Did the Supreme Court Rule First to File is Unconstitutional?

By Gene Quinn
June 6, 2011

The ink is hardly dry on the Supreme Court decision in Stanford v. Roche and already those who oppose patent reform are concocting one of the most ridiculous arguments I have ever seen to oppose first to file provisions. There are some, including at least one Member of Congress, that have started saying that the Supreme Court’s decision in Stanford v. Roche makes it clear that the first to file provisions of patent reform are unconstitutional. Just sit right back and allow me to explain to you exactly why that is perhaps the most specious argument I have ever heard.

Let me begin with attempting to explain how presumably intelligent people erroneously conclude that the Supreme Court earlier today held first to file unconstitutional.  The argument goes like this: Chief Justice Roberts wrote, “Since 1790, the patent law has operated on the premise that rights in an invention belong to the inventor.”  This was repeated several times and in slightly different ways throughout the decision.  So those misconstruing the case twist this beyond all reasonable logic to conclude: “patent rights have to belong to the inventor, so those who file first cannot receive the patent ahead of the person who invented first.”  Oh my goodness!  Is this the level of debate in Congress?  No where in the decision is that said!  It is no wonder our leaders have failed us so miserably.

First, the Stanford v. Roche case had absolutely nothing to do with patent reform and did not deal with issues of first to invent or first to file.  Let me be as clear as possible: those saying the Supreme Court decision in Stanford v. Roche means that first to file provisions are unconstitutional are either lying, grossly demagoguing (as opposed to just plain old demagoguing) or just not well enough informed to take seriously.  In the Stanford case a researcher assigned invention rights to Stanford, then in exchange for access to private sector technology at the urging of Stanford agreed to assign rights to Cetus, which were later acquired by Roche.  The question was whether Stanford could sue Roche for patent infringement.  The answer was no because the researcher, who was the inventor and the original owner of the patent rights, had lawfully assigned rights to Roche through Cetus.  So the case said the inventor is the one who absent an agreement owns the rights.  By agreement he gave rights to both Stanford and Roche (by and through its predecessor in interest Cetus).  For a more complete summary of what Stanford v. Roche really means see: Supreme Court Affirms CAFC in Stanford v. Roche on Bayh-Dole.

Second, patent reform passed in the Senate and under consideration in the House of Representatives would NOT give the patent to someone who did not invent.  In fact, the bill is excruciatingly clear; the patent would go to the FIRST INVENTOR to file. So the patent would still go to an inventor, so to the extent that Stanford v. Roche has anything to do with patent reform (which it does not) the bill under consideration would clearly be in keeping with what Chief Justice Roberts wrote.

Third, there is a terrible lack of understanding of basic patent law at work.  To think that Chief Justice Roberts saying an inventor owns patent rights in the first instance means that first to invent is embedded in the Constitution requires one to simply not comprehend basic U.S. patent law.  Under the patent laws one who invents second is still considered an inventor the same as those who invent first.  Those who invent second just don’t typically get the patent.

You see, presently 35 U.S.C. 102(a) says that a person is entitled to a patent (generally speaking) unless someone has previously invented.  But according to 35 U.S.C. 102(f) a person is entitled to a patent unless they did not invent.  If the law treats those who subsequently invent as individuals who are not inventors then 102(f) is superfluous.  The law typically does not interpret different provisions as being superfluous though, and this case is no exception.  102(f) prevents one from obtaining a patent where they did not invent, or in other words took the invention of another and filed a patent application.  102(f) prevents nefarious activity.  On the other hand 102(a) treats those who engaged in the mental activity of invention as an inventor although they might not be the first inventor.

So did Chief Justice Roberts say in Stanford v. Roche that 102(a) is unconstitutional because those who are inventors are denied patent rights because they did not invent first?  Of course not, but that would have to be what the Supreme Court meant in order for the tortured logic of the anti-patent reform crowd to be correct.

Additionally, 35 U.S.C. 102(b) presently says that one is entitled to a patent unless certain activities have occurred more than 1  year prior to the filing of a U.S. patent application.  For example, 102(b) requires a U.S. patent application be filed within 12 months of a public use that occurs in the United States or an offer for sale in the United States.  So is 102(b) unconstitutional because those who undeniably are the first inventor are denied patent protection because they waited too long to file a U.S. patent application?  Of course not, but that would have to be true in order for the ruling in Stanford v. Roche to mean what the anti-patent reform crowd wants you to believe it means.

Moreover, in an interference proceeding under 35 U.S.C. 102(g) the law presently requires the person who is claiming to be the first inventor but was the second to file to demonstrate that they diligently worked on the invention from immediately before the conception of the person who filed first straight through and uninterrupted until they either actually or constructively reduce the invention to practice.  Diligence is strictly enforced.  An inventor that goes on vacation is not diligent, an inventor who has to raise money to continue research is not diligent and patent attorney delay in filing an application forfeits diligence if the inventor is relying on a constructive reduction to practice.  So presently the law imposes significant hurdles for those who invent first to prevail and receive the patent.  In fact, we can all universally agree who invented first but if they were not diligent then they cannot be awarded the patent.  So is 102(g) unconstitutional or otherwise in violation of Stanford v. Roche?  Of course not.

Simply stated: Stanford v. Roche had nothing to do with first to file or patent reform, and it does not say what those who despise patent reform are trying to twist it to mean.  Many of those who oppose patent reform will grasp at every straw and make every ridiculous and provably false argument they can.   This is an example of everything that is wrong with American politics if you ask me.

First to file can justifiably be challenged for at least several reasons.  First, and most importantly, once the Senate added first to file the tech giants that make up the Coalition for Patent Fairness started arguing that if we have first to file we need prior user rights.  That was never argued in the Senate, and it is just flat ridiculous.  The Constitutional purpose of the patent clause is to disseminate knowledge, not to reward those who affirmatively keep knowledge secret, which is exactly what a prior user rights regime does.  So if prior user rights is absolutely necessary in a first to file regime (which is not true) then we shouldn’t have first to file.  See Expanded Prior User Rights is a Bad Idea.

The primary argument for first to file is that it virtually never matters.  This, however, is also one of the best arguments against it.  As it turns out we have a de facto first to file system because in upwards of 99.9% of cases the first to file is the first to invent.  So the supporters say: “why have a first to invent system with all the archaic rules that go with it (i.e., interference practice) when it matters hardly ever.  In fact, since 2004 exactly 1 independent inventor out of 2.7 million patent applications was successful in proving they were first to invent when they were second to file.  See First to File Fight Looms. The retort, however, is that if it hardly ever matters then why make the change?

There are plenty of legitimate avenues to challenge first to file, but I find it reprehensible to fabricate fallacious arguments out of whole cloth in order to attempt to prevail in an argument that cannot legitimately be won on the merits.  Such immoral trickery makes a mockery out of the system, insults those who genuinely support first to file for thoughtful reasons and makes it all the more difficult for those who oppose first to file on legitimate grounds to be taken seriously.  It is wrong when the Coalition for Patent Fairness pretend prior user rights are an essential component of a first to file system, and it is equally wrong when those who despise first to file knowingly, intentionally or ignorantly misrepresent a Supreme Court ruling.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 110 Comments comments.

  1. step back June 7, 2011 6:17 am

    You see, presently 35 U.S.C. 102(a) says that a person is entitled to a patent (generally speaking) unless someone has previously invented.

    Gene, I agree with you overall assessment that the Stanford case does not provide law regarding first to file and its Constitutionality.

    But just as a nit pick, the reliance on 102 with regard to “who” is entitled to file is misplaced. It is 35 USC 101 that defines “who” is entitled to file. The answer is “Whoever”:

    35 U.S.C. 101 Inventions patentable.

    Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

  2. Blind Dogma June 7, 2011 6:50 am

    step,

    Nice distinction – looks like you are back in step.

    Hot today, isn’t it? 😉

  3. New Here June 7, 2011 10:34 am

    @Gene

    The entire “first” argument rest upon a single idea that happens to be nothing more then “who” gets to the patent office first ! I can’t be 100% sure, but I believe the serious error in judgement about first-to-file you make mention of rest upon the same idea that first-to-invent is proof the applicant is the inventor. Not !

    For many years earlier in the patent system history the office only referenced only what it had on record as basis of prior-art to grant patents. So, did it make any difference about “first” when if what an applicant claimed is not already on record at the office ? No, a patent was granted on the not finding the applicant’s claim of invention on record. First to file or invent has no meaning without a system that is looking for the “real” inventor rather then just one that cross the finish line “first ” with a given claim.

    The “first” argument if you’re talking about law has no basis as I understand the law only talks about an inventor entitled to a patent having met the requirements. Nothing about being “first”. The the serious error in judgement you’ve made clear by members of Congress is in some part because nothing about the law they studied had any mention of a basis of “first”. Please I wish to understand why would the law even include such an ambiguous term as “fist” with something as important as patents ?

    So, I ask just how much should any member of Congress understand seeing the growth of what is a vast amount of information and technology today. It seems much to ask of anyone without some reference made to many others that cover a given area in question. The real question is the sources of the references to make sound judgements upon. References that the law remains fair and has balance with respect to IP that isn’t embodied just in patents or patent law.

  4. Ron Hilton June 7, 2011 10:49 am

    Would the part about “joint research agreements” in the Patent Reform Act have any bearing on this type of situation?

  5. Gene Quinn June 7, 2011 11:33 am

    Step-

    Thanks for the comment re: 101. That is yet another reason to discredit the notion that the first inventor has to receive the patent. The law allows for “whoever” to receive the patent “subject to the conditions and requirements of” Title 35.

    The only thing I would point out is this: I don’t think that gets you anywhere with the black helicopter crowd. Admittedly, what I wrote won’t either. Truth doesn’t seem to matter unfortunately. The argument goes that the Supreme Court says that inventors own the patent, and they would likely use 101 in their favor saying: “See… it says “whoever invents gets the patent, and since an inventor is only rightfully considered the first person that means first to file is contrary to the Constitution.” As near as I can tell they are taking the fundamentally flawed position based on the believe that you cannot reinvent the wheel. If you reinvent they would say you are not an inventor. Patent law doesn’t see it that way though. If you engaged in the mental activity of invention without copying you would be an inventor, just not the first inventor.

    This is going to be a mess I’m afraid. I sense black helicopters circling around Congress.

    -Gene

  6. TINLA IANYL June 7, 2011 1:19 pm

    If Stanford v Roche really did mean that only the first to conceive is the one and only inventor, then wouldn’t that have a huge impact on existing law that recognizes the first inventor who doesn’t abandon, suppress, or conceal, and who files before the later inventor’s disclosure becomes 102(b) prior art to the “true inventor’s” patent application? In other words, aren’t these people arguing that proof of a prior use (even a non-public use), or even a prior conception (even one never reduced to practice) would invalidate a patent issued to another who conceived later? That’s a clearly erroneous (even a ridiculous) conclusion.

  7. New Here June 7, 2011 3:34 pm

    The world is more complex then whether or not patents exist. The complexity comes from that many people are thinking and are creating everyday: While there is no sure way to know who created what doesn’t mean any IP in question — ownership defaults to patent applicants !

    Open the Disclosure Document Program; as I understand closed early 2007.

    “This notice consolidates and supersedes the notices of Mar. 26, 1969
    (862 O.G. 1) and Aug. 11, 1970 (878 O.G. 1) relating to the Patent
    Office Disclosure Document Program. Under this program the Patent
    Office accepts and preserves, for a period of two years, papers
    referred to as “Disclosure Documents.” These papers may be used as
    evidence of the dates of conception of inventions. ”

    Why such what seems an important source of information would be closed. Important because as best I understand would help clear up many prior arguments today.

  8. Blind Dogma June 8, 2011 7:45 am

    Even if the constitutionality angle is more smoke than fire, Patent Docs reports that 52 congressmen, including two on the judiciary panel itself, are now calling for the bill to be shelved until further debates can be had.

    Is this the start of the unraveling, or just another call to the deep pocket lobbyists?

  9. Gene Quinn June 8, 2011 12:45 pm

    TINLA-

    That would seem to be the “logical” extent of their argument… using the term “logic” in quotes because it doesn’t seem as if advocates of this position have given any real thought to the issue or are trying to engage in a real debate.

    -Gene

  10. Nemo June 8, 2011 1:32 pm

    While I oppose first to file because it is manifestly unfair and unjust and because it undercuts the various purpose of U.S. Const. Art. I, Sec.8–which is to foster and encourage, and promote science and the useful arts for the benefit of society by rewarding those authors and inventors who bring new creations (inventions and creative expressions)–Stanford does not hold that first to file is unconstitutional, but those who support first to file must certainly be discomforted by Standford, for it points to a possible future case where the U.S. Sup. Ct may hold first to file to be unconstitutional.

    My Brother Quinn, being a clever and able advocate, after noting that the speciousness of claiming that Stanford holds first to file unconstitutional, proceeds, without a hint of hypocrisy or irony, to raise a series of specious arguments based on Title 35 against the present first to invent rule. Read in pari materia, 35 U.S.C. §§ 102(a) and 102(f) simply clarify and reinforce each other. 102(f) permits a presumed inventor to patent, unless, pursuant to 102(a), someone else proves to be the true inventor. (It is helpful to understand what invent means now in colloquial parlance and what it meant for the 18th century drafters of Art. I, Sec. 8: “create or design (something that has not existed before); be the originator of : he invented an improved form of the steam engine.” In pari materia, the 102(a) and (f) means that it is the first, or true, inventor who shall have the rights to patent, subject to the other provisions of Title 35 that restrict that right based on equitable rights arising in others because of the inventor’s misconduct and/or lack of diligence. There is nothing contrary to first invent rule or the constitutional basis of it to say that the inventor’s exclusive right to patent is not absolute so that his misconduct or lack of diligence or public use of his invention prior to patenting, etc., will deprive or restrict his right exclusive right to patent. This being so, none of my Brother Quinn’s Title 35 arguments have even the slightest merit.

    However, what is more troublesome for the first to file crowd is the very language and well settled purpose of U.S. Const. Art. I, Sec. 8, regarding Congress’ power to create intellectual property rights, that clearly provides a basis for the Court to hold that first to file is unconstitutional. Sec. 8, in relevant part, provides: “The 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 . . . .” So, while Congress has the power to grant rights for IP, that power is conditioned on a purpose, that is, “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 . . . .” That purpose has been acknowledge as the basis of the sovereign’s right to grant letters patent going back to the advent of modern patent law nearly three hundred years ago. To end the abuse of letter patents by granting monopolies to the crown’s favorites, modern patent law is founded on the basis that letters patent, as enshrined in our Constitution, promote the progress of science and the use arts by rewarding–who?–authors and inventors. But if we are to promote the progress of science and the useful arts by rewarding inventors (by which I and I submit the Constitution means he who creates the invention first), we certainly can’t accomplish that purpose by telling the inventor, the one who brought the invention to light, that he has no rights or has significantly impaired rights simply because he isn’t the first to file. To accomplish the purpose of Art I, Sec. 8, Congress must reward the inventor, he who brings the invention to light, for his creative effort, not a subsequent “inventor.” Rewarding the creative efforts of subsequent “inventors,” though they may, where not fraudulent, manifest genius, do nothing to promote the progress of science and the useful arts, because the inventor has already accomplished that progress with his invention by bringing it to light first.

