Survey of the Disruptive Impact of a First-to-File Switch

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Comments

[Ken Brooks]

Were the first to file system implemented while maintaining the best mode requirement, it will place U.S. inventors at such a disadvantage I would contend that I could render the statue invalid under several constitutional grounds including, but no limited to, the First Amendment's right to free association, the privileges and immunities clause, the due process clause of the Fifth Amendment and the like. Due to the extra care that U.S. applicants must undertake to satisfy that criteria, it places a more significant tiime-hurdle during preparation of a patent application that a U.S. applicant must be subjected when compared to non-U.S. applicants. It seems to me that the ratification of the PCT by the U.S. is already on tenuous grounds, if foreign applicants are acquiring patents based upon earlier filed non-U.S. applications that do not satisfy the best mode require due the same aforementioned constitutional infirmities. As a result, it readily appears that the first to file system is the last piece that must be put in place for a one world patent. Once we go first to file, the best mode requirement would have to be abrogated and then there would be no reason to have individual nation states examine individual patents. I can tell ya, I am not so secure about having entities of which we, as a body politic, have very litte say over telling us what we are precluded from doing. The concept of foreign-owned monopolies that are not reviewed before being granted having an impact in the U.S. has not proven too beneficial for citizens of the U.S.. Take for example RIAA and its lawsuits against U.S. citizens. There are three major copyright holders on the planet and only one of them is U.S. The consolidation of may U.S. generated copyrights into the hands of non-U.S. companies has substantially strained our civil liberties, particularly our most cherished civil liberty, the First Amendment. The Supreme Court has issued absurd interpretations of the intellectual property clause to serve the investment goals of these foreign interests. I really do not want patent rights to be devoid of scrutiny by the citizens of the United States. It is for this reason that I oppose first to file and any further harominization. We should strive to bring back the term of patent to be 17 years from issue. With this power the U.S. could be turned into a technologically second rate nation by precluding certain technology from being available here, based upon patent rights.
This has happened in the past. I look to the 1970s when on ship as a sonarman on a Spruance class destroyer. A japanese manufacturer of car stereos produced a pre-amplifier with such high fidelity that the distortion provided by the same was beyond comparison with anything available in the U.S. So much so that we discovered we realized that we could filter or signals through it and assist in detecting soviet submarines off of Pearl Harbor and the coast of california. We could not purchase it, because the company denied sales of the same in the U.S. It was only when on Westpac that we visited Japanese ports could be acquire the technology.

[Ned Heller]

I'd love to take the survey, but at least on my machine (Vista Bus. and IE 8) I could not enter check marks for each question.

[Ned Heller]

Just a couple of points, first to invent clearly gives American inventors an advantage vs. foreign applications; the grace period is essential; when patents cover only one country, prior use outside that country is irrelvant; universal public use without adequate discovery can be disasterous; interferences are not a problem even under FTI.

Finally, given the disadvantages to Americans to abandon the current system, we need to clearly understand the benefits we will obtain in exchange. As of today, I can see no benefits being offered by the world community. Now, if we had a treaty we could all sign granting a world patent; but in exchange we would have to give up FTI, I would consider that worthwhile.

[BigGuy]

"...I would contend that I could render the statue invalid under several constitutional grounds including, but no limited to, the First Amendment's right to free association..."

Really? I'd like to see an outline of that argument. Extra credit if you can work in a 13th Amendment argument as well.

[Steve M]

"I'd love to take the survey, but at least on my machine (Vista Bus. and IE 8) I could not enter check marks for each question."

Same problem here, Ned; using Windows 2000 & Firefox.

[Personalist]

I woulda closed comments on this guy. You're gonna get echo-chamber comments in the survey.

[fish bones]

FTF will result in the filing of quick crappy applications.

[interloper]

Hey, Americans, look over here! There's a whole world out here. And they do some things differently, and some things are better than in the US! Who knew?

[MaxDrei]

Before any Europeans comment further: just imagine the outcry from every patent attorney in Europe, if the legislature over here were contemplating switching the First to Invent. Our American friends would be urging us "Don't be afraid. Come on in. The water's just fine". And would we believe them? Nooooooooo!!!!

[Stephan Kinsella]

Dennis, as mentioned here, http://www.stephankinsella.com/2009/11/12/patent-professionals-and-patent-policy/ , I’m not sure why we should care what patent attorneys, of all people, think about patent policy. Why is there an assumption that their opinions on patent policy are especially relevant? If anything, patent professional are biased because of built-in incentives to favor maintaining a patent system. They are not objective at all. And training in engineering and law school in no way provides one with any special knowledge of policy or ethics issues. By analogy, do we care what an IRS agent thinks the tax rates should be?

[Ken Brooks]

Mr. Kinsella:
I speak not as a patent attorney, but as a American whose family has fought for nearly 4 centuries on the North American continent under five different flags. I do not want to see the current cadre of individuals espousing to represent the American people to further destroy our national sovreignity in furtherance of efficiency. As I write we are still struggling with independence from Great Britain for it is the British Banks, which control our monetary systemt, that have caused the current economic crisis. George Washington, Stonewall Jackson, Abraham Lincoln, Teddy Roosevelt and Ronald Reagan are turning in their graves.

[Jeff]

I agree with fish bones. As if the claims and specs we get now aren't crappy enough.

I agree with a first to invent but I believe that more swear behind information should be given upfront. Rather than having to wonder about a tenuous 102(a)/(e), I should be able to feel confident about it.

I think the earliest possible swear behind date or reference should be provided upfront. I feel like it would be less of a poker game wondering what cards your opponent has on their side. They know what we have, it's only fair.

[Dennis Crouch]

Stephan.

I agree with you that anyone taking a survey will exhibit some bias. And, US patent professionals will likely exhibit systematic bias because their (our) chosen careers depend upon a strong patent system. Further, in-house counsel typically respond with a different bias than folks at law firms. Within law firms there is a split between prosecution and litigation. Likewise, biotech & pharma focused attorneys typically have a different viewpoint than do attorneys who work in other areas of technology.

I don't know if you have actually taken the survey. The survey asks a detailed question about particular potential changes in US patent law. That question does not ask whether it is good/bad policy. Rather the question asks about how disruptive a potential change would be. This is the type of question that is well suited for a patent professional to answer. Using your analogy, I believe that it would be appropriate to ask a Tax Professional to answer a question about the disruptiveness of a change in IRS form or filing date requirements.

