21 thoughts on “Enjoy the Labor Day Vacation

  1. “Since all patent systems are ‘inventor-based'”

    No. If I understand the foreign landscape correctly, in *every* country except the U.S. it is the owner/applicant (e.g. a company) that files a patent application. This means the inventor doesn’t have to sign/assert anything. The owner/applicant names an inventor (usually nothing more than a formality), but there are no penalties for incorrect inventorship. (Other laws may come into play if the owner/applicant has misappropriated the invention from another.)

  2. Real anynoymous, perhaps I read too much into your comment. But if it isn’t about first-to-file vis-a-vis first-to-invent, then what exactly is it about?

    Since all patent systems are “inventor-based” (you can'(t patent anything withoput an inventor – which has interesting implications for entirely computer-discovered pharmaceuticals that have yet to work through the patent system), and yet you distinguish the US version as being that, while apparently others are “owner-based” [sic], I take that to mean you are using inventor-based to mean “first-to-invent”.

    If not, then what, exactly, do you mean?

    Regards, Luke

  3. ….unless you read the Constitution so literally that only Inventors can apply. But, if you do that, shouldn’t you read the Constitution such that only inventors can hold issued US patents. Now, if that’s bonkers, and you decide that Inventors are free, in the land of the free, to divest themselves of the property in their inventions, why is that first possible only after filing a patent application. Consider German law on ownership of inventions made by employees. Employer has to claim ownership away from the employee inventor and, if he misses the statutory 4 month deadline for doing so, the invention remains the property of the employee. Yet, in Germany, it’s employers rather than employee inventors who apply for the patent.

    And, indeed, the Constitution doesn’t say “First Inventor”. The Founding Fathers, in their infinite wisdom, left it up to Congress to figure out a working arrangement, by which “Inventors” could secure patent protection, and by which “we the people” could work out which one of several competing inventors most deserves the monopoly. If you accord to the patent system a public policy objective of disseminating info, to help the useful arts progress, then First to File’s your baby, cos it gets the news out faster.

  4. Luke Ueda-Sarson, is your argument with me? Please reread the comment you quoted – perhaps we are reading different comments.

    Currently there is nothing in our laws that requires an inventor to *be* the first. Rather, it is only required that he *believe* he is the first (i.e. he must declare such belief, signifying that he did not derive his invention from someone else and did not know about a prior inventor), and satisfy the conditions of the patent laws (e.g. 35 USC 102 and 103).

    Many times, an invention can be patented in the U.S. by one person when another person previously invented the *exact* same thing (e.g. but failed to publicize it in a way that would create a statutory basis for rejection). Just look at the skew created by 102(e) and 35 USC 102(g)(2), for example. Someone can invent something in Japan a year before me, file his application in Japan, even beating my U.S. filing date with his Japanese application filing date by seventeen months, and (assuming he hasn’t filed abroad, commercialized, or otherwise published), I can still get a *fully valid* U.S. Patent (assuming I do not know about his prior work and did not derive my invention from anyone else, and he has not created or asserted any of the conditions set forth in 35 USC 102 or 103).

  5. Quote: “An inventor-based system is grounded in the literal wording of our Constitution, and our laws must follow our Constitution”.

    You must be reading from a different copy of the US constitution to the one I read from.

    I see nothing there that says “first inventor”; just “inventor”. If two people invent something more-or-less contemporaneously, why should the first necessarily be rewarded? I am sure you can come up with various arguments in favour of the proposition, but the “literal” wording of the Constitution sure isn’t something that will back you up.

    Face facts. The constitution doen’t mandate “first-to-invent” any more (or less) than it does “first-to-file”.

    Regards, Luke

  6. JAOI: I think the inventor was convicted b/c he was actually involved in the construction, not b/c he’d invented a faulty building method. Lack of direct involvement was probably why the attorney and the PTO weren’t held criminally responsible for anything (and why they weren’t sued in civil court) – Israel case law makes it clear that it’s not their job to know whether the subject matter of a patent is safe (e.g., it’s up to the Health Ministry to determine if a drug is safe; the PTO just has to decide if it’s patentable).

    Ironically, however, the building in which the Israel PTO was housed was built with the same method of construction – a fact discovered by the employees’ union after the wedding hall collapse. The workers then refused to go to work until the problem was fixed (the floors holding the stacks were reinforced) or the PTO moved. As a result the PTO moved.

  7. Dear above (I don’t want to cast you as an Irresponsible attorney),

    Did the patentee license his building construction method? If so, was he held accountable owing to contractual provisions?, or was he held accountable solely for his patent?

  8. “Responsibility” for an invention? Usually we want to claim *credit* for an invention…although there was a case in Israel a few years ago where someone invented and patented a method of building construction. When a wedding hall built using his method collapsed (due also in part to removal of a supporting pillar by the contractor), he was eventually charged and convicted of some crime along with the contractor. He got off easy – over 20 people died, and I think he was only sentenced to a few years.

    BTW, his patent attorney wasn’t charged with anything.

  9. MaxDrei:

    I rather like having to identify individual inventions with individuals. We have far too many people in our society avoiding responsibility already. Why should inventorship be just another in a series of ways to get out from under personal responsibility? Soon, no one will be responsible for anything. I can immediately see how that is significantly better than the “…worship of the “literal” wording of such old documents…” Obviously, taking personal responsibility “…is not doing anybody any good at all.”