    Now, if the first inventor does not appear in the record of prior art or if his misconduct or lack of diligence deprives him of his right to patent, society loses nothing from the work of subsequent legal inventors, because the first to invent the invention among them will have the right to then patent the invention as its inventor. So even here the principle, equity, and wisdom of the first to invent doctrine is vindicated, for, if the first inventor loses his right to patent, the next in line of subsequent creator shall be deemed the inventor and knows that he will be rewarded by first to invent rule for his invention. Thus, the first to invent rule is not only wise policy; it is not only fundamentally fair in rewarding the inventor for inventing first; it is constitutionally mandated by purpose enshrined in Art. I, Sec. 8: To promote the progress of science and useful arts, by securing for limited times to authors and inventors [,they who first created the invention,] the exclusive right to their respective writings and discoveries . . . .”

  11. Ron Hilton June 8, 2011 2:05 pm

    Without taking the Constitutionality argument to its logical extreme, I still think the US has been well-served by it’s inventor-centric patent system, and the slow erosion of individual inventor’s rights, of which the currently proposed patent reform act seems to be another step in that direction, is not a good thing in my opinion. If the Constitutionality argument gives some legislators pause in that regard, I’m all for it.

  12. step back June 8, 2011 3:38 pm

    Let’s assume (for argument sake) first-to-file is Constitutional.

    But let’s consider the underlying policy issues in the following hypothetical:

    Three inventors: A, B and C:

    1) Inventor A is first to conceive. He lives on the Left Coast (say California) and he believes in the laid back approach where you think things out deeply rather than acting in haste. So after having been first to conceive of the basic concept, her works on it and works on it some more until he comes up with a much much better mode of carrying out the invention (let’s call that the best mode). Then he spends time carefully researching which patent law firm to entrust with writing up the best mode. It all takes time, making him last to reach the steps of the Patent Office.

    2) Inventor B is second to conceive. He lives in the Heartland (say North Dakota) and he believes the race should belong to the swiftest. He too comes up with the basic idea but stops there and doesn’t work it up further. He tries to find a patent attorney who will understand the invention, but alas the search is a long and arduous one because there aren’t too many patent attorneys or agents in North Dakota who can understand the invention and write up a decent application for it. To add to his troubles, just as he finally finds a good patent attorney, he falls ill (or on hard financial times) and is unable to complete the patent writing process for another month or two. Despite these troubles, Inventor B comes in second in the race to the Office steps.

    3) Inventor C is third to conceive. He lives near the Right Coast (say in Washington DC). He too believes the race should belong to the swiftest. He too comes up with the basic idea but stops there and doesn’t work it up further. Lucky for him, his brother-in-law is a fancy lawyer at a top notch DC patent firm and agrees to do the patent write up for this last to invent Forrest Gump guy for free and right away. Because the law office has a branch just across the street from the USPTO, the brother-in-law has a clerk hand carry the application to the receiving desk just as the ink is drying fresh off the laser printer. The filing fees are charged to the firm deposit account and the inventor’s oath will be gotten later. The sharp patent attorney brother-in-law knows all the tricks to get his client’s paper work in first; before inventors B and C have a fair chance to get theirs in. But hey, that’s their problem.

    So basically, in this story, he who was last to invent but luckily had access to the fastest, cheapest resources, wins the foot race to the steps of the Patent Office. Word gets out on the street of what a lucky lucky guy C was and how unfortunate it was for A and B that they didn’t have “the right stuff” for winning the race.

    The question, however, is whether this a kind of public policy we want to foster?

    Do we want to discourage A from working up a best mode?

    Do we want to punish B because he got sick or didn’t have the cash or easy access to the right kind of patent attorney?

    Is this the Brave New America we want to live in?

  13. New Here June 8, 2011 4:00 pm

    Article 1 Section 8:

    “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;”

    I don’t believe “first” is even implied !
    The “first” problem was invented to address a filing problem and nothing more. The filing of paperwork is made easier by dates rather then by the time of day. A reference is made simple because the “first” file in the drawer is the earliest date to be placed there. The PTO followed general well established filing organization when the office first opened doors.

    The patent applications filed as a matter of being fair to those that applications having those earliest dates when ready to be considered for what would be a patent grant. — would be FIRST ! in the time-line.
    So it seems first-to-file was and is a system used all over the world for such and other reasons.

    There is no debate about something that doesn’t exist ! whether you are talking about first-to-invent OR first-to-file. One or the other doesn’t exist in Article 1 Section 8. First-to-file was a natural process seeing many civilized parts of the world that some had a patent systems were using a filing system. Those with a patent system as those that came to the new world (America) and had with them — all that is now based upon. The choice to debate “first” that was never part of the founding Fathers seeing as being so important NOT to state it in Article 1 Section 8. Yeah, some logic there !

    As for debate we’re going to have to know what side of the issue to engage on. Because it seems there are many sides of the issue to debate without a middle ground to stand without other argument(s) that are mostly subjective in approach.

  14. step back June 8, 2011 4:39 pm

    New Here:

    If you weren’t such a thick headed blog T_word, I would point you to this part of the actual law:

    35 U.S.C. 102 Conditions for patentability; novelty and loss of right to patent.

    A person shall be entitled to a patent unless –

    (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or ….

    (e) the invention was described in – (1) an application for patent, published under section 122(b), by another filed in the United States before the invention by the applicant for patent or (2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent, except that an international application filed under the treaty defined in section 351(a) shall have the effects for the purposes of this subsection of an application filed in the United States only if the international application designated the United States and was published under Article 21(2) of such treaty in the English language; or

  15. Nemo June 8, 2011 4:54 pm

    Well, you are wrong, because first to invent is clearly implied by the expressly stated purpose of U.S. Const. Art. 1, Sec. 8, Para. 8: “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 . . . .” That purpose, to promote the progress of science and the useful arts, is fully and exhaustively accomplished by the inventor. All subsequent juridical inventors do nothing and can do nothing to promote the progress of science and the useful arts, because the inventor–note that saying first inventor is redundant–has already fully exhaustively accomplished that purpose. And, therefore, since rewarding subsequent juridical inventors cannot promote the progress of science and the useful arts, Congress has no constitutional authority to grant letter patents to anyone other than the inventor, provided the inventor complies with the constitutionally promulgated procedural and substantive requirements of Title 35, because Congress has only the authority to grant letters patent to promote the progress of science and the useful arts, which, as I show, supra, granting rights to subsequent juridical inventors cannot do.

    As for your argument about being first at the office and/or first date on your application, etc., today, the U.S. Supreme Court, in its Sanford decision, reject all of that in the most emphatic terms. With Chief Justice Robert writing for the Court that the first to invent rule is the rule of law in the United States, so that, regardless of who shows up first at the USPTO or who has the earliest dates on their patent application, the inventor, he who in fact first creates the invention, is the one who has the exclusive right to patent the invention, subject, of course, to the constitutional provisions of Title 35 of the United States Code. So, whoever carries his burden of proof on the factual issue of who is the true inventor, that is, he who first created the invention, is the one who shall have the right, subject to the provisions of Title 35, to patent the invention.

  16. Gene Quinn June 8, 2011 5:02 pm

    Nemo-

    No matter how you say it, no matter how many times you try, I am not wrong. First to invent is not required by the Constitution. If it were required by the Constitution then current U.S. patent laws would be unconstitutional because there are MANY situations where the patent does not go to the first to invent.

    You are correct that that Congress cannot grant patents to one who is not the inventor, but that does not mean the patent has to go to the first inventor.

    Finally, I will just point out the fallacy of your statement that giving rights to subsequent inventors cannot promote the progress of science and the useful arts. One example to prove you incorrect. A invents and then keeps that invention secret and does not apply for a patent. B subsequently invents and seeks a patent. A’s secret invention is not prior art and B will receive the patent. B’s disclosure will be capable of being used forever more where A’s invention will remain unknown. So B adding to the public store of knowledge is what promotes innovation, not A’s secret.

    I could go on and on with examples, and I’m happy to do so if you continue to cling to your incorrect statements.

    _Gene

  17. Nemo June 8, 2011 5:16 pm

    I didn’t say that first-to-invent is the law of the United States. The Chief Justice of the United States Supreme Court, the ultimate court of appeal on all federal questions, just said it today in his majority opinion in Sanford. Now, the holdings of the U.S. Supreme Court may not do for you, but lawyers, the USPTO, and the U.S. Government is obliged to honor and obey the Court’s holdings, and the President is required to use the power and majesty of the United States to enforce the Court’ rulings. So that settles the matter, unless and until the Court reverse itself or Congress constitutionally changes the law, or unless you intend to stage a successful revolution.

    You example proves and supports my point. If the inventor never files a patent, for whatever reason, as I said supra, the next in line of subsequent juridical inventors will be entitle to file a patent and be rewarded, as I said, supra, by the first to invent rule. And, as Mr. Quinn notes, supra, under current law, the inventor who lacks diligence in prosecuting his rights to patent is forever barred from enforcing those rights against the next subsequent juridical inventor who is next in the line of creation and who subsequently and diligently prosecutes his patent application according to law.

  18. Nemo June 8, 2011 5:34 pm

    And Gene, as I tried to explain, supra, but perhaps not clearly enough, the first inventor’s right to patent isn’t, as is true of all constitutional rights, absolute. The express purpose of Congress’ power to grant IP rights, as set forth in U.S. Const. Art. I, Sec. 8, Para. 8, affords Congress the opportunity to limit and quality the inventor’s constitutionally mandated right to patent without violating that expressly stated constitutional purpose. Just as the First Amendment right of free speech with respect to government does not grant one the right to falsely yell fire in a crowded theater, nor does the inventor’s exclusive right to patent preclude Congress from limiting and qualifying that right in ways consistent with Congress power to grant IP rights in a manner that is consistent with and cabined by the constitutionally mandated purpose: “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 . . . .” That purpose guides the direction and scope of Congress’ authority as set forth in Title 35. I don’t see how any of the provisions of Title 35 that you cite violate that purpose. Therefore, none of those provisions would be unconstitutional, either because of that purpose or because of the first-to-invent rule implied by that purpose, which the U.S. Supreme Court reaffirmed today.

  19. Gene Quinn June 8, 2011 5:50 pm

    Nemo-

    OK, so we can all get on the same page why don’t you quote Chief Justice Roberts saying that first to invent is Constitutionally required? I know you won’t, because you can’t, because he did not say that.

    -Gene

  20. Nemo June 8, 2011 5:52 pm

    Gene, I apologize for the tone in my post 17. I didn’t realize when I wrote it that I was responding to you, a brother before the bar. I thought that I was responding to one of our lay interlocutors. I, of course, know that you will respect the Courts’ holding of law and other rulings, and I meant no disrespect. Occasionally, I get a little heated and have been admonished for my tone. Once again, I apologize.

  21. Blind Dogma June 8, 2011 5:52 pm

    Nemo,

    I do not have time now to read through all your posts, but I will make one comment:

    First Inventor is definitely NOT redundant. The term “inventor” must be understood as it is used in patent law., and frankly, patent law fully allows for both inventors inventing separately, but at the same time and for inventors inventing separately at different times (but each inventing on his or her own).

    This is not an argument you will win.

  22. Nemo June 8, 2011 6:05 pm

    Gene, you are misrepresenting what I said. In my very first post on this subject, supra, I acknowledge that the Court did not today hold that the first-to-file rule in unconstitutional, nor did I say that the first-to-invent rule is constitutionally mandated by Sanford. However, the Court did hold today in Sanford that the first-to-invent rule is currently the law of land by virtue of statue and by our tradition coming down from our earliest days of patent law and patent law jurisprudence. In Titles 17 and 35, the Congress has been more or less faithful to the purpose set forth in U.S. Const. Art. I, Sec. 8, Para. 8: “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 . . . .” Whether that purpose constitutionally mandates the first-to-invent rule is , as I have argued here, is a question for another case on another day, which the Court may have to take up, if the patent reform bill in the House passes in its current form.

  23. Nemo June 8, 2011 6:10 pm

    Blind Dogma: You are right about how the the term inventor is used in the patent law. I regard that use as the unfortunate propagation of error, where modern practice, without good reason and contrary to the intent of the Constitution, departed from what the drafters of U.S. Const. Art. I, Sec. 8, Para. 8 meant by the word invent. So, in my small way, I am trying reform the use of invent so that it conforms to the drafters of the IP clause meant.

  24. DMV Checkpoint June 8, 2011 6:14 pm

    There is a lot more to inventing than a lightbulb going off in the head. With respect to patents, clearly an inventive concept alone is insufficient, even if you are the first “inventor”.

  25. New Here June 8, 2011 8:03 pm

    @step back

    My former comment has nothing to do with the right to patent ! Where did you get that from ?

    From the top my comment starts with Article 1 Section 8 — of the Constitution. What you refer to doesn’t state a word about “first” with regard to “first-to-file or first-to-invent” because it can’t and remain in accord with the Constitution. Which is the point of my comment that the first-to file nor invent have a basis for a claim.

    “First to file and first to invent are legal concepts that define who has the right to the grant of a patent for an invention. The first-to-file system is used in all countries except for the United States, which operates a first-to-invent system.”

    In short are two ideas that allow a “fair system” to granting patents. Both were invented because they are just concepts to an approach and both concepts exist under current law — the Constitution too ! So, any claim of one or the other is Unconstitutional is a thought to consider for sure…

  26. Nemo June 8, 2011 9:18 pm

    And my point is that first-to-invent is necessarily implied by U.S. Const. Art 1, Sec. 8, Para. 8, because it is only the first inventor, the true inventor, who, by creating the novel invention, fully and exhaustively satisfies the purpose set forth in U.S. Const. Art 1, Sec. 8, Para. 8, that is, “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 . . . .” No subsequent juridical inventor can satisfy that purpose, because the first inventor, by bringing his invention to light, exhaustively promoted the progress of science and the useful arts with respect to his invention. Subsequent inventors do nothing to promote the progress of science and the useful arts, so Congress has only the authority to award the first inventor with the right to patent, provided that inventor complies with the procedural and substantive requirements of Title 35, because it is only the first inventor who promotes science and the useful arts. If, however, the first inventor does not so comply, then it is the next subsequent juridical inventor who can patent the invention and who is then entitled to the rights as the inventor who patents the invention.

    So, as you can see from the foregoing, the very purpose of the Constitution’s IP clause, supra, necessarily implies a first-to-invent rule, because it is only that inventor who promotes the progress of science and the useful arts, provided that he complies with the constitutionally promulgated provisions of Title 35. Subsequent inventors simply reinvent the invention that the first inventor has already invented, and therefore, they neither advance or promote science or the useful arts. However, If the first inventor doesn’t comply with applicable and constitutional provisions of Title 35, then next inventor in the line of creation gets the right to patent.