Here, I do also ask whether the professional supports the potential changes. That response will be used to tease-out potential bias. Although there is still room for strategic behavior in the responses, I believe that I have designed the survey in a way that at least eliminates the most direct avenues.

[fisher ames]

"I’m not sure why we should care what patent attorneys, of all people, think about patent policy."

The ole fox in the henhouse argument. yawn.
and if you want me to just pay my taxes and shut up, you can get lost.

[Initially confused by column format]

Dennis,

You may want to clarify to voters that only one checkmark can be placed in each column ??

[Inviting Body Punches]

Stephan,

I understand your point, although I find your IRS agent analogy flawed in a number of ways:

1) at the very least, it would be better to ask if we value the opinion of a tax attorney as to what tax rates should be, and

2) participation in the patent system is VOLUNTARY, participation in the tax system is COMPULSORY.

As attorneys, we are privy to information provided to us by our clients in confidence. When, as an attorney, you reach the level where you regularly integrate with firm principals and owners, you really begin to hear everything about business owners' and industry players' worries, concerns, and wishes.

When that information is combined with an "inside" legal understanding afforded by practicing attorneys of how any policy change is likely to be effected "on the ground" and whether that activity is likely to further the policy goals, we most certainly should care what attorneys think about policy changes.

Sure, people may have specific interests--someone whose practice focuses on interferences may be biased towards preserving interference practice. A very small minority, to be sure.

On the other hand, if the questions were aimed more at the central question of whether or not we should have a patent system at all, then the general bias of patent attorneys could rightly be considered to be a factor.

But not in this case.

[Red Monkey]

There are two advantages I know of for first to file:

(1) peer pressure: everyone else does it;
(2) it promotes certainty.

The idea that (1) is a valid basis for setting national policy is sad, and if we had followed it in the 1700's we would still have a monarchy.

Although (2) is a sound basis for deciding who gets a patent, it suffers from the flaw of not rewarding the first inventor. Although the patent clause does not say "first inventor", its preamble does not say anything about promoting certainty. It's hard to imagine how construing "inventor" to mean "the particular inventor who can file an application the most quickly" in the patent clause could "promote progress of science and useful arts."

Besides, given that EFS is open all day from all time zones, how would you deal with split second timing issues. Are we so in love with certainty that we are willing to punish someone whose computer didn't boot up quickly enough, or who had a slow connection one day?

[BigGuy]

"2) participation in the patent system is VOLUNTARY ..."

Interesting. I'll have to raise this as an affirmative defense the next time I'm sued in the Eastern District of Texas.

[Inviting Body Punches]

Big Guy--

Yes, I thought about that immediately after writing the post, although I decided to post it anyway.

All I can offer is this: if there was nobody VOLUNTARILY filing patent applications, nobody would be sued on a patent claim in the ED Tex.

And, if you're NOT INFRINGING, you're arguably not involved in the patent system, you're involved in the litigation system--even if you're sued on a patent theory, you don't have to raise a patent defense to successfully defend.

Give me a break--you know what I meant!!!

Here is the crux--infringement of patents is civil, violation of the tax code can be criminal. We all know the difference.

Besides, that wasn't even the main thrust of my argument.

[BigGuy]

"Besides, given that EFS is open all day from all time zones, how would you deal with split second timing issues. Are we so in love with certainty that we are willing to punish someone whose computer didn't boot up quickly enough, or who had a slow connection one day?"

Yes. Why should we care, unless such an occurence is so frequent as to undermine the system entirely? Neither the patent clause nor the patent system we currently have are about rewarding or punishing individuals - they're about motivating disclosure of new technology. A concern that 8 or 9 worthy inventors might get screwed because of sluggish Interent connections is a poor basis for a policy discussion, especially when they get screwed in favor of 8 or 9 inventors of apparently equal merit, who were otherwise only a "split second" behind.

[inviting body punches]

Big Guy--

Your determination of merit is tautological.

Just because they try to file at the same time does not mean that they invented at the same time. Only in a FTF system could they be adjudged to have equal merit.

[TwoCents]

Moving to first to file would not survive a constitutional challenge, since it would deprive a first inventor a guaranteed Constitutional right.

The patent clause, Article I, Section 8, Clause 8, of the Constitution itself (remember THAT little document people) grants an individual right to authors and inventors. By going to first to file, certain inventors would be deprived of that right (the 30% of later filing inventors who win in interference, or the roughly 1% - according to Dennis' statistics - of all inventors that swear behind reference).

What people forget that, especially in the industrial centers of the world, in Asia and Europe, in stark contrast to America, and the principles upon which America was founded, people DO NOT enjoy constitutionally mandated individual rights as we do here.

"Neither the patent clause nor the patent system we currently have are about rewarding or punishing individuals"

It absolutely is. And it is such an important individual right that it was put in the original constitution, not stuck in a Bill of Rights after the fact.

Sounds like something Mooney would say

Big Guy gets it WAY wrong here. BigGuy probably also thinks its OK for a foreigner to be president of the U.S. or that the Second Amendment is not about individual rights, as the Supreme Court ruled that it was.

[Ad Astra]

@TwoCents

I'd love to see where the SC has validated any of the legal arguments you just made. The patent right certainly isn't a constitutional right in the same way the Bill of Rights guarantees are - that's why they're in Article I. As a refresher:

AIS8: "Congress shall have power...To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries"

On the face of it, it sounds like Congress can elect to secure that exclusive right, or not, as it pleases. Since it has so chosen, you're right that it is somewhat limited, in that it must "promote the progress of science and useful arts", and it must secure the "exclusive right" for "limited times" to "inventors". We can get into a long exegesis on whether "inventor" necessarily implies "first to invent", but frankly, I think that's mostly pointless. As part of the grant, it seems to me that Congress has some latitude in its method of determining inventorship. Under the current system, there is no guarantee that the winning inventor in an interference really was the absolute first to invent - merely that he was the earliest to invent who contested. First to invent somewhat increases the likelihood of finding the true "first inventor" over first to file, but in most cases we'll end up with the same result. And if Congress finds that large savings in efficiency will result from switching, I have a hard time seeing how it's outside the scope of its power to do so.

