Battle over Secret Sales and Secret Commercialization under the AIA

by Dennis Crouch

Helsinn v. Dr. Reddy’s and Teva (D.N.J. 2016)

The America Invents Act of 2011 (AIA) amended the definitions of prior art under 35 U.S.C. § 102 – up for grabs in this case is whether the changes included a narrowing of the ‘on-sale bar.’  Prior to the AIA, the ‘on sale’ bar blocked patenting of inventions that had been “on sale in this country.”  Although not specific in the statute, courts interpreted the on-sale bar to include secret sales or offers-to-sell.  These typically include closed-door business-to-business and custom sales rather than retail sales.[1]  The AIA amended the statute in a number of ways – most pertinent here is addition of the ‘otherwise available to the public’ clause to Section 102(a)(1).[2]  The provision now reads:

Novelty; Prior Art.—A person shall be entitled to a patent unless—(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or

The question in this case is how to interpret the statutory phrase “on sale, or otherwise available to the public.”  The otherwise available to the public language suggests that the ‘on sale’ activity is also available to the public.  That reading, however, conflicts with the history of the on sale bar.  Which construction is correct?

The district court in Helsinn sided with the USPTO’s interpretation of the statute – that the AIA modified the definition of on-sale so that it now only includes publicly available sales activity.  This allowed the patentee in the case to avoid an invalidity finding based upon its own prior sales of the patented drug. On appeal, Teva offers its set of arguments to retain the old-meaning:

  1. In ordinary usage, an item is “on sale” whether sold privately or publicly.
  2. Courts have treated “on sale” as a term of art for almost two centuries for sound policy reasons grounded in the Constitution.
  3. Congress did not change the settled meaning of “on sale” by adding the phrase “otherwise available to the public.”
  4. The district court’s reading of “on sale” would render meaningless the crucial word “public” in [102(b)(1)(B)].
  5. A Committee Report and floor statements of two senators cannot accomplish what they failed to accomplish in the statute itself.
  6. The PTO’s interpretation is not entitled to deference.

[TevaSecretSaleBrief]

Professors Mark Lemley (Stanford) and Robert Merges (Berkeley) along with 39 other law professors have filed a brief in support of Teva’s arguments here – arguing that the new interpretation “would radically rewrite the law of prior art.”

The key legal question in the case is simple: did Congress mean to sweep away scores of established cases under the 1952 Act even though it reenacted language unchanged since 1870, merely because it added the phrase “or otherwise available to the public” to the list of prior art categories in the new AIA section 102? We think not. We have three primary reasons. First, the district court’s reading is inconsistent with the language and structure of the AIA. Second, it is inconsistent with Congressional intent in readopting the “on sale” and “public use” language in section 102. Finally, it would sweep away scores of cases decided over two centuries and radically rewrite a host of patent doctrines.

[TevaProfAmicusBrief] Moving forward, Helsinn’s responsive brief will be due April 21.

Of course, the issues here have been substantially debated already with commentators coming out on both sides of the debate:

= = = = =

AIA expanded the scope of prior art in a number of ways. This is one area, however, where it potentially shrunk the body of potential prior art.  Innovative entities with a robust business involving private-transactions and those who rely upon third-party manufacturers are the most likely to benefit by a changed-law.

An important policy question (that could also influence is the construction) is whether eliminating secret sales as prior art would actually allow an innovator secretly commercialize its patent for years and then subsequently obtaining patent rights.

= = = = = =

 

[1] The Federal Circuit has also include a manufacture-supply agreement. (E.g., a supplier seeking for to manufacture and supply your custom inventory).  This issue is currently being reconsidered by the Federal Circuit in the en banc case of Medicines Co. v. Hospira.

[2] The statute also eliminating the ‘in this country’ limitation for on-sale prior art and limited the one-year grace period associated with the on sale bar.

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

129 thoughts on “Battle over Secret Sales and Secret Commercialization under the AIA

  1. A (slightly different) line of thought, re: “An important policy question (that could also influence is the construction) is whether eliminating secret sales as prior art would actually allow an innovator secretly commercialize its patent for years and then subsequently obtaining patent rights.

    How does the sui generis “Rights**” of Prior User Rights (“PUR”) impact the policy under consideration?

    **quotation marks around “rights” as these are actually a defense and not to be confused with a patent right itself.

    If one thinks about the “policy” involved with the (somewhat) new creation of protecting things expressly not shared – and whose existence would come to light only when someone with a patent right tries to enforce that (presumptively) valid patent right – one has to consider that Congress has indicated its policy view that not sharing falls in line with the patent mandate.

    If one can have protections when NEVER sharing, why in the world would protection be denied at whatever point it is decided TO share? The person so waiting still runs the risk of not being able to obtain a patent and the underlying theory that a patent right (according to all other aspects of patent law) can be said to be earned still means that the Quid Pro Quo has been satisfactorily reached.

    Granted, I find the entire concept of PUR to be repulsive, but if one it going to accept that concept as indicating the will and due policy considerations of Congress, then the full impact of such “considerations” necessarily bleeds through to the current topic.

  2. “The key legal question in the case is simple: did Congress mean to sweep away scores of established cases under the 1952 Act even though it reenacted language unchanged since 1870, merely because it added the phrase “or otherwise available to the public” to the list of prior art categories in the new AIA section 102?”

    I F’in hope so. The interpretation over the last two decades has been ridiculous.

    1. To be clear, the interpretation of the on-sale bar by the end of the 20th century was simply a landmine and had no real basis in sound policy.

    2. As I note below, the changes to 102 included the change in title.

      No one has provided one credible reason for a change in title that supports the scrambling attempts to make that very title change not only meaningless, but contradictory.

    1. It is hard to imagine anyone in the judiciary of the USA is anything but an ego maniac that believes he is just the smartest little boy on the block and has been put on the SCOTUS to make laws for us peons. Particularly anything that comes from Obama (aka, the Google stooge.)

    2. Les: Does Garland have a record on 101?

      He’s on the record as stating that the term “process” as used in section 101 unequivocably includes all method claims, including methods carried out purely in the human mind. He says he would have decided Prometheus in favor of the patentee and he wrote in a 2015 article that Alice is a quintessential example of the Supreme Court unconstitutionally rewriting the law to favor multinational corporate interests.