    I can’t make it any simpler than that.

  27. New Here June 8, 2011 9:57 pm

    @Nemo RE: #15

    With all respect, I doubt that those having written those words wanted them to imply anything.
    The current patent system depends upon a “first to file” anyway as this is the first step in the application process. Applications are filed by date and determinations of differences between inventor applications is so based where prior art is to be considered as well the inventor’s invention. The first to invent is a second consideration.

    If the law makers then wanted to state something about “first” without ambiguity would have well defined the meaning of “first” and how it applies to inventors filing applications in the office with respect to “first to” file or invent. I’m sure about that !

    The issue of first to file -or- invent is nothing new. A little research of mine, I have found where this was considered almost 44 years ago — 1967. Also the SCOTUS I’ve found over these same past 50+ years has given some added insights to where things are going with the patent system today. Issues with the system are nothing new and the change continues. …isn’t America great ?

    Thanks.

  28. step back June 9, 2011 5:25 am

    @Nemo re your comment #15:

    If someone invents something in secret in their basement and keeps the invention concealed, suppressed and perhaps abandoned within his or her basement, then they are not promoting the progress of the useful arts. They are merely entertaining themselves.

    Article I, 8, 8 includes the word “dis-cover”. Some scholars maintain that in the 1700’s, to dis-cover meant to un-cover, to reveal to others. Progress is promoted when you reveal to others your invention so that they can stand on your giant shoulders and see yet father (to paraphrase Sir Isaac Newton).

    @New Here:
    First to invent is embedded in the patent statues, for example where an Applicant can “swear behind” someone else’s date. Such is true in the case of 102(a), 102(e) and 103. See my comment #14 upthread.

  29. Blind Dogma June 9, 2011 7:55 am

    Nemo,

    I regard that use as the unfortunate propagation of error

    With all due respect, your regard, while duly noted, is meaningless to the discussion.

  30. Gene Quinn June 9, 2011 11:01 am

    Nemo says: “And my point is that first-to-invent is necessarily implied by U.S. Const. Art 1, Sec. 8, Para. 8, because it is only the first inventor, the true inventor…”

    You can believe that if you like, but it is important for you and everyone else to understand that this is not the law. The law makes distinctions between the first inventor and subsequent inventors. If you want to say that isn’t how it should be, fine. Your legal analysis, however, is 100% incorrect.

    Nemo says: “No subsequent juridical inventor can satisfy that [Constitutional] purpose, because the first inventor, by bringing his invention to light, exhaustively promoted the progress of science and the useful arts…”

    In order to make your point you continue to ignore reality, and the law for that matter. I pointed out to you the case where the first inventor concealed, yet you continue to want to pretend that the first inventor exhaustively promotes the progress of science and the useful arts. If you are just going to ignore truth what is the point of having a discussion?

    Knowing full well that you don’t seem to care about reality, allow me to again bury your position with facts. The entire purpose of the Patent Clause in the U.S. Constitution is to promote the dissemination of information. Through the dissemination of information future generations of inventors can stand on the shoulders of those who have come before. That is the only reason we tolerate a limited period of exclusivity; namely in exchange for a release of information. Thus, the law has always favored those who release information, particularly favoring those who release information sooner.

    The fact that we favor the quicker release of information is clear when you look at 102(g). It is virtually impossible (from a statistical standpoint) for the first inventor to receive the patent over the first to file. That is because the law puts enormous burdens in front of the first inventor who is second to file because the entire purpose of the system is the dissemination of information. If the first to file and first to invent conceived on the same day the patent goes to the first to file, and there are cases where that has actually happened.

    You don’t have to like it, and I really don’t care whether you even admit it, but everyone who objectively looks at the issue knows that one who invents first and then does not disclose is not advancing the useful arts. The party that advances the useful arts is the party that discloses. You simply cannot advance the useful arts without laying out your invention for others to see and learn from. That is why the law favors the first to file in its present form, and that is why first to file is far more in keeping with the Constitutional purpose than first to invent.

    To quote your arrogant ending to your clearly misinformed comment above: “I can’t make it any simpler than that.” I do hope you were able to follow along.

    -Gene

  31. New Here June 9, 2011 11:18 am

    @step back

    Yes I have read 102(a), 102(e) and 103, and though beautifully written without argument of a single word I could say first-to-invent is suggested. However that is by eligibility after the elimination of those requirements set in 102(a), 102(e) and 103, and an applicant being granted on an earliest date a patent for a given invention — with credit for given invention as being “first” to do so.

    “If someone invents something in secret in their basement and keeps the invention concealed, suppressed and perhaps abandoned within his or her basement, then they are not promoting the progress of the useful arts. They are merely entertaining themselves.”

    step back, not only is this wrong — it is ugly and unfair. Because I know well having worked with/for many over the years the process that produces an invention includes being secret. And this number of inventors includes those that patent.

    The real problem with those being secret that do not patent for those that do patent, is often the non-patent inventor’s invention isn’t patented and eligibility is lost when such work reaches those eliminations outlined in 102(a), 102(e) and 103 that is such eligibility for patent(s) . First-to-invent has offered a buffer to hold the idea that anyone having not patented an invention that ownership can be argued on the basis that a paper trail exists to the patent office — with any non-patent inventor claims left paperless to stand. That is my opinion.

    The fact is being in secret, doesn’t change the right to think and create in the US and is not limited by or subject to patent law or the patent office. If an invention is said to have been abandoned, would have to be proven in Court. With the problem for the claim maker that how did *he* come in to this knowledege if invention in question was a secret for some time. Questions as one; was the invention written and intact in the trash at a public dump ? That an inventor may have lost such work and not abandoned it.

    Nothing in the law says a thing that you must patent or if you don’t that your work is likely to be taken (claimed) by others if you choose by your right not to do a damn thing with your work secret or not. If any invention by anyone remaining secret and is not in active use doesn’t imply concealed, suppressed or perhaps abandoned. It is a choice that I can do as I please with my work, and until proven in a Court of law that it isn’t my work no one has any claim to it just because it isn’t patented ! Any work well documented and in correct form(s) will hold in Court.

    On your mention of discover. I found this to be most telling.
    2002:
    “The Supreme Court affirmed, observing that “[i]t has long been understood that a patent
    must . . . ‘apprise the public of what is still open to them.’”

    If you would like the source I can provide it for you.

  32. Nemo June 9, 2011 3:23 pm

    While I oppose first to file because it is manifestly unfair and unjust and because it undercuts the various purpose of U.S. Const. Art. I, Sec.8–which is to foster and encourage, and promote science and the useful arts for the benefit of society by rewarding those authors and inventors who bring new creations (inventions and creative expressions)–Stanford does not hold that first to file is unconstitutional, but those who support first to file must certainly be discomforted by Stanford, for it points to a possible future case where the U.S. Sup. Ct may hold first to file to be unconstitutional.

    My Brother Quinn, being a clever and able advocate, after noting that the speciousness of claiming that Stanford holds first to file unconstitutional, proceeds, without a hint of hypocrisy or irony, to raise a series of specious arguments based on Title 35 against the present first to invent rule. Read in pari materia, 35 U.S.C. §§ 102(a) and 102(f) simply clarify and reinforce each other. 102(f) permits a presumed inventor to patent, unless, pursuant to 102(a), someone else proves to be the true inventor. (It is helpful to understand what invent means now in colloquial parlance and what it meant for the 18th century drafters of Art. I, Sec. 8: “create or design (something that has not existed before); be the originator of : he invented an improved form of the steam engine.” In pari materia, the 102(a) and (f) means that it is the first, or true, inventor who shall have the rights to patent, subject to the other provisions of Title 35 that restrict that right based on equitable rights arising in others because of the inventor’s misconduct and/or lack of diligence. There is nothing contrary to first invent rule or the constitutional basis of it to say that the inventor’s exclusive right to patent is not absolute so that his misconduct or lack of diligence or public use of his invention prior to patenting, etc., will deprive or restrict his right exclusive right to patent. This being so, none of my Brother Quinn’s Title 35 arguments have even the slightest merit.

    However, what is more troublesome for the first to file crowd is the very language and well settled purpose of U.S. Const. Art. I, Sec. 8, regarding Congress’ power to create intellectual property rights, that clearly provides a basis for the Court to hold that first to file is unconstitutional. Sec. 8, in relevant part, provides: “The 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 . . . .” So, while Congress has the power to grant rights for IP, that power is conditioned on a purpose, that is, “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 . . . .” That purpose has been acknowledge as the basis of the sovereign’s right to grant letters patent going back to the advent of modern patent law nearly three hundred years ago. To end the abuse of letter patents by granting monopolies to the crown’s favorites, modern patent law is founded on the basis that letters patent, as enshrined in our Constitution, promote the progress of science and the use arts by rewarding–who?–authors and inventors. But if we are to promote the progress of science and the useful arts by rewarding inventors (by which I and I submit the Constitution means he who creates the invention first), we certainly can’t accomplish that purpose by telling the inventor, the one who brought the invention to light, that he has no rights or has significantly impaired rights simply because he isn’t the first to file. To accomplish the purpose of Art I, Sec. 8, Congress must reward the inventor, he who brings the invention to light, for his creative effort, not a subsequent “inventor.” Rewarding the creative efforts of subsequent “inventors,” though they may, where not fraudulent, manifest genius, do nothing to promote the progress of science and the useful arts, because the inventor has already accomplished that progress with his invention by bringing it to light first. Therefore, a constitutional limit of Congress’ power to create patent rights must be the accomplishment of the progress of science and the useful arts, which, as a matter of simple logic, can only be accomplished by rewarding the inventor, that is, he who first created the invention, thus providing it to advance science and the useful arts for the benefit of society. No other subsequent juridical inventor of the invention can so advance science and the useful arts with the invention, because the inventor has already done it.

    Now, if the first inventor does not appear in the record of prior art or if his misconduct or lack of diligence deprives him of his right to patent, society loses nothing from the work of subsequent juridical inventors, because the first to invent the invention among them will have the right to then patent the invention as its inventor. So even here the principle, equity, and wisdom of the first to invent doctrine is vindicated, for, if the first inventor loses his right to patent, the next in line of subsequent juridical inventors shall be deemed the inventor and knows that he will be rewarded by first to invent rule for his invention. Thus, the first to invent rule is not only wise policy; it is not only fundamentally fair in rewarding the inventor for inventing first; it is constitutionally mandated by purpose enshrined in Art. I, Sec. 8: To promote the progress of science and useful arts, by securing for limited times to authors and inventors [,they who first created their respective inventions,] the exclusive right to their respective writings and discoveries . . . .”

    Well, you are wrong, because first to invent is clearly implied by the expressly stated purpose of U.S. Const. Art. 1, Sec. 8, Para. 8: “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 . . . .” That purpose, to promote the progress of science and the useful arts, is fully and exhaustively accomplished by the inventor. All subsequent juridical inventors do nothing and can do nothing to promote the progress of science and the useful arts, because the inventor–note that saying first inventor is redundant–has already fully exhaustively accomplished that purpose. And, therefore, since rewarding subsequent juridical inventors cannot promote the progress of science and the useful arts, Congress has no constitutional authority to grant letter patents to anyone other than the inventor, provided the inventor complies with the constitutionally promulgated procedural and substantive requirements of Title 35, because Congress has only the authority to grant letters patent to promote the progress of science and the useful arts, which, as I show, supra, granting rights to subsequent juridical inventors cannot do.

    As for your argument about being first at the office and/or first date on your application, etc., today, the U.S. Supreme Court, in its Sanford decision, reject all of that in the most emphatic terms. With Chief Justice Robert writing for the Court that the first to invent rule is the rule of law in the United States, so that, regardless of who shows up first at the USPTO or who has the earliest dates on their patent application, the inventor, he who in fact first creates the invention, is the one who has the exclusive right to patent the invention, subject, of course, to the constitutional provisions of Title 35 of the United States Code. So, whoever carries his burden of proof on the factual issue of who is the true inventor, that is, he who first created the invention, is the one who shall have the right, subject to the provisions of Title 35, to patent the invention.

    And Gene, as I tried to explain, supra, but perhaps not clearly enough, the first inventor’s right to patent isn’t, as is true of all constitutional rights, absolute. The express purpose of Congress’ power to grant IP rights, as set forth in U.S. Const. Art. I, Sec. 8, Para. 8, affords Congress the opportunity to limit and quality the inventor’s constitutionally mandated right to patent without violating that expressly stated constitutional purpose. Just as the First Amendment right of free speech with respect to government does not grant one the right to falsely yell fire in a crowded theater, nor does the inventor’s exclusive right to patent preclude Congress from limiting and qualifying that right in ways consistent with Congress power to grant IP rights in a manner that is consistent with and cabined by the constitutionally mandated purpose: “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 . . . .” That purpose guides the direction and scope of Congress’ authority as set forth in Title 35. I don’t see how any of the provisions of Title 35 that you cite violate that purpose. Therefore, none of those provisions would be unconstitutional, either because of that purpose or because of the first-to-invent rule implied by that purpose, which the U.S. Supreme Court reaffirmed today.

    Gene, you are misrepresenting what I said. In my very first post on this subject, supra, I acknowledge that the Court did not today hold that the first-to-file rule in unconstitutional, nor did I say that the first-to-invent rule is constitutionally mandated by Sanford. However, the Court did hold today in Sanford that the first-to-invent rule is currently the law of land by virtue of statue and by our tradition coming down from our earliest days of patent law and patent law jurisprudence. In Titles 17 and 35, the Congress has been more or less faithful to the purpose set forth in U.S. Const. Art. I, Sec. 8, Para. 8: “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 . . . .” Whether that purpose constitutionally mandates the first-to-invent rule is , as I have argued here, is a question for another case on another day, which the Court may have to take up, if the patent reform bill in the House passes in its current form.

    And my point is that first-to-invent is necessarily implied by U.S. Const. Art 1, Sec. 8, Para. 8, because it is only the first inventor, the true inventor, who, by creating the novel invention, fully and exhaustively satisfies the purpose set forth in U.S. Const. Art 1, Sec. 8, Para. 8, that is, “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 . . . .” No subsequent juridical inventor can satisfy that purpose, because the first inventor, by bringing his invention to light, exhaustively promoted the progress of science and the useful arts with respect to his invention. Subsequent inventors do nothing to promote the progress of science and the useful arts, so Congress has only the authority to award the first inventor with the right to patent, provided that inventor complies with the procedural and substantive requirements of Title 35, because it is only the first inventor who promotes science and the useful arts. If, however, the first inventor does not so comply, then it is the next subsequent juridical inventor who can patent the invention and who is then entitled to the rights as the inventor who patents the invention.

    So, as you can see from the foregoing, the very purpose of the Constitution’s IP clause, supra, necessarily implies a first-to-invent rule, because it is only that inventor who promotes the progress of science and the useful arts, provided that he complies with the constitutionally promulgated provisions of Title 35. Subsequent inventors simply reinvent the invention that the first inventor has already invented, and therefore, they neither advance or promote science or the useful arts. However, If the first inventor doesn’t comply with applicable and constitutional provisions of Title 35, then next inventor in the line of creation gets the right to patent.