Additionally, I'm not sure how you know that the patent system "absolutely" is about rewarding individuals. From what I know of the history of the patent clause, and more importantly from the very first few words, it seems to me that the patent system is about promoting engineering science for the benefit of the nation. The benefits that accrue to individual inventors in the process are simply a nice bonus for them. Government-backed monopolies are a necessary evil, not a good in themselves.

[BigGuy]

"... And it is such an important individual right that it was put in the original constitution, not stuck in a Bill of Rights after the fact. ... Big Guy gets it WAY wrong here."

The patent clause gives Congress permission to grant patents, it doesn't require it to. That's a pretty peculiar individual right.

"BigGuy probably also thinks its OK for a foreigner to be president of the U.S. ..."

Good argument.

[Red Monkey]

I'd be wary of policy based just on efficiency. There are many other efficient ways to allocate the right to exclude.

For example, if two people claim the same invention, you could have just have an auction. The theory would be whoever is investing the most up front for his patent rights would be more motivate to commercialize to recoup his investment, and doing so would promote progress as A1S8 tells us to do.

It's not clear why granting the right to exclude to whoever is willing to put the most skin in the game would be any less effective at "promoting progress" than granting the same right to whoever can throw together a plausible patent application the most quickly.

[BigGuy]

"Just because they try to file at the same time does not mean that they invented at the same time. Only in a FTF system could they be adjudged to have equal merit."

Agreed on both points. My point is that the public benefits from the disclosure, and need not really care who invented first. two cents' comments notwithstanding, a patent monopoly is neither a natural right nor a constitutional one.

[MaxDrei]

Red Monkey finds it--

"hard to imagine how construing "inventor" to mean "the particular inventor who can file an application the most quickly" in the patent clause could "promote progress of science and useful arts."

I can ease his difficulty.

Promoting the progress of useful arts is achieved by a patent system that trades limited term exclusive rights against release to the public of an enabling disclosure. What promotes is not the enjoining of infringers but the early release of the information. So, the best patent system (other things being equal) is the one that gets the enabling disclosure out to the public fastest.

FtF, by rendering nugatory any filing that isn't enabling, and awarding the rights to the first filer, is the best way there is, to get that enabling disclosure out there to the competitors as fast as possible.

But, I know. You're going to tell me that promoting the progress is exclusively about the public giving up its freedom preferentially to inventors who (save only that they must be diligent) can take as long as they like to drag their arses through the doors of the PTO.

But do keep the thread going, with all these Chicken Little stories about the dire consequences of FtF. They are so amusing. Of course, they would be more convincing (and far less amusing) if you could tell us of all those real cases outside the USA, where real inventors have suffered real hardship as a result of one or another iniquity of the FtF system.

[Malcolm Mooney]

Red Monkey finds it--"hard to imagine how construing "inventor" to mean "the particular inventor who can file an application the most quickly" in the patent clause could "promote progress of science and useful arts."

I've noticed that RedMonkey tries very hard not to understand a lot of things.

[Malcolm Mooney]

BigGuy: The patent clause gives Congress permission to grant patents, it doesn't require it to. That's a pretty peculiar individual right.

This is waaaaay too nuanced for the software teabaggers.

[TwoCents]

"The patent clause gives Congress permission to grant patents, it doesn't require it to. That's a pretty peculiar individual right."

BigGuy, what part of "...to authors and inventors the exclusive right to their respective writings and discoveries" don't you understand?

Are you as obtuse as Mooney or are you Mooney pretending to be a "BigGuy?"

[TwoCents]

Ad Astra, you and "BigGuy" should have your own little DumbedDown pow-wow

You say:

"From what I know of the history of the patent clause, and more importantly from the very first few words, it seems to me that the patent system is about promoting engineering science for the benefit of the nation."

The first part is meaningless without the second part.

The first part:
"to promote progress..."

The second part:
"to secure to authors and inventors the exclusive right to their respective writings and discoveries"

You are probably a product of public school education, which is a liberal (socialist) institution designed to dumb you down and take away your power of critical reasoning so that your rights can be slowly taken away from you.

[TwoCents]

So lets see Mooney, you are at least three 1diotic posters today? BigGuy, Ad Astra and Mooney.

How clever. And how is that teabag thing with Anderson Cooper working out for you two?

[TwoCents]

"I've noticed that RedMonkey tries very hard not to understand a lot of things."

LOL here is a picture of Mooney trying to understand things...

[TwoCents]

Sorry Max, I don't have time for people from vestigial monarchies, where individual rights are unheard of, pontificating about something that, like most everything else about her, is unique to America - and should stay that way.

[Jules]

Excuse me, Mr. vary your name in the format OneTwo. You're getting out of hand again. Time to schedule another appointment with your shrink.

[TwoCents]

Ad Astra (probably Mooney) says: "but frankly, I think that's mostly pointless. "

Of course, because the difficult inquiry of who is the actual inventor is the whole freakin' point. And, in typical deconstructionist (socialist, facist) fashion, you gloss over the inconvenient details that stand in the way of pushing a strong arm agenda.

And even if Congress has the power as articulated in Article 1, a constitutional amendment would be required to contravene the literal language of Article 1, section 8, clause 8, which specifies that exclusive rights of individual inventors are to be secured.

[MaxDrei]

No need to apologise Two. Me, I'm quite happy. I'm happy with your inability to find a response that is in any way relevant to the point. I'll take that as an indication that I'm winning the argument. And before we go any further, let's get one thing clear. I'm not saying about "her" that she should switch to FtF. Haven't I been writing in other contributions that she is welcome to stay with FtI. Whatever makes her happy. Me, I just like arguing.

Oh, and can't you stop posting that grotesque torture photo. How many more times are you going to deploy it? You're embarrassing.

[TwoCents]

"Agreed on both points. My point is that the public benefits from the disclosure, and need not really care who invented first. two cents' comments notwithstanding, a patent monopoly is neither a natural right nor a constitutional one."

What a load of hogwash.

"to secure to authors and inventors the exclusive right to their respective writings and discoveries"

Let me try to walk you through this at dumbed down speed "Authors and inventors" are individuals; "exclusive right" is a patent monopoly.

There, does that help?

[Ad Astra]

Whoa there, TwoCents. You're just coming off as a troll now. I'm not a sock for Mooney, and while I did indeed go to a public school before college, I think I must have been absent on socialist doctrination day. And someone really should have told my very conservative, Constitutional originalist American History teacher about the Party line.

