Ex Post Breaks in the Chain of Priority

by Dennis Crouch

Patent families generally require a chain of copendency.  A later filed application may claim the same priority of an earlier-filed application so long as the later is filed while the earlier is still pending (not yet patented, abandoned, or otherwise terminated).  This pending Supreme Court petition focuses on the situation where the earlier-filed application is amended to alter its priority claim — and asks What happens to the later-filed application’s priority claim.

Natural Alternatives v. Iancu (Supreme Court 2019)

I have been following the Natural Alternatives cases for the past several years.  Natural’s patents cover a dietary supplement containing free beta-alanine.

1. A human dietary supplement comprising … beta-alanine [or amide thereof] that is not part of a dipeptide, polypeptide or oligopeptide.

U.S. Patent No. 8,067,381.

The particular issue in the pending petition here focuses on priority claims.

When is priority established for a patent application under the Trade-Related Aspects of Intellectual Property Rights (TRIPs) so that a Patent Owner can change priority in one application without affecting the priority of applications that have already established priority?

In this case, the patent at issue is the eighth in a long series of U.S. patent applications claiming priority back to an original UK application. For each patent in the chain, a new application was filed just before the prior patent’s issuance.  In each instance, the new application also included a claim to priority to all of the prior applications in the chain.

However, just before the fifth application issued, its priority claim was amended to “delete its claim of benefit from the fourth through first applications in the series back to the 1996 British application’s filing date and, instead, claimed benefit solely of a provisional application filed in 2003.”  Thus, for the fifth application, the applicant gave up the 1996 filing date in favor of the 2003 date — with the result of extending the 20-year timeline.  The problem for the patentee here is that the reduced priority claim in the fifth application also limited the chain of priority for the sixth, seventh, and eighth patent.

In a reexamination, the USPTO rejected the eighth patent after finding that the first patent in the series counts as prior art.  That holding was affirmed by the Federal Circuit.  To be clear, although the sixth application correctly established priority when filed, the priority claim of the sixth was undermined when the prior-filed application (the fifth) was amended.

In its petition, the patentee argues that this “nunc pro tunc” result is improper.

The Federal Circuit’s holding means this disclaimer occurs even when the later-filed application was filed before the priority claim was disclaimed. This departure from the normal tenets of property law is illogical.

The traditional property law law discussed here is the “vesting” of the priority claim — that the patentee argues occurs as soon as it is properly claimed.

This is an interesting decision here that should certainly offer pause to anyone considering priority-claim schemes.

49 thoughts on “Ex Post Breaks in the Chain of Priority

  1. 6

    “A chain is only as strong as its weakest link.”

  2. 5

    It would have been completely safe to file two continuations of number 5, leaving the priority claim of number five intact, and filing number 6 with a c0mplete priority claim and filing a branch of number 5 with a truncated priority claim. With no apparent budget constraints, why would Natural Alternatives take the shortcut that left its later continuations exposed to its earlier issued parents? The cost of asking the Supreme Court to bless their approach far exceeds the cost of an extra continuation.

    1. 5.1

      I am curious as to how Number Five (as is) or even your “dual-Con” approach overcomes a self-collision with the disavowal of the chain…

      1. 5.1.1

        Number 5 as filed could support Number 6 (and 7 and 8) as filed, preserving the priority claim. A hypothetical number 5A, branching off of number 5, could have a truncated priority claim that would not affect Number 6, because everything in the chain for Number 6 would have had a complete priority claim.
        Number 5 as-is has the truncated priority claim, the disavowal of the chain, and the argument is over whether this also truncates the priority claim of number 6 which was filed before Number 5 was truncated. Who knows how that will come out. But we all know how the safer route would have come out.

        1. 5.1.1.1

          Thanks KDC

  3. 4

    All my photos showing my flat fender that Tamai said I couldn’t have so it could be stolen, and soon after my foldable design was called a new product by Perimeter.

  4. 3

    Hard to believe the stoopidity of some practitioners.

