Patently-O Bits and Bytes by Juvan Bonni

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41 thoughts on “Patently-O Bits and Bytes by Juvan Bonni

  1. 7

    At 211221 below, anon expresses himself unsure how to read the invention ownership provisions of the EPC, set out under its Article 60. Its first sentence, in full, reads:

    “The right to a European patent shall belong to the inventor or his successor in title.”

    You can’t get any more unequivocal than that, can you?

    Nevertheless, anon cites Stanford v Roche in telling me that the USA accords a “higher respect” to the ownership rights of inventors. More “Lockian” he writes. I suppose he alludes to John Locke and his notion that property is a natural right that derives from labour.

    The thread below will not accept any further postings from me.
    So, can anybody explain to me here, in words I can understand, in what way US patent law affords “higher respect” to the ownership rights of inventors than the first sentence of Art 60, EPC?

    1. 7.1

      Maybe you want to open your eyes and read the rest of my comment, MaxDrei, as I point out – with particularity – several of the subsections of the EPC.

      Whining as you do – and posting that whine up on top – is rather unbecoming.

  2. 6

    Timothy Snyder’s new book is called “The Road to Unfreedom” lays out a technique perfected by none other than Vladimir Putin himself which Snyder calls “schizo-fascism.” He describes it as “actual fascists calling their opponents ‘fascists,’ blaming the Hol0c@ust on the J e ws, treating the Second World War as an argument for more violence.” It’s an exasperating “I know you are but what am I” tactic designed to frustrate and eventually wear down opponents.

    Golly, gee, in what patent-related context have we seen this behavior before?

    Unfortunately I’m not the type who gets “worn down” easily. Besides that, watching my arguments repeatedly win the day keeps the energy up. [sets up chair next to the endless river of patent maximalist crocodile tears and sips a tall iced tea]

    1. 6.1

      “Besides that, watching my arguments repeatedly win the day keeps the energy up.”

      Literally laughed out loud. You truly are a legend in your own mind.

      1. 6.1.1

        Literally laughed out loud.

        Laughter is good for you, even if it’s woefully misplaced.

    2. 6.2

      Without Heller around comments (and your ability to influence) have tanked. Was fun while it lasted!

      1. 6.2.1

        Of all the anti’s, Ned certainly was the one that engaged dialogues the most.

        But make no mistake, even he would not engage fully and take conversations to their logical ends.

        Nearly every time the dialogue progressed to a point wherein he would have to admit to a critical item that went against his advocacy (or philosophy, but most often his advocacy), he would “jump ship” and derail from the dialogue.

        Also, he very much engaged in the “Internet Style” shoutdown. By that, the mechanism is to “shout down” any contrary view by pretending that conversations had never taken place and that counter points to a certain position had never been offered, and then repeat a baseline position on a new thread as if that baseline position was somehow pristine. This created a serious Merry-Go-Round condition of perpetually reminding him of things that even he had admitted to.

    3. 6.3

      Malcolm’s number one meme: Accuse Others Of That Which Malcolm Does.

      Golly gee indeed.


  3. 5

    link to

    [T]he tariffs, by instituting an international trade war with our country, were intended to create hardship not only abroad but more importantly, in the US. This provides the Trump administration a splendid opportunity to offer “protection” to its loyal supporters. Protection could come in the form of exemption from the tariffs for specific business sectors or in the form of cash payoffs to offset the financial burden. A shakedown racket depends upon creating problems for those to be shaken down. And, as the hardships deepen, the protections Trump provides his supporters will become all that more valuable.

    As for those who don’t support Trump? The administration can simply respond, “No can do. There’s a trade war going on. Blame Europe for your problems. Blame Obama for the lousy deals that forced us to institute tariffs in the first place. It’s not our fault.”

    That’s it. The trade war really isn’t about international trade. Of course, if Trump can shake down some foreigners, too, hey, why not? But they’re not the primary marks for the grift. This is really about establishing Shakedown Nation, where supporters are openly protected and all other Americans face ruination.