    I can’t make it any simpler than that.

    Dear Blind Dogma: In the late 18th century, without the often dubious benefit of our later jurisprudence, when the drafters of U.S. Const. Art. I, Sec.8, Para. 8, (the “IP Clause”) use the word “invent,” they meant the first to create a thing, which is still the ordinary definition of the word. Thus, a person who invented the wheel was the person who first created it, not some subsequent “inventor.” That is just the kind of strict constructionist textual analysis that might appeal to Justice Scalia. I could perhaps find some other votes based on the IP Clause’s clear implication that rewarding the inventor with rights for promoting the progress of science and the useful arts necessarily implies he who created the invention, for all subsequent others do is reinvent, which advances nothing provided that inventor duly patents his invention. If not, the next subsequent inventor will have the right to succeed him.

    First-to-invent also finds clear and venerable support in the law of equity, for Equity has long acknowledged that: “Between equal equities the first in order of time shall prevail. This maxim operates where there are two or more competing equitable interests; when two equities are equal the original interest will succeed.” Richard Edwards, Nigel Stockwell (2005). Trusts and Equity. Pearson Education. pp. 34. ISBN 1405812273. While I don’t concede that subsequent inventors have equal equity with the original inventor, because, with respect to IP Clause’s policy of rewarding he who promotes the progress of science and the useful arts, they clearly are inferior in equities, yet even if we were arguendo to regard their equities as equal, the original inventor being first in time must prevail in his exclusive right to patent the invention.

    So, as a matter of textual interpretation, statutory analysis, and doing equity to parties before the court, the definition of inventor that as presently used only in the patent law could be overruled, so that the word “invent” resume its original and still standard meaning. Though that isn’t necessary for me to prevail on the first-to-invent rule, as the textual, statutory, and equity analysis works fine with existing terminology by simply referring to the original inventor as the First Inventor.

    My Dear Brother Quinn: You are right that today, it is not the law that the first-to-invent rule is constitutionally mandated, as no federal court that I am aware of has addressed that issue. However, as you admit, supra, and as is clear from Sanford, first-to-invent is the law of the land today, based on the Court’s analysis of relevant provisions of Title 35 and on the long and unbroken tradition from the beginning of patent jurisprudence of first-to-invent being held to be the law.

    I also think that you are not reading my posts, because I have more than once dealt with the purely hypothetical circumstance where the original inventor declines to patent or does so in material violation of a material provision of Title 35. Such an original inventor simply loses by law and/or equity (e.g., 102(g), abandonment, laches, etc.) his right to patent in favor of another, the next subsequent in inventor in the chain of creation. I have repeated more than once in response to you or others. Where the first inventor declines to patent or does so unduly, so as not bring his invention to light to promote the progress of science and the useful arts, equity and/or law takes his first inventor’s rights and confers them on the subsequent inventor, who is next in the chain of creation. Thus, the first-to-invent rules still applies but with the subsequent inventor, who is next in time in creating the invention, and the invention is thus preserved and transmitted to our posterity.

    First-to-invent is the law of the land and trumps first-to-file, where the first inventor can prove his status as first creator of the invention. Justice Roberts in Sanford teaches us that where the first inventor can satisfy his burden of proof his right to patent will prevail. Yet, I am confused as to how this point helps you, because the invention is disseminated among us and transmitted to our posterity whether it be the first inventor or the first to file who patents the invention. Also, it should be noted that you misrepresent 102(g), which is about preventing fraud by those claiming to have invented first, when, in fact, they have not. But, as Sanford teaches, if the first inventor can prove he is the first inventor, he shall be given the exclusive right to patent, and thus not only preserve and disseminate the invention for us and our posterity, but also do what as matter equity and reaffirmed law is the right thing to do, that is, reward the person who invented the invention first.

    And less be candid, no one invents and then does not disclose, at least no one that anyone knows of. Even the most radical opponents of the existing IP regime, such as Dr. Richard Stallman and other proponents of free-and-open-software movement, advocate disclosure. The inventor who doesn’t disclose is not a problem for two reasons: First, it is unlikely that we shall ever know who that person is, since he doesn’t disclose, there will be no legal dispute (Or, as Secretary Rumsfeld would put it: the undisclosed invention is an unknown unknown), but, second, if a tardy first inventors tries to prevent a subsequent inventor from patenting by asserting rights that he has hidden or slept upon, both law and equity will foreclose his rights and confer them of the subsequent inventor who is next in the line of creation. Thus, preserving the invention for us and our posterity. See supra.

    Gene, did I follow along closely enough?

  33. Nemo June 9, 2011 3:25 pm

    Gentlemen: Excuse me post #32 was a mistake, as it included previous posts. The correct post that I intended is, infra:

    Dear Blind Dogma: In the late 18th century, without the often dubious benefit of our later jurisprudence, when the drafters of U.S. Const. Art. I, Sec.8, Para. 8, (the “IP Clause”) use the word “invent,” they meant the first to create a thing, which is still the ordinary definition of the word. Thus, a person who invented the wheel was the person who first created it, not some subsequent “inventor.” That is just the kind of strict constructionist textual analysis that might appeal to Justice Scalia. I could perhaps find some other votes based on the IP Clause’s clear implication that rewarding the inventor with rights for promoting the progress of science and the useful arts necessarily implies he who created the invention, for all subsequent others do is reinvent, which advances nothing provided that inventor duly patents his invention. If not, the next subsequent inventor will have the right to succeed him.

    First-to-invent also finds clear and venerable support in the law of equity, for Equity has long acknowledged that: “Between equal equities the first in order of time shall prevail. This maxim operates where there are two or more competing equitable interests; when two equities are equal the original interest will succeed.” Richard Edwards, Nigel Stockwell (2005). Trusts and Equity. Pearson Education. pp. 34. ISBN 1405812273. While I don’t concede that subsequent inventors have equal equity with the original inventor, because, with respect to IP Clause’s policy of rewarding he who promotes the progress of science and the useful arts, they clearly are inferior in equities, yet even if we were arguendo to regard their equities as equal, the original inventor being first in time must prevail in his exclusive right to patent the invention.

    So, as a matter of textual interpretation, statutory analysis, and doing equity to parties before the court, the definition of inventor that as presently used only in the patent law could be overruled, so that the word “invent” resume its original and still standard meaning. Though that isn’t necessary for me to prevail on the first-to-invent rule, as the textual, statutory, and equity analysis works fine with existing terminology by simply referring to the original inventor as the First Inventor.

    My Dear Brother Quinn: You are right that today, it is not the law that the first-to-invent rule is constitutionally mandated, as no federal court that I am aware of has addressed that issue. However, as you admit, supra, and as is clear from Sanford, first-to-invent is the law of the land today, based on the Court’s analysis of relevant provisions of Title 35 and on the long and unbroken tradition from the beginning of patent jurisprudence of first-to-invent being held to be the law.

    I also think that you are not reading my posts, because I have more than once dealt with the purely hypothetical circumstance where the original inventor declines to patent or does so in material violation of a material provision of Title 35. Such an original inventor simply loses by law and/or equity (e.g., 102(g), abandonment, laches, etc.) his right to patent in favor of another, the next subsequent in inventor in the chain of creation. I have repeated more than once in response to you or others. Where the first inventor declines to patent or does so unduly, so as not bring his invention to light to promote the progress of science and the useful arts, equity and/or law takes his first inventor’s rights and confers them on the subsequent inventor, who is next in the chain of creation. Thus, the first-to-invent rules still applies but with the subsequent inventor, who is next in time in creating the invention, and the invention is thus preserved and transmitted to our posterity.

    First-to-invent is the law of the land and trumps first-to-file, where the first inventor can prove his status as first creator of the invention. Justice Roberts in Sanford teaches us that where the first inventor can satisfy his burden of proof his right to patent will prevail. Yet, I am confused as to how this point helps you, because the invention is disseminated among us and transmitted to our posterity whether it be the first inventor or the first to file who patents the invention. Also, it should be noted that you misrepresent 102(g), which is about preventing fraud by those claiming to have invented first, when, in fact, they have not. But, as Sanford teaches, if the first inventor can prove he is the first inventor, he shall be given the exclusive right to patent, and thus not only preserve and disseminate the invention for us and our posterity, but also do what as matter equity and reaffirmed law is the right thing to do, that is, reward the person who invented the invention first.

    And less be candid, no one invents and then does not disclose, at least no one that anyone knows of. Even the most radical opponents of the existing IP regime, such as Dr. Richard Stallman and other proponents of free-and-open-software movement, advocate disclosure. The inventor who doesn’t disclose is not a problem for two reasons: First, it is unlikely that we shall ever know who that person is, since he doesn’t disclose, there will be no legal dispute (Or, as Secretary Rumsfeld would put it: the undisclosed invention is an unknown unknown), but, second, if a tardy first inventors tries to prevent a subsequent inventor from patenting by asserting rights that he has hidden or slept upon, both law and equity will foreclose his rights and confer them of the subsequent inventor who is next in the line of creation. Thus, preserving the invention for us and our posterity. See supra.

    Gene, did I follow along closely enough?

  34. Blind Dogma June 9, 2011 3:30 pm

    In the late 18th century, without the often dubious benefit of our later jurisprudence, when the drafters of U.S. Const. Art. I, Sec.8, Para. 8, (the “IP Clause”) use the word “invent,” they meant the first to create a thing, which is still the ordinary definition of the word

    Cite please – otherwise, I am to assume tht you simply assumed the conclusion you would need to prove. reiterating your own beliefs is no substitute for proving your case.

    And please, take some time to write shorter. Being verbose and stilted does not help you make your case.

  35. New Here June 9, 2011 4:17 pm

    @Nemo

    Please if you would give some idea of what the SCOTS reason to declare first-to-file unconstitutional would be. The reason I ask is because I believe by treaty the US being the only to use the first-to-invent deals with first-to-file from those seeking US patents from other parts of the world. I’m sure that first-to-file is somewhere in US law having to work with both systems granting patents.

    The SCOTUS to declare first-to-file unconstitutional would as I believe have a serious impact to consider on whether or not the US doing business with the rest of the world will be good for the US now and in the future. My simple idea is that something unconstitutional that the US has been working with for some years now and note the billions of dollars in trade at risk — to just up telling the rest of the world we do and have been doing things that are not consistent with our own laws. NOT DONE !

    Most all of the rest of the world is first-to-file, and while that is not a reason to move the farm it is important to know that any change in US patent law counter to that is going create many reactions that I will bet the US can not afford. I’d rather see first-to invent stay right where it is then harm the US via the patent system. I do believe those members of the SCOTUS see it that way too though with a scope of law I do not have.

  36. Nemo June 9, 2011 4:26 pm

    Dear Blind Dogma: Thanks for affording me the opportunity to provide the necessary citations:

    Invent: To discover, to find out, to excogitate.

    Inventer [modern spelling, Inventor]: One who produces something new; a deviser of something not known before.

    To Discover: (1) To show, to disclose, to bring to light; (2) To make known; (3) To find out, to espy.

    Excogitate: To invent; to figure out something.

    The preceding definitions are from The Dictionary of the English Language by Samuel Johnson (a.k.a. Dr. Johnson), 1768 3d Edition. This was not only the authoritative dictionary; it was, I think, the only dictionary of the English language then extant. So Dr. Johnson’s dictionary is the one that our founding fathers would have referred to as the authority on the meaning of English words in the 18th century.

    I want you to note particularly the definition of the words “inventor” and “invent.” An inventor is someone who produces something new or who devise something not known before.

    I provide the words “discover” and “excogitate” to provide definitions for the words that “inventor” and “invent” use to define their respective concepts.

    I also took the liberty of correcting 18th century spelling to conform to modern spelling. I am equipped to do this, as one of my degrees is in English Literature, and as an undergraduate, I made a particular study of Dr. Johnson.

  37. Nemo June 9, 2011 4:28 pm

    Dear New Here: I will try to take your latest comments up later this evening or tomorrow, but right now, my day job calls.

  38. Blind Dogma June 9, 2011 5:20 pm

    An inventor is someone who produces something new or who devise something not known before.

    There is nothing in this definition that supports your view over the view as understood in patent law.

    To wit:
    something new can be produced by more than one person concurrently.
    something not known before can be produced by more than one person non-concurrently if one person keeps their production (and thus knowledge) secret from all others.

    The legal meanings I alluded to above still hold through your proffered citation.

    You have failed to prove your point. There is no “propagation of error” because there is no error in the first place.

    You are conflating your desired view with the definition. In order to actually prove your view, you need to show that first and only the very first is deserving of the term inventor.

    You have not done so.

    You have merely reinforced the legal view of which you hold as propagated error.

  39. Bobby June 9, 2011 6:37 pm

    Whether or not something new or not known can produced or devised more than once would depend on the context, so I suppose it would depend upon what you consider to be the appropriate context. In the context of all of humanity, something is only new or unknown when it does not yet exist anywhere or is not known by anyone, and thus can only be invented once.

    That said, one would think that concurrent production is very indicative of obviousness, so the level of concern here ought to be minimal if our review process is adequate.

  40. Nemo June 9, 2011 7:27 pm

    Dear Blind Dogma: I realize that my verbose and stilted writing tries your patience, but the argument here will be advanced if you read my prior post. That under prevailing precedent, we can have more than one inventor of an invention is true, and I acknowledge that supra. However, I maintain, as a matter of constitutional law and based on 35 U.S.C. § 100, that is error.

    Let’s begin with the Constitution because that it is controlling. Art. I, Sec. 8, Clause 8 (IP Clause) provides: “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 . . . .” In interpreting the meaning of the Constitution, a critical factor is not what we mean by the language today or even subsequent precedents, but what the drafters meant when they drafted the language at issue. The word “inventor” meant in the 18th century: One who produces something new; a deviser of something not known before. And interestingly, the ordinary definition of inventor hasn’t changed, as it still means: A person who: creates or designs (something that has not existed before); be the originator of. So when interpreting the meaning of the IP Clause we know that inventor did not mean one in a series of inventors, but meant and still means the person who produces something new; a deviser of something not known before.

    That meaning has clear implications for the scope of Congress’ authority to grant letters patent pursuant to the IP Clause. In concurrence in Great Atlantic Pacific Tea Co v. Supermarket Equipment Corp, 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162 (1950), Mr. Justice Douglas observed: The Congress does not have free reign, for example, to decide that patents should be easily or freely given. The Congress acts under the restraint imposed by the statement of purpose in Art. I, § 8. The purpose is ‘To promote the Progress of Science and useful Arts’. The means for achievement of that end is the grant for a limited time to inventors of the exclusive right to their inventions. Thus, Justice Douglas found that Congress’ authority to grant patents is restrained within the ambit of the purpose announced in the IP Clause, that is, if Congress enacted a rule to grant patents that did not promote the progress of science and useful arts, that enactment would be unconstitutional.