    1. 3.1

      Does anyone know if Facebook sues hackers that interfere with their platform sales? I’ll be sure to mention who I think is causing it. Save then the time of finding the address.

  5. 2

    Dennis could it be that the “priority claim schemes” you mention are examples of cake-ism?

    I should explain. Cake-ism is what the UK government is indulging in, with its proposals for what it calls a “deal” that sets the terms of its withdrawal from the European Union. It is cherry-picking, which bits of its trading relationship to hold on to, and which bits to cancel. It wants its cake and to eat it too. Hence the term “cake-ism”.

    Just like prior sales not touching the enforceability of your patent, so with “priority date schemes”. Both are examples of cake-ism. You keep your early prior art date, even while extending your patent term.

    Does SCOTUS disapprove of cake-ism, I wonder.

    1. 2.1

      Maxdrei, I don’t see you you can ever get cake-ism with priority claims. Either the priority chain goes early enough so that prior art is avoided and the patent term is reduced, or the claims are found invalid because the priority chain does not go early enough and you don’t need to worry about the patent term extending the protection too long.

      1. 2.1.1

        The nature here of the item in the middle of the chain being a CIP is also an important consideration as far as “cakeism” goes.

        The “break” was intended for the different added matter (something not in the cake).

    2. 2.2

      I think I replied too soon. On second thought, there may be cake-ism in this case, as pointed out in part II D of the Federal Circuit decision (in appendix B). Note that the issue presented here stems from a continuation-in-part applications in the chain. CIPs are hybrids between a continuation and a new application. In the US, you can file such hybrids instead of separate continuation and new applications. As such the patentee has only one application to prosecute, and one patent to maintain in exchange of forfeiting some patent term on the new subject matter. Here, the patentee changed the priority claim of one application in the chain so as to not forfeit patent term, but it still asking the court that this one application be considered a continuation for the purpose of linking the priority chain of later applications. The Federal Circuit did not approve.

      1. 2.2.1

        I wonder whether c-i-p has any equivalence to the completely routine and unremarkable situation under the Paris Convention, when I file a provisional application with one illustrated embodiment and five claims, then, one year later, file PCT with i) claim to priority of the pro ii) the same embodiment iii) three additional illustrated embodiments, iv) the same five claims and v) an additional ten more claims. What to do about competitor prior art published during the Paris year (or your own commercial sales during the Paris year)?

        Presumably, under the AIA, the answer should be the same if the pro priority is at the USPTO rather than the UK IPO.

        1. 2.2.1.1

          Presumably, under the AIA, the answer should be the same if the pro priority is at the USPTO rather than the UK IPO.

          This has nothing to do with the AIA, and why the H would the AIA dictate any similarity between the US Sovereign choices and the UK Sovereign choices?

          1. 2.2.1.1.1

            Why? Because membership of the Paris Convention is supposed to provide a level playing field (as between those who rely for priority on a filing at the USPTO and those who rely on a filing at a PTO that is not the USPTO).

            Why AIA? I was supposing that the AIA dissolved the Hilmer Doctrine

            1. 2.2.1.1.1.1

              I really doubt that you understand either the Hilmer Doctrine nor the essence of reciprocity involved in the Paris Convention, vis a vis a Sovereign’s choice to maintain control over their own internal patent laws.

              There yet remains NO “One World Order” universal patent. Patents remain a Sovereign-Centric item, even as a Sovereign may choose to apply reciprocity and allow non-citizens to partake in a Sovereign’s patent system.

              1. 2.2.1.1.1.1.1

                Sovereign States are of course free to choose whether to sign up to the Paris Convention on mutual obligations in the field of intellectual property. A consequence of signing up is reciprocal treatment of domestics and aliens, to the extent set out in the Convention. The Hilmer Doctrine, invented by the Courts in the USA, was for many years a bone of contention, to the extent that not a few patent experts saw it as in contradiction to the obligations of membership. As far as I understand, however, the AIA rendered it moot.

                Which part of my understanding do you say is deficient?