    Pretty obvious to anyone with at least half a br@in but no doubt there’s a bunch of people here who will be surprised by this.

    1. 5.1

      Sounds like a play right out of the playbook of the “Big Government Left.”

      But aside from that, what the F does this have to do with patent law?

      1. 5.1.1

        Sounds like a play right out of the playbook of the “Big Government Left.”


        Does everybody see the glaring problem with Glibertarian Billy’s inane rhetorical game? Golly, I hope so.

    2. 5.2

      ” Blame Europe for your problems. ”

      I heard tell that Europe really is to blame for their problems. Europe kicked off the trade war with them by putting tarriffs on US goods before Donny even got there to fight them over the issue.

      “That’s it. The trade war really isn’t about international trade. Of course, if Trump can shake down some foreigners, too, hey, why not? But they’re not the primary marks for the grift. This is really about establishing Shakedown Nation, where supporters are openly protected and all other Americans face ruination.”

      I wish. But unfortunately for leftists that isn’t exactly how it’ll play out.

  4. 4

    Apple Patent Hints at Better Gesture Control on the Apple Watch

    “…. wherein said gesture control module comprising a plurality of sensors is configured to provide improved gesture control relative to previous versions.”

    Look, ma! I’m a “tech” patent drafter!

    1. 4.1

      Ya screwed up, you’re supposed to leave the relative relationship dangling so that it draws a 112 for being relative to some unclaimed device that isn’t even in the claim.

      That’s how true professionals do it.

  5. 3

    Facebook’s Push for Facial Recognition Prompts Privacy Alarms

    “Hey, you look like a person with an insatiable appetite for pure bullsh t, which is how we make our money!”

    Worst. Company. Ever.

  6. 2

    One of the Papers trailed concerns the patent system in the 19th century. Me, I’m more interested in the one for the 21st.

    In the Ariosa thread, Thomas Pain helpfully informs me as follows:

    “””We did not go to a first to file system, exactly. They call it “first inventor to file.” Interference proceedings are being replaced with AIA trial “derivation” proceedings, in which a first inventor may show that an earlier application was filed, without authorization, in which that inventor derived the invention from the first inventor. Things could get … interesting.

    Had a first to file system been put in place, the system would have been challenged as contrary to the US Constitution, with the reasonable argument that the “inventors” in the language of the Constitution means inventors, not filers.”””

    What I found interesting in that is the misconception that ROW FtF lacks any mechanism for dealing with derivation. Precisely because under FtF the rewards are so humungeous, that the one who got into the PTO first can look forward to, there HAS to be derivation provisions in EVERY FtF jurisdiction, of high enough quality to deter thieves, rascals, all unscrupulous or greedy or ambitious researchers, from straying from the straight and narrow. See for example Article 61 of the EPC.

    Thomas Pain, any further thoughts now?

    1. 2.1

      the misconception that ROW FtF lacks any mechanism for dealing with derivation

      You read into a tangent of your own making a “misconception” that may exist only in your mind.

      Tommy was just not aiming his comment at the workings of ROW. His comment was aimed specifically at a constraint that OUR Sovereign operates under: our patent law is tied directly to our foundational Constitution. I am not aware of ANY other sovereign that has their innovation protection law so enmeshed.

      Once you recognize that his point was not the point that you veered to, then you might better appreciate the differences that Sovereigns have (and how those differences impact the different choices that any Sovereign may make).

      Then, after recognizing the point presented for what it was (and without creating a false “misconception” talking point), OTHER tangents could be brought up for discussion. Perhaps one of those other tangents, and perhaps a better observation, would be the recognition that derivation and interference are not fully aligned concepts. It is interesting to note that much of the talk here during the AIA buildup concerning interferences were how inefficient and messy they were, and yet, the “replacement” mechanism was largely a mere copy of those same inefficient and messy items.

      But to your Article 61, that seems like a nice and clean approach.

