or it is not. Either it applies fully or it should not have been granted. This bastardization of allowing a patent in the face of such proof to allow one (but not allow all) is a travesty.

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