                1. You appear to take sides IN that “bone of contention” whereas in reality, the doctrine did not transgress the treaty whatsoever.

                  It is not surprising though, given that those who “saw transgression” were typically of the “One World Order” persuasion.

                2. While not relinquishing my major point, I will backtrack to an extent and give credit to MaxDrei for the plausible stance of a view of the Hilmer Doctrine and the fact that the AIA reset some of the US Sovereign’s positions vis a vis prior art treatment.

                  HOWEVER, this reset circles back to a point of difference that has surfaced from time to time regarding prior art, PHOSITA, and specifically, the treatment of obviousness (and how the US Sovereign has treated PHOSITA consistently as opposed to a different choice by [many] different Sovereigns — as well as the notion of “secret art”).

                  This Brinckerhoff snippet of:

                  While eliminating the distinction between a U.S. priority date and a foreign priority date might seem to be a step towards international harmonization, it actually may have an opposite effect because the U.S. puts patent applications to a much more expansive prior art use.

                  The ability to cite patent applications based on their filing dates creates a cache of “secret” prior art, because most patent applications are not published until 18 months after their earliest filing date. Most countries restrict the use of such secret prior art to the limited purpose of establishing novelty. Unless the application fully teaches the invention at issue, it only can be cited as of its publication date, not as of its priority date. However, the U.S. is unique in permitting the use of such applications for any purpose, including to establish obviousness.

                  By extending the reach of U.S. patent applications back to their foreign filing dates without restricting their use to novelty, the new law will create even more prior art that can be cited against a U.S. application to establish obviousness but cannot be cited against a corresponding foreign application to defeat inventive step. Thus, the operation of this aspect of patent reform in the context of other aspects of U.S. patent law will undermines rather than promote international harmonization.

                  is an indicator of a different type of reciprocity: that of STILL maintaining a Sovereign’s choice of law, but applying that choice equally to applicants, regardless of national origin of applicants.

                  … the full piece at: link to pharmapatentsblog.com

        2. 2.2.1.2

          The CIP is pretty much parallel to your provisional/Paris convention process, except that any published parent is prior art (in addition to third-party disclosures).
          Regarding your “cake-ism” question, this form of cake-ism is perfectly acceptable if you do it as suggested in comment 5. We don’t see it as a bad thing here in the US.
          This case reflects two errors: The original decision to file a CIP, which lopped off several years of patent life for the new disclosure (and did nothing to protect it from the prior art effect of the parent 5,965,596 which published in 1999), and the later decision to amend the priority claim (while further continuations were likely) rather than file a branch application. It is surprising how many US patent attorneys have not realized that a CIP is an obsolete approach.

          1. 2.2.1.2.1

            Thanks. This might be a silly question, but what has changed? Why is it that the CIP’s that used to be a good idea are now, as you say, “obsolete”?

            1. 2.2.1.2.1.1

              The patent term changed. With the old 17 year term (from issuance), you could file continuations forever, so long as you maintained pendency and the priority claim. So, on your tenth continuation, filed ten or twenty years after the priority date, you could add disclosure and claims in a CIP, patentable over the original disclosure, and get a patent that expired 17 years after issuance (which might be 27 or 37 years from the priority date, in my example), and then file another continuation pursuing original subject matter, and that patent would expire 17 years after it issued. The CIP saved the expense of opening a new family and helped keep a family open. With the 20 year term (from the priority date), a CIP filed ten years from the priority date expires only ten years later, and still has to be patentable over the original disclosure, so you get no advantage, and lop off ten years of patent term for the new subject matter and claims. It makes no sense (unless you have absolutely no other way to keep a family open, and/or don’t care too much about the new disclosure). The impulse to keep families open is so strong that you will occasionally see respectable patent attorneys file continuations even after the twenty-year term has expired. See US Pub. 2007/0015998, filed September 21, 2006 but claiming priority to February 28, 1986. So, the value of a CIP, in the twenty-year era, is much diminished.