Anyway, the thing I thought was "mostly pointless" was arguing over whether the word "inventor" requires that the person be the first person in history to come up with the idea. I do not think the question of how we should decide inventorship is pointless, seeing as it's kind of the whole point of my argument. Since the current system of interferences does not guarantee that the absolute historical inventor is awarded the patent, it seems to me that a different system which strikes a slightly different balance between accuracy and efficiency would not be unconstitutional.

If you could respond on that point, preferably without calling me a socialist patsy, I would be much obliged.

[TwoCents]

"Since the current system of interferences does not guarantee that the absolute historical inventor is awarded the patent, "

How is that true? And if there is a small error rate, that error is far less significant than a sweeping (unconstitutional) first to file regime.

[BigGuy]

"...while I did indeed go to a public school before college, I think I must have been absent on socialist doctrination day."

I was there - it was awesome. Those socialists really know how to party.

[TwoCents]

"your inability to find a response that is in any way relevant to the point"

I have made many relevant points including that people who have "grown up" under socialist regimes, can't even begin to understand what it is like living in a country of laws. The U.S. Constitution and its contents (country of laws not men) was an answer, borrowing from ancient wisdom, to the kind of oppression that arises out of countries of men not laws, where the individual is a mere subject.

[TwoCents]

"Those socialists really know how to party."

They don't know how to work or think or invent, but they sure know how to party and spend other people's money while doing it.

How admirable.

[Malcolm Mooney]

You are probably a product of public school education, which is a liberal (socialist) institution designed to dumb you down and take away your power of critical reasoning so that your rights can be slowly taken away from you.

George Soros would never let that happen.

[TwoCents]

chirp..... chirp.....

No one is really sure what to make of your statement, Mooney. It seems maybe you just wanted to mention someone's name.

[anon]

"They don't know how to work or think or invent, but they sure know how to party and spend other people's money while doing it."

You sir, are the height of hilarity. From your statements, it's pretty clear you don't have any better idea of what socialism is than Stalin did.

[Ad Astra]

@TwoCents

"'Since the current system of interferences does not guarantee that the absolute historical inventor is awarded the patent,'

How is that true? And if there is a small error rate, that error is far less significant than a sweeping (unconstitutional) first to file regime."

How can that not be true? It relies on the true historical inventor speaking up and challenging the patent, or someone who is aware of that inventor getting the information out. Neither of those things is guaranteed, thus the current system is not guaranteed to produce the true historical inventor. We don't know what the error rate is, but even assuming it to be vanishingly small, it exists. Once the error exists, then by your reasoning the current system is also unconstitutional, since it doesn't ensure that the "true inventor" gets the patent. The problem is that you're taking the current error rate and assuming, arbitrarily, that it is the only Constitutionally permissible one, which isn't supportable. All this assumes, of course, that later independent inventors can't be considered inventors for the purpose of AIS8, which I don't necessarily agree with.

Keep in mind, also, that I don't necessarily think the US should be going FtF - there are advantages both ways, and I haven't spent enough time analyzing the issue to have a firm opinion. However, I do have a pretty firm opinion on whether the switch would be unconstitutional - it wouldn't be.

[TwoCents]

Ad Astra, you are doing a lot of huffing and puffing about something that is in the statistical residue. If the current first to invent system provides better redress for the true inventor, then it, by that definition alone, works better then a system that cares only about who filed first not who invented first.

By Dennis' rough calculations of those that swear behind references, that is roughly 1% of all filers and as a class, 30% of all parties to interferences where the issue of true inventorship is the exact question of inquiry. On that basis alone, I say the current system does an excellent job of getting to the true inventor. If there is error associated with FTI it is very small and if the claim of first inventorship was susceptible of proof, the party would have prevailed in interference as 30% of interference parties do.

Your arguments simply do not make sense.

[TwoCents]

"it's pretty clear you don't have any better idea of what socialism is than Stalin did."

Well anon, if you really wanted to make a complete post, you would have enlightened all of us on what socialism "really is."

[American Cowboy]

"By Dennis' rough calculations of those that swear behind references, that is roughly 1% of all filers and as a class, 30% of all parties to interferences where the issue of true inventorship is the exact question of inquiry."

100% of applicants who care to know that they have the opportunity to prove their prior invention of the subject matter claimed in case a piece of prior art or a rival's filing slightly precedes their filing. Therefore, they do not feel like they have to rush to get an early date and can take the time it takes to do it right. Their patent attorneys can take off at 5pm to go see their kids play soccer without worrying that they are losing their client the right to get the patent and possibly exposing themselves to malpractice liability.

[Ad Astra]

@TwoCents:

"If the current first to invent system provides better redress for the true inventor, then it, by that definition alone, works better then a system that cares only about who filed first not who invented first."

I never denied that FTI is a more accurate system of determining first inventors than FTF. However, that's not really the question. AIS8 does not say "securing for limited times to authors and inventors, whose identities shall be determined by the most accurate means available". It just says "inventors". You can convict someone of capital murder using less than the most accurate methods available, because to require that in every case would be time- and cost-prohibitive. To my mind, in the absence of an authoritative SC ruling, the only requirement on Congress here is that they not blatantly disregard any reasonable meaning of the word "inventor", and start granting patents on random inventions to Chuck Norris, because he's a pretty cool guy.

Regarding the statistics you mention, it doesn't really matter. The 1% includes swearing behind, which isn't relevant to the Constitutional question at all, and as I've said before, the particular error rate of the current process, or the predicted error rate of FTF (assuming it isn't absurdly wrong) isn't what we're talking about either. Either it has to be perfect, in which case no real-world system is constitutional, or there's some leeway, and Congress can strike a balance between error and efficiency. The only Constitutional question, then is whether the error is so large or the selection criteria so arbitrary as to implicate the Chuck Norris scenario above. It doesn't seem patently obvious to me that a sub-one percent error rate is at that level.

[Ned Heller]

MaxDrei, I agree that FTF forces one to file complete applications the very first time, before the product is released or the professor publishes. But it also requires significant resources to draft a good patent application and the small inventor typically does not have the money just at the time he begins offering his product to the market or he publishes in some fashion.

The small guy also knows that so long as he keeps developing his invention he can file a patent application on it when it is fully developed without losing his priority date. I cannot understand, for the life of me, how that works in the same way in a FTF country. It would seem the incentive at all times is to rush to the patent office.