    Congress, therefore, following Justice Douglas’ reasoning, could only enact a first-to-file rule that promoted the progress and science of the useful arts, otherwise the rule would be unconstitutional. But Congress has already done that in the existing provisions of Title 35. Under Title 35, as reaffirmed in Sanford, the inventor is the one who has the exclusive right to apply for a patent for his invention, while subsequent juridical inventors only obtain the right to patent, if the inventor fails to patent or fails to patent duly so that he fails to promote the progress of science and the useful arts. Nothing more from Congress, such as a rule that permits the first to file to obtain a patent over an inventor, who has not lost his right to patent because of his misconduct, would be constitutional. But, as I said, Congress has already pretty much exhausted its ability to constitutionally permit someone other than a diligent and honest inventor to obtain a patent.

    But even on statutory grounds callings subsequent reinventors “inventors” is error. 35 U.S.C. § 100 defines invention, thusly: (a) The term “invention” means invention or discovery. In other words, 35 U.S.C. § 100 defaults to the standard definition of the word invention. Well, the modern meaning and the 18th century meaning of invent are in accord: A person who: creates or designs (something that has not existed before); be the originator of. So even under the Patent Act, an inventor is one unique person: he who creates a new invention. All others persons taking his right to patent his invention do so either by contract or operation of law. Absent such contract or operation of law, the inventor must under the IP Clause have the exclusive right to patent, at least in so far as his invention and his patenting of it promotes the progress of science and the useful arts. And Congress denying the inventor that right to patent, absent some misconduct on his part, would be unconstitutional.

    New Here, I haven’t forgotten you.

  41. Blind Dogma June 10, 2011 7:40 am

    Whether or not something new or not known can produced or devised more than once would depend on the context

    I believe this may be the first correct thing you have said, Bobby. Now , with this established, you do know what the proper context is, correct? (Hint: the legal one, and most definitely not your castle built on the sands of kitty litter) This is the point that I have to hammer you with – time after time after time after time after time.

    one would think that concurrent production is very indicative of obviousness

    And one would be wrong if this is the only item of consideration. And in particular, as this is the only item of consideration for the point at hand, please leave aside the conflation of obviousness from the establishment of the proper definition of “inventor.”

    Nemo,

    Let’s not get ahead of ourselves in advancing arguments, as you still have not proven your point on “inventors”, even with you citation as I explained above (Even your 18th century definition fails to prove what you want it to prove). Repeating yourself is not proving anything.

    Using Justice Douglas as your backdrop is also a grave error – Justice Douglas was one of the most virulent anti-patentists to sit on the high court and his musings decidely do not make a strong foundation.

    Slightly off the topic, your understanding of the Stanford case is itself slightly off, Rather than “while subsequent juridical inventors only obtain the right to patent, if the inventor fails to patent or fails to patent duly ,” the Stanford case is merely a case of proper contracting and understanding that Bayh-Dole did not rewrite patent law (a postion I held throughout). That case had nothing at all to do with Justice Douglas’ philosophies.

    In other words, 35 U.S.C. § 100 defaults to the standard definition of the word invention.

    And while this may be true, as I have shown you, the standard defintion – by default – doesnot say what you think it says. See my simple and straightforward post above at 38.

    You still have yet to show why your purported view of the absolute singularity of “inventor” is proper and how it overcomes the common sense (even in the 18th century) understanding of concurrent and non-concurrent (with one having hidden and secret knowledge) inventorship.

    Telling me what you want it to mean is not proving it.

  42. Bobby June 10, 2011 8:17 am

    “Now , with this established, you do know what the proper context is, correct?”
    I am not claiming affirmatively what the proper context is, I am just explaining that whether or not someone is an inventor depends upon the context used, and providing an example where Nemo’s position would apply. However, I would be interested in what you conclude the context to be. It would seem a rather difficult matter to nail down, seeing as there is little written by the founding fathers on the subject on patents, let alone grant of patents in the context of independent invention. Personally, I can see a decent argument for and against the constitutionality of first-to-file.

    “And one would be wrong if this is the only item of consideration. And in particular, as this is the only item of consideration for the point at hand, please leave aside the conflation of obviousness from the establishment of the proper definition of “inventor.””
    You miss my point, which is that the degree of a concern this particular matter is suggests a problem with our review process. If our review process adequately weeded out obvious inventions, then instances where this matter is important should be rare, and concern here would like be trivial. Now, please don’t misrepresent my stance, I didn’t claim that it was the only factor, rather that independent development of the same invention strongly suggests, but does not conclusively prove, obviousness. My apologies if I was not clear on that point.

  43. Blind Dogma June 10, 2011 8:58 am

    and providing an example where Nemo’s position would apply.

    Bobby – that’s the point – Nemo’s position does not apply in this context.

    Bam – another wall hit at full speed.

    I would be interested in what you conclude the context to be.

    How many times must I explain this to you: the context is the legal world.

    Bam – another wall hit at full speed.

    the degree of a concern this particular matter is suggests a problem with our review process.

    No, I did not miss your point – your point is the deliberate conflation of your pet concern with the definition of “inventor.” This particular matter simply does not suggest a problem with the review process because understanding the definition of inventor in this legal context has absolutely nothing to do with the ensuing review process at all. Rather, you miss my point that there is no place here to inject your errant philosphy, and I am trying to nip your purposeful error in the bud.

    Bam – another wall hit at full speed.

    (any time you want to open your eyes, just go ahead and do it)

  44. Bobby June 10, 2011 9:23 am

    BD,
    “How many times must I explain this to you: the context is the legal world.”
    Yes, and what do hold that the ‘legal context’ is specifically? Specify in EXACTLY what context and from what perspective something must be ‘new’ in order to be an invention in the context of the US Constitution.

    “This particular matter simply does not suggest a problem with the review process because understanding the definition of inventor in this legal context has absolutely nothing to do with the ensuing review process at all.”
    I’m going to be blunt. If two people devise the same thing independently at roughly the same time, it’s going to be something obvious most of the time. Therefore, the correct solution in most of the cases concerned (assuming we have a functional system) is to not grant a patent at all. The exact legal context is still an issue that would have to be worked out, but it would be a much smaller concern involving fewer cases.

  45. Nemo June 10, 2011 2:47 pm

    Dear Bobby: The context in U.S. patent law is and has always been the prior art, that is, what is practiced or published or used or distributed in commerce or patented or subject to pending patent application or just about anything else that embodies the invention so that it available to those skilled in the art. And any of those sources can, subject to the provisions of Title 35, be foreign as well as domestic. That’s the context.

    Your concerns about novelty and obviousness go to the issue of satisfying the requirements for patentability, which are not part of the topic being debated. The topic is what is the scope of Congress’ power to issue letters patent. And may Congress within the scope of that power grant to someone other that an honest and diligent inventor, who correctly applies for a patent, the right to patent that inventor’s invention by virtue of having filed first at the USPTO. I maintain that, under U.S. Const. Art. I, sec. 8, clause 8 (IP Clause), the Congress only has the power to grant letters patent to the inventor, provided that the inventor honestly and correctly and timely files his application to patent his invention, and that Congress’ denial of that right to patent to such an inventor would be unconstitutional.

    Dear Blind Dogma: While repeating that I haven’t prove my point that inventor means the person who originally invents the invention, you have done nothing to rebut my incontrovertible proof that inventor meant in the 18th century and means today under 35 U.S.C. § 100 exactly that: He who originally invents the invention. See citations, supra. Any court precedents to the contrary are simply errors of either statutory construction or constitutional interpretation or both. But while that is an important point, it avoids addressing the main issue of whether Congress pursuant to IP Clause may grant letters patent to any person other than an inventor (Using the 18th century and the identical current standard definition of “inventor.”), who diligently, honestly, and correctly applies for a patent on his invention. Justice Douglas says no, that Congress must grant letters patent in a manner that promotes the progress of science and the useful arts, which necessarily implies that Congress must grant letter patent to the inventor who is timely, correct, and honest in applying for a patent for his invention.

    So whether one properly restricts the term inventor to its correct meaning or whether you denominate the inventors as inventors 1st through the nth inventor (which even sounds stupid), the First Inventor, who honestly, correctly, and timely applies for a patent for his invention is the only inventor that Congress may award the patent to, because he is the only inventor who promotes the progress of science and the useful arts. All other subsequent inventors merely restate an invention that has already been disclosed.

    But Justice Douglas is not alone in his view that the IP Clause restrict Congress to granting letters patent only to the person who promotes the progress of science and the useful arts. In George Kendall, Leander Ware, and George Jencks, Plaintiffs In Error v. Joseph Winsor, 62 U.S. 322, 21 How. 322, 16 L.Ed. 165 (1858), Mr. Justice Daniel, writing for the majority, held, inter alia, that: “The true policy and ends of the patent laws enacted under this Government are disclosed in that article of the Constitution, the source of all these laws, viz: ‘to promote the progress of science and the useful arts,’ contemplating and necessarily implying their extension, and increasing adaptation to the uses of society.” Id at 328.

    In Kendall, the issue before the Court was whether the lower courts had issued the correct jury instructions so that the jury correctly applied the law to determine whether Plaintiff Appellee had timely applied for his patent. The jury found for the Plaintiff. In reaching his conclusion that lower courts had been correct in their instructions, Justice Daniel observed that the IP Clause defines the ambit of Congress’ power to grant letters patent, and that ambit is ” ‘to promote the progress of science and the useful arts,’ contemplating and necessarily implying their extension, and increasing adaptation to the uses of society.” Id. at 328. So once again, we see that Congress’ power to grant letters patent is defined and cabined by the purpose announced in the IP Clause, and that purpose can only be met by awarding a patent to the inventor, where the inventor properly, honestly, and timely files for a patent. The next subsequent juridical inventor in the line of creation may only patent the inventor’s invention where, upon the inventor’s misconduct, the law forecloses the inventor’s exclusive right to patent his invention.

  46. Blind Dogma June 10, 2011 3:14 pm

    you have done nothing to rebut my incontrovertible proof that inventor meant in the 18th century and means today under 35 U.S.C. § 100 exactly that: He who originally invents the invention

    Actually, Nemo – I have. See post 38, wherein I used your very own 18th cnetury provided definitions (and notably pointed out the lack thereof in those definitions of what you are guilty of reading into, based on what you want those definitions to mean. And just as clearly, the First Inventor who hides his invention under a bushel, preventing the light of that invention to be seen does NOT meet your own applicaiton of constitutional mandate in comparison to a second inventor, who while later invneting, is the first to let his light shine. Your very own reliance on “disclose” in your post of 45 proves my point – and disproves yours. (“that has already been disclosed” ISNT, if that first invention is held secret and someone else – ontheir own also invents, but that second inventor is the one that discloses).

  47. Gene Quinn June 10, 2011 3:20 pm

    Nemo says: “the IP Clause restrict Congress to granting letters patent only to the person who promotes the progress of science and the useful arts.”

    Please identify a single instance where a patent has been refused because it did not promote the progress of science and the useful arts.

    HINT: You won’t be able to because that has never been required.

    -Gene

  48. Nemo June 10, 2011 4:28 pm

    Dear Blind Dogma: As Justice Daniel recites throughout his opinion and as I explained in several of my prior post, supra, which apparently aren’t being read, the inventor who engages in misconduct, such as not disclosing his invention for the benefit of society, shall have both law and/or equity foreclose his right to patent and, thus, lose those rights in favor of a subsequent inventor. I have repeated this so many times that it leads only to the conclusion that folks, who keep reciting the argument of what happens if the inventor doesn’t disclose, are either arguing in bad faith or simply not reading my posts. Justice Daniel describes why and how it is constitutional foreclose the inventor right to patent, even though U.S. Const. Art. I, sec. 8, clause 8 (IP Clause) mandates that Congress award the right to patent to the inventor. As Justice Daniel explains, the inventor who engages in certain misconduct so that his invention does not promote the progress of science and the useful art is outside of the protection of the IP Clause. George Kendall, Leander Ware, and George Jencks, Plaintiffs In Error v. Joseph Winsor, 62 U.S. 322, 328, 21 How. 322, 16 L.Ed. 165 (1858).

    May we please now let this refuted argument rest in peace.

    And your post #38 does nothing to refute my argument that the IP Clause and 35 U.S.C. § 100 define the word inventor, as that word is defined in the dictionary. The lexicons of today and the 18th Century are in accord in defining an inventor as the person who originally creates the invention, which is a point that even you admit (“In other words, 35 U.S.C. § 100 defaults to the standard definition of the word invention.” And while this may be true, as I have shown you, the standard defintion – by default – . . .”). Well, since you admit that 35 U.S.C. § 100 defaults to the dictionary definition, courts that define inventor differently than it is defined in the dictionary are, by your admission and by the facts, in error.

    Dear Gene: You have got to be kidding. If I sent a first year associate out and he couldn’t find me ten such case in an hour, I’d fire him or her. All of the cases were a patent or some part of its claims are denied because: (1) the invention isn’t novel; (2) an invention is obvious; (3) the invention is abandoned; (4) the invention was used in commerce more than twelve months before the application; (5) the inventor delayed seeking the patent, while using the invention beyond the twelve month limitation; (6) the patent is denied because the invention is disclosed in the prior art; (7) the inventor stole the invention, and this list is not exhaustive, but in each of the categories, the patent is denied because in each of them granting the patent would not promote the progress of science and the useful arts.

    Gene, the problem for the first-to-file advocates is that both Congress’ staff counsel and the lawyers in the Executive Branch have, throughout the history of the Patent Act, been aware of the limitations that the IP Clause and the jurisprudence interpreting it imposes on Congress’ power to grant patents and have drafted the provisions of both the Patent Act and Treaty to comply with and conform to those limitations. Finding cases where the courts have denied the right to patent on the grounds that the patent did not promote the progress of science and the useful arts is trivial. Justice Daniel cites several such cases in the federal courts and in United Kingdom’s courts in his opinion. See George Kendall, Leander Ware, and George Jencks, Plaintiffs In Error v. Joseph Winsor, 62 U.S. 322, 21 How. 322, 16 L.Ed. 165 (1858); and any of the cases in the seven categories that I recite, supra.

  49. Gene Quinn June 10, 2011 4:39 pm

    Nemo-

    I am really growing tired of your nonsense.

    You keep saying that patents shouldn’t be, can’t be and in fact are not issued unless the invention promotes the progress of science and the useful arts. That is flat wrong and everyone involved in the industry knows it to be true. So to put you to your proof I demand you give a SINGLE example of a patent being denied because the invention did not promote the progress of science or the useful arts. Your response? You point to novelty and other rejections.

    Are you a joke? You do realize that something can be a step backwards in terms of progress and still receive a patent, right? Perhaps you don’t understand this simple truth. I wrote about it at:

    http://ipwatchdog.com/2010/06/09/improvement-toilet-seat/id=11045/

    Get off your high horse and educate yourself on the subject if you are going to comment. Commenting on something you obviously know nothing about just demonstrates your lack of understanding of the issues.

