Constitutional Challenge to False Marking Statute
- Oral arguments in the case of United States, ex rel. FLFMC, LLC v. Wham-O, Inc., will take place on July 7th. The Federal Circuit will be resolving the constitutional challenge to the false marking statute (35 U.S.C. § 292(b)). The merits panel agreed to allow the government and the U.S. Chamber of Commerce to participate in oral arguments. The court expanded the oral argument time to 20 minutes per side. This case could set the precedent to eliminate false marking lawsuits. Regardless of how the Federal Circuit rules in this case, it is likely to be appealed to the Supreme Court. [FMLC-Reply-Brief] [Order-Re-Wham-O-Oral-Arg] [Cato-Brief] [Brief-of-Amicus-Curiae-Chamber-of-Commerce] [USA-Brief-in-Wham-O] [Wham-O-Brief]
Article One launches 3 Patent Studies Focused on 4 Patents on by Lodsys
- In response to the lawsuit Lodsys filed against several Apple iPhone developers, [Link] Article One is offering a $5,000 reward per study for the best prior art reference that provides a path to invalidity. The patents at issue are 7,133,834, 5,999,908, [Link] 7,222,078, [Link] and 7,620,565. [Link]To date Lodsys has sued 27 companies for patent infringement, so there is no way of knowing exactly who is funding the study that Article One is overseeing. [Link]
Google Granted Patent for “Detecting and Rejecting Annoying Documents”
- On June 28th Google was granted patent # 7,971,137, for a system and method for evaluating documents for approval or rejection and/or rating. The method comprises comparing the document to one or more criteria determining whether the document contains an element that is substantially identical to one or more of a visual element, an audio element or a textual element that is determined to be displeasing.
What Impact Will Patent Reform Have on the Patent Office?
- The Patent Reform legislation will allow the PTO to keep fees they receive from applicants in an account that Congress can’t touch. The PTO will likely start hiring more patent examiners in order to try to decrease the backlog of patent applications, which currently stands at around 685,000. The satellite office in Detroit more likely than not will open sometime in the near future, possibly followed by more satellite offices. Track one of the Three-Track program, which allows applicants to pay extra money to receive a first office action within a certain amount of time will go into effect. Patent Examiners will likely receive more training and be able to resume working overtime.
Patent Jobs:
-
Salix Pharmaceuticals is searching for an IP and Licensing Attorney with at least 3 years of experience in pharmaceutical patent prosecution. [Link]
-
BASF is seeking a Patent Counsel with 8 or more years of experience in IP transaction work and at least 5 years of experience in patent prosecution. [Link]
- Sutherland LLP is looking for an Associate of Patent Agent with 1-4 years of experience in patent prosecution and a background in Electrical Engineering. [Link]
- Baker Botts is searching for a Patent Agent with 1-3 years of experience. [Link]
Upcoming Events:
- The National Association of Patent Practitioners (NAPP) will hold their 2011 Annual Meeting and Nuts & Bolts Short Course at the Venetian Palazzo Hotel in Las Vegas, Nevada on July 16-19, 2011. [Link]
- The American Conference Institute (ACI) will hold a Hatch-Waxman Boot Camp July 18-19 in San Diego. ACI’s Hatch-Waxman Boot Camp has been designed to give counsel and advisors to brand name and generic drug critical insights into commercialization and the pre-approval process, and also provide an in-depth review of Hatch-Waxman and other IP basics relative to small molecules and biologics. [Link]
- World Research Group is holding the 8th Annual Patents for Financial Services Summit on July 27-28thin New York. Guest speakers include David Cunningham, Larry Bromberg, Matthew Krigbaum, and Moshe Malina. (Patently-O readers can use Promo Code ENN794 for a $200 discount) [Link]
- The 2nd European Pharmaceutical Regulatory Law Forum will be held in Brussels, Belgium September 21-22nd. The forum will focus on recent developments affecting the pharma industry in Europe and will discuss the impact of US developments on European companies. (Patently-O readers can register with code PO 10 for a 10% discount) [Link]
Contact Lawrence.Higgins@patentlyo.com with leads for future Bits and Bytes.
anon, thanks. Explains everything, especially the point about bailing out German and French banks to “save the system.” Where have I heard that before?
Just how can one force banks to stop lending to poor risks unless one makes it clear that there will be no bailout?
I was talking about the criteria the member countries set for themselves before joining in the Euro. The situation after that is much like what you describe, a central european bank that controls monetary policy. The situation you propose is actually similar to what happened in Greece to a larger extent and to Ireland, Portugal and Spain. Not having the ability to manipulate their currency, but still behaving like if they had that ability, these countries have a real debt problem. The thing is, because the other members are hugely affected by whatever happens there, Germany and France find themselves in the position of bailing out the defaulting countries or risking a freeze in the debt market in the EU as a whole (not to mention that it was French and German banks, among others, that let Greece run a huge, undisclosed debt, which they could keep hidden because they are after all still a sovereign nation). So they will bail, but I am sure they understand now the problem of having a centralized currency with local fiscal and social policies. Not to mention other issues, like lack of unified immigration, defense, social and tax policies, which end up affecting the economy to a larger extent than whatever a central bank can do.
