Was Congress dumb, or was it lying?–A reply to Professor Sheppard
Guest Post by Tun-Jen Chiang, Assistant Professor of Law, George Mason University School of Law
Imagine a parent who gives his child a box of matches, and tells the child not to play with the matches. The parent then assures the child that, if he does play with the matches, there will be no punishment whatsoever, and nobody will be watching him for the next hour.
Unsurprisingly, the child plays with the matches and burns the house down. When the insurance company denies the claim because of intentional arson, the parent screams: “but I told him not to play with the matches!” In this circumstance, the charitable inference is that the parent had a charmingly naïve view about the obedience of his child. The uncharitable inference is that the parent knew the child would play with the matches, and the admonition not to play with them was insincere “cover.”
What does this have to do with best mode? In her post, Professor Sheppard assures us that Congress knew precisely the consequences that would occur. Although she protests that her post was only descriptive and not a defense of the law, one cannot help but sense from her “vehement” disagreement with the critics an implication that those who think Congress didn’t know what it was doing are being unfair in some way (When someone says "You can say X is wrong. I agree X is wrong. But don't say X is dumb.", there is an implication that saying X is dumb is unfair). But the critics are not being unfair; they are being charitable.
With Professor Sheppard's assurance that Congress knew the consequences, the unavoidable conclusion is that Congress intends the probable consequence that patentees would not disclose the best mode. The reason for maintaining a best mode requirement on paper now seems to be to provide political cover to scream “but we told them to disclose the best mode!” whenever the critics talk about lax disclosure requirements. This is much worse than either abolishing best mode outright or keeping best mode with no enforcement on the misguided faith that patentees would still comply — it is Congress abolishing best mode and then lying about it.
Kudos to Prof. Chiang for telling the truth. Shame on Congress, once again.
And the issue is not “complex”. It is straight forward: either uphold centuries of best mode law, consistent with American values of transparency; or kill the best mode requirement, while pretending its not dead. Best mode is now kinda like Bernie from the movie “weekend at Bernies”.
Don’t stop now Prof. Chiang. Keep telling the truth, in the spirit of the best mode requirement.
“But it’s still required at the PTO stage, correct?”
Not exactly – see the various posts describing how Big Corp will waltz right by that requirement.
“Now that 102(f) is gone, I could see a Court going to 101.”
That would be going against the intent of Congress, right – You do know that interpreting the law set by Congress does not include making up a new rationale to overcome something Congress explicitly removed, right?
Newbie – have you taken Con Law yet?
Section 282 lists the basis for invalidity. It does not include Section 101. It includes only 102, 103, 112 and 251. Period.
If I understand your argument from prior posts, inventorship is like best mode now. You can’t invalidate a patent for incorrect inventorship.
But it’s still required at the PTO stage, correct? Of course, like best mode, it’s typically impossible for the PTO to police this.
I still don’t see why we can’t give more teeth to section 101 to invalidate a patent based on incorrect inventorship. Yes, it’s never been used that way, but it didn’t need to be because of the cleaner and clearer language in 102(f). Now that 102(f) is gone, I could see a Court going to 101.
You know, IBP, when discussing Marxist economics with a true believer, they seem to think like Congress here. They think that everyone will always act with honesty and with the greater good in mind. That is why they believe everyone will work as hard as possible even though there is no penalty for not working at all.
My fricken Gott! One cannot believe just how befuddled these folks are.
Chiang: “With Professor Sheppard’s assurance that Congress knew the consequences, the unavoidable conclusion is that Congress intends the probable consequence that patentees would not disclose the best mode. The reason for maintaining a best mode requirement on paper now seems to be to provide political cover to scream “but we told them to disclose the best mode!” whenever the critics talk about lax disclosure requirements.”
Assumption made: patentees will not disclose the best mode. Evidence is required in support of this assumption.
And Tun-Jen, even if that assumption is supportable, you do not explain your leap of logic from the first sentence to the second. Exactly WHY does the reason seem to be to provide political cover for such an act? Is it because you can think of no other particular reason for Congressional maintenance of the “best mode” requirement on paper? Do you have any evidence that tends to prove that such screaming is the intent of congress?
Make no mistake, I’m not disagreeing with you–I’d just like to see an “official post” include substantially more than hyperbole. As far as hyperbole is concerned, your post cannot hold a candle to those made by us “unofficial” posters.
With respect to the author Dowd, contained in that paper is the same logically unsupportable premise that appears in Sheppard’s post.
Newly added to the latest version of the Infringer’s Bible (see chapter 86).
Totally agree.
And for all that jargon about first and second inventor to file, the statute removes any requirement of patentability or validity that the application be filed by (or on behalf of) an inventor. A pirate can file on and receive a valid patent that only can be challenged by a rival patentee who filed later, and who complains within a short window of opportunity. This lack of any meaningful penalty all by authorizes the industrial piracy of and the patenting of the inventions of others.
Some countries even now engage in wholesale industrial piracy as national policy. But these same countries can now file and receive patents on the inventions of Americans and essentially stop us from using our own technology without us from having any legal ability to challenge inventorship in court.
Amen brother.
Read this article:
link to 64.237.99.107
It explained several years ago why the best mode should not have been abolished.
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