  3. In response to flaky “Congressional Record” or “Congressional intent” arguments, the Metallizing Engineering equitable forfeiture doctrine is so rarely invoked that even many patent attorneys are not aware of it [or confuse it with a statutory on-sale bar]. Thus it is absurd to assume that the non-patent-attorney members of Congress passing the AIA statute were even thinking about that equitable doctrine much less deliberately intending to overrule it.
    There is not the slightest indication, nor is it credible, that Congress intended to overrule the Metallizing Engineering doctrine to allow someone to commercially practice a secret process for an endless number of years [with trade secret law protection] and then after all that time still be able to file for and obtain patent protection for another 20 or more years.

    1. Thanks, Paul. I was wondering if there was anything in the Congressional record to support Helsinn’s position. It seems like the answer is “there’s nothing.”

      1. MM I have no idea what Helsinn’s position will be on appeal to the Fed. Cir. I do not see how the Metallizing Engineering equitable forfeiture doctrine was, or needs to be, properly invoked in this case. It seems to me that the relevant issue in this case is only whether or not the AIA removed secret on-sales as 102 prior art, and as to that there seems to be debatable-applicability Congressional record remarks.
        [P.S. J. Scalia may be dead but his judicial criticisms of interpreting statutes by reference to Congressional record remarks, especially by individual members, live on.]

        1. the relevant issue in this case is only whether or not the AIA removed secret on-sales as 102 prior art

          Paul, do you have an opinion as to the scope of what would remain if the “secret” sales are removed?

          Would entities engaging in a sale without a confidentiality agreement attached to the sale need to publish the details of the sale for that sale to be deemed “non-secret”? Or is such a sale (i.e., one without a confidentiality agreement) deemed “available to the public” even if nobody other than the two parties (the seller and buyer) knows about it?

          1. I have not speculated on that. But if normal trade secret law was applied, would not the secrecy end as soon as the invention is published OR a product disclosing the trade secret is left unprotected, that is, left open to unrestricted inspection by any member of the public, irrespective of confidentiality agreements or their violation by a party that was supposed to be maintaining their secrecy?

            1. Paul: if normal trade secret law was applied, would not the secrecy end as soon as the invention is published OR a product disclosing the trade secret is left unprotected, that is, left open to unrestricted inspection by any member of the public, irrespective of confidentiality agreements

              I would assume so.

              I’m thinking of a scenario, however, where (1) there is no confidentiality agreement but also (2) no knowledge of the sale outside of the two parties (because the innovation is used internally) until, of course, the sale is discovered/revealed in the course of litigation or some other attempt to invalidate the patent.

  4. The primary rational for the prior court interpretations of the on sale bar to encompass secret sales was a desire to prevent a patentee from extending the length of their patent right beyond the statutory period. This was made possible under the pre-AIA law because the first inventor always or almost always would have superior rights as against any subsequent inventor who was first to file. The AIA prevents this scenario from occurring by giving the first inventor to file superior rights to the patent. If you believe simultaneous invention is the norm rather than the exception secret sales do not provide the same level of problems as they did under the pre-AIA system. Therefore, it seems to me that the structural changes inherent in the AIA remove the strong policy rational for having secret sales count as prior art.

    1. “We think, then, the true meaning must be, not known or used by the public, before the application. And, thus construed, there is much reason for the limitation [regarding limited times] thus imposed by the act. While one great object was, by holding out a reasonable reward to inventors, and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius; the main object was “to promote the progress of science and useful arts;” and this could be done best, by giving the public at large a right to make, construct, use, and vend the thing invented, at as early a period as possible; having a due regard to the rights of the inventor. If an inventor should be permitted to hold back from the knowledge of the public the secrets of his invention; if he should for a long period of years retain the monopoly, and make, and sell his invention publicly, and thus gather the whole profits of it, relying upon his superior skill and knowledge of the structure; and then, and then only, when the danger of competition should force him to secure the exclusive right, he should be allowed to take out a patent, and thus exclude the public from any farther use than what should be derived under it during his fourteen years; it would materially retard the progress of science and the useful arts, and give a premium to those who should be least prompt to communicate their discoveries.

      Pennock v. Dialogue at 19.

      At the time of Pennock, the Court did not have a clear understanding of a process patent, i.e., a patent on a method of making something. But the principle here is the same when the process is secret but the product is sold publicly. There is a bar from the date of the sale of the product to the public. To allow otherwise would extend the period of monopoly where the public is not free to practice the invention.

      I don’t think this has anthing to do with rival inventors.

      1. Ned,

        First the “process patent” as you call it is NOT limited to a process of making something (your error in making that category into a sub-category of the hard goods categories).

        Second, the SECOND someone engages in having that patent, they lose the protection that THE PATENT provides.

        Have a patent on an item? Sell the item and lose the protection.

        Have a patent on the item, but have a trade secret on the particular process? You are in error to mix the item patent on the non-patent process.

        As I mentioned below – there is a VERY easy way to maintain focus here.

  5. Prof. Crouch,

    You do realize that every time you employ your selective editing, you are weakening your “protection” against turning over poster identities, right?

    Not to mention your credibility joining those whom you “protect” with your edits.

    I have to wonder: Who is pulling your strings? Why the “secrets?”

    1. I have it on good authority that Prof. Crouch is part of the shadow lizard government too.

      1. That may or may not be, but it is beyond odd to think that the selective editing will do anything except reinforce the perception that this blog lacks a critical objective stance – something that may come into play if anyone (such as HoPB) seeks redress against another** (such as Malcolm), and the good professor is privy to Malcolm’s real identity.

        Removing my objectively true (and even polite) comments as to such is like a tell tale heart.

        **among other possible causes created by users of this blog.

        1. I find the term “critical objective stance” on the Internet translates as “agrees wholeheartedly with my opinion because no reasonable person could think any other way.”

          As to the identities of commenters on this blog, if you have a legitimate beef with anyone, there are courts for that. I don’t think Prof. Crouch should narc on people just because you want to inflict some offline “justice” on them.

          1. Wasn’t me that reached the level (read my post a little more closely).

            You also missed that IF the court route is contemplated, the good professor likely WON’T have the option of NOT being “a narc,” based on his lack of objectivity.

            The selective edits and closure of the previous thread won’t change that (and in fact, make it worse for him).

            That’s kind of the point of the post above.

            Yay ec(h)osystem !