Any update on yesterday’s arguments (United States, ex rel. FLFMC, LLC v. Wham-O, Inc.)?
Ned,
Why do you raise diverting and vacuous questions so much? Last I checked, the issue wasn’t about me at all. Yet here we are again, entertaining a question from you rather than an answer to the issues put to you. Why is that?
Why do you equate my call of sophistry with some yearning to be paid attention to? It is telling that you are not denying your sophistry, but rather playing the same ask-a-diverting-question game.
Why do you pay so little attention to valid points raised in arguments and instead insist on the smoke and mirrors games that you play?
Is it your lack of ethics?
anon, I am unfamilier with just how the Euro works, as I would find it strange that every EU state could simply print Euros. That seems downright bizzare.
What I would have expected of Europe is to provide an institution like the Federal Reserve that controls supply of money so that inflation and liquidity are balanced. Individual states, lacking the ability to print money, could, if they chose, borrow until they could not pay without affecting the money supply at all. They could go bankrupt, but the only folks affected would be the folks who lent them money, not the European Union as a whole.
So, if you know, could you please explain the Euro?
Hard, why do you complain so much about people not paying attention to you?
Looks like IPO isn’t betting on resolution of the Article II issue in Wham-O any more than I am.
“Saturday, July 02, 2011
IPO to file amicus brief in Unique Product v. Hy-Grade Valve ”
–The Formerly Blocked Poster
If copying is the highest form of flattery…
I am flattered.
“this kind of sophistry has to be condemned in the harshest of terms.”
What, and other kinds of sophistry, like not answering specific points raise, incorrectly rephrasing questions, averting the discussion to different authors and different facets of the pending legislation not under discussion – those types of sophistry are to be lauded? These types of sophistry are somehow more honest?
Ned, Ned, Ned… don’t you remember your mother’s admonition – “when you point your finger at someone, there are three fingers pointing back at you”?
The analogy of a race – that’s rather droll.
Ned’s lack of response to what you say – that’s unfortunately rather common. Expect more rephrasing and predictions of what the Supremes will hold rather than any actual discussion. It seems that Ned cannot get past his own inchoate understanding of Marshall and Pennock.
Ned,
Here is your tripping point: “remains in full compliance with the law.”
The law is set by Congress. This is the critical point – “as set by Congress.” As long as that law respects the invitation to the race, there is nothing unconstitutional about how the winner of a multi-runner race is determined. “Full compliance” as I have laid out in my analogy is still met. Respect of the inchoate right – which can be shared by more than one – is still met. The taking, the “wrong” you perceive, is simply not there.
I respectfully submit that you STILL have not addressed, let alone acknowledged, my analogy because you cannot overcome its simple logic. You once again merely state “there is nothing about “inchoate” that supports your view” without explanation. You do not explain how “inchoate” meets your view of Marshall ascribing the fully vested patent right (the winner of the 100 meter hurdle race) as opposed to my view of the Marshall’s statement meaning an invitation to participate in that same race.
Please stop “submitting” any forcast of how the Supremes might rule – such is empty prattling. Rather than submit, back up your statements with logic, as I have with mine. I think you do not do this because you cannot do this.
Why else, answer me, do you continue to not address the points I make?
Um, there is nothing about “inchoate” that supports your view. All that means is that the first inventor must still comply with the requirements of everyone else to obtain a patent on the invention. It does not mean that the government can award the patent instead to someone else so long as the first inventor remains in full compliance with the law.
I submit to you that the Supremes will view the matter this way as well.
On Pennock, you do admit that there was nothing in the STATUTES that prevented a first inventor from using the invention prior to filing for a patent application. If the statutes did not prevent it, where in the world, UM NO, would the Supremes have come up with that quaint notion?
Is there no clue, none, none whatsoever in the case?
Ned,
I see you falling to the same pattern of responses here that I have seen you do on other threads when faced with the logic that your views are false:
I see you change the topic.
“Now, having determined that Congress could not authorize unlimited use by the inventor and then allow him to file for a patent, how do you believe in your wildest imagination that they could?”
What has this to do with what I am saying?
Nothing.
Stick to what I actually say and let’s talk about that.
And yes, I have noticed that you have yet to comment on my analogy – even to the point of recognizing (even if you do not agree) its coverage of the key points of our discussion. Once again I am struck with my thoughts, wondering why you are speachless on the actual topic here.
And of course, once again, you merely SAY I am wrong, but do not explain yourself. You fail to explain the points as I have laid them out for you.