              1. 2.2.1.2.1.1.1

                That’s very clear. Thank you, KDC. If you have any enthusiasm for it, can you comment on the “20 years from priority date” rule about the term of a patent. Is that inevitably so, given that elsewhere in the world it is 21 years.

                1. 20 years from the priority date: in a straight US case, that would be the filing date of the first non-provisional in the chain. The provisional does not count, and any foreign priority does not count. For PCT applications, the PCT filing date counts (the same rules applies when I file national stages in Europe, no?). Since 35 USC § 154 refers to a twenty-year term, that is how we refer to it, knowing that a patent issued on a provisional application would, if followed by a non-provisional, expire 21 years after filing of the provisional.

              2. 2.2.1.2.1.1.2

                Thanks for your answer on “priority date” KDC.

                Yes, it is the same 20/21 year term outside the USA. The difference is just terminology. Outside the USA, the 20 year term runs from the “filing date” of the patent application that is the basis of the patent, and there is usually a “priority date” declared in the filing, which for a utility patent can be up to one year earlier than the filing date. Hence, everywhere, up to 21 years from the earliest declared “priority date”, which can of course be a domestic priority at the same Patent Office, or a foreign priority as contemplated in the Paris Convention. This puts domestic and foreign filers on exactly the same terms. This is reciprocity, the Raison d”Etre of the Paris Convention.

      2. 2.2.2

        PiKa:

        Here, the patentee changed the priority claim of one application in the chain so as to not forfeit patent term, but it still asking the court that this one application be considered a continuation [In Part] for the purpose of linking the priority chain of later applications

        That’s exactly what I was thinking.

        I “get” the fact that Number Five wanted to “branch” to the “IP” part of the “CIP” chain (noting the addition of a provisional filed after the Number Four item).

        I “get” the fact that Number Six was filed prior to changing Number Five (filed 8/29/2008), and the argument attempted is that at the instant of the filing of Number Six, the immediate preservation of the then stated chain was “established.”

        The problem comes with AFTER Number Six was filed, the applicant made a material change to Number Five.

        At first I was going to state that it appears that the material change was fully legitimate in and of itself.

        But a quick review makes me question whether that statement could be correctly made.

        The disavowal and material change comes from an odd (and contested? characterization) of an after allowance change, where the new representatives for the applicant attempted to amend the original filing receipt with an odd (and most definitely IMPROPER) “preliminary amendment” to change claimed priority to ONLY the new provisional – which of itself would have been timely), while maintaining incorporating by reference the full chain.

        The material effect of the change at the point in time of the change is a disavowal, which necessarily affects ALL items then current that refer to themselves as Number Five.

        This includes the reliance of Number Six on the timing link of Number Five.

        The argument here really is that Number Six establishes the proper chain, but itself is NOT affected by any additional material changes to Number Five, even though the disavowal is made to Number Five, and Number Six fully reflects an intent — a maintained intent — to reflect Number Five.

        The problem for the patentee though is that Number Six was also NOT changed to remove the different path of the changed Number Five.

        When Number Five was changed (date of change: 9/2/2008), Number Four was no longer active, having issued on Jan 20, 2004.

        When Number Six was filed, the ONLY co-pending application available was Number Five. That link was vital.

        The disavowal of Number Five should have been reflected in Number Six — if Number Six indeed was desired to NOT depend on Number Five. Since there was NO change, Number Six remained tied TO BEING a continuation of the declared CIP Number Five, even though Number Five was disavowed to be a CIP.

        There IS a bit of cakeism in that Number Five is wanted to be considered a CIP AND also wanted to be disavowed from being a CIP.

        Number Five was accepted and became a NON-CIP, with only a (legitimate for priority) tie to the provisional.

        Most likely, Number Five should have NOT issued, and should have been rejected for the broken chain.

        This also should have doomed Numbers Six, Seven and Eight. Notably, Numbers Seven and Eight aver to Number Five (even after the disavowal) as being a CIP, when in fact at the later time of those filings, the (broken) argument that MAY have been attempted with Number Six could not have applied.