            1. I don’t quite know what you are going on about. It is well settled law that bloggers are protected by Section 230 of the CDA when they moderate comments on their blog. There is no obligation to be objective in their moderation.

              1. That is just not correct – the “moderator” in those scenarios does NOT play a role in shaping the subjective content. Such actions place the “editor” as a contributor and removes the protection.

                Your version is just a sham (and a shame)

                1. Your misunderstanding of section 230 is plainly wrong. And it is intellectually dishonest to pretend otherwise. Your theory of “an editor shaping the subjective content” losing the protection of section 230 has no basis in law and you demean yourself to pretend otherwise.

                2. No misunderstanding on my part.

                  See (for example): “You will not lose this immunity even if you edit the content, whether for accuracy or civility, so long as your edits do not materially alter the meaning of the original content. ” at link to dmlp.org

                3. (we are also not talking about Prof. Crouch being liable for Malcolm’s actions – but that Prof. Crouch won’t be able to not hand over Malcolm’s identity if HoPB subpoenaed that information)

                  Your aim is a tad off.

                4. Hah. You are really turning into Anon Quixote. Or maybe you are Anonhab. There are many ways to Prof. Crouch could motion to quash such a subpoena if he were so inclined. However, I am disinclined to rely on your word that anyone, this HoPB character included, has a meritous case about… well quite frankly, anything.

                  And your quote about section 230 reinforces my point. The “so long as your edits do not materially alter the meaning of the original content” means that you can’t alter a sentence like, “Anon did not shoot JFK” to be “Anon did shoot JFK.” There is nothing about subjectivity or objectivity.

                  Beside, subjectivity or objectivity of moderating a comment section is not relevant as to whether the good Professor would have to hand identifying information over in response to s subpoena. That is the source of my initial confusion as to why you think it would matter.

                5. Your confusion remains good sir, as you clearly do not see the material effect of the selective editing. My helpful links do NOT reinforce your points (in fact they show you to be off target – just as I indicated).

                  As it stands, your “other motions” options remain vague and unsubstantiated. You can choose to “follow up” with something more substantive at your leisure, but your still need to come to grips with what is going on (which you have shown no inclinations as to doing).

                6. The information to find out who MM is irl is already out there anon, why bother with all this? Not bright enough?

                7. 6, please read better – I was clear that it was not me looking for Malcolm’s real identity.

                  I just don’t give a rip who he is.

    2. Try substantive responses rather than mere personal insults and your “comments” will not get filtered.

      1. Your repose merits a grade of a big F. U need to pay attention as substantive and on point posts were removed as well.

        I have distinguished my posts from “mere personal insults” – and while I fully admit to using ad hominem (since that is what I see enforced), my ad hominem is on point and pointed.

        You may not like it, but hey, I am not here to “make you happy.”

  6. I see at least four acts of prior sale. There are those which are secret but commercial, which act as a personal bar. There are those that are not commercial but, because they are non-secret, they are prejudicial to novelty. There are those easy cases in which the prior sales are both commercial and open, and there are those where the prior sales are both secret and non-commercial and thus made nothing of the invention” available” to any member of “the public”.

    When it is possible to judge what is novel only after there has been discovery, no wonder 6, sitting in the USPTO and commanded to examine for novelty, is frustrated with the wording of Section 102 as amended by the AIA.

    1. The interesting four-square created with the axis of “commercial” and “secret” has the tendency to misapprehend and to mistake the separateness of trade secret law (non-federal, at least to date) and patent law (expressly and pre-emptively federal).

      Even great judges of past made this mistake.

      The picture is a lot more clear if one can keep focused on the differences and not get clouded by thinking that any amount of “protection time” under trade secrets impacts “protection time” under patents.

    2. Good analysis Max, but misses one more important additional factor: whether or not the product offered for sale or sold [either secretly or publicly] contains what is being patented or discloses what is being patented. That is essential for an “on sale” statutory prior art bar, and distinguishes it from the Metallizing Engineering equitable forfeiture doctrine.

      1. Perhaps critical is the understanding (and distinction) between merely “containing” and “disclosing” in a manner fit to merit the designation of “prior art.”

        Something can very well be “contained” but NOT satisfy a “disclosure” meriting being called prior art.

      2. Good point Paul. The underlying public policy reason for a personal bar is different from that which dictates that some acts of prior sale shall destroy patentable novelty.

        Why should the State hand out a 20 year monopoly for subject matter that the public already has. The good patent gives the public some teaching it never had before, while the bad patent deprives the public of something it had already acquired.

        The personal bar is there for a different reason, nothing to do with disseminating technical knowledge as soon as possible. It is to discourage Inventors from having their cake and eating it too.

        Can the courts grasp that distinction. One hopes so, even if it is all too highfalutin’ for the Congress.

        1. You presume that this was TOO high falutin for Congress, when the words of Congress directly say otherwise.

          The level of effort to NOT understand is tremendous.

    3. Meh, I’m not that worried about on-sale stuff. In my art my dudes don’t tend to be selling these things immediately it doesn’t seem. Or else they’re keeping even those sales secret.

  7. I’ve spoken on this case before so I will just say this now:

    KSR stated what is only common sense – the most common sense things are not written down. The example I like to give is when you walk into a restaurant that takes reservations and ask how long the wait will be, the hostess looks over the restaurant and performs a method. The method utilizes variables like what the party size is, what the reservations are, what tables are available, what tables are being cleaned, what tables are likely to finish up soon, etc. This method is run and then a result is generated. You’re hard pressed to find a publication of this method, but it is ubiquitous.

    That is one example, there are others. The first time a patent comes up where everyone knows something has been within the public purview but it doesn’t fit within the boxes of 102 (whether the federal circuit has construed those boxes as small or large) there is going to be a rather massive issue because the court will come to the conclusion the patent must fall. It will be a results-based inquiry. If the court has to resort to the Constitution to remove the patent they will, whether that means reinterpreting this interpretation, or creating a 102 judicial exception, or striking 102 all together.

    The court has already said that novelty is a constitutional requirement. If Congress were to remove 102/103 as a grounds of invalidation altogether the court would reinsert a form of it. If Congress enacts a 102 that is insufficiently strong (as this interpretation of the law *may* prove to be) the court will strengthen it. Congress lacks the power under the patent clause to secure rights that do not promote the progress of the sciences.