      I like it.

      Here, we do have a Fraud on the Office approach that would apply in the situation where your Article 61 applies (given the necessity in both for “final decision it is adjudged that a person other than the applicant is entitled to the grant.” In fact, our Fraud on the Office would apply even in the face of a non-grant (as in, for example, children of a granted item that may still be active in prosecution).

      1. 2.1.1

        But I still don’t get it. How, exactly, is it, that in going to a First Inventor to File Statute:

        “We did not go to a first to file System”


          How is it that you do not understand the difference between a First Inventor to File and a First to File?


          Let me try this approach:

          Your Article 61 is phrased in the “permissive” that allows a “true” (adjudged final decision) entitled person (note that this is NOT necessarily an inventor) to take some action (several options listed).

          What if your entitled person simply says “Meh, I’m going to leave well enough alone and not do anything.”

          Does your Article 61 then deny the grant to the original entity that may have been granted the patent (and not the adjudged entitled person)?

          Also, for additional background, you may want to revisit the Stanford v. Roche Supreme Court case.

          In our sovereign, only a “real person” (and NOT a juristic person) may be deemed an inventor. With the AIA, juristic persons have been provided more latitude in regards to filing, but technically, patent grants must find a true person as a starting point. This also ties into the notion of an inchoate right (and the nature of patents in a Lockian sense).


            Interesting. Good question. In Europe the true inventor or owner can challenge but an uninvolved third party cannot challenge validity on a wrong inventor or owner basis. Is that for you the decisive difference.


            An interesting distinction between the AIA and the EPC is that under the AIA anybody can petition for revocation on the basis that the wrong inventor is named whereas, under the EPC, only the wronged inventor (or their assigns and successors in title) can bring such proceedings.

            Is that the essential difference between a FtF and a FItF system?


                In referring to Art 60 EPC I was trying to show you that your distinction (Lockeian, inchoate) between FItF and FtF is illusory. Also under the EPC, the inventorship entity must be a real human person or persons. The right to a patent belongs to that or those real persons. Their true assigns or successors in title, for example their employer, derive it exclusively from that or those real human inventors.


              under the AIA anybody can petition for revocation on the basis that the wrong inventor is named

              ? Where do you get this?

              In fact, the AIA REMOVED the draconian penalty of incorrect inventorship.

              Are you just throwing C R P at the wall again, MaxDrei?


                I was thinking about a case where Ethicon asserted against USSC and USSC beat them off by doing a deal with one of the inventors. But I missed the distinction between “unenforceable” and “invalid”.


            anon, you might want to read EPC Article 60, about who can be an inventor and what ownership and filing rights that real person enjoys under the EPC.



              I am not sure though on just how to read some of this, and have some additional comments/questions:

              (1)… If the inventor is an employee, the right to a European patent shall be determined in accordance with the law of the State in which the employee is mainly employed;

              See, here this is not the way the US operates. See my previous post about Stanford v. Roche. The US Sovereign has a “higher respect” for the individual, and applies a more rigorous Lockian perspective to the nature of patent rights.

              (2) If two or more persons have made an invention independently of each other, the right to a European patent therefor shall belong to the person whose European patent application has the earliest date of filing, provided that this first application has been published.

              So what happens if neither application has been published at the time of the collision?

              (3) In proceedings before the European Patent Office, the applicant shall be deemed to be entitled to exercise the right to a European patent.

              Hmm – our AIA brought us closer (but not exactly to this point). Here, there still has to be some action on the part of the applicant, and the “deeming” is a rebuttable presumption (under some circumstances). This part of the AIA changes were championed (at least in part) by the Lemley “it takes a village” advocacy.


                Comments on your 1, 2 and 3:

                1. There are loads of cases in Europe where the right to a patent in Europe was determined according to the law in the USA (where the act of invention occurred).
                2.The earlier filing has to be published. Otherwise, nobody (except the Applicant) knows what is in it. Once it is published though, the true inventor can shout “Oi. That is mine, not yours.”
                3. Pragmatics. Burden of proof lies with the petitioner, to displace the party that is Applicant for the time being.