    -Gene

  50. Nemo June 10, 2011 4:48 pm

    Gene: Let me supplement my forgoing comment with this: The requirement that Congress may only grant patents to inventors who promote the progress of science and the useful arts has been codified throughout the Patent Act. It is there in the fundamental requirements for patentability: Not novel: you have not advance science and the useful arts; not useful: you haven’t promoted the progress of science and the useful arts; Obvious; no advancement of the progress of the science and useful arts there; not patentable subject matter, such mathematical formulas: there is no net progress of science or useful arts. Then there is abandonment, which started out as an equitable doctrine but is not codified in the Patent Act. And there is a whole range of inequitable conduct that either does not or does not on net promote the progress of science and the useful arts, much of which has now been codified in the Patent Act. The Patent Act has always and ever in its core procedural and substantive provisions followed the mandate of U.S. Const. Art. I, sec. 8, clause 8: “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.” Though it often does so in other words, but those words carry out the IP Clause’s constitutional mandate. As Justice Daniel puts it in his opinion: “The true policy and ends of the patent laws enacted under this Government are disclosed in that article of the Constitution, the source of all these laws, viz: ‘to promote the progress of science and the useful arts,’ contemplating and necessarily implying their extension, and increasing adaptation to the uses of society.” Id at 328.

  51. Nemo June 10, 2011 5:17 pm

    While I oppose first to file because it is manifestly unfair and unjust and because it undercuts the various purpose of U.S. Const. Art. I, Sec.8–which is to foster and encourage, and promote science and the useful arts for the benefit of society by rewarding those authors and inventors who bring new creations (inventions and creative expressions)–Stanford does not hold that first to file is unconstitutional, but those who support first to file must certainly be discomforted by Stanford, for it points to a possible future case where the U.S. Sup. Ct may hold first to file to be unconstitutional.

    My Brother Quinn, being a clever and able advocate, after noting that the speciousness of claiming that Stanford holds first to file unconstitutional, proceeds, without a hint of hypocrisy or irony, to raise a series of specious arguments based on Title 35 against the present first to invent rule. Read in pari materia, 35 U.S.C. §§ 102(a) and 102(f) simply clarify and reinforce each other. 102(f) permits a presumed inventor to patent, unless, pursuant to 102(a), someone else proves to be the true inventor. (It is helpful to understand what invent means now in colloquial parlance and what it meant for the 18th century drafters of Art. I, Sec. 8: “create or design (something that has not existed before); be the originator of : he invented an improved form of the steam engine.” In pari materia, the 102(a) and (f) means that it is the first, or true, inventor who shall have the rights to patent, subject to the other provisions of Title 35 that restrict that right based on equitable rights arising in others because of the inventor’s misconduct and/or lack of diligence. There is nothing contrary to first invent rule or the constitutional basis of it to say that the inventor’s exclusive right to patent is not absolute so that his misconduct or lack of diligence or public use of his invention prior to patenting, etc., will deprive or restrict his right exclusive right to patent. This being so, none of my Brother Quinn’s Title 35 arguments have even the slightest merit.

    However, what is more troublesome for the first to file crowd is the very language and well settled purpose of U.S. Const. Art. I, Sec. 8, regarding Congress’ power to create intellectual property rights, that clearly provides a basis for the Court to hold that first to file is unconstitutional. Sec. 8, in relevant part, provides: “The 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 . . . .” So, while Congress has the power to grant rights for IP, that power is conditioned on a purpose, that is, “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 . . . .” That purpose has been acknowledge as the basis of the sovereign’s right to grant letters patent going back to the advent of modern patent law nearly three hundred years ago. To end the abuse of letter patents by granting monopolies to the crown’s favorites, modern patent law is founded on the basis that letters patent, as enshrined in our Constitution, promote the progress of science and the use arts by rewarding–who?–authors and inventors. But if we are to promote the progress of science and the useful arts by rewarding inventors (by which I and I submit the Constitution means he who creates the invention first), we certainly can’t accomplish that purpose by telling the inventor, the one who brought the invention to light, that he has no rights or has significantly impaired rights simply because he isn’t the first to file. To accomplish the purpose of Art I, Sec. 8, Congress must reward the inventor, he who brings the invention to light, for his creative effort, not a subsequent “inventor.” Rewarding the creative efforts of subsequent “inventors,” though they may, where not fraudulent, manifest genius, do nothing to promote the progress of science and the useful arts, because the inventor has already accomplished that progress with his invention by bringing it to light first. Therefore, a constitutional limit of Congress’ power to create patent rights must be the accomplishment of the progress of science and the useful arts, which, as a matter of simple logic, can only be accomplished by rewarding the inventor, that is, he who first created the invention, thus providing it to advance science and the useful arts for the benefit of society. No other subsequent juridical inventor of the invention can so advance science and the useful arts with the invention, because the inventor has already done it.

    Now, if the first inventor does not appear in the record of prior art or if his misconduct or lack of diligence deprives him of his right to patent, society loses nothing from the work of subsequent juridical inventors, because the first to invent the invention among them will have the right to then patent the invention as its inventor. So even here the principle, equity, and wisdom of the first to invent doctrine is vindicated, for, if the first inventor loses his right to patent, the next in line of subsequent juridical inventors shall be deemed the inventor and knows that he will be rewarded by first to invent rule for his invention. Thus, the first to invent rule is not only wise policy; it is not only fundamentally fair in rewarding the inventor for inventing first; it is constitutionally mandated by purpose enshrined in Art. I, Sec. 8: To promote the progress of science and useful arts, by securing for limited times to authors and inventors [,they who first created their respective inventions,] the exclusive right to their respective writings and discoveries . . . .”

    Well, you are wrong, because first to invent is clearly implied by the expressly stated purpose of U.S. Const. Art. 1, Sec. 8, Para. 8: “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 . . . .” That purpose, to promote the progress of science and the useful arts, is fully and exhaustively accomplished by the inventor. All subsequent juridical inventors do nothing and can do nothing to promote the progress of science and the useful arts, because the inventor–note that saying first inventor is redundant–has already fully exhaustively accomplished that purpose. And, therefore, since rewarding subsequent juridical inventors cannot promote the progress of science and the useful arts, Congress has no constitutional authority to grant letter patents to anyone other than the inventor, provided the inventor complies with the constitutionally promulgated procedural and substantive requirements of Title 35, because Congress has only the authority to grant letters patent to promote the progress of science and the useful arts, which, as I show, supra, granting rights to subsequent juridical inventors cannot do.

    As for your argument about being first at the office and/or first date on your application, etc., today, the U.S. Supreme Court, in its Sanford decision, reject all of that in the most emphatic terms. With Chief Justice Robert writing for the Court that the first to invent rule is the rule of law in the United States, so that, regardless of who shows up first at the USPTO or who has the earliest dates on their patent application, the inventor, he who in fact first creates the invention, is the one who has the exclusive right to patent the invention, subject, of course, to the constitutional provisions of Title 35 of the United States Code. So, whoever carries his burden of proof on the factual issue of who is the true inventor, that is, he who first created the invention, is the one who shall have the right, subject to the provisions of Title 35, to patent the invention.

    And Gene, as I tried to explain, supra, but perhaps not clearly enough, the first inventor’s right to patent isn’t, as is true of all constitutional rights, absolute. The express purpose of Congress’ power to grant IP rights, as set forth in U.S. Const. Art. I, Sec. 8, Para. 8, affords Congress the opportunity to limit and quality the inventor’s constitutionally mandated right to patent without violating that expressly stated constitutional purpose. Just as the First Amendment right of free speech with respect to government does not grant one the right to falsely yell fire in a crowded theater, nor does the inventor’s exclusive right to patent preclude Congress from limiting and qualifying that right in ways consistent with Congress power to grant IP rights in a manner that is consistent with and cabined by the constitutionally mandated purpose: “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 . . . .” That purpose guides the direction and scope of Congress’ authority as set forth in Title 35. I don’t see how any of the provisions of Title 35 that you cite violate that purpose. Therefore, none of those provisions would be unconstitutional, either because of that purpose or because of the first-to-invent rule implied by that purpose, which the U.S. Supreme Court reaffirmed today.

    Gene, you are misrepresenting what I said. In my very first post on this subject, supra, I acknowledge that the Court did not today hold that the first-to-file rule in unconstitutional, nor did I say that the first-to-invent rule is constitutionally mandated by Sanford. However, the Court did hold today in Sanford that the first-to-invent rule is currently the law of land by virtue of statue and by our tradition coming down from our earliest days of patent law and patent law jurisprudence. In Titles 17 and 35, the Congress has been more or less faithful to the purpose set forth in U.S. Const. Art. I, Sec. 8, Para. 8: “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 . . . .” Whether that purpose constitutionally mandates the first-to-invent rule is , as I have argued here, is a question for another case on another day, which the Court may have to take up, if the patent reform bill in the House passes in its current form.

    And my point is that first-to-invent is necessarily implied by U.S. Const. Art 1, Sec. 8, Para. 8, because it is only the first inventor, the true inventor, who, by creating the novel invention, fully and exhaustively satisfies the purpose set forth in U.S. Const. Art 1, Sec. 8, Para. 8, that is, “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 . . . .” No subsequent juridical inventor can satisfy that purpose, because the first inventor, by bringing his invention to light, exhaustively promoted the progress of science and the useful arts with respect to his invention. Subsequent inventors do nothing to promote the progress of science and the useful arts, so Congress has only the authority to award the first inventor with the right to patent, provided that inventor complies with the procedural and substantive requirements of Title 35, because it is only the first inventor who promotes science and the useful arts. If, however, the first inventor does not so comply, then it is the next subsequent juridical inventor who can patent the invention and who is then entitled to the rights as the inventor who patents the invention.

    So, as you can see from the foregoing, the very purpose of the Constitution’s IP clause, supra, necessarily implies a first-to-invent rule, because it is only that inventor who promotes the progress of science and the useful arts, provided that he complies with the constitutionally promulgated provisions of Title 35. Subsequent inventors simply reinvent the invention that the first inventor has already invented, and therefore, they neither advance or promote science or the useful arts. However, If the first inventor doesn’t comply with applicable and constitutional provisions of Title 35, then next inventor in the line of creation gets the right to patent.

    I can’t make it any simpler than that.

    Dear Blind Dogma: In the late 18th century, without the often dubious benefit of our later jurisprudence, when the drafters of U.S. Const. Art. I, Sec.8, Para. 8, (the “IP Clause”) use the word “invent,” they meant the first to create a thing, which is still the ordinary definition of the word. Thus, a person who invented the wheel was the person who first created it, not some subsequent “inventor.” That is just the kind of strict constructionist textual analysis that might appeal to Justice Scalia. I could perhaps find some other votes based on the IP Clause’s clear implication that rewarding the inventor with rights for promoting the progress of science and the useful arts necessarily implies he who created the invention, for all subsequent others do is reinvent, which advances nothing provided that inventor duly patents his invention. If not, the next subsequent inventor will have the right to succeed him.

    First-to-invent also finds clear and venerable support in the law of equity, for Equity has long acknowledged that: “Between equal equities the first in order of time shall prevail. This maxim operates where there are two or more competing equitable interests; when two equities are equal the original interest will succeed.” Richard Edwards, Nigel Stockwell (2005). Trusts and Equity. Pearson Education. pp. 34. ISBN 1405812273. While I don’t concede that subsequent inventors have equal equity with the original inventor, because, with respect to IP Clause’s policy of rewarding he who promotes the progress of science and the useful arts, they clearly are inferior in equities, yet even if we were arguendo to regard their equities as equal, the original inventor being first in time must prevail in his exclusive right to patent the invention.

    So, as a matter of textual interpretation, statutory analysis, and doing equity to parties before the court, the definition of inventor that as presently used only in the patent law could be overruled, so that the word “invent” resume its original and still standard meaning. Though that isn’t necessary for me to prevail on the first-to-invent rule, as the textual, statutory, and equity analysis works fine with existing terminology by simply referring to the original inventor as the First Inventor.

    My Dear Brother Quinn: You are right that today, it is not the law that the first-to-invent rule is constitutionally mandated, as no federal court that I am aware of has addressed that issue. However, as you admit, supra, and as is clear from Sanford, first-to-invent is the law of the land today, based on the Court’s analysis of relevant provisions of Title 35 and on the long and unbroken tradition from the beginning of patent jurisprudence of first-to-invent being held to be the law.

    I also think that you are not reading my posts, because I have more than once dealt with the purely hypothetical circumstance where the original inventor declines to patent or does so in material violation of a material provision of Title 35. Such an original inventor simply loses by law and/or equity (e.g., 102(g), abandonment, laches, etc.) his right to patent in favor of another, the next subsequent in inventor in the chain of creation. I have repeated more than once in response to you or others. Where the first inventor declines to patent or does so unduly, so as not bring his invention to light to promote the progress of science and the useful arts, equity and/or law takes his first inventor’s rights and confers them on the subsequent inventor, who is next in the chain of creation. Thus, the first-to-invent rules still applies but with the subsequent inventor, who is next in time in creating the invention, and the invention is thus preserved and transmitted to our posterity.

    First-to-invent is the law of the land and trumps first-to-file, where the first inventor can prove his status as first creator of the invention. Justice Roberts in Sanford teaches us that where the first inventor can satisfy his burden of proof his right to patent will prevail. Yet, I am confused as to how this point helps you, because the invention is disseminated among us and transmitted to our posterity whether it be the first inventor or the first to file who patents the invention. Also, it should be noted that you misrepresent 102(g), which is about preventing fraud by those claiming to have invented first, when, in fact, they have not. But, as Sanford teaches, if the first inventor can prove he is the first inventor, he shall be given the exclusive right to patent, and thus not only preserve and disseminate the invention for us and our posterity, but also do what as matter equity and reaffirmed law is the right thing to do, that is, reward the person who invented the invention first.

    And less be candid, no one invents and then does not disclose, at least no one that anyone knows of. Even the most radical opponents of the existing IP regime, such as Dr. Richard Stallman and other proponents of free-and-open-software movement, advocate disclosure. The inventor who doesn’t disclose is not a problem for two reasons: First, it is unlikely that we shall ever know who that person is, since he doesn’t disclose, there will be no legal dispute (Or, as Secretary Rumsfeld would put it: the undisclosed invention is an unknown unknown), but, second, if a tardy first inventors tries to prevent a subsequent inventor from patenting by asserting rights that he has hidden or slept upon, both law and equity will foreclose his rights and confer them of the subsequent inventor who is next in the line of creation. Thus, preserving the invention for us and our posterity. See supra.

    Gene, did I follow along closely enough?

    Dear Blind Dogma: Thanks for affording me the opportunity to provide the necessary citations:

    Invent: To discover, to find out, to excogitate.

    Inventer [modern spelling, Inventor]: One who produces something new; a deviser of something not known before.

    To Discover: (1) To show, to disclose, to bring to light; (2) To make known; (3) To find out, to espy.

    Excogitate: To invent; to figure out something.

    The preceding definitions are from The Dictionary of the English Language by Samuel Johnson (a.k.a. Dr. Johnson), 1768 3d Edition. This was not only the authoritative dictionary; it was, I think, the only dictionary of the English language then extant. So Dr. Johnson’s dictionary is the one that our founding fathers would have referred to as the authority on the meaning of English words in the 18th century.