As for Pennock, your view is a reach, straining as it is. The On Sale doctrine is tied to the law as set forth by Congress – it was created by the Supremes from the discretionary hurdles set forth by Congress. You need to re-read Pennock. It is not a bad reach as these things go, but it is bad when you rest on that reach, neglecting to consider what Marshall actually said (yes, I am referring to your own provided citation, the one that works against your view).
When you actually talk about the points I have raised, you will see that the meaning of “inchoate” plays a key role in the understanding of what Congress can and cannot do. You will see that I am talking about multiple true inventors at the 100 meter hurdle race. You will see that I am talking about who has rights to be at the race and who has the patent right per the laws of Congress at the conclusion of the 100 meter hrudle race.
Please do not create tangents either about other bloggers or about other topics. Let’s talk about hte points I have made. Here.
Great info! I recently came across your blog and have been reading along. I thought I would leave my first comment. I don’t know what to say except that I have enjoyed reading. Nice blog. I will keep visiting this blog very often.
You know, um, you constantly get things 100% backwards.
On Pennock, there was nothing in the statutes of 1790 or 93 that literally prevented first inventor from himself using his invention prior to filing a patent application. The Supremes came up with the doctrine of On Sale precisely to prevent unlimited estension of the monopoly period. They said so. In so many words.
The doctrine was codified in 1836.
Now, having determined that Congress could not authorize unlimited use by the inventor and then allow him to file for a patent, how do you believe in your wildest imagination that they could?
Marshall also said in Evans v. Jordon that the right to a patent inherred in the first inventor — under the constitution. What possibly could this mean?
The new statute does what Marshall said the constitution does not permit: Grant a second inventor a patent while the first inventor is still eligible to receive a patent.
The new statute authorizes unlimited use without disabling an inventor from obtaining a patent. This is unconstitutional under Pennock.
The new statute is unconstitutional in two difference aspects.
Ned,
Your response is without substance.
All you are doing is saying I am wrong without explaining why. I have explained my view and even included a simple analogy that captures the meaning of Marshall and Pennock.
You once again refrain from commenting on my simple analogy. Why is that? Is it because it explains the concept of “inchoate,” explains the discretion that the Supreme Court attributes to Congress and explains why your view simply does not hold water in an easy to understand manner?
Once again you throw Gene Quinn out there as a counterpoint to Marshall. I have told you that Gene is irrelevant to this conversation.
Please, please, please, stay relevant.
Discuss this with me, rather than ignore what I say and repeat yourself as if saying what you believe often enough addresses the position I put forward.
Your statement of “Pennock was decided the way it was because of the constitution. The Supremes said so.” fits both our viewpoints – because the constitution gives the discretion to Congress – that is what the Supremes are talking about in Pennock. Re-read Pennock and see how many times the Court uses the word “discretion.”
As for Marshall, it is impossible to believe that the words “an inchoate property therein, which is completed by suing out a patent” mean what you say without ignoring the actual words used. Please EXPLAIN, rather than merely state, how you are interpreting “inchoate” and “is completed by” to arrive at the notion that the finish line of patent, rather than the starting point at the beginning of the race is what Marshall is discussing.
Discuss this with ME Ned, discuss the position that I put forth.
Um, you really do have it all backwards. Pennock was decided the way it was because of the constitution. The Supremes said so. I have gone overthis numbers of times with, but even the Supreme Court of the US interprets the case this way.
Regarding Marshall, there is no other way to interpret his holding but that the first inventor is entitled to a patent.
From the beginning, Congress believed only the first inventor had a right to a patent. They refused on this basis to allow patents of importation.
All of American patent history points in only one direction, and it is not that Congress chose a first to invent system. It determined that it did not have a choice.
Mark my words, first to file will be held unconstitutional. The Supremes are very fond of following their own precedent rather than the self-annoited pronouncements of Gene Quinn. Among the most sacred of sacred cows in Supreme Court history is John Marshall. His interpretaion in Evans v. Jordan will not lighlty be ignored.
“Do know, however, that I completely join in your endorsment of civility in on-line chat”
Yes, but that would drop the comments by at least 80%.
I was still a European citizen when the Euro came about. France, Germany and Italy set stringent deficit criteria for countries to join, presumably aimed at Spain. When the date came, it was the “irresponsible” countries that met the criteria. France, Germany and above all Italy where way behind, but of course no one made a big fuss about it. If you give a government, big or small, the money printing machine, they’ll use it. State governments have to adjust their budgets because they depend on the Federal government for monetary policy. Take that away and you would see the same problems. Federal politicians come from the states, not from some far away planet.
There was no misunderstanding, you #$&^% turd.
I think you misunderstood the theory, you should review it.
just fyi ned, many policies, like these small ones, are decided on the TC/AU level.
My apologies for the broken tag.
It is difficult to see if you understand the point as I have explained above, as you make no comment to my analogy of the 100 meter hurdle race. Can you at least indiacte whether or not you understand my analogy?