                1. 2 does not answer my question. Try again.

                  1 will vary by Sovereign. You point to plenty from the US. That’s nice. But not all sovereigns act like the US.

                  3 I see your answer here, but that only begs a previous question that you have not answered. See post


                I will try again today. My long answer yesterday disappeared into the ether (or something).

                (1) EPC Art 60, first sentence, in full, declares:

                “The right to a European patent shall belong to the inventor or his successor in title.”

                Which part of that is not clear to you? “His” perhaps. Does it include “her”? Of course.

                I see nothing in Stanford v Roche that reveals a “higher respect” for the ownership rights of an inventor than that unequivocal unqualified positive ownership posture taken by the EPC.

                I’ll save (2) and (3) for separate posts (in an attempt to beat the ether).

                1. My long answer yesterday disappeared into the ether (or something).

                  Not into the ether, rather, it disappeared into the odd “editorial t001” that stops dialogue in its tracks with a (not-consistently applied) “count” filter.

                  I have noticed that the allotted “count” is not consistent per poster, with the “drive-by monologue” style as per Malcolm having a higher total post count allowance than those of us that actually engage in dialogue.

                  Just another of the odd editorial actions here that will remove any type of “protection” for “merely provided a forum” should anyone seek action against a commentator…

                  Additionally – as seen here – this effectively stops a dialogue in its tracks, as it is for less likely that the conversation will be picked up again after its editorial halt.

    2. 2.2

      I wasn’t commenting on the EPC system. But if you want to call it a “first inventor to file” jurisdiction I’m ok with that. However, I don’t see that there “HAS” to be derivation provisions in place in every first to file jurisdiction. Thieves, rascals, etc. could be subject to, for example, civil actions for fraud. Similar to, in the US, suing your patent attorney for mishandling prosecution of your patent. The USPTO does not get involved.

      1. 2.2.1

        Thanks for that, Thomas. Indeed, the EPO “does not get involved” in derivation proceedings either. It waits till there is a “final decision” from the court that is competent to decide whether there is derivation, under the relevant sovereign law, and then acts in accordance with that decision.

  7. 1

    In November, several outright N@zis and white supremacists will appear on Republican ballot lines. Arthur Jones, a founder of a neo-N@zi group called the America First Committee, managed to become the Republi k k -k an nominee for Congress in the heavily Democratic Third District in Illinois. The Republi k k – kan candidate in California’s 11th District, John Fitzgerald, is running on a platform of Holocaust denial. Russell Walker, a Republik k k-k an statehouse candidate in North Carolina, has said that Jews descend from S@tan and that God is a “white supremacist.”

    Corey Stewart, Virginia’s Republi k k -k an Senate nominee, is a neo-Confederate who pals around with r@cists, including one of the organizers of the violent “Unite the Right” rally in Charlottesville last year. The longtime Iowa Republi k k -kan representative Steve King has moved from standard-issue nativist crank to full-on white nationalist; he recently retweeted a neo-N@zi and then refused to delete the tweet, saying, “It’s the message, not the messenger.”

    This is why when I’m sitting around with a group of people and one of them reveals his/herself to be a slimy f cked up Rpk-k-k I shove facts like the above in their @ h0le face until they get their sick r@cist f cked up br@ins out of my face. Better than a baseball bat!

      1. 1.1.1

        You keep forgetting anon that according to MM anyone that isn’t for burning down the patent system is nothing short of an embodiment of all that is bad in the world.


          What I (apparently) keep forgetting is that certain sAmeones are simply not held accountable to the rules of this forum (even sAme ones that have had their off-patent rants expunged more often than all others combined). If there were ANY real view of wanting a healthy “ecosystem” here, one would think that such a repeat offender would be dealt with in some (any?) meaningful manner.

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