Anyway, these ideas are well known from ancient times in the US, which is why we have the system we do. FTF is not inherently better than FTI from the point of view of inventors.

It IS however, MUCH MUCH better from the point of view of infringers, cutting off prior invention when analyzing the validity of an adverse patent, which is the real reason big money in the US is so forcefully advocating FTF.

[TwoCents]

Sorry Ad Astra, but since you are clearly not a Constitutional Law scholar, I can't really spend much more time on it with you.

And any system certainly does not have to be "perfect." An almost perfect system (FTI) is far better than a much less perfect system (FTF).

Under FTI, any inventor who beceomes party to an interference has to be able to prove his claim. The only "error" in FTI, would be a situation where a true inventor who could not prove his priority, loses his claim. Since a party that could not produce evidence could not prevail under any circumstances, it really doesn't even count as error.

[Armchair Socialist]

...it's pretty clear you don't have any better idea of what socialism is than Stalin did

Because ALL the answers look good while they are still in my head and little things like reality only get in the way of my correct theories.

[TwoCents]

A further difference is that, while FTI may, from time to time, grant priority to a party who is not actually the first inventor (e.g. when the first inventor cannot PROVE they are the first inventor), FTF systematically excludes otherwise true first inventors based on a mere procedural defect (failure to be the first filer in time) and FTF is therefore unconstitutional. I would bet that a sound deprivation of Due Process argument could also be made with equal ease.

[Ned Heller]

Socialism, in my view, is a doctrine that espouses (relative) economic equality in society on the theory that economic inequality is unjust per se. Like land, the more one member has of it, the less another can have of it.

Practical applications of socialism seek to use government and law to promote economic equality. They do this in a number of ways all of which have the attributes of reducing economic freedom.

But the obvious problem with reducing economic freedom is that overall wealth is less even though it is more equally shared. This might be acceptable if all the premises of socialism were in fact true. But it easily demonstrable that modern economies are not like the land-based economies of the time when socialism was first invented. A growing economy does in fact bring greater wealth to everyone.

[Ad Astra]

Thanks for the uninformative ad hominem. Can you point out exactly where my argument breaks down? Where I got my Constitutional law wrong? I have yet to see a responsive critique that actually engages with both the Constitution and my argument simultaneously.

"And any system certainly does not have to be 'perfect.' An almost perfect system (FTI) is far better than a much less perfect system (FTF)."

We're not arguing about whether it's "better". We're arguing about whether it's Constitutional. I'm asking you to tell me where in AIS8 it says that the most accurate system available must be used, regardless of other considerations.

"Under FTI, any inventor who beceomes party to an interference has to be able to prove his claim. The only 'error' in FTI, would be a situation where a true inventor who could not prove his priority, loses his claim. Since a party that could not produce evidence could not prevail under any circumstances, it really doesn't even count as error."

I'm not quite sure what you're saying here. It doesn't count as an error when, under a system called "First to Invent", the person who was factually first to invent is denied the patent in favor of one who was *not* first to invent? That's just redefining reality based on the law, which seems to me to be something that should be anathema to someone who dislikes "deconstructionists" and the like. What about the inventor who invents something, and then dies soon after, taking the knowledge with him? Who never does anything with the idea, and just lets it sit in his workshop gathering dust? The basic problem with your argument is that you've defined the word "inventor" in the Constitution to mean, "person determined to be the inventor by the interference process we currently use". Can't you see that's circular?

[Lionel Hutz]

Twocents is an id10t and a tr0ll. Anyone who thinks any part of the Obama administration's goals are socialist is someone who is very ignor ant or slow. And I say that as a liberal.

In addition to misunderstanding the Constitution, Twocents has no idea what socialism actually is. Heck, he probably believes that libertarianism is an ideology on the other end of the political spectrum instead of an outgrowth of socialism.

[Malcolm Mooney]

No one is really sure what to make of your statement, Mooney.

Oh, let me explain it to you. You appear to be a childish teabagger who enjoys reading scripts handed to you by FOX News and Rush Limbaugh. One of the commonly-recited scripts of wingnuts and teabagger types (see, e.g., Bill O'Lielly) is that millionaire George Soros provides most of the funding for various organizations that debunk and otherwise mock the aforementioned liars and idi0ts. I thought I would have some fun by playing into the typical wingnut fantasy.

Anyway, I'll let you get back to pretending that the Constitution is at odds with a first to file system. I thought we'd ended that baloney last year but sockpuppets die hard.

[TwoCents]

Not sure what part of my response was "ad hominem" Ad Astra (I think I just said that you are not a ConLaw scholar, which is pretty apparent, so it's a waste of time to debate you on this point), but you seem to be on the verge of tears and so I don't really want to offend your delicate sensibilities any longer.

[TwoCents]

"relative economic equality"

in otherwords Marxist wealth redistribution from those who are productive to those who aren't; essentially punishing productivity and incentivizing sloth and freeriding.

"not like the land based economies..." Nothing has changed between then and now. Socialism is just as immoral now as it was then.

Since when is taking from someone who earned something and giving it to someone who didn't "just?"

[Ad Astra]

@TwoCents:

"Not sure what part of my response was 'ad hominem' Ad Astra (I think I just said that you are not a ConLaw scholar, which is pretty apparent, so it's a waste of time to debate you on this point), but you seem to be on the verge of tears and so I don't really want to offend your delicate sensibilities any longer."

Wow. Ok, I now completely agree that it's a waste of time to debate you. Have a nice day.

[TwoCents]

Yes, listening to you whining about non-existent ad hominem attacks and your sophomoric, back-of-the-cereal-box Constitutional paraphrasing is not my idea of a debate. Go back to your Twinkies.

Now THAT is an ad hominem attack.

[Jules]

Liberals are too quick to fix what ain't broke, and conservatives are too scared to entertain any notion of change. In my eyes,it is as simple as that.

[Ned Heller]

Two cents, the socialist philosophy I expressed originated from Rousseau. He wrote a couple of texts, the first one published in 1759 on the sources of inequality, and one later known as the Social Contract. He wrote at a time and place where the French Nobility controlled all property in France. Rousseau believed that all societies would eventually become like the French Kingdom given time once one member was allowed to own property and was able to pass it on to his heirs.

Rousseau's philosophy was a major reason for the way the French revolution devolved the way it did. His follows were prominent from the beginning and eventually became preeminent. Robespierre was a socialist.