Other than that, I find your comments to be contradictory. At one time you explicitly state: “has fully complied with the requirements of Congress,” yet you then seek to limit what the requirements of Congress could be.
You then tell me that I have read Pennock far far too broadly, without explaining why (other than it does not fit your view perhaps).
Why is my reading of Pennock too broad? Where is my error in the plain reading that the Supreme Court plainly gave deference to Congress to set the law, or that the Court clearly was deciding on the law as set by Congress? Or in my analogy, to set the position, number, or height of the hurdles?
Do you understand the difference between an inchoate right and the fully vested patent right?
It appears that you do not.
You seem to be conflating just when a first inventor has lost his right to fully vest by relying on today’s law. Clearly, if Congress so chooses to change the style of hurdles, that is their discretion, would you agree? It then would be according to those changed laws that everyone would be racing. No one would have lost their inchoate right (invitation to the race) and everyone still has to play the same game in moving their inchoate right to a fully vested patent right.
You seem to think that today’s limited set of reasons on how a first inventor loses that ability to fully vest his inchoate right is somehow locked in stone, or is a constitutional matter. And this flies directly against the clear holding in Pennock.
So I say to you, clearly, it is not unconstitutional for Congress to set the rules of the hurdle race. Even the mildest reading of Pennock cannot get away from the clear deference of the Court given to the Law as set by Congress. Your comment of “Had Pennock gone as far as you suggest that a second inventor could recieve a patent while the first inventor still has a right to his” is in error because you are conflating the inchoate right with the fully vested right. The inchoate right is the invitation to the race – nothing I have suggested changes that, and it is only that right to which Marshall speaks. The fully vested right is the patent right given to the winner of the race. You need to understand just what Marshall was talking about – he was not talking about the fully vested patent right, he was merely talking about the invitation to the race.
So, to the contrary of your exclamation, their is nothing from Marshall that is in conflict with the race analogy as I have laid out for you. If their is, then please be explicit in your response (do not merely just state that it is – explain how Marshall was talking about more than the inchoate right).
As for Gene Quinn’s position, I do not think it relevant to my case here and I make no comment on his position, one way or the other.
EG, the Germans has a solution to massive debt in the 20’s. But that solution lead, in part, to you know who?
Um, we agree on this:
The first inventor’s right to a patent can be lost.
It can be lost by voluntary actions such as by abandonment.
It can be lost by placing the invention into public use prior to filing for a patent per Pennock.
It can be lost by not complying with the written description, fee and other requirments imposed on all for obtaining a patent.
Where we disagree is this: if the first inventor has not abandoned his invention, had not placed his invention into public use or on sale, has fully complied with the requirements of Congress, then I disagree that Congress has the power to deny the frist inventor a patent under the Constitution.
There is no case in the history of the US to suggest that Congress does. In fact, all the cases are to the contrary. Your reading of Pennock is far, far to broad. We never agreed on the import of that case. It flies in the face of Marshall’s prior opinion in Evans v. Jordan, and it should be noted that Marshall was still CJ in Pennock, a case written by Story. Had Pennock gone as far as you suggest that a second inventor could recieve a patent while the first inventor still has a right to his, I am sure Marshall would have dissented.
And, isn’t just interesting that in the Constitutional debate, the Evans v. Jordan cases and Pennock were cited most often by those supporting the constitutiona right, and Gene Quinn cited by those opposing the right.
Who has more respect in patent law? Marshall and Story, or Quinn?
So…
To see who is the greatest dickwad, all we need to do is see who uses the most expletives?
Seems reasonable.
For further clarity, let me provide an analogy:
The vested right that Marshall alludes to can be considered an invitation to a track meet’s 100 meter hurdle race. Now in most instances there is only one runner and the object of the race is to simply jump over all the hurdles and arrive at the finish line.
Now in cases of multiple (true) inventors, we have more than one runner. Each of the more than one runner has an inchoate right at the moment of invention. Each has been invited to the 100 meter hurdle race. It is important to note that nothing has been taken away from any of them. Further, in order to have their inchoate right fully vest into a patent right, all runners must ascribe to the discretionary rules that Congress sets forth. Here, not only is the object of the race merely to jump all the hurdles, but to do so and complete the requirements that Congress sets forth (in their recognized authority to do so).
There is nothing in the constitution or case law that prevents Congress from setting the position, number, or height, of the hurdles. In fact, as has been explained, Pennock explicitly makes the point that Congress can set the requirements as they see fit.
In a multi-runner race, the “taking” that you see is illusory. The “right” that vests is only a right to join the 100 meter hurdle race – it is not a right to be the winner of that race. Only the winner gets the patent right, the fully vested right. It is also quite clear that case law fully gives the design of the race to Congress.