    1. The thing you seem to be missing is that it is EXPRESSLY not up to the Court to write that law (or re-write it, or “interpret it” into being).

      The Court cannot violate the Constitution in order to correct what it sees as a Constitutional violation.

      1. You are correct. If the Court finds a constitutional defect in the patent act, their only course of action is to invalidate the patent act.

        1. Still being blocked…

          The AIA contains that “all or nothing,” “too big to F A 1 L,” chaeb0l-like express rejection of severabi1ity.

          Something that NO ONE has put forth a cogent legal argument to overcome.

          (that is objective fact for which I am open to be corrected)

      2. The Court cannot violate the Constitution in order to correct what it sees as a Constitutional violation.

        Well here the court could overrule the interpretation of the language by the lower court. Teva’s relief is not unconstitutional relief, but I agree if they conclude the Congress intended to cut out necessary prior art a judicial exception is not proper and they would have to find the scheme unconstitutional.

        1. Teva’s relief is not unconstitutional relief,

          Not sure on its face – but I would have to read their brief in more detail to say yay or nay.

    2. That was a good example of prior art rarely applied in PTO proceedings [not even allowed in an IPR] but it does actually fit under 102 and is applied in patent litigation as prior art – as a 102 “public use.”

      1. Possibly public use. The use of the method is hidden, and it’s unclear (based upon the new interpretation of 102) whether it would fit under public use, i.e. if the rule sweeps away secret sales, there’s no reason to suggest it hasn’t swept away public uses where the inventive mechanism is hidden. Though I agree it probably would be public use.

        But it was only an example – if a youtube video covered content widely known and the only way to invalidate something was to cite the youtube video, the only conclusion that can occur is that the youtube video is prior art, even if it isn’t a prior publication. The court can’t allow Congress to issue a patent to truly previously known subject matter.

        1. Why would a publicly available, searchable, U-tube video not be a 102 publication, assuming its posting date can be proven to be prior to the filing date of the subject patent? Even for for pre-AIA applications, there is at least one CAFC decision holding an internet post to be prior art: Voter Verified, Inc. v. Premier Election Solutions, Inc., Nos. 2011-1553, 2012-1017 (Fed. Cir. Nov. 5, 2012) By clearly holding an internet-searchable prior internet-only publication to be a “printed publication” under [non-AIA] 35 USC 102, it seems to me that any distinction in that respect between the present 102 “printed publication” and the upcoming AIA 102 “printed publication .. or otherwise available to the public” has been removed?

          1. Voter verified just says that website text can be a printed publication like physical text, but those are still documents. For example, in Massachusetts Institute of Technology v. AB Fortia, 774 F. 2d 1104 the thing that made an open oral reading (to 50-500 people) of a paper a “printed publication” was not the reading, but the fact that a printed version of the speech had been disseminated (to 6 people). I simply don’t think either a video or an audio recording constitutes a printed publication absent the depictions being transcribed.

            Of course, this was never a problem prior to this, because a disseminated video tripped the “knowledge” prong, a prong which no longer exists. My problem isn’t with the dissemination, which is clearly sufficient, its with whether the act qualifies under the prong at all.

            So hypothetical: I invent, then I use the invented article in a “secret” manner (i.e. with only myself present in my house, for example) but I audio tape the act, and narrate what I am doing in a manner that, if heard, would enable the invention. I then disseminate the tape. I don’t think I’ve triggered public use (my use was secret), and I don’t think I’ve triggered printed publication because I have no printing. If the audio gets transcribed I still haven’t triggered printed publication (now there’s a printing, but no publication). When the transcription gets disseminated, now I’ve triggered prior art.

            This is no different than if I invent and then I tell someone everything about my invention. I haven’t triggered anything because the only thing I have done is conveyed knowledge (no patent, no use, no sale, no printing) which is no longer prior art. That’s why the decision is de facto bunk – everyone knows me telling a member of the public what I did must trigger prior art, but not under this ruling.

      1. The historical context of “requirement for invention” is wrapped up in the 1952 Act (Congress explicitly choosing NOT “invention” but rather the new 103 and obviousness.

    3. “Congress lacks the power under the patent clause to secure rights that do not promote the progress of the sciences.”

      You seem to be giving an awful lot of weight to a preamble that does not breath live and meaning into the body of the article.

      There are plenty of laws that don’t promote domestic tranquility, but are instead very divisive (e.g., reproductive rights, gun control). Does that make them unconstitutional?

      1. Except the court has specifically given weight to the clause, that’s the reason why the judicial exceptions exist for example.

        1. Not quite right, Random.

          The judicial exceptions exist because Congress in its early writings of patent law expressly shared its allocated authority with the courts to help set the meaning of the term “invention” by the legal writing t001 of common law evolution.

          This was expressly taken away in the Act of 1952, wherein Congress – in direct opposition to the mess that the Court was making (in its anti-patent views) put in place – instead of “invention” – the notion of obviousness.

          There is NO allocation in the Constitution for the Court to “give weight” as you so indicate. That is simply not what the Constitution does or allows. Patent law is statutory law and the ONLY way for the courts to properly “write” law is by leave and direction of the branch of the government allocated authority to control statutory law (and there is plenty of con law that is directed at the proper levels of such).

          You are getting con law wrong as well as getting statutory law wrong as well as getting patent law wrong.

  8. Re one side of this argument, Bob Armitage and others had expressed their intent during its drafting for the AIA to end “secret prior art.” That is, the kind of unknowable prior art that, when sprung later, can be highly disruptive of patent ownership and existing businesses. Thus, the AIA added 102 catch-all “or otherwise available to the public” should logically be read in the context of its combination with the other AIA 102 amendments eliminating secret prior art, in particular the elimination of 102(g) and 102(f).

    1. BTW, the sentence construction awkwardness of the end-tacked “or otherwise available to the public” was reportedly due to the desire to retain as much as possible of the original 102 language.

      P.S. That late AIA drafting compromise pales in comparison to another – the bizarre retaining of the “best mode” requirement in 112 while elsewhere in the AIA making it judicially enforceable.

      1. Paul, this makes a lot of sense. “Known” has was not previously in 102(b). But known was in the statutory framework in both England and the US since 1624, most recently, in 102(a). It would be odd not to include in the statutes going forward.

