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).
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?
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.
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
I invented coke in 1958 Its all backdated to steal the inventions
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.
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.
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.
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
““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.
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 hard to find some good in a cretin.
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.
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.
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.
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.
“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?
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).
“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.
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?
Maybe, we shall see, shall we not? In the words of Mitt, let's bet $10k on that.
“, 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”
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.
“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!
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.
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.
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.
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.
“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.
“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.
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.
“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.
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.
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.”
Maybe, I consider your position to be a "bit" of a stretch. Let's agree to disagree.
“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?
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.
Looks like IANAE took his widdle ball and went home home.
Expect a call from his mommy.
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).
“constitutes a personal statutory bar”
That’s certainly debatable.
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.
IANAE and I agree on this.
Reading comprehension really isn’t your thing, is it?
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.
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.
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.
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.
Sorry, I meant to say paragraph (g) of Section 5 of the AIA.
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.
Thank you, your acquiescence is confirmed.
Do you think IANAE will understand this? (that’s a rhetorical question)
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.
“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)
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.
“I had supposed that”
translation: I had ASSumed that
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 😉
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?
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)
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.
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?
IANAE,
As much as I squint, I cannot see an answer here.
Please humor me better.
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.
Every infringer will manufacture evidence that they are a prior user.
AIA promotes domestic manufacturing. You heard it here first.
“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?
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.
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.
Another worthless comment by MM.
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.
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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
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?”
“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.
“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.
“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.
“You see, with discovery and cross-examination of evidence”
Is that provided for in the AIA? Where?
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.
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.
No, seriously Ned, stay away from statutory construction. You don’t know the basics of it.
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.
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.
It has been shown that statutory construction is not your thing Ned.
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.
Max, I think you nailed it.
Both are known to be certifiable.
Only MM pretends not to be.
What is up with commenters Sarah and MM filling these boards with junk? Does no one value real communication anymore?
Troll: blah blah blah sockie
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.