I certainly hope that you are not repeating the dale halling misunderstanding as he quotes:
“In 1813, Chief Justice John Marshall, riding circuit, wrote that the ‘constitution and law, taken together, [give] to the inventor, from the moment of invention, an inchoate property therein, which is completed by suing out a patent.’ ”
You do know that “inchoate” has the opposite meaning of “vests” as you attempt to use here – you attempt to mean fully vests – which is the word you used and is the key to what you were to provide a cite to. The actual (full) vesting to the (patent) right is obtained only by successfully running the gamut of the Congress’ set law (note – this is specifically not a constitutional gamut).
Further, there is nothing to that quote that suggests that the “taking away” is connected to voluntary/involuntary steps of the inventor.
What is suggested by this quote (and as well by your oft used Pennock case), is that Congress has the authority and power to set the rules by which any inchoate right actually does vest into a patent right. The status of first inventor versus second inventor (both being true, as in the second did not derive from the first) falls fully to the discretion of Congress. This has been explained to you many times now.
As it is, you have provided a cite that undermines your position, not backs up that view.
Kappos may not have signed, but he may have decided the policy. We can infer a policy from the practice.
Evans v. Jordan, 8 F. Cas. 872, 873 (C.C.D. Va. 1813) (No. 4,564)
“the right of the first inventor vests on invention”
vests…?
cite please.
The ingrate transplants need to think about showing a wee bit more commitment to their job. This may include but is not limited to living where their job is and not on another side of the country. Also you forgot to include some kind of sarcastic emoticon after California, since nobody wants to live there.
Actually, the Board did everything, from examining, granting and conducting interferences.
Check out the Frederico articles.
So basically Jefferson sat on the board and said, “thie guy appeals my rejection, however, I stand by my original determination so my vote is for affirming myself”. lulz.
“Illinois is a prime example that state governments are not behind in corruption.”
I thoroughly agree. But at least state governments must live within their means (aka balance their budgets). The federal government has yet to deal with that issue.
There is case law that from none other than John Marshall that states that the right of the first inventor vests on invention and cannot be taken away from him involuntarily. The authority he cites for this statement is the constitution.
I’ll attach my real name to my Supreme Court Amicus Brief in Support of the Appellee, when you challenge the award of the fine a few years from now.
Justice and law are for sale in this country. And HRs, who never really stop campaigning are really cheap. But focusing on the federal government is misleading. Illinois is a prime example that state governments are not behind in corruption.
Thank you. That was helpful. If I understand this correctly, even though the constitution only mentions inventors (not national inventors or explicitly first inventors), this is understood as meaning first inventors, with exceptions built into the system by either law, judicial precedent or rule. It seems that if somebody invents something after somebody already invented it, but for some reason did not publish it or appropriately follow through with obtaining a patent, then we do not give patents to the “first” inventor but to a latter inventor. Either current law is unconstitutional, or the constitution is not interpreted as requiring first invention. If the rights of a first inventor to the invention can be by law and rule taken away, and given to a second inventor, I am not sure how drafting a law for first to file is necessarily unconstitutional. It also appears that showing derivation would be appropriate, since somebody that derives an invention from somebody else’s work cannot be considered an inventor. Again, corrections are more than welcome.
To all:
Here’s a link to of a private bill appended the House version of the AIA:
link to rollcall.com
“The House might have sworn off earmarks, but that didn’t stop the chamber from essentially passing one last week that would allow a single drug company to avoid generic competition while saving a powerful law firm from paying out $214 million in a malpractice suit.”
Reading this article will make you ill to know how our Congress will prostitute and sell its soul on just about anything in pursuit of the gold. I’m one American ready to declare my independence (again) from our corrupt federal government.
“Please educate me”
You ask for the impossible.
Yes. It had 3 members. Jefferson, Knox and one other I can’t recall. All big names in history. They would actually hold hearings and interview inventors.
Frederico published two articles on the 1790 act. Check the JPTOS in 1934 and 1936.
TFBP, why not attach your real name to this bold prediction? In a little over a week, you will be able to show how you saw something counsel for the government, the U.S. Chamber of Commerce, the relator and Wham-O missed?
“He doesn’t mention what in fact the Board ”
The board? They didn’t even exist at that time did they?
Andrew Dhuey, in response to whether the Fed. Cir.’s reaching the Constitutional challenge would convert a non-merits decision into a judgment on the merits, we will agree to disagree:
“Such a decision [invoking political question doctrine] is of course very different from determining that specific congressional action does not violate the Constitution. That determination is a decision on the merits that reflects the exercise of judicial review, rather than the abstention from judicial review that would be appropriate in the case of a true political question.” United States Dep’t of Commerce v. Montana, 503 U.S. 442 (1992).
In reponse to the argument that the preparations made by the Fed. Cir. for the anticipated Constitutional picnic are the justifications for the Fed. Cir. having the Constitutional picnic, let me say that if any judges or law clerks for the Federal Circuit are looking for that “one-sentence order” that Mr. Dhuey referred to, they need look no further:
“If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality–here, the distribution of the taxing power as between the State and the Nation–unless such adjudication is unavoidable.” Spector Motor Co., v. McLaughlin, 323 U. S. 101 (1944).