Marx only extended the concepts of the French Revolution one step further. Where the Revolution would have banned exclusive ownership of real property in perpetuity, Marx extended it to all bourgeois property, meaning the right to own businesses and the tools of commerce.

I imagine that I might have been somewhat swayed by Rousseau had I lived in France in 1792 when the monarchy fell and the Republic took its place. But today I find myself firmly in the camp of the opponents of socialism.

[Former American]

You guys waving the U.S. flag and shoving the pole end at non-Americans are scary - and a bunch of whiners !
The FtF system is alive and well and working just great for 7 billion minus 300 million people.
Max is right on (as usual) re (patented) technology being disclosed asap via the FtF system. I do not, nor do I know anyone else racing to file crappy applications because of FtF, but I do not mean that is the basis for any strong arguments - I'm just saying.
Ad Astra, thank you also for making some intelligent comments as well (and based on those comments, I presume you are even a U.S. P.A.). No system is perfect, and I really like the American patents law thoughtfulness toward the inventor, but the FtF is a good and fair system. I represent many individual inventors and I don't see them losing out by FtF.
Re-read what Max, Ad and interloper have stated and slow down that flag waving before your strain a muscle.
Ken Brooks – I had a hard time slogging thru your comment, but, you seem to imply that U.S. filings from non-American priority filings don’t have to disclose best mode in their U.S. applications ? I advise my clients to disclose best mode in case they want to file in the U.S. Am I giving bad advice ? Does the USPTO overlook Best Mode for “foreigners”.

[Michael R. Thomas]

The first thing wrong is using the term disruptive to describe correcting fraud and corruption First to file was invented by me to eliminate being frauded for inventions. Foreign countries wanted to know how to get me to mfile in their country.

[Michael R. Thomas]

Since revealing my new patent reform act foreign countries know even more about fair and honest methods of determining inventorship so they will win the economic battle to attract inventors to their countries and leave our corruption of jackles in the dust.

[Former American]

Dennis, the term disruptive seems subjective and nebulous. Perhaps ranking by which we think is the most inappropriate - or some other term.

BTW, I forgot to put Malcom Mooney in the group with Max, Ad and interloper - i.e. those making comments with a worldly vision.
Good nite - it's late over here.

[David Boundy]

I think FTF is, unfortunately, constitutional. The text only says "rights to inventors," some inventors, any inventors. Not "first inventors."

I also think FTF is an incredibly dumb idea, supportable only if you are in a blinkered world like the PTO, where all you see is patents that are filed (not the ones where everybody saved a lot of money because the idea was found to be a bad one before a lot of money got spent), or some similarly-narrow slice of the patent world.

If you represent startups, or represent investors who are deciding whether to put capital into startups, it's easy to see how crucial the strong 102(b) grace period is to the future of the innovation economy.

[Malcolm Mooney]

Marxist wealth redistribution

Oooooh, so scary! Maybe I should file a patent on a method of redistributing wealth.

Speaking of which:

“Here’s how it works. They configure the phones to have multiple easily hit keystrokes to launch ‘Get it now’ or ‘Mobile Web’—usually a single key like an arrow key. Often we have no idea what key we hit, but up pops one of these screens. The instant you call the function, they charge you the data fee. We cancel these unintended requests as fast as we can hit the End key, but it doesn’t matter; they’ve told me that ANY data–even one kilobyte–is billed as 1MB. The damage is done.

“Imagine: if my one account has 1 to 3 bogus $1.99 charges per month for data that I don’t download, how much are they making from their 87 million other customers? Not a bad scheme. All by simply writing your billing algorithm to bill a full MB when even a few bits have moved.”

http://pogue.blogs.nytimes.com/2009/11/12/verizon-how-much-do-you-charge-now/

Call Professor Duffy and let him know about this awesome business method. Promote the progress!!!

[Malcolm Mooney]

investors who are deciding whether to put capital into startups,

Ah yes, the most important people in the universe. We must do what pleases them.

[TwoCents]

Mooney once again, quite naively, discounts the real source of progress, the marketplace.

No big surprise here, pass the Birkenstocks...

[PPA question]

Can you incorporate by reference another document (e.g., a patent) in a provisional application?

(I know that you can in a regular non-provisional application, but I seem to remember reading some place that you could not in a provisional application.)

Thanks

[Malcolm Mooney]

Can you incorporate by reference another document (e.g., a patent) in a provisional application?

Provisional applications aren't examined for such formalities. If you wish to incorporate something by reference, it should be incorporated in your provisional and in your utility app. Your real issue is: when is incorporation by reference not sufficient to support a claim?

[curious]

What is the answer to your question, Malcolm?

[MaxDrei]

Ned Heller asks a searching question: how is a race to the Patent Office compatible with the real needs of real inventors, who can't afford to pay for a formal US patent application before they start seeking investmernt in their invention (and before their Professor publishes).

Answer: Under FtF, validity (clarity, enablement, sufficiency of disclosure) is judged by different standards. When everybody involved, from the Supreme Court down, has had a hundred years of experience of FtF, everybody factors into the law the consequences for real inventors of a race to the Patent Office.

Ever wondered why apps from the rest of the world are half the length of apps originating within the USA (unless they emanate from a global titan that writes one app for filing everywhere, including the USA)?

In Europe, small filers get their 20 year monopoly even with an app half the length of Titan's. Ask Titan how frightened he is, in Europe, of small filer, with a short app but with a good new idea, clearly expressed. Ask the courts in Europe which app they are more likely to enforce, one that's short and to the point, or one that never says what the invention is. Ask how the scope of protection is determined in Europe. You in the US might not have a functioning DoE any longer, but we do. Ask what it is that Europe has, that's different but better than "Best Mode", and which sets the scope of monopoly to that which is commensurate with the scope of the contribution the inventor made to the art.

Question to you now Ned. Whether or not FtF encourages crappy apps, doesn't FtI act like a ratchet, driving app lengths ever longer? Seems to me that, under FtI, no specification is ever long enough. Who pays for that feature of FtI? Can we agree that it's not patent attorneys who are paying for it? But maybe small inventors do?

[observation]

MaxDrei, European origin applications are good for a few "picture" claims, often not much more.

[MaxDrei]

Well thanks for that observation Observation. If those European-originating apps do the business everywhere in the world except the USA well then I think you just confirmed my point didn't you?