    2. P.S. to avoid confusion with 102 “on sale”prior art from products containing the invention, note that the Fed. Cir. has made it clear that the Metallizing Engineering doctrine is purely personal forfeiture precluding getting a valid patent on a secret manufacturing process commercially used for too long before filing on it, and NOT “prior art” of any kind.

      1. Paul, salient point, this: “Not prior art of any kind.”

        That is why the inclusion of “on sale” within the 103 reference should never have happened.

        The drafters of ’52 should have made it perfectly clear that “prior art” for 103 purposes was defined by 102(a) alone. I think that is what Federico understood it to mean when he was drafting the statute. But I am not sure Rich ever understood it that way.

        This issue went to the Supreme Court at one point where the Court gave it short shrift. But the issue was and is a serious one.

        It is sad, very sad, that the drafters of the AIA, once again, muddied the issue by putting “on sale” in 102, and then referred to the 102 in 103 as if everything in 102 defined prior art.

        We really, really should have been better served by the drafters of the AIA who could have fixed these ambiguities by careful drafting. They blew it.

        1. Ned’s remark to Paul F. Morgan of

          Paul, salient point, this: “Not prior art of any kind.”

          is “salient” – but NOT for what Ned and Paul

          (“ Fed. Cir. has made it clear that the Metallizing Engineering doctrine is purely personal forfeiture precluding getting a valid patent on a secret manufacturing process commercially used for too long before filing on it, and NOT “prior art” of any kind” )

          are portraying this to be.

          Point blank, Congress had earlier acted to “codify” by making certain personal forfeitures have the same effect – and to be legally treated as – prior art.

          It is beyond clear – and much opposite of the self-serving “flights of fancy” accusation that Paul launched elsewhere – that Congress purposefully changed the way that personal forfeitures were to be handled henceforth in the AIA.

          While not dispositive in itself (as headings are “just headings”) the fact of the matter (in conjunction with the soliloquy and other items) is that the heading of the NEW Section 102 deliberately deleted the phrase “loss of right to patent”

          Compare and contrast the following:

          Pre AIA:
          35 U.S. Code § 102 – Conditions for patentability; novelty and loss of right to patent.

          Post AIA:
          35 U.S. Code § 102 – Conditions for patentability; novelty

          Neither Paul nor anyone else has bothered explaining why Congress would take this move if they were NOT so removing personal forfeitures. A mere “shifting” of words (but somehow ignoring the Soliloquy) just does not explain the act of changing the heading. Congress could have easily – and in truth would have needed to NOT – change the heading if they desired no change in what lies underneath the heading.

          1. anon, good points, but consistent with the fact that I do not believe that Congress intended any change in the law regarding ON SALE by the new statute, but may have inadvertently made a change to the extent the new statute is not word for word the old.

    3. Paul, as you clarify later, “on sale” as properly construed is a personal bar and not prior art.

      The concern about secret prior art is a good one, but the whole AIA is loaded with secret prior art. Start with the use of patents and applications as of their effective filing dates. That was there in the first place (’52) because the filing date was considered by the Supreme Court as the date of prior invention. The whole point of going to FTF is to get rid of prior invention.

      Prior art is that which is publicly known. The all applicants applications should be measured against the prior art so that the patent not withdraw from the public that which is there already. But, if two filers claim the same invention and both otherwise have a right to a patent? — the first to file gets the patent. But this does not mean the first to file patent’s is prior art to anyone else as of its filing date. That is complete and utter nonsense.

      Then we add art that might be disabled because of common ownership that is not made public. Talk about lame-brained.

      Then we got rid of 102(f) as if not being an inventor of the subject matter of the patent is not important. This is constitutional in dimension. We cannot issue patents to people who did not invent the subject matter of the patent, but who pirated it from others.

      Next we have to address the whole comedy of a grace period. Who is going to know whether inventor has a grace period benefit until he claims it in the PTO or in the Court. This is nuts.

      Then we have universal public use. Why? The point of prior art is not to withdraw from the public that which it has. But a US patent does not withdraw from China a Chinese public use. What is the point of k!lling the US patent?

      1. Ned, you write:

        “But, if two filers claim the same invention and both otherwise have a right to a patent? — the first to file gets the patent. ”

        This issue preoccupied the writers of the EPC in 1973. But the hard problem is not to decide what the first filer gets. It is to decide how much to give the second filer. In 1973 the UK was operating a “prior claiming” regime. By then it had become discredited and well nigh unworkable. Yet now you advocate a prior claiming regime for the USA? I suggest that is not the way to go.

        1. Max, “How much to give the second filer.”

          In the US, we treat this as “obviouness-type” double patenting. I might believe the law in Europe is not dissimilar.

          1. Not dissimilar Ned? Can’t comment because I haven’t personally acquired any practice skills in “obviousness type double patenting” cases.

            Europe uses Art 54(3) EPC. Second filer B can claim on everything she files that is novel over the disclosure content of A’s earlier filed patent application. 6 and I could sort that out in ex parte PTO examination of B’s case, in the blink of an eye, or two shakes of a lamb’s tail. How long does your “obviousness type” thingie take?

            1. Actually, Max, we look at the claims only. The claims need more than not being word for word identical, they cannot be for essentially claim the same subject matter.

              Further, we (used to) provide that that one cannot claim the same subject matter in an issued patent or application unless the claim is filed within a year.

              35 USC 135(b)
              (1) A claim which is the same as, or for the same or substantially the same subject matter as, a claim of an issued patent may not be made in any application unless such a claim is made prior to one year from the date on which the patent was granted.
              (2)
              A claim which is the same as, or for the same or substantially the same subject matter as, a claim of an application published under section 122(b) may be made in an application filed after the application is published only if the claim is made before 1 year after the date on which the application is published

              This statute is repealed because they made the first filer’s application prior art.

              So the way this would work without a prior art basis is that applicants would police the issue themselves by the first filer copying claims from a second filer’s patent and then relying on his earlier filing date to have the second filer’s claims invalidated.

              Double patenting needs to be recognized statutorily and it should not depend upon who owns the patent. The first filer should get the patent, not the first to have the patent issue — that is unless the effective filing date of the two (patents) is the same.

              1. I agree with your last para Ned. Where we differ is on ways to implement that public policy objective cleanly and effectively.