The field position in the Wham-O case (i.e. the appearance of an intervening precedent) calls for a punt, and they should punt, unless they want to take judicial activism to an extreme that would surpass even their B.P. Lubricants and Clontech decisions.
Amici, The Formerly Blocked Poster
anon, since the first act, the only people who have received valid patents in the US are the first inventors — but in truth, the Supremes and Congress had to refine that just a bit. They limited the concept to first inventors, who invented in the US, and who had not abandoned, suppress or concealed their inventions, or who had not placed them on sale before they filed for a patent application. Congress later gave inventors a grace period.
Now the definition of invention activity has further been refined to determine priority between rival inventors. The first to reduce to practice normally wins. However, an earlier inventor can win if he conceived of the invention and was diligent in reducing it to practice or in drafting and filing a patent application.
The diligence requirements are excessively extreme, requiring virtually daily, uninterrupted activity, and corroboration thereof. It is rare that inventors keeps such records and notes, and asking them to do so is a pain.
In recent years, Congress has allowed proof of inventive activity outside the US, in WTO and NAFTA countries.
Finally, a second inventor may receive a patent if the first inventor has abandoned, etc., the invention, or if it is lost to history, such as old knowledge of the ancients.
There is also the strangeness of US interference proceedings that might award a patent to the second inventor if the first inventor’s patent application is defective. There is something wrong in that.
I read the link, thanks. I read an earlier draft as well.
It look like Quinn might be the source of the notion that we were a first-to-file nation from the get go. If he is, he should be taken out and …
It is interesting, for example, that a defense provided by even the first patent act of 1790 was that the patentee was not the first inventor. Quinn somehow still argues that, nevertheless, the first to file was the one to receive a patent even if it not valid. He doesn’t mention what in fact the Board did when they received two patent or more applications to the same invention. They conducted an interference, of course.
Now, he continues along these same lines throughout.
Given the importance to the debate in Congress, this kind of sophistry has to be condemned in the harshest of terms. If he were to make that argument to the Supreme Court, he would be laughed at. But, the Congressmen, the simpletons they are, bought the argument in trust that the people talking to them about reform were honest.
A thousand pardons, Mr. Zimmerman, no disrespect intended; I’m pretty sure that I knew that, somewhere in the recesses of my mind, and it just clean got away from me as I was writing my comment. (Though just out of idle curiosity, I do wonder if Mr. 6 was referring to your version, the Manfred Mann version, the Anthony Quinn movie, or the Denzel Washington one?)
Switching back to patent reform brouhahas, I’m a bit surprised that this hasn’t raised more eyebrows in the patent blog community:
link to rollcall.com
Any thoughts? Anyone?
” The issuance of this claim by the PTO indicates that Kappos may have decided that that was the only problem with the Bilski claims.
”
Oh yeah Ned, because Kappos totally signed this patent with his own hand.
“Don’t you 2 1d10ts (MM & AAA) realize that the PTO has no control over what people file? If they file a million computer apps, we have to examine them. ”
Lulz. They could make an executive decision to declare “computer wankery” rejected under 101 and to have everyone who wanted such a patent to just go to the district court or appeal directly to the CAFC (after two token rejections maybe?).
I am actually curious. I do not have a law degree, I am interested in what opinions the attorneys have.
I am not so sure we have a first to invent system. Foreign application dates cannot be used for one. And it is routine to allow patents for lack of showing in the prior art of subject matter disclosed by another inventor if they happen to assign to the same entity. I never quite understood how it is constitutional to give somebody a patent for something filed by somebody else in Japan or Europe 18 months minus one day prior.
Really? Which law changed exactly that is relevant to this topic? I’m very curious. Did the KSR decision make claims which recite the mere computer-implementation of old methods less obvious than they were before?
Please educate me, newbie/sockpuppet.
The law changed. You are familiar with the law, aren’t you? Of are you?
I highly doubt that.
TFBP, I do not agree that affirming the dismissal on the basis of the Art. II argument is a judgment on the merits in that sense. The merits are whether there was a violation of 35 U.S.C. section 292(a) here. For the Art. II argument, we assume arguendo the validity of that charge and look to whether a private plantiff’s suit under section 292(b) is consistent with the Take Care Clause.
Furthermore, look at how the merits panel expanded oral argument to 20 minutes and took the rare step of allowing amici to participate in oral argument. Why would they do that if they think they will simply vacate and remand in light of Stauffer? They could have done that weeks ago with a one-sentence order.