May I ask: is it just "European" originating cases that are so useless? And amongst those European-originating cases, do you include all those from European-based global titans like Nokia or VW/Audi/Porsche or Sanofi/Novartis? Where in your hierarchy do you place Asian-originating apps?

[observation]

Asian-originating are the same as European.

[MaxDrei]

So,Observer, let's see if I have understood it right. It's everybody else in the ROW that's off the beat. Glad we've got that sorted out.

The English knee-jerk reaction to that alien entity "Europe" is that whatever it comes up with is unacceptable. The English often forget that "Europe" includes The British Isles. Sometimes I think that America views "The World" in much the same way as England does "Europe". It's the water in between, I suppose.

What's to become of living standards in England? It's more and more difficult to be optimistic.

[Ned Heller]

MaxDrei: "Question to you now Ned. Whether or not FtF encourages crappy apps, doesn't FtI act like a ratchet, driving app lengths ever longer? Seems to me that, under FtI, no specification is ever long enough. Who pays for that feature of FtI? Can we agree that it's not patent attorneys who are paying for it? But maybe small inventors do?"

I think the problem lies elsewhere. Best mode is one reason we have to describe more. We might also be a bit more extreme on requiring a written description. But as to the vagueness of what we say, that can also be attributed to courts limiting the scope of the claim to exactly what is in the preferred embodiment if we talk too much about what the invention is.

All this will not go away with FTF per se. They can be addressed separately, probably in the courts, without going to a first-to-file system.

I further think a lot of the argument takes place out of context. When one judges which is better, a lot of time it depends on whom you are talking about: the inventor or the potential infringer; the large company vs. the small company; the professor in a university that has a large budget for patents vs. the smaller budget U; and it also depends upon technology to a degree.

But, at the most fundamental level, I think, personally, the system should be designed best to protect the inventor and inventions; otherwise we loose sight of the purpose for a patent system. From that point of view, US history has shown that allowing the inventor or the scientist to develop the invention 'til he is satisfied before he files. If others publish at any time, he has one year to get a patent application on file. But when he is ready, he has one year to promote his invention, obtain backing or revenues and get a patent application on file.

This system has stood the test of time and it works.

The pressure to file first in FTF systems cannot but short-circuit this process. One cannot tinker in the lab until he is ready, as there is no grace period for a statutory bar to take place. Without a first to invent system, grace periods don't make much sense which is why the push in the US to go right away to the European system with no grace period.

I still am amazed to read cases like O'Reilly v. Morse where Morse conceived of his invention in 1832 on a boat coming to America, but took eight years before he filed his patent application. During those eight years, he worked on his invention to develop it (he was a professor). Others independently invented virtually the same thing in the interim and filed or published first. Morse lost his overseas patents because of this and his own publications, but prevailed in the US due to his early invention dates. A greater example of the benefits of a first to invent system to the inventor could not be made.

The same financial concerns do not affect very large companies or well financed universities. Nor do they affect drug or chemical companies. Both are effectively on a first-to-invent timetable because they have to file across the world. To them, the small inventor is a threat and whatever they say about the small inventor has to be taken with a grain of salt as they are heavily biased and conflicted. Imagine consulting drug companies about the best interests of generics! What would you expect? Honesty?

[American Cowboy]

Max says: "Answer: Under FtF, validity (clarity, enablement, sufficiency of disclosure) is judged by different standards. When everybody involved, from the Supreme Court down, has had a hundred years of experience of FtF, everybody factors into the law the consequences for real inventors of a race to the Patent Office."

So, my fellow Americans, from the voice of experience we learn that the implications of changing from Fti to ftf involves more than just changing how we decide priority contests, but the whole pantheon of issues involved in how one writes a patent application, examines a patent application for sufficiency of disclosure and interprets the scope of the claims and DOE of a patent. Under stare decisis, we will, however still be using the same rules of examination and litigation and therefore not get what Max suggests would be the right result. To get the right result immediately upon adoption of FTF, then we apparently need to re-write section 112 and lord know what all else. I don't see that the proposals to convert the US to ftf including all of that.

[MaxDrei]

Dear Ned, and Cowboy, of course you are both right, that transition will be painful. So, I think you are right. Best not even to think about it.

What I was on about, with my "ratchet", is that FtI courts expect perfect drafting, perfect, knowing that the event of filing doesn't occur till the invention is mature. FtF courts understand the reality, that drafting can't be perfect, when every inventor has to choose between drafting more perfectly or losing the race to the Patent Office.

As to Morse, sorry but I don't get it. If it was the fact, that many people had independently reduced dot dash communications code to practice, and published, in the years before Morse got to the PTO, what public benefit accrued by belated award of a monopoly to Morse? Heresy to write it, I suppose, but it strikes me that the Morse story (as you tell it) provides a good example of the wrongheadedness of FtI, and the damage it does to promotion of the progress.

If there's more technological progress in the USA than in all the ROW put together, that just might be for some reason other than the FtI patent system.

[Publius]

Two Cents/Marx:

Turn off Glenn Beck and back away from the TV.

Seriously, do we really need garbage right wing propaganda on this site?

[TwoCents]

David Boundy,

Your conclusion that FTF is constitutional is glib and unsupported.

The patent clause need not explicitly state "first" inventor to have the issue of first inventor arise in a constitutional context, simply if for no other reason, to demonstrate who the "inventor" is. The inventor is the first person to invent the claimed invention.

I guess you are not a ConLaw scholar either. But I like the fact that you seem to be against FTF.

[anon]

"The inventor is the first person to invent the claimed invention."

The inventor is anyone who comes up with the invention.

Both Kilby and Noyce are correctly credited with the invention of the integrated circuit. Kilby did it first, but that doesn't mean Noyce didn't also invent it.

You are reading limitations into the definition of inventor that just aren't there.

[Noise above Law]

Malcolm, er, um, Publius,

The garbage right wing propaganda on this site is required to balance the garbage left wing propaganda on this site.

This is the trainwreck - without the balance, the site would merely be an uniteresting left wing cesspool.

As it is, we get the colorful interplay of the csomic battle between good and evil.

[MaxDrei]

Has it ever occurred to you, TwoCents, as you preen yourself, that "Calling it like you see it" and "Right wing propaganda" are not mutually exclusive?

I don't watch Glenn Beck every night. I don't watch any propagandist, any night. I know a little of the USA and I know a little of Europe. When you write:

"..individual rights are essentially non-existent.."

you reveal yourself as a gratuitously offensive and simple-minded victim of propaganda.