                Under the EPC, Applicants can file divisional applications. On commercially important subject matter, they do. Claims in divisionals are supposed to be confined to inventions distinct from those claimed in any other patent application in the family of applications. It gets very fuzzy, what amounts to “distinct”. If you are worried about “double patenting” this matters.

                Conversely, when it comes to sorting out “who gets what” as between first filer A and second filer B, the EPC’s novelty section, Article 54, does a clinically efficient and equitable job. Meat and drink for EPO Examiners, who settle these issues effortlessly. So, if that is what you want, I commend to you the EPC’s so-called “whole contents” approach rather than the former UK “prior claiming” approach (which was already unworkable when the EPC was written in 1973).

                1. I sense a bit of “eyes clenched tight” obtuseness from MaxDrei in steering the immediate conversation to one of ONLY novelty and not including the obviously missing (and equally necessary) requirement of obviousness.

                  Open those eyes and see the entire picture – it impacts what you are talking about.

                2. On what is “necessary” in this context, and what is “obvious”, anon, opinions differ. On this particular issue, for example, the USA with the AIA is on its own, and egregiously so. Nowhere else in the world thinks that an obviousness test to adjudicate between rival filers and constrain double patenting is necessary or obvious.

                  The ROW’s 18 month A publication system is important (but not indispensible) here, you should understand. The UK had no obviousness test in ist “prior claiming” regime to adjudicate between rival filers prior to 1978.

                3. The necessary for this context MaxDrei does NOT differ and is NOT opinion: your “eyes clenched tight” is in regards to the fact that novelty is NOT the sole and full decider.

                  As I said: open your eyes to see the full picture.

                  Yes, other sovereign’s have chosen differently – that is a material point you are overlooking when you brag that you and 6 can make short work of the situation.

      2. Ned, you say “the whole AIA is loaded with secret prior art. Start with the use of patents and applications as of their effective filing dates.” Yes, that one obviously had to be retained, but in almost all cases that prior art only remains secret for only the 18 months until an earlier-filed application publishes. But what is the other secret prior art the AIA is still “loaded” with?

        1. You presume too much Paul, as even though perhaps not used nearly as often as it should be used, the non-publication request route remains available.

          Of course, this is not a preferred route of Big Corp, since they routinely will be foreign filing, but any (and all) NON-foreign filers should be making the non-publication route the default route. A non-publication request can always be changed (at a later appropriate time of review).

          Far, far, far too many people merely assume that a process for Big Corp should be the status quo, and that is just NOT an assumption that should be made for clients that do not operate internationally.

        2. Paul, you say it had to be retained? Why?

          Prior art is and always has been about information that is publicly available. Making patents effective as of their filing dates was a matter of prior invention which we wanted to eliminate.

          A problem occurs only when two applications are claiming substantially the same invention. This is effectively double patenting, but not by the same entity. One could grant the patent to the first to file, or to the first to issue, but not to both.

          All we needed to do is pick the rule.

  9. The more I think about this issue the more it really rankles me even though it literally will probably never directly affect my life. The courts should require congress to use formal langauge to say what they formally mean in the statute, no “awww shucks guys you know what we mean” for statutory interpretating.

    “A person shall be entitled to a patent unless—(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or”

    According to some folks what the congress really meant was:

    A person shall be entitled to a patent unless—(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, SUCH THAT IT WAS AVAILABLE TO THE PUBLIC or WAS otherwise available to the public before the effective filing date of the claimed invention; or

    Or something to that effect. Indeed, as anon likes to point out all the time, doing this sort of thing leads to statutory construction “disasters” like the state of 101 eligibility today. And while yes, I understand the courts have to play their role in governing, and I’m aware of the tradition of common law and the rest of the facets of our legal system, at some point in the history of the law formally actually writing the law should be required of the congress. Doing this sort of thing in 2016 (as opposed to the dark ages of 1952) just really rankles me.

    1. 6: The courts should require congress to use formal langauge to say what they formally mean in the statute

      How does Congress know what “it” means? Congress is composed of a whole lot of people and those people change all the time, just like the Supreme Court does.

      I think this statute is pretty darn clear, particularly given prior history. If you’re “rankled” by all the “confusion”, you should take it up with Helsinn and his attorneys. They’re the ones wanting to double dip.

      doing this sort of thing leads to statutory construction “disasters”

      That occasionally happens when the law is stretched far beyond what any of its drafters envisioned or intended. It’s best to stop the circus sooner rather than later, lest people get used to the free-for-all.

      This matter will be resolved quickly enough and these “rankled” feelings of yours will soon vanish into the haze. Trust me.

      1. “How does Congress know what “it” means?”

        They generally get to that by voting, and discussing. But that doesn’t really matter, as that isn’t the point, the point is for a janitorial staff (either congress people, or other lawyers) to ensure by some procedural mechanism that what is being said in the law the congress is thinking about passing is formally written. As in, the point is a procedural one to make sure that the congress passes what it means and doesn’t pass anything until it knows what it means. The congress will have to pass a “check” to make sure that the language it is passing is formally written, and, when it comes time to make sure that it is formally written then the congress can resolve any issues that come up, thus coming to a conclusion on what congress itself knows that it means. It’s essentially just a proposal for a congressional procedural action, and could even be done in committee.

        But yes, you’re probably right that this issue is probably mostly because of these particular folks.

    2. What comes to mind is that old saw about democracy being the worst system of government in all the world – except for all the others.

      1. Yeah but brosef, democracy has little to do with formal language not being properly employed and policed by procedure in the legislative process.

    3. Isn’t confusing ambiguity part of the legislative process? Isn’t this how legislators punt. They come up with language that both sides can argue means what they want it to mean so they can get enough votes to pass it….

      Hello, welcome to America.

      1. I’m not sure about that Les. I think we could probably enact a “janitorial committee”, at the least, or a small janitorial army of lawyers that aren’t congress people to go over the formal language and ensure such a thing doesn’t happen.

        We in the office have to ensure formal language is used to say what the folks mean, but then the congress, affecting more people than patents ever will, is not so required? That’s absurd.

        1. 6,

          The notion you speak of WAS actually engaged by Congress for the Act of 1952.

          One of those with the most understanding later became a judge applying that very understanding (an understanding FAR superior to ANY Supreme Court Justice).

          Guess his name.