Are you aware, Andrew Dhuey, that while the Fed. Cir. may affirm a judgment on any basis in the record, they may not expand the scope of the relief granted by the judgment? Glaxo v. Torpharm, 153 F.3d 1366 (Fed. Cir. 1998)(“As a general proposition, an appellate court may affirm a judgment of a district court on any ground the law and the record will support so long as that ground would not expand the relief granted.”). They have held that a judgment based on lack of standing is not a decision on the merits, and that it should be granted with leave to amend. University of Pittsburgh v. Varian Medical Systems, Inc., 569 F.3d 1328 (Fed. Cir. 2009). An affirmance on the statute’s being unConstitutional would be a judgment on the merits, and would expand the relief granted insofar as it would preclude the plaintiff from refiling. Additionally, a prevailing party must file a cross-appeal to modify a judgment. Trans World Airlines, Inc. v. Thurston, 469 US 111 n.14 (1985)(A prevailing party may advance any ground in support of a judgment in his favor, but an argument that would modify the judgment cannot be presented unless a cross-petition has been filed.). Insofar as you have not filed a cross-appeal, and insofar as you seek to expand the relief granted / modify the judgment, I do not see the Fed. Cir. appropriately considering the Article II issue, regardless of whether or not the appellant and all the amici would have it otherwise. Id.(“Both the individual respondents and the EEOC argue that the issue of union liability is properly before the Court. But the respondents failed to file a cross-petition raising this question.”).
But, what do I know? I thought that the Court’s entertaining the request for mandamus in B.P. Lubricants was as incorrect as was its substantive ruling on the application of the rule to the statute.
Do know, however, that I completely join in your endorsment of civility in on-line chat.
At the risk of putting words into the mouth of Mr. 6, I believe he’s (obliquely, by way of Manfred Mann name-check) referring to this post by Gene Quinn
Manfred Mann’s version of my song was inferior. And the name of the title character was derived from a movie I saw.
“Again, the MPEP used to have a section that was crystal clear about the per se obviousness of this kind of crxp. What happened to it?”
It probably got edited out after the Fed. Cir. b!tch slapped the PTO in In re Ochiai.
At the risk of putting words into the mouth of Mr. 6, I believe he’s (obliquely, by way of Manfred Mann name-check) referring to this post by Gene Quinn:
link to ipwatchdog.com
A lively debate ensued in the comment thread on that one…
If the USPTO starts rejecting this crxp with the well-reasoned force that is merited (this takes little time for a person with a functioning brain to accomplish) most people will stop wasting their time and money filing crxppy applications.
Again, the MPEP used to have a section that was crystal clear about the per se obviousness of this kind of crxp. What happened to it?
the claims are much narrower than filed.
There goes the doctrine of equivalents! LOL.
Just need to find the last step of “approving”, depending on how that is construed.
Because nobody has ever approved a document that was free of problems known to exist in other documents.
What a frxxking joke.
Problem is, what you argue doesn’t fly in making a 101 under Bilski. You might be able to argue that the claim is an abstract idea (what ultimately has to be proved to make a 101 based on Bilski).
Better action is make prior art rejections. There are lots of refs that compare documents to determine differences. Most of them are machine implemented. That’s the ez part. Just need to find the last step of “approving”, depending on how that is construed.
Again, there go thru the file history. Prior art rejections were made and the claims are much narrower than filed.
Don’t you 2 1d10ts (MM & AAA) realize that the PTO has no control over what people file? If they file a million computer apps, we have to examine them.
The more cases that are filed the bigger the backlog. If you don’t like these types of apps, complain to those that file them, not to the PTO.
From our POV, people can file on whatever they want & are welcome to do so. You people are the ones complaining & you are the same ones, generally speaking, that file these apps. So if you don’t like them, look in the mirror & at your bothers-in-arms, or at least the patent bar. Personally, let them file what they want to. They pay their money & take their chances. Sort of like the lottery 🙂
6, I’ll bite. Who is the eskimo?
“Absolutely. You think if the amount of software and computer-implemented crxpola was cut down by ten or a 100 fold that the average pendency of every application wouldn’t be shortened?”
If every single “computer-implemented crxp” application, and the examiners who examine them, disappeared overnight, how would that reduce the backlog in DNA fragments and protein bits? What, you think the PTO could spend all that saved money on salaries for oh-so-intelligent PhD chem and bio examiners? If they’re so much more intelligent than everybody else, why would they want to work at the Patent Office?
“People with Ph.D.’s in chemistry and biology are, on average, more intelligent than people who don’t have such degrees”.
Whatever. They’re also a lot more bitter than people who spend their time dreaming up new methods of informing grandmothers that “Love Boat” is out on Blu-Ray. Take you for example.
Ned, apparently the eskimo agrees with them.
Lawrence was a 2L iirc. Maybe a 3L?
What do you expect from the boy?
AD, John Gabriel has written extensively on the subject:
link to inquisitr.com
Or his original publication:
link to penny-arcade.com
The Senate was convinced that long trade secret use did not bar a patent. The house granted trade secret users immunity from patent infringement. Pennock v. Dialogue indicated that Congress could not constitutionally authorize a patent after long trade secret use.