    I want you to note particularly the definition of the words “inventor” and “invent.” An inventor is someone who produces something new or who devise something not known before.

    I provide the words “discover” and “excogitate” to provide definitions for the words that “inventor” and “invent” use to define their respective concepts.

    I also took the liberty of correcting 18th century spelling to conform to modern spelling. I am equipped to do this, as one of my degrees is in English Literature, and as an undergraduate, I made a particular study of Dr. Johnson.

    Dear Blind Dogma: I realize that my verbose and stilted writing tries your patience, but the argument here will be advanced if you read my prior post. That under prevailing precedent, we can have more than one inventor of an invention is true, and I acknowledge that supra. However, I maintain, as a matter of constitutional law and based on 35 U.S.C. § 100, that is error.

    Let’s begin with the Constitution because that it is controlling. Art. I, Sec. 8, Clause 8 (IP Clause) provides: “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 . . . .” In interpreting the meaning of the Constitution, a critical factor is not what we mean by the language today or even subsequent precedents, but what the drafters meant when they drafted the language at issue. The word “inventor” meant in the 18th century: One who produces something new; a deviser of something not known before. And interestingly, the ordinary definition of inventor hasn’t changed, as it still means: A person who: creates or designs (something that has not existed before); be the originator of. So when interpreting the meaning of the IP Clause we know that inventor did not mean one in a series of inventors, but meant and still means the person who produces something new; a deviser of something not known before.

    That meaning has clear implications for the scope of Congress’ authority to grant letters patent pursuant to the IP Clause. In concurrence in Great Atlantic Pacific Tea Co v. Supermarket Equipment Corp, 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162 (1950), Mr. Justice Douglas observed: The Congress does not have free reign, for example, to decide that patents should be easily or freely given. The Congress acts under the restraint imposed by the statement of purpose in Art. I, § 8. The purpose is ‘To promote the Progress of Science and useful Arts’. The means for achievement of that end is the grant for a limited time to inventors of the exclusive right to their inventions. Thus, Justice Douglas found that Congress’ authority to grant patents is restrained within the ambit of the purpose announced in the IP Clause, that is, if Congress enacted a rule to grant patents that did not promote the progress of science and useful arts, that enactment would be unconstitutional.

    Congress, therefore, following Justice Douglas’ reasoning, could only enact a first-to-file rule that promoted the progress and science of the useful arts, otherwise the rule would be unconstitutional. But Congress has already done that in the existing provisions of Title 35. Under Title 35, as reaffirmed in Sanford, the inventor is the one who has the exclusive right to apply for a patent for his invention, while subsequent juridical inventors only obtain the right to patent, if the inventor fails to patent or fails to patent duly so that he fails to promote the progress of science and the useful arts. Nothing more from Congress, such as a rule that permits the first to file to obtain a patent over an inventor, who has not lost his right to patent because of his misconduct, would be constitutional. But, as I said, Congress has already pretty much exhausted its ability to constitutionally permit someone other than a diligent and honest inventor to obtain a patent.

    But even on statutory grounds callings subsequent reinventors “inventors” is error. 35 U.S.C. § 100 defines invention, thusly: (a) The term “invention” means invention or discovery. In other words, 35 U.S.C. § 100 defaults to the standard definition of the word invention. Well, the modern meaning and the 18th century meaning of invent are in accord: A person who: creates or designs (something that has not existed before); be the originator of. So even under the Patent Act, an inventor is one unique person: he who creates a new invention. All others persons taking his right to patent his invention do so either by contract or operation of law. Absent such contract or operation of law, the inventor must under the IP Clause have the exclusive right to patent, at least in so far as his invention and his patenting of it promotes the progress of science and the useful arts. And Congress denying the inventor that right to patent, absent some misconduct on his part, would be unconstitutional.

    New Here, I haven’t forgotten you.

    Dear Bobby: The context in U.S. patent law is and has always been the prior art, that is, what is practiced or published or used or distributed in commerce or patented or subject to pending patent application or just about anything else that embodies the invention so that it available to those skilled in the art. And any of those sources can, subject to the provisions of Title 35, be foreign as well as domestic. That’s the context.

    Your concerns about novelty and obviousness go to the issue of satisfying the requirements for patentability, which are not part of the topic being debated. The topic is what is the scope of Congress’ power to issue letters patent. And may Congress within the scope of that power grant to someone other that an honest and diligent inventor, who correctly applies for a patent, the right to patent that inventor’s invention by virtue of having filed first at the USPTO. I maintain that, under U.S. Const. Art. I, sec. 8, clause 8 (IP Clause), the Congress only has the power to grant letters patent to the inventor, provided that the inventor honestly and correctly and timely files his application to patent his invention, and that Congress’ denial of that right to patent to such an inventor would be unconstitutional.

    Dear Blind Dogma: While repeating that I haven’t prove my point that inventor means the person who originally invents the invention, you have done nothing to rebut my incontrovertible proof that inventor meant in the 18th century and means today under 35 U.S.C. § 100 exactly that: He who originally invents the invention. See citations, supra. Any court precedents to the contrary are simply errors of either statutory construction or constitutional interpretation or both. But while that is an important point, it avoids addressing the main issue of whether Congress pursuant to IP Clause may grant letters patent to any person other than an inventor (Using the 18th century and the identical current standard definition of “inventor.”), who diligently, honestly, and correctly applies for a patent on his invention. Justice Douglas says no, that Congress must grant letters patent in a manner that promotes the progress of science and the useful arts, which necessarily implies that Congress must grant letter patent to the inventor who is timely, correct, and honest in applying for a patent for his invention.

    So whether one properly restricts the term inventor to its correct meaning or whether you denominate the inventors as inventors 1st through the nth inventor (which even sounds stupid), the First Inventor, who honestly, correctly, and timely applies for a patent for his invention is the only inventor that Congress may award the patent to, because he is the only inventor who promotes the progress of science and the useful arts. All other subsequent inventors merely restate an invention that has already been disclosed.

    But Justice Douglas is not alone in his view that the IP Clause restrict Congress to granting letters patent only to the person who promotes the progress of science and the useful arts. In George Kendall, Leander Ware, and George Jencks, Plaintiffs In Error v. Joseph Winsor, 62 U.S. 322, 21 How. 322, 16 L.Ed. 165 (1858), Mr. Justice Daniel, writing for the majority, held, inter alia, that: “The true policy and ends of the patent laws enacted under this Government are disclosed in that article of the Constitution, the source of all these laws, viz: ‘to promote the progress of science and the useful arts,’ contemplating and necessarily implying their extension, and increasing adaptation to the uses of society.” Id at 328.

    In Kendall, the issue before the Court was whether the lower courts had issued the correct jury instructions so that the jury correctly applied the law to determine whether Plaintiff Appellee had timely applied for his patent. The jury found for the Plaintiff. In reaching his conclusion that lower courts had been correct in their instructions, Justice Daniel observed that the IP Clause defines the ambit of Congress’ power to grant letters patent, and that ambit is ” ‘to promote the progress of science and the useful arts,’ contemplating and necessarily implying their extension, and increasing adaptation to the uses of society.” Id. at 328. So once again, we see that Congress’ power to grant letters patent is defined and cabined by the purpose announced in the IP Clause, and that purpose can only be met by awarding a patent to the inventor, where the inventor properly, honestly, and timely files for a patent. The next subsequent juridical inventor in the line of creation may only patent the inventor’s invention where, upon the inventor’s misconduct, the law forecloses the inventor’s exclusive right to patent his invention.

    Dear Blind Dogma: As Justice Daniel recites throughout his opinion and as I explained in several of my prior post, supra, which apparently aren’t being read, the inventor who engages in misconduct, such as not disclosing his invention for the benefit of society, shall have both law and/or equity foreclose his right to patent and, thus, lose those rights in favor of a subsequent inventor. I have repeated this so many times that it leads only to the conclusion that folks, who keep reciting the argument of what happens if the inventor doesn’t disclose, are either arguing in bad faith or simply not reading my posts. Justice Daniel describes why and how it is constitutional foreclose the inventor right to patent, even though U.S. Const. Art. I, sec. 8, clause 8 (IP Clause) mandates that Congress award the right to patent to the inventor. As Justice Daniel explains, the inventor who engages in certain misconduct so that his invention does not promote the progress of science and the useful art is outside of the protection of the IP Clause. George Kendall, Leander Ware, and George Jencks, Plaintiffs In Error v. Joseph Winsor, 62 U.S. 322, 328, 21 How. 322, 16 L.Ed. 165 (1858).

    May we please now let this refuted argument rest in peace.

    And your post #38 does nothing to refute my argument that the IP Clause and 35 U.S.C. § 100 define the word inventor, as that word is defined in the dictionary. The lexicons of today and the 18th Century are in accord in defining an inventor as the person who originally creates the invention, which is a point that even you admit (“In other words, 35 U.S.C. § 100 defaults to the standard definition of the word invention.” And while this may be true, as I have shown you, the standard defintion – by default – . . .”). Well, since you admit that 35 U.S.C. § 100 defaults to the dictionary definition, courts that define inventor differently than it is defined in the dictionary are, by your admission and by the facts, in error.

    Dear Gene: You have got to be kidding. If I sent a first year associate out and he couldn’t find me ten such case in an hour, I’d fire him or her. All of the cases were a patent or some part of its claims are denied because: (1) the invention isn’t novel; (2) an invention is obvious; (3) the invention is abandoned; (4) the invention was used in commerce more than twelve months before the application; (5) the inventor delayed seeking the patent, while using the invention beyond the twelve month limitation; (6) the patent is denied because the invention is disclosed in the prior art; (7) the inventor stole the invention, and this list is not exhaustive, but in each of the categories, the patent is denied because in each of them granting the patent would not promote the progress of science and the useful arts.

    Gene, the problem for the first-to-file advocates is that both Congress’ staff counsel and the lawyers in the Executive Branch have, throughout the history of the Patent Act, been aware of the limitations that the IP Clause and the jurisprudence interpreting it imposes on Congress’ power to grant patents and have drafted the provisions of both the Patent Act and Treaty to comply with and conform to those limitations. Finding cases where the courts have denied the right to patent on the grounds that the patent did not promote the progress of science and the useful arts is trivial. Justice Daniel cites several such cases in the federal courts and in United Kingdom’s courts in his opinion. See George Kendall, Leander Ware, and George Jencks, Plaintiffs In Error v. Joseph Winsor, 62 U.S. 322, 21 How. 322, 16 L.Ed. 165 (1858); and any of the cases in the seven categories that I recite, supra.

    Gene: Let me supplement my forgoing comment with this: The requirement that Congress may only grant patents to inventors who promote the progress of science and the useful arts has been codified throughout the Patent Act. It is there in the fundamental requirements for patentability: Not novel: you have not advance science and the useful arts; not useful: you haven’t promoted the progress of science and the useful arts; Obvious; no advancement of the progress of the science and useful arts there; not patentable subject matter, such mathematical formulas: there is no net progress of science or useful arts. Then there is abandonment, which started out as an equitable doctrine but is not codified in the Patent Act. And there is a whole range of inequitable conduct that either does not or does not on net promote the progress of science and the useful arts, much of which has now been codified in the Patent Act. The Patent Act has always and ever in its core procedural and substantive provisions followed the mandate of U.S. Const. Art. I, sec. 8, clause 8: “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.” Though it often does so in other words, but those words carry out the IP Clause’s constitutional mandate. As Justice Daniel puts it in his opinion: “The true policy and ends of the patent laws enacted under this Government are disclosed in that article of the Constitution, the source of all these laws, viz: ‘to promote the progress of science and the useful arts,’ contemplating and necessarily implying their extension, and increasing adaptation to the uses of society.” Id at 328.

    Gene: Okay you want cases, so cases you shall have. Citing its own precedents, the Court in George Kendall, Leander Ware, and George Jencks, Plaintiffs In Error v. Joseph Winsor, 62 U.S. 322, 21 How. 322, 16 L.Ed. 165 (1858) cites Pennock & Sellers v. Dialogue, (2 Peters, 1,) and Shaw v. Cooper, (7 Peters, 292.) (Id. at 329), where the Court pointed to those cases as leading cases upon the questions of the abrogation or relinquishment of patent privileges as resulting from avowed intention, from abandonment or neglect, or from use known and assented to. As Justice Daniel explains his opinion, supra of those cases, the grounds for denying the privilege to patent resulting from avowed intention, abandonment, or implied license is that these grounds results in patents that, if granted, would not promote the progress of science and the useful arts:

    “The true policy and ends of the patent laws enacted under this Government are disclosed in that article of the Constitution, the source of all these laws, viz: ‘to promote the progress of science and the useful arts,’ contemplating and necessarily implying their extension, and increasing adaptation to the uses of society. (Vide Constitution of the United States, art. I, sec. 8, clause 9.) By correct induction from these truths, it follows, that the inventor who designedly, and with the view of applying it indefinitely and exclusively for his own profit, withholds his invention from the public, comes not within the policy or objects of the Constitution or acts of Congress. He does not promote, and, if aided in his design, would impede, the progress of science and the useful arts.” Id at 328. As Justice Davis hold, supra, the inventor who designedly . . . withholds his invention from the public, comes not within the policy or objects of the Constitution or acts of Congress. (emphasis added)

    And of course, I can further adduce a ton of precedents from the seven category of cases that I recite, supra, and that Justice Daniels teaches us merely codify the constitutional mandates of the IP Clause in the provisions of the Patent Act.

  52. Nemo June 10, 2011 5:19 pm

    Oops, I copies the wrong text to post #51, Please ignore it. What I meant to post is, infra:

    Gene: Okay you want cases, so cases you shall have. Citing its own precedents, the Court in George Kendall, Leander Ware, and George Jencks, Plaintiffs In Error v. Joseph Winsor, 62 U.S. 322, 21 How. 322, 16 L.Ed. 165 (1858) cites Pennock & Sellers v. Dialogue, (2 Peters, 1,) and Shaw v. Cooper, (7 Peters, 292.) (Id. at 329), where the Court pointed to those cases as leading cases upon the questions of the abrogation or relinquishment of patent privileges as resulting from avowed intention, from abandonment or neglect, or from use known and assented to. As Justice Daniel explains his opinion, supra of those cases, the grounds for denying the privilege to patent resulting from avowed intention, abandonment, or implied license is that these grounds results in patents that, if granted, would not promote the progress of science and the useful arts:

    “The true policy and ends of the patent laws enacted under this Government are disclosed in that article of the Constitution, the source of all these laws, viz: ‘to promote the progress of science and the useful arts,’ contemplating and necessarily implying their extension, and increasing adaptation to the uses of society. (Vide Constitution of the United States, art. I, sec. 8, clause 9.) By correct induction from these truths, it follows, that the inventor who designedly, and with the view of applying it indefinitely and exclusively for his own profit, withholds his invention from the public, comes not within the policy or objects of the Constitution or acts of Congress. He does not promote, and, if aided in his design, would impede, the progress of science and the useful arts.” Id at 328. As Justice Davis hold, supra, the inventor who designedly . . . withholds his invention from the public, comes not within the policy or objects of the Constitution or acts of Congress. (emphasis added)

    And of course, I can further adduce a ton of precedents from the seven category of cases that I recite, supra, and that Justice Daniels teaches us merely codify the constitutional mandates of the IP Clause in the provisions of the Patent Act.