Can you debate patent law on the merits? Can you tell us what meaning you deliberately intended to impart to your sentence by including the word "essentially"? I'm most curious to know. Did you mean 1)"of necessity" or 2) "more or less" or was it because 3) it sounded good, or 4) you didn't really think about it ? Or are you not even sure which of these it was?

Can you even write grammatically correct sentences? If not, please leave. You are embarrassing your fellow Americans here.

[Malcolm Mooney]

Troll: The garbage right wing propaganda on this site is required to balance the garbage left wing propaganda on this site.

What is the "garbage left wing propaganda" you are referring to? I seem to have missed that somehow.

[TwoCents]

"This article analyzes the command of Article 1, Section 8 of the U.S. Constitution that Congress may grant exclusive rights to "inventors" for their "discoveries." The conclusion of this analysis is easily overlooked in the "horse trading" atmosphere of international treaty negotiations, but it is of critical importance. The U.S. should not, and must not, abandon the uniquely American, and uniquely successful, first-to-invent system of patent protection prescribed by Article 1, Section 8 and maintained for over two centuries."

~ Edwin A. Suominen, "Re-Discovering Article 1, Section 8 - The Formula for First-to-Invent," September 2001, 83 J. Pat. & Trademark Off. Soc'y 641

[Red Monkey]

"The patent clause need not explicitly state "first" inventor to have the issue of first inventor arise in a constitutional context"

We know that two people can have a copyright for exactly the same literary work. So when Art.1 sec. 8 says "authors" it doesn't seem to care about who the first author is. Is there a basis to read in "first" for inventors and not for authors? Or is our copyright statute unconstitutional because it doesn't care who is first?

[Exasperado]

Well, I gotta say that the average US-drafted app that I see coming down the turnpike mowadays is painful to read.
Page after page of "in an embodiment, x may be y."
#So what is it you've invented?
-Read the claim - that's what.
#Um, OK, that looks like fairly arbitrary collection of features. What's good about it?
-Not sayin'
#What's different about it?
-Not sayin'
#What problem does it solve?
-Not sayin'
#Which bits are important?
-Not sayin'
#Which bits did you know about already?
-Not sayin'
Sheesh!

[Malcolm Mooney]

Ned: I still am amazed to read cases like O'Reilly v. Morse where Morse conceived of his invention in 1832 on a boat coming to America, but took eight years before he filed his patent application. During those eight years, he worked on his invention to develop it (he was a professor). Others independently invented virtually the same thing in the interim and filed or published first. Morse lost his overseas patents because of this and his own publications, but prevailed in the US due to his early invention dates. A greater example of the benefits of a first to invent system to the inventor could not be made.

This makes no sense whatsoever unless we assume that when Morse was born he was "supposed to be" the first "legal" inventor of the telegraph in the US. Other than getting the name of the inventor "right" under that wacky assumption, what are the "benefits" you are referring to? As you admit, "others independently invented virtually the same thing in the interim."

Same holds true, by the way, for nearly everyone of those "old" inventions: the phone, the electric light, the phonograph, motion pictures, etc. The history books many of us grew up with tell a simple story about "ordinary inventors" but the reality is that our most famous inventors were also tireless promoters of their own fame and (at least in the case of Edison) quite ruthless about destroying or buying the silence of dissenting competitors.

[Jules]

Exasperado: that was completely off topic, but I agree with you completely. And when the claim has no special features then it probably leans towards obviousness.

[Ken Brooks]

Dear Mr. Mooney:
Your discussion of O'Reilly v. Morse is much appreciated. I think that the short answer to your query is that Mr. Morse was comporting with the only power in Congress that allows the grant of a monopoly in the useful arts: to advance the useful arts. With that said, could it be that a lawfully obtained patent, with no IDS issue and no other infirmities be held invalid by a Court as an improper grant of a monopoly, because it does not advance the useful arts. In other words, does an Article III tribunal have the power at Summary Judgment to determine that a monopoly granted in accordance with Title 35 of the United States Code still fails to comport with Article I, section 8, clause 8 of the United States Constitution. In this manner the patent could be stricken by the court. It should be borne in mind that there should never be a presumption of validity when a patent is stricken on a constitutional challenge.
I believe that the Courts would very much enjoy rendering lofty Constitutional opinions than the more mundane opinions of this prior art reference was missed and that Expert was that etc. In my opinion it would be a much cleaner way to clear up much of less than virtuous patents. the mess that is being created by the USPTO.

If someone could help me identify the patent, I refer to the patent that was obtained for a method of swinging on a childhood swing that involved mere changing your weight to cause rotation. Let's not discuss the well known knowledge of the same. However, even assuming that this was not known to anyone whoever used a swing . . . that method, in my opinion is not of the requisite utility to warrant a monopoly, because it is only for entertainment. I do not believe patents directed solely for entertainment should be granted. There must be an industrial applicability. Along those lines I find repugnant that Copyright is longer than the natureal life of a person; however, that body of law merely reflects a failure of our democratic functions, i.e., Campaign finance activities.

[Tazistanjen@gmail.com]

My vote is no politics unless it relates to patents. Talking about which senators live in states with a lot of software development = good. Talking about socialistic health care or illegal wiretapping = go somewhere else.

[Tazistanjen@gmail.com]

I agree with Jules and Exasperado, but the CAFC deserves a lot of the blame for this state of events. Limiting claims based on discussions of advantages or problems solved is going to lead to practitioners removing those kinds of discussions. I mostly work for small companies and inventors, so I can draft how I think is best, but when I do work for larger companies they often have rules like "don't use the word 'invention.'"

[Ned Heller]

Malcolm, the benefits "we" get are inventions from people like Morse who have a bright idea on a boat and have the incentive to pursue it for years, spending his own money on tools, equipment and the like, with some guarantee that he eventually obtain a return on his investment.

Your cynical attitude about American success stories is remarkable. Time and again to dismiss the individual inventor and denigrate the whole patent system. You consistently favor the interests of the big corporations who are actively working to undermine the patent system. Anything they like, you like. And yet you have the gaul to call people who favor the small entrepreneur "tea bagging" shills of corporate America.

It is you, Malcolm, who are on that side against the small fry.

[NameChange]

NOTICE: apparently anyone who disagrees with Mooney will be banned by PatentlyO...