        The stated “related application” status of Numbers Seven and Eight are simply not correct, coming after the disavowal. By stating that the chain rested on the (new) provisional AND Number Five (which had disavowed the chain), the applicant was stuck with the broken chain. The applicant could not have a chain to both Number Six (pre-disavowal) AND Number Five as attempted.

        No matter how Number Six is sorted out (even if only for argument’s sake the applicant is successful in establishing THAT FOR SIX, the timing at filing prevails), after the disavowal, the chain simply was not the same as the applicant portrayed.

    3. 2.3

      I thought last I heard Britain was practically begging to be a vassal state of the EU, practically speaking, in order to “leave” the EU. Far from wanting its cake and eating it too. But, if they grew a spine, better for them.

      1. 2.3.1

        The EU stands by its “Four Freedoms” as indivisible: freedom of movement (within the EU territory) of goods, services, capital and labour. The UK’s “cake-ism” lies in wanting to stop the free movement of people (between the EU 27 Member States and the EU) while retaining the other three freedoms.

        The EU’s FDA is based in London. London is the world’s premier international financial trading centre. The UK could dominate the EU, if only it were ever to fully engage with it. But it prefers to shrink back into its island fastness. The consequence will be the dissolution of the United Kingdom of Great Britain and Northern Ireland, as Northern Ireland re-unites with the Republic of Ireland to leave the entire island of Ireland a single EU Member State. Then Scotland will also secede from Great(!) Britain.

        1. 2.3.1.1

          “The EU stands by its “Four Freedoms” as indivisible: freedom of movement (within the EU territory) of goods, services, capital and labour. ”

          Wow, I can’t believe the supposedly “left leaning” govs of France britain and Germany would ever agree to the free movement of labour from poor countries into their countries undercutting wages. I guess that’s the hallmark of neo-liberalism at play.

          “The UK’s “cake-ism” lies in wanting to stop the free movement of people (between the EU 27 Member States and the EU) while retaining the other three freedoms.”

          So they don’t want to undercut their working class and additionally import never ending waves of 3rd worlders forever with them not even having but a teensy say? That’s “cake”? Lol. I <3 you ta rds across the pond. Having an economic/movement agreement without the undercutting of your working class and importing third worlders forever (so that your elite class can look virtuous while enriching themselves and creating ethnic ghettos for people to have to avoid and creating an untenable social situation becoming ever more untenable) is "cake"! LOLOLOLOLOL The frenchies can't screw the globalist ta rds hard enough, I hope they burn paris to the ground, rebuild it, and burn it again, and again, and again, and eventually they do the same thing in London, Berlin etc. And get the guillotines to punish this level of ta rd in their gubmit and elite.

          That said, and somewhat on a different part of the same subject, Germany truly did conquer Europe without firing a shot. Except this time it was softly with "muh virtue". I don't even know why you guys bothered to fight them the last time round, they're obviously going to win no matter what the game is without big daddy US stepping in to regulate your ta rdation.

          "The UK could dominate the EU, if only it were ever to fully engage with it."

          You mean if only Germany didn't always beat you to it by being better than you anglos at basically everything. Which they always are ever since you threw away your empire fighting them over a small strip of land and a city full of germans. Smooth move Mr. Dominator.

          1. 2.3.1.1.1

            “Let them eat cake”

            (yet another lesson in those that do note learn from history are bound to repeat it…)

          2. 2.3.1.1.2

            Perhaps, 6, you didn’t quite grasp the point, that the freedom of movement of people only goes as far as people within the EU. That is to say, ONLY EU citizens enjoy that right and only inside the EU. Compare a New Yorker getting a job offer in Phoenix Arizona. Does she enjoy freedom to move to AZ to take up that job? Would the NY and AZ State legislatures ever pass laws to allow that to happen?

            Or are you intentionally asserting that the EU is a 3rd world country?