          1. You’re misunderstanding what I’m proposing anon. They did not use formal language to make the intent clear (especially to their contemporaries), they left the intent quite unclear to their contemporaries precisely because they decided not to use good formal language to make any such advanced intentions clear. The drafting of the 52′ act took place in nothing but a legal backwater handled practically by two people and was practically a side show as best I recall. But even so, implementing my idea in the 1952 drafting, someone, hopefully other than those that helped to write it, and in helping to draft the statute, would make sure the drafting incorporated formal language to make clear any advanced intentions of the congress by ensuring good formal language is used. In that instance, on the subject of eligibility, they would use formal language to ensure all were clear that all the preceding caselaw considering abstractions, phenom, and laws of nature to be ineligible is thereby wholly overruled by attaching at the end a little part that says specifically “abstractions, natural phenomena and laws of nature” on the end of the 4 categories that were explicitly drafted for or in a little section after that sentence with the 4 categories. Of course then the scotus would probably tank the statute, but meh, that’s another topic of discussion.

            1. You recall incorrectly – and you have omitted the names of those two people.

              The choices (among them obviousness instead of invention) were clear, thoughtful, and aligned with the terms of art – the very topic here of the AIA and its inartful comstructions.

              My point is directly on point. You may have not realized what happened in 1952 fits your stated musings, but it certainly does fit.

              Please feel free to change and augment your view, but do not be silly and deny that the earth yet moves.

      2. As somebody once said “Politics is the art of the possible”. I agree with Les, that the art is to find a wording that attracts enough votes to pass.

        Take Article 69 of the EPC, which defines the scope of a claim in Europe. Back in 1973, a common path had to be found, between English “peripheral claiming” (ie define the boundary fence around the green) and German “central claiming” (ie define the position of the hole and flag in the middle of the green). You cannot have two positions further apart than this.

        The solution was for a Protocol to Art 69 to say that it is NOT the one or the other approach any longer but, rather, a position on claim construction which is intermediate between the British and the German which delivers BOTH fair protection for the inventor AND reasonable legal certainty for the public.

        And with that compromise, both English and German judges signed up, sure that what they were doing up till then was in accord with the mandatory requirements of Art 69 EPC. Germany continues to run a Doctrine of Equivalents, UK not. The new European Unified Patents Court will soon sort out any lack of harmony though, won’t it.

        1. You’re not even understanding what the issue is Max. The issue is not coming to some language that will pass because of its substance, as surely that must be done. But that hinges generally on the substance, not the language. The issue then is properly phrasing the language to be precise after the language of the proposed law is put up for consideration because of its substance. First you find the substance, then you find the language. If they’ve been legislating ar se backwards all this time then it is high time to switch that around.

          1. You 6 are missing the point that MaxDrei presents: sometimes in politics arriving at that substantive point and then providing precision of language will NOT happen precisely because the precision of language on a substantive point is NOT a point of agreement and there will be a deadlock with NO moving forward.

            In politics then, being “fuzzy” and allowing BOTH sides to maintain the illusion of not yielding on a precise point of an underlying opposing substantive matter is what PERMITS the larger legislation to proceed.

            The real world is just too messy for what you want (not that what you want is NOT ideal).

            1. “You 6 are missing the point that MaxDrei presents: sometimes in politics arriving at that substantive point and then providing precision of language will NOT happen precisely because the precision of language on a substantive point is NOT a point of agreement and there will be a deadlock with NO moving forward.”

              If that be his point then he should have said so. And I’m saying that if that happens then so be it, gridlock prevents action rather than creating a disaster zone.

              But remember, the congress could still act, I’m just saying we should at least try to have formal language be imposed by a janitorial staff prior to passing a given law. If the congress expressly decides to overrule the janitorial staff so that they can take an action then that may be permitted as well.

                1. You are both missing the point.

                  The point Max was making, the “gist” of his insight was, that:

                  Les IS RIGHT!

                  Lets dwell on that a moment, shall we?

                2. Lol – my discussion may be tangent to that point, but does not mean that my pointing 6 in the right direction as to what MaxDrei was saying was “missing the point” of what MaxDrei was saying.

                  😉

  10. I should like to know what source the drafter of the AIA drew upon for the language “made available to the public”. Does anybody know. Can anybody suggest one?

    I can. The 1973 text of the novelty section of the European Patent Convention.

    If you (the USA) are going to switch from First to Invent to First Inventor to File, for the sake of international harmonisation, why not, while you’re about it, draw inspiration from the ROW definition of the state of the art, fitting to a FtF world?

    Or is there another source, within the USA, more likely than the EPC, as the source of the words “made available to the public”?

    If not, when borrowing this wording from the EPC, was the deliberate intention that it should mean something totally different from what it means in the EPC? That would surely be perverse, wouldn’t it?

  11. A Committee Report and floor statements of two senators cannot accomplish what they failed to accomplish in the statute itself.

    Granted, I have not yet read the brief, but this statement F A I L S of its own accord, because the statute itself DOES accomplish what the Senators stated – and as previously noted was duly on the record for the final Senate vote.

  12. “Courts have treated ‘on sale’ as a term of art for almost two centuries for sound policy reasons grounded in the Constitution.”

    If they would have stopped at “for sound policy reasons”, this makes sense to me. Adding “grounded in the Constitution” does not.

    Article One, section 8, clause 8 states:

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

    There’s nothing in the Constitution about an on sale bar or policy for the same. Where’s Scalia when we need him?

    1. Patent Bob, “on sale” is indeed based on the constitution. Pennock v. Dialogue relied heavily on the “limited times” aspect of the Patents Clause.

      May I ask, politely, Mr. Bob, whether you formed your conclusions about the constitutional issue before or after you read Pennock v. Dialogue?

      1. Ned,

        Your view of Pennock is deeply flawed.

        Years ago this was extensively brought to your attention.

        You need to read that case again Ned – this time without the desire to read your foregone conclusion into the case.

      2. Ned, while Pennock quoted “limited times”, for example:
        The constitution of the United States has declared, that congress shall have power “to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.” It contemplates, therefore, that this exclusive right shall exist but 17*17 for a limited period, and that the period shall be subject to the discretion of congress. The patent act, of the 21st of February, 1793, ch. 11, prescribes the terms and conditions and manner of obtaining patents for inventions; and proof of a strict compliance with them lies at the foundation of the title acquired by the patentee.
        27 US 1, 16-17.