  10. “Quite so. I watch in fascination, to see how long it takes, to come round to the idea that worship of the “literal” wording of such old documents in this day and age is not doing anybody any good at all.”

    Max, thank you. I can only hope that Congressional aides are reading your comments. But do take heart meanwhile, the USPTO has come around a little (for the benefit of those who wish to see the internal demise of the U.S.) and no longer feels compelled to follow the literal wording of that old, decrepit 35 USC.

  11. Now I begin to see your point JAOI (You’ll tell me if I have got it wrong): the English “Loser Pays” principle would be a significant deterrent to an independent inventor considering asserting his patent, yet no brake at all on the corporate litigant because he has pots of money. Yet my corporate clients seem to be terrified of incurring triple damages so I thought they too might be a bit reluctant to write a check for x million USD to their arch competitor in reimbursement of their legal costs (and if they just can’t bear to write such a check, well then, the irrational CEO gets to go to prison for contempt of court).

  12. Max:

    Did you need to be reminded of your level of competence?

    ON HIS COMPETENCE, MaxDrei posted this on: Aug. 12, 2007 at 04:13AM
    “…I admit it freely. I am not competent to advise clients on matters of US law, never have been and never will be.”

    ON THE DEMISE OF THE INDEPENDENT INVENTOR, MaxDrei posted this on May 28, 2007 at 09:38 AM:
    “So, damages apportionment might lead to the demise of the ‘small independent non-manufacturing inventor working in high tech’? Is there any reason why anybody should be concerned about the loss of that particular species? Quite the opposite. If they were all to disappear, I can imagine it having an aggregate positive effect on the US economy. …”

    ON SENDING INDEPENDENT INVENTORS WITH LIMITED MEANS TO PRISON (but not those more wealthy) MaxDrei posted this on Jun 09, 2007 at 07:18 AM:
    “… vexatious litigants (including those asserting claims found to be invalid) get to go to prison for contempt of court, if they don’t pay the court-assessed quantum of legal costs incurred by the winner.”

    “… I know that’s what the evidence established, but why didn’t McDonalds come through with evidence establishing the contrary?”

  13. Ah yes, of course, the “literal” wording point. Quite so. I watch in fascination, to see how long it takes, to come round to the idea that worship of the “literal” wording of such old documents in this day and age is not doing anybody any good at all. The Founding Fathers chose to say nothing about disclosure of the Progress being a condition of monopoly awards. Yet POPA has just told us that divulging the Best Mode is the “Very Quid Pro Quo”. Shouldn’t the Fathers, in their infinite wisdom, have mentioned that? Or is POPA putting itself above the Fathers? I have an idea. Why don’t you cancel the requirement for any disclosure whatsoever. Just publish the claims.

  14. HellO Max, no one has said a inventor-based system is economically better or worse than an owner-based system – that would be a whole different debate.

    An inventor-based system is grounded in the literal wording of our Constitution, and our laws must follow our Constitution. Without a Constitutional amendment (or a buy-out of our legislators, sigh), I’m quite sure we cannot change to a (corporate) owner-based system. And I’m quite sure we should not, regardless.

  15. There is no mutual exclusivity between filing in the name of the(corporate)owner of an invention and incentivising the inventor (actual devisor) so as to Promote the Progress. Consider Japan. Tell me, how many million USD did the employee inventor of the blue diode get, by way of statutory “compensation”. Consider Germany. Tell me, how many hundreds of thousands of employee inventors have enjoyed statutory financial “compensation” under Adolf’s Employee Inventor Statute, still going strong today. Tell me, just how many patent applications do Germany and Japan file, per year, per head of population? And then there’s the rise of Korea of course. Not to mention China, still to come, followed by India. Whatever Promotes the Progress, it ain’t insistence that patent applications be in the name of the inventor. F2I, of course, is another issue. Choose to give a monopoly to the First to Conceive, if you like, rather than to the First to Donate Something Useful to the Public, if you think it’s acts of conception that Promote the Progress. But recognise that acts of conception are increasingly likely these days to occur earlier in ROW than in USA and, when they do, Paris Convention priority dates follow, just as soon as an enabling disclosure can be put together. One thing’s for sure: the competition’s hard at work, this Labor Day.

  16. Modern man is expected to labor at being innovative and inventive.

    The purpose of Patent Deform is to make sure the individual laborer does not get compensated for his innovative labors.

    So on this Labor Day, as the vote in the House for Patent Deform looms ever closer, we can celebrate the dawn of the age of innovation slavery. All innovators are equal, but large corporate innovators (and copyists) are more equal than others. Long live Caesar. Long live the Republic of Romerica. We’ve come a long way baby.

  17. Well, personally I’ve wondered why we have two days to celebrate the act of giving birth – you’d think mothers’ day would be sufficient…

  18. Labor Day is, of course, Orwellian doublethink. It is a day when people refrain from labor. Similarly in the UK, a strike is called “industrial action.” The point of the “action” is, of course, inaction.

    I hope all US readers had a doubleplusgood Unlabor-day holiday!


    link to en.wikipedia.org

    “Labor Day is a United States federal holiday that takes place on the first Monday in September. The holiday began in 1882, originating from a desire by the Central Labor Union to create a day off for the “working man”. It is still celebrated mainly as a day of rest and marks the symbolic end of summer for many. Labor Day became a national holiday by Act of Congress in 1894.[1]”

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