            What the EU is trying to do is create within the EU a “single market”. More trade within the EU, more prosperity within the EU. The EU just agreed a bilateral Trade Agreement with Japan. Both parties hope it will make their respective economies more prosperous. Are they wrong?

            1. 2.3.1.1.2.1

              The inclusion of the trade agreement between Japan and the EU is a point against your views vis a vis UK and the EU, MaxDrei.

              You start out with some “all four or nothing” type of view and then ply an example of NOT “all four and that’s good for both sides”….

              I really wonder about your mental faculties at times like this.

              1. 2.3.1.1.2.1.1

                Are we on the same page, anon. The UK is (at least for the time being) a long-standing and fully paid up full Member State of the European Union but Japan is not.

                The EU has Trade Agreements with many sovereign States, all around the world, including Japan.

                But none of those Trade Agreements is relevant to the internal law and rules of the European Union, that govern relations between Member States of the EU.

                Compare Relations between i) The USA and Japan and ii) any two of the 50 States that make up the U States of A.

                1. Or, to put it another way, there is all the difference in the world between a “single market” and a “Trade Agreement”. Anti-trust law, the law of what can be patented, for example, can be different between States who trade with each other but ought not to vary inside a single market. Yet both single markets and trade aghreements are good for trade, for prosperity, both for folks inside teach one of those “single markets” and for people in territories covered by the Trade Agreement.

                2. MaxDrei,

                  YOU are the one that put the trade agreement between Japan and the EU on the page.

                  I am merely pointing out that YOUR move does not support your original position.

                3. “Or, to put it another way, there is all the difference in the world between a “single market” and a “Trade Agreement”. ”

                  Yes and britain wants a trade agreement and movement agreement (not with infinite people being let in if they’re a citizen of some foreign nation in the block). Why will the EU not make that with them? I’ll tell you why, because they fear the dissolution of their little “muh single market” dictatorship if Britain gets away because others will leave as the years go by and more waves of 3rd world and poor Euros come and go sparking the poors of whatever nation is getting hit to take political steps to stop that (as they should be able to without being subject to the dictatorship of Brussels, or brussels acting in tandem with Merkel or whomever handing out citizenship like candy).

            2. 2.3.1.1.2.2

              “That is to say, ONLY EU citizens enjoy that right and only inside the EU.”

              From the lips of Soros’s org itself: “How has the European Union responded to refugee movements?

              In 2015, high numbers of migrants, many of them Syrians fleeing conflict, continued to move. Some European states, led by Germany, recognized that their strategy of seeking to block refugees moving across borders was unrealistic and harmful. Countries worked together to allow migrants to move onwards to the places they wished to reach. This allowed reception countries to focus their resources on supporting asylum seekers and considering claims.”

              Sounds like free movement is on the menu for just about everyone. All the 3rd world has to do is “overwhelm” the poor poor humanitarian virtuous people to your south and they’ll let them on up to Britain or wherever. You can find other people saying the same.

              Further, “mama” Merkel invited the whole 3rd world up to be “Germans”, so they can go to Britain or wherever and get work. She finally had to recant but it’ll be years before her invitation wears off. And there are plenty of countries handing out citizenship left and right so that migrants can move on wherever so they can get them out of that first arrival country. Finally, and perhaps most importantly with respect to volume, you have your poor countries with normal/2nd-world/3rd worldish ebil whitish native citizens WITHIN the block that are coming in to compete with your lower class and are also setting up their own little outposts.

              I have no doubt that the deal works out real well from the elite’s perspective.

              link to opensocietyfoundations.org

              “What the EU is trying to do is create within the EU a “single market”. More trade within the EU, more prosperity within the EU. The EU just agreed a bilateral Trade Agreement with Japan. Both parties hope it will make their respective economies more prosperous. Are they wrong?”

              I’m not sure what that has to do with Brexit. Obviously some trade deals make both countries/blocks better off though I haven’t had a look at the one with Japan.

              1. 2.3.1.1.2.2.1

                You, as an American, should understand the difference between a “right” and the temporary affordance of shelter to those in genuine fear of their lives, running from a genocidal regime, like those just outside the south-west land borders of EU territory.