So, what is a Senator to do with HR1249?
Vote no?
Fat chance. Constitutionality is not of major concern. After all, despite the 1790 statute stating that only the first inventor can obtain a valid patent, the proponents of the bill repeatedly stated in debate in the house that our original system was a first to file system that was changed to first to invent in 1870!!!!
They said that!
Repeatedly!
The gall!
There’s not a 3+ year wait for a FAOM in the mechanical arts (e.g. TC’s 3600 and 3700) because of applications like this one filed by Google.
Nice strawman.
Is there a backlog in your world of DNA fragments or protein bits, Malcolm, because of “computer-implemented wxnkers filing endless streams of crxp”?
Absolutely. You think if the amount of software and computer-implemented crxpola was cut down by ten or a 100 fold that the average pendency of every application wouldn’t be shortened?
Also worth remembering: the level of skill in the chem/bio arts is high. People with Ph.D.’s in chemistry and biology are, on average, more intelligent than people who don’t have such degrees and spend their time dreaming up “new” methods of informing your grandma that the second season of ‘Love Boat’ was just released on Blu-Ray. This can be a hard-to-swallow fact for many insecure people.
Well, the obvious problem here, Paul, is that the claim does nothing technical. Neither is it directed to a specific machine. It seems unpatentable on its face under Bilski unless one believes that reciting computer code is enough. But if this is why the claim was allowed, it raises major concerns.
We were left with the question of whether the problem with the Bilski claims was that they did not recite an implementation on a computer. The issuance of this claim by the PTO indicates that Kappos may have decided that that was the only problem with the Bilski claims.
But since the issue remains unresolved in court, Kappos has a duty to bring the issue to them for decision. He should not force a particular member of the public to raise that issue in a defense to an infringement action.
I hope you would agree with this. If so, Kappos would be best advised to do something about this patent. It appears to be wrongly issued.
“And that’s the main reason the USPTO has a backlog: computer-implemented wxnkers filing on endless streams of crxp.”
Bullsh!t. There’s not a 3+ year wait for a FAOM in the mechanical arts (e.g. TC’s 3600 and 3700) because of applications like this one filed by Google. There are other reasons for the 3+ year wait for a FAOM in those arts. Horrible docket management by the PTO and really sh!tty examination being the two main reasons.
Is there a backlog in your world of DNA fragments or protein bits, Malcolm, because of “computer-implemented wxnkers filing endless streams of crxp”?
And if the PTO is just rubber stamping all of this “computer-implemented crxp” as you allege, how can it be the cause of the backlog?
There always has been, and always will be, some examiners that will allow some invalid patent claims that seem objectively clearly invalid to others.
Right. Like this one. It’s invalid *and* it’s objectively invalid to nearly everyone. Then there’s those wxnkers who never saw a claim they didn’t want to try to defend, even if they fail miserably and end up contradicting themselves or simply dissembling when they realize that it can’t be done.
I’ve lost count of how many times some sad stooge popped up to say “you have to look at the specification or prosecution history to see what the terms mean” and then, invariably, there is nothing there to rescue the claim.
I don’t care how many patent applications are looked at. A claim such as the one we are discussing should never issue and yet such claims issue ever week. Again, imagine if the USDA screwed up spectacularly like this every week. Imagine if every week the USDA stamped ‘approved’ over a shipment of meat that virtually anybody off the street could look at and say “That is contaminated with E. coli and someone is going to die.” Or if every week another terrorist got past the airport screeners and was identified instead by a passenger on the plane.
That’s different, you say, because people actually care about those kinds of failures. Well, I care about these kinds of failures because they encourage more people to try to fail in the same way. And that’s the main reason the USPTO has a backlog: computer-implemented wxnkers filing on endless streams of crxp.
You are 100% correct…The PTO still will have to, essentially ask for the money in the fund.
“can’t touch” = wishful thinking.
Section 22 pg 137
‘‘(2) There is established in the Treasury a Patent
and Trademark Fee Reserve Fund. If fee collections by
the Patent and Trademark Office for a fiscal year exceed
the amount appropriated to the Office for that fiscal year,
fees collected in excess of the appropriated amount shall
be deposited in the Patent and Trademark Fee Reserve
Fund. To the extent and in the amounts provided in appropriations Acts, amounts in the Fund shall be made
available until expended only for obligation and expenditure by the Office in accordance with paragraph (3).
Translation: “I attended NetFlix Law School.”
Cool story, bro.
My skin is actually fairly thick. It’s only that I find professional discussions more enjoyable when the participants maintain a respectful tone when disagreeing with others.
So you think Dave Kappos has the time to personally review more than a third of a million allowed patent applications a year? That was an undeserved comment.
Kappos, IBM and the rest of the Lowbrow Computer Patent Filers appreciate your suppport, Paul. Keep those applications coming!
This claim is clearly non statutory as it does not do anything physical.