  53. Gene Quinn June 10, 2011 5:32 pm

    Nemo-

    The 7 categories of cases all dealt with rejections that can be issued, and absolutely none of them can be issued because the invention does not promote the progress of science or the useful arts. There is NO rejection for failure to promote science or the useful arts and you know it. Why do you continue to cling to something that is so fundamentally wrong?

    For claims to be patented they must cover an invention that is exhibits patentable subject matter, is useful, is novel, is nonobvious and described as required by law. It is certainly possible, as I pointed out with the hitch mounted portable toilet set article, for an invention to satisfy all those requirements and NOT be an improvement.

    Your lack of understanding of basic patent law concepts is staggering.

    -Gene

  54. Nemo June 10, 2011 6:11 pm

    Not so Gene. As Justice Daniel holds and expressly states in his opinion:

    “The true policy and ends of the patent laws enacted under this Government are disclosed in that article of the Constitution, the source of all these laws, viz: ‘to promote the progress of science and the useful arts,’ contemplating and necessarily implying their extension, and increasing adaptation to the uses of society. (Vide Constitution of the United States, art. I, sec. 8, clause 9.) Therefore, the invention or the means of patenting it that does not promote the progress of science and useful arts comes not within the policy or objects of the Constitution or acts of Congress. Id. at 328.

    Justice Daniel is telling us as clearly as may be done that the policies and goals and source of authority for all of Congress’ patent laws is U.S. Const. Art. I, sec. 8, clause 8 (IP Clause). And that the acts of Congress respecting patents carry out the policy and goals of the IP Clause, so that those patent laws in their operation embody and manifest the IP Clause. Id at 328. And what are those policies and goals: viz: ” ‘to promote the progress of science and the useful arts,’ . . . . ” So yes, the seven categories that I recite, supra, carry out the mandate of the IP clause, because for each of them the failure of the inventor or his invention to comply with each of those provisions of the Patent Act, where applicable, shows a failure to promote the progress of science and the useful arts. Were it otherwise for any act of Congress respecting the right to patent, that act of Congress would be contrary to the IP Clause and would, therefore, be unconstitutional.

    And stop the ad hominem attacks. They are beneath you, and simply give the appearance of a man who is frustrated because he losing the argument. If your arguments can stand on their merits, you need nothing more, and if they can’t, ad hominem assault is simply unbecoming.

  55. Nemo June 10, 2011 6:27 pm

    And as for Hitch, let’s take a look. For Hitch the invention was novel, patentable subject matter, not obvious, described as mandated by law, was useful, and had at least one valid claim. Hitch or any other invention that satisfies those requirements promotes the progress and science of the useful art, because as the Court has held all such inventions have the distinctive quality of having original inventive elements, and that is sufficient to be deemed a promotion of the progress of science and the useful arts. (Citations omitted.)

    I have the citation on my desk, but other tasks call.

  56. Blind Dogma June 10, 2011 9:32 pm

    Nemo,

    I think that Gene is assuming that you are a regular patent practicioner and would understand the terms of art and manner of speaking that he naturally employs. I think otherwise – I think that you have attempted to self teach yourself law in general and are now attempting to teach yourself patent law in particular.

    So with that thought as my background, let me try to translate Gene’s challenge:

    You state: “So yes, the seven categories that I recite, supra, carry out the mandate of the IP clause, because for each of them the failure of the inventor or his invention to comply with each of those provisions of the Patent Act, where applicable, shows a failure to promote the progress of science and the useful arts

    And yet – every invention now issued as a patent has indeed passed each and every one of these seven categories. In essence – by rule of law, a patent that issues thus MUST carry out the mandate of the IP clause as you have so tied the categories to carrying out that mandate. If an issued patent, then somehow fails to carry out the constitutional mandate, then it must fail one or more of the seven categories, as there are no other categories that make up the constitutional mandate.

    The challenge: Find any duly issued patent that cannot be ruled invalid in a court setting or in a reexamination setting (for one or more of the seven categories) that you still find that does not promote the progress of science and the useful arts, and explain why that patent, that can pass all seven categories, yet can be constitutionally invalid. To do this, you will need to fabricate some rule of law outside of the seven categories. Enunciate that rule of law and draw the proper legal citation and support for your newly enunciated rule of law.

    Wishful thinking and broad proclamations will not suffice – you must be as particular in your exposition as need be for your idea to pass legal scrutiny. You carry the burden of production and the burden of persuasion.

    I look forward to your thoughts.

  57. Gene Quinn June 10, 2011 9:44 pm

    Nemo-

    BD is right, I am assuming you are a patent practitioner, which was reinforced when you talked about associates. Clearly you are not a patent practitioner because if you were then you would be aware of the fact that failure to promote the progress of science and the useful arts is not a valid rejection.

    Why not provide us a single example of a case where a patent examiner, the Board of Patent Appeals or Interferences or the Federal Circuit issued or upheld a rejection simply based on the fact that the invention failed to promote the progress of science and the useful arts? If it is as commonplace as you say this should be an extremely easy task.

    By the way, you misunderstand what Justice Daniels is saying. Just as I have said over and over and over again… the point of the patent system… the point of the patent laws… is to PROMOTE the useful arts. So the fact that we have a system that, in fact, does that means Congress has accomplished the goal. It most assuredly does not mean that an invention can be rejected for that reason.

    Look forward to producing evidence of that rejection.

    -Gene

  58. Nemo June 10, 2011 10:52 pm

    Dear Blind Dogma: As a housekeeping point, let me begin by correcting you. I did not say that the list of seven categories was exhaustive. In fact, I expressly said that they were not exhaustive: “and this list is not exhaustive, but in each of the categories, the patent is denied because in each of them granting the patent would not promote the progress of science and the useful arts.” See #48, supra. There are myriad ways in which the Patent Act manifest the IP Clause in its effect and operation, yet there is no way in which it is repugnant to the IP Clause.

    You are also wrong about the challenge. Since Justice Davis held that the acts of Congress with respect to the right to patent must conform to U.S. Const. Art. I, sec. 8, clause 8 (IP Clause), it is Gene’s challenge, not mine. to find an invention that was duly patented but that does not promote the progress of science and useful arts. His first attempt with Hitch was an utter failure. And I don’t see how he can succeed, because any duly granted patent must be novel, useful, not obvious, patentable subject matter, and have at least one valid claim. Any patent that does all of that must necessary provide society with something new and useful, and that is all the U.S. Supreme Court requires for an invention to promote the progress of science and the useful arts.

    The challenge for me, which is trivial, is simply adduce cases where, for example, a patent was denied because the invention wasn’t novel or was obvious or wasn’t useful or denied for any of the other myriad ways the Patent Act embodies and manifest the IP Clause in its effect and operation, which is so easy to do that it is really unfair.

  59. Nemo June 10, 2011 11:05 pm

    Gene: Justice Douglas and Justice Daniel’s point is that the Patent Act is like the situation in mathematics where one systems of coordinates is translated to another system of coordinates. The Patent Act faithfully effects that translation of the U.S. Const. Art. I, sec. 8, clause 8 (IP Clause) into the practicalities of patenting inventions and determining the outcomes of challenges to patentability. There is no daylight between the Patent Act and the IP Clause, nor can there be for the Patent Act to remain constitutional, so the myriad instances of granting patents and deciding disputes about patents pursuant to the Patent Act present nothing more and nothing less than the manifestation of the IP Clause that given operational effect in the language of the Patent Act to the IP Clause, which why I need only to look to the grant or denial of patents pursuant to the Patent Act to show the grant or denail of patents based on whether those patents promote the progress of science and the useful arts.

  60. New Here June 11, 2011 9:26 am

    @Nemo

    Graham v. John Deere Co. The Court in this case said:
    “Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which by constitutional command must ‘promote the Progress of … useful Arts.’ This is the standard expressed in the Constitution and it may not be ignored.”

    However on the subject of Acts that have changed law:
    “Habits are hard to break, especially the collective habits of a profession wherein all of the members constantly reinforce each other in the habit and see no need for change. And so it was for a century or more in the patent law prior to the Patent Act of 1952.”

    You can read my ref to above — Acts that have changed law here:
    https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=32+J.+Marshall+L.+Rev.+437&srctype=smi&srcid=3B15&key=e0659c4485c3b688096817788bfec639

  61. Nemo June 11, 2011 1:58 pm

    New Here: Thanks for the additional citation, which is now the third precedent of the U.S. Supreme Court, holding that:

    “The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby. Moreover, Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which by constitutional command must ‘promote the Progress of * * * useful Arts.’ This is the standard expressed in the Constitution and it may not be ignored. And it is in this light that patent validity ‘requires reference to a standard written into the Constitution.’ Great A. & P. Tea Co. v. Supermarket Equipment Corp., supra, 340 U.S. at 154, 71 S.Ct. at 131 (concurring opinion).

    Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.” Graham v. John Deere Company of Kansas City Calmar, Inc v. Cook Chemical Company Company v. Cook Chemical Company, 383 U.S. 1, 5-6, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966).

    What I would like to note is that in Graham the Court is interpreting the what is essentially the modern Patent Act and is reviewing and affirming its prior precedents on the constitutional limit on Congress’ power to grant patents that is found in the IP Clause, U.S. Const., Art. I, sec. 8, clause 8. The Court once again makes it clear that Congress’ power to grant patent is limited to inventions which promote the Progress of * * * useful Arts.’ ” Id. at 6. The Court speaks directly to the two issues that decide this debate: (1) Congress’ power to grant letters patent is limited to inventions which promote the progress of science and the useful arts (Id. at 5-6), and (2) Patentable invention must promote the progress of science and the useful arts or, as the Court puts it: “Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which by constitutional command must ‘promote the Progress of * * * useful Arts.’ ” The Court goes on to further hold that the constitutional mandate to promote the progress of science and the useful arts is mandatory, or in the Court’s words: This is the standard expressed in the Constitution and it may not be ignored. And it is in this light that patent validity ‘requires reference to a standard written into the Constitution.’ ”

    In light of this overwhelming, controlling authority from the ultimate court of appeals, The United States Supreme Court, holding that Congress may only grant letters patent for inventions that promote the progress of science and the useful arts, that all patented inventions must promote the progress of science and the useful arts, and that this constitutional mandate may not be ignored, I don’t know how any lawyer could competently advise any client to the contrary.

    What our Brothers Quinn and Blind Dogma (And I shall not stoop to pun on Blind Dogma) find in the Patent Act’s various provisions is nothing more and may be nothing less, as the Court has at least twice held, than the carrying into operation the IP Clause’s constitutionally mandated purpose, or, in the Court’s words: Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.” In other words, the Patent Act in its procedural and substantive provisions carry into effect the IP Clause and may not in any way contradict it.

    Thanks New Here. If what you found hasn’t settled this debate in all reasonable minds that Congress may only grant patents for inventions that promote the progress of science and the useful arts (“And it is in this light [the mandate purpose of the IP Clause] that patent validity ‘requires reference to a standard written into the Constitution.’ ” Id. at 6.), it must lead to the conclusion that the minds still in dispute are either unreasonable or are–forgive me–blinded by their dogma.

  62. Gene Quinn June 11, 2011 2:48 pm

    Nemo-

    You say: “the myriad instances of granting patents and deciding disputes about patents pursuant to the Patent Act present nothing more and nothing less than the manifestation of the IP Clause that given operational effect in the language of the Patent Act to the IP Clause, which why I need only to look to the grant or denial of patents pursuant to the Patent Act…”

    Great. Still waiting for you to produce a single case where there has been a rejection because an invention fails to promote the progress of the useful arts.

    I have a hunch you will continue to dance around the issue, deflect, ignore and otherwise come up with excuse after excuse. After all, we both know there are NO such examples to be provided, hence the need for you to continue misconstruing cases that are over 100 years.

    Can you at least answer this direct question please… are you a patent attorney or patent agent?

  63. New Here June 11, 2011 3:14 pm

    “Thanks New Here. If what you found hasn’t settled this debate in all reasonable minds that Congress may only grant patents for inventions that promote the progress of science and the useful arts (“And it is in this light [the mandate purpose of the IP Clause] that patent validity ‘requires reference to a standard written into the Constitution.’ ” Id. at 6.), it must lead to the conclusion that the minds still in dispute are either unreasonable or are–forgive me–blinded by their dogma.”

    Hold on !
    my post was not in any way to back whatever it is you’re trying to do. I don’t follow where you’re going with this, because it seems to me it is all over the place. So, whether you’re right or wrong please make a point ! And if not, don’t use my post references to back you. I mad the post with hopes that you may ask me questions — I was wrong ! I will not reply nor direct any comment to you again until I know what it is you’re doing beyond this BS ! IMHO.

    Thanks.

  64. Nemo June 11, 2011 3:21 pm

    Gene: I am not dancing around the issue, what I am saying is that three, count’ em, Justices of the United States Supreme Court, two writing for the majority and one in concurrence, have unequivocally said that the Patent Act merely carries into operation U.S. Const., Art. I, sec. 8, clause 8 (IP Clause) so that I only need to show is denial of the rights to patent on the grounds of any of the seven categories that I recited, supra, or for any other grounds found in the Patent Act that deny patents, where the effect of granting the patent would be to grant a patent for an invention that does not promote the progress of science and the useful arts. Thus, I don’t need to find a rejection where either a court or the USPTO denies a patent using the language that this invention doesn’t promote the progress of science and/or the useful arts. I only need find a denial of a patent based on any of the seven categories, supra, or other provisions of the Patent Act that, like my seven categories, operate to deny patentability where granting the patent does not promote the progress of science and the useful arts.

    Do you really think that I can’t find an instance, for example, of a denial because the invention isn’t novel? Or is obvious? Both obviousness and/or lack of novelty mean that the proposed invention doesn’t advance the progress of science and useful arts. Even if we overlook the fact that I’ve provided at least one U.S. Supreme Court Case that does that already (read the cases), is really necessary for me to adduce a patent that was denied for lack of novelty?

    Gene, you are being desperate. Concede defeat and move on. Or if you once more insist, I shall provide at least one case from my seven categories or from some other provision of the Patent Act that operates to deny patentability, where granting the patent would fail to promote the progress of science and the useful arts, even though it may not use that formulation of language. Or as Justice Daniel put it: “The true policy and ends of the patent laws enacted under this Government are disclosed in that article of the Constitution, the source of all these laws, viz: ‘to promote the progress of science and the useful arts,’ contemplating and necessarily implying their extension, and increasing adaptation to the uses of society. (Vide Constitution of the United States, art. I, sec. 8, clause 9.). So any denial of patent based on any of my seven categories will do.

    Let me