                The genius of Nigel Farage, the architect of Brexit, was to get the public in England to see no difference between i) young criminal males in England who have migrated from dysfunctional African States like Somalia ii) those from outside the EU who are in genuine fear that their own country is a genocidal regime intent on killing them and iii) artisans, other skilled professionals (such as doctors, nurses and carers) from another EU Member State (of which they are a citizen) moving within the EU to places like Germany (and until recently the UK) where they can find well-paid work.

                Surely you are not under the misapprehension that i) the German auto industry owns Mrs Merkel, ii) Merkel owns Germany iii) Germany owns the EU? All pure fantasy. It is the Euro and the European Central Bank, run by an Italian, Draghi, that has made Germany so much richer than the remainder of the EU, and it was France who forced the Euro on Germany, as the price of acceding to German re-unification, to eliminate the mighty D-Mark. This is one of the best illustrations of shooting yourself in your own foot that I can think of.

                There are 28 Member States in the EU. Most of them are tiny countries. But in the Council of EU States that runs the EU each such dwarf has a vote. Germany also has just one vote. The notion that Germany owns the EU is ridiculous.

                What has the EU single market to do with Brexit? Simple. The English
                have been duped into supposing that all their ills are the consequence of being under “the yoke” of the Court of Justice of the EU. Farage has convinced them that all they need to have is their own Supreme Court back, and all those ills will disappear. You will have your own opinion, how good supreme courts are, at getting rid of deep-rooted and long-standing ills of society.

                1. all this whining about “who controls whom” reminds me of why the US settled on its bicameral system with both House (more akin to pure numbers) and Senate (each state, no matter how populous, gets two representatives).

                2. “and the temporary affordance of shelter to those in genuine fear of their lives”

                  TEMPORARY? It’s permanent when THEY the migrants (or the german gubmit etc), not YOU (or your gubmit even), decide, in practice. You absolute ta rd who isn’t even paying attention. I’m all for “temporary”. Problem is, BOOMER, the rest of the world is so busted and has too many “hurting/displaced/etc” people so it becomes impossible to send people back. This isn’t the 40’s anymore with its world pop of 2.3 billy. We now have four times that with the bulk being in the dysfunctional areas. But re temporary, observe the US’s current “temporary” (actually explicitly temporary) programs to help out refugees from disasters. Can’t ever end the “temporary” relief for the various groups because herp derp the home country never gets above 3rd world conditions (at least within several decades) and by then virtue signalers say “the US is all they know…just let them stay, they’re ‘Merican” (none of them practically are ‘Merican by then, save some of their kids). And even if you do “end” the temporary program’s protections from deportation then they generally just stay as illegals (some few obey the law and go home, FEW). Can see the same thing in the EU.

                  And further you’re making a fundamental mistake, this isn’t “mostly” syrians. It’s just high numbers of migrants with many being syrians. And those high numbers are unlikely to appreciably shrink without stricter policies. There’s too many people in busted areas, modes of travel are too easy/cheap and the global poor are finally getting to where they can afford to make the trip (though they’re still poor).

                  “running from a genocidal regime”

                  Assad is not genodical.

                  “like those just outside the south-west land borders of EU territory”

                  I think you mean south-east like Syria, the EU doesn’t have a south-west LAND border, the south west is spain’s ocean border.

                  “The genius of Nigel Farage, the architect of Brexit, was to get the public in England to see no difference between i) young criminal males in England who have migrated from dysfunctional African States like Somalia ii) those from outside the EU who are in genuine fear that their own country is a genocidal regime intent on killing them and iii) artisans, other skilled professionals (such as doctors, nurses and carers) from another EU Member State (of which they are a citizen) moving within the EU to places like Germany (and until recently the UK) where they can find well-paid work.”

                  That isn’t a hard “trick” when Allah and ethnicities/languages/cultures/crimes etc. are involved.