        The court engages in statutory interpretation with historical analog reference to the Statute of Monopolies. I assume you are not saying that the IP clause is frozen to the English courts’ interpretation of the Statute of Monopolies in the 1780s?

        My reading is that Story says: Congress passed a statute under this provision; we are asked to read the statutory language to determine what it means — in this case:
        First Section
        The first section provides, “that when any person or persons, being a citizen or citizens of the United States, shall allege that he or they have invented any new or useful art, machine, manufacture, or composition of matter, or any new or useful improvement on any art, machine, or composition of matter, not known or used before the application
        ….
        Sixth Section
        The sixth section provides that the defendant shall be permitted to give in defence, to any action brought against him for an infringement of the patent, among other things, “that the thing thus secured by patent was not originally discovered by the patentee, but had been in use, or had been described in some public work, anterior to the supposed discovery of the patentee

        Specifically, that Congress used two different phrases: “invented [thing] not known or used before the application” & invention “was not originally discovered by the patentee, but had been in use, or had been described in some public work, anterior to the supposed discovery of the patentee”

        Story reconciled the difference by saying the patent act is concerned about public knowledge or public use. He reasoned that the literal terms were not correct (because the patentee’s own knowledge or use would defeat the provision itself it was meant to secure). He distinguishes fraudulent disclosure (by a party as against the inventor) with the inventor purposefully obtaining the economic reward of the invention which is supported by the English courts.

        Therefore, both sections are reconciled to mean “public”

        I don’t see where the constitution was used to limit the power of Congress (or the patent grant). (If anything, Story recognized that Congress could have choose along a broad continuum of options – some of which would have been bad policy but would have been enforced by the Court).

        1. There is a further error in the regards of timing of protection under the patent laws.

          I have discussed this in great detail previously (Karshted comes close), but in a nutshell, protection under the time of trade secrets is simply not the same as protection under the time of patents. It is an easy and simple mistake to conflate these two times, but they should not be conflated as the basis of law for each is different.

        2. Alex, the problem with allowing one to have an unlimited period of monopoly that depends upon keeping an invention secret followed by a period of statutory protection is that its authorized an indefinite period of protection. The court construed the statutes to prevent that.

          1. They did wrong – because the fact remains that a Trade Secret can be FOREVER.

            Also, the MOMENT that a person decides to partake in the patent system (unless they are smart enough to know how to abandon before publication), the time of Total Protection is no longer unlimited (and the time of protection under patent law remains the Constitutionally directed limited time.

            I have outlined the mistake Ned – not recognizing that two different domains of law were in play. Mixing up the times of the different protections is a mistake, and it is about time [pun intended] that that mistake was rectified.

            New to you is indeed “new.”

          2. Ned – you are conflating different laws that operate under different legal areas.

            The patent term is – and remains – of limited times.

            A person operating under a Trade Secret just does not have patent rights.

            A clear focus on this difference is mandatory if you want to understand what Congress did (and there is an amazing amount of effort to NOT understand that).

  13. Dennis, to be clear, the law prior to the AIA barred the patenting of an invention by the person or his privy who placed the invention on sale.

    Second, even if a machine or process was claimed, and both were kept secret, the law still required that a product of the machine or process be publicly sold. The date of the bar dated from this public sale.

    This law was in fact established in Pennock v. Dialogue, a case where fire hose was made and sold to the public for years (by the leave of the inventor) before the inventor filed for a patent without the secret of its manufacture being discovered by others. The inventor was deemed equitably barred from obtaining a patent.

    “On-Sale” was placed into the statute in 1836 to enact that case, converting the equitable bar into a legal bar.

    1. was placed into the statute in 1836 to enact that case

      And in 2011, that statute was deliberately changed to be a new and different law.

      – as I noted both during and after that change.

  14. What was Hal’s position? Did his monograph come out opposite the PTO’s interpretation?

  15. So, according to the amici here, the following descriptions/uses of an innovation will bar a patent on that innovation:

    patented
    described in a printed publication
    in public use
    on sale (whether “public” or not)

    In addition, descriptions/activities “otherwise available to the public” are also bars. Presumably this last phrase was added as some kind of “catch-all” to prevent applicants from engaging in public activities not addressed by the case law that previously construed the preceding four activities (e.g., “printed” obviously includes descriptions other than those appearing on printed paper).

    I’m curious: what sort of additional activities were contemplated (or could be contemplated) that don’t fall into the previous four categories (as those categories were previously construed)? I presume the amici have an answer to that question …

    1. One example: A scientist may give a speech that discloses information. That information might not be actually published and the invention not ‘used’ in public.

      1. Thanks.

        On its own terms, then, the phrase “or otherwise available to the public” does theoretically expand the reach of the statute. I’m not aware of any case holding that an unrecorded speech disclosing an invention to a public audience would by itself qualify as a “printed publication”. On the other hand, it remains to be seen whether “otherwise available to the public” will actually be construed to include that activity …

        1. MM, people keep asking about patents that you might consider to be patentable. I recall you arguing for a long time that the product claims in the Myriad case were at least eligible because they claimed structure. I believe you sided with Lourie.

          1. You mean this one?

            1. An isolated DNA coding for a BRCA1 polypeptide, said polypeptide having the amino acid sequence set forth in SEQ ID NO:2.

            5,747,282

            The abstract idea is the isolated DNA coding (what’s more abstract than sequences of what’s basically akin to numbers?) and the amino acid sequence is merely a way of describing that abstract idea. Thus, these claims are invalid under Alice.

      2. Dennis, good point here. “Otherwise available to the public” really is another way of saying “publicly known” or “made known to others than the inventor.”

  16. “The otherwise available to the public language suggests that the ‘on sale’ activity is also available to the public.”

    No it doesn’t. English language challenged lawyers. The big ol fat “or” modifies.

    “The key legal question in the case is simple: did Congress mean to sweep away scores of established cases under the 1952 Act even though it reenacted language unchanged since 1870, merely because it added the phrase “or otherwise available to the public” to the list of prior art categories in the new AIA section 102? We think not.”

    Obviously not.

    1. I think it is (unfortunately) arguable both ways. I will say that the USPTO and the first court deciding the issue both disagree with you as did Joe Matal who was the Staffer managing the AIA for the Senate (Judiciary Committee).

    2. English language challenged lawyers.

      Weren’t you the guy that could not get the Claims and Continuations language down right?

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