                  “Surely you are not under the misapprehension that i) the German auto industry owns Mrs Merkel, ii) Merkel owns Germany iii) Germany owns the EU?”

                  no.

                  “This is one of the best illustrations of shooting yourself in your own foot that I can think of.”

                  no kidding?

                  “But in the Council of EU States that runs the EU each such dwarf has a vote.”

                  That isn’t truly how it works though. As your own MPs and reps in those bodies recently informed Sargon o Akkad (Carl Benjamin). In practice it boils down more to a dictatorship of bureaucracy with unelected leadership (or rather the bureaucracy practically elects its own leadership iirc).

                  “Farage has convinced them that all they need to have is their own Supreme Court back, and all those ills will disappear”

                  That is not correct. He convinced them only that they will have the chance to actually solve their own ills through the old timey democratic process (and on a more localized level at that) and this new thing called sovereignty. There is a difference.

                  All this is a large aside from cakeism tho. Thinking any of this is “cakeism” should get you deposed and your power structure/hierarchy destroyed and remade.

                3. 6, I had never heard the name Carl Benjamin, till you cited him as your source of information on all things Brexit. Interrogating Wikipedia, I find that:

                  “Benjamin is a prominent anti-feminist”

                  and:

                  “In May 2018, Benjamin was a speaker at a right-wing “Day of Freedom” rally in support of Tommy Robinson after Robinson was banned from Twitter for h___ speech”.

                  I was wondering what might explain the sad misogynist point of view you express here. That’s clearer now.

            3. 2.3.1.1.2.3

              Britains 1900:

              “Rule Britannia!
              Britannia rule the waves
              Britons never, never, never shall be slaves.
              Rule Britannia!
              Britannia rule the waves.
              Britons never, never, never shall be slaves.”

              Britbongs 2020: oops I accidentally myself an EU tax cow, and my butter-knife license expired yesterday!

              link to youtube.com

              1. 2.3.1.1.2.3.1

                Never mind 1900. Since many centuries before that, England has been equivocal, 50:50, about its relationship with the mainland. In the days when half of France belonged to England, it was a good thing. But then when we gained a world-wide empire, the mainland was our competitor, sometimes our enemy. Then, ever since we lost/relinquished our empire, we have been unsure, split 50:50, about what shall be our place in the world. It’s an ongoing problem.

                1. I see less “equivocal” and more that you simply disagree with the present direction.

                  It’s an ongoing problem.

                  On going, sure, as the very nature of the item so demands. Problem? Meh, it will always be a “problem” for those that want a different path. For those wanting the path taken, the choice of word may be “opportunity.”

                2. “It’s an ongoing problem.”

                  No kidding. In the meantime be sure to turn yourself into an -istan.

  6. 1

    Part II A of the Federal Circuit decision (in appendix B) includes a puzzling interpretation of what “entitled” to a priority date means in the context of 35 USC 120. This part of the opinion interprets “entitled” in section 120 as involving an analysis of the support of “patent” claims in an earlier disclosure. However, based on this interpretation, it seems to me that no priority chain can ever contain an application that was not granted, because this application has no “patent” claim entitled to an earlier filing date. And if you modify the interpretation of “entitled” to mean that claims that were pending at one point in time must have support in an earlier disclosure, then it follows that claim amendments and corresponding amendments of the priority chain in one application may not doom a priority chain, which is not the conclusion reached in the opinion.

    1. 1.1

      However, based on this interpretation, it seems to me that no priority chain can ever contain an application that was not granted, because…

      I believe that such an interpretation could not hold.

      One may fully obtain a chain through an application that itself (as a parent) becomes abandoned.

      So long as the child is created while the parent is alive, the chain links are forged.

      The present condition here with the disavowal of Number Five is not an apples to oranges comparison with an application going abandoned.

      Separately, I wonder if a different path may have been taken in that Number Five actually resulted from a restriction requirement. I would have to wonder if treating Number Five as a divisional, with Number Six as a remainder of the divisional may have provided a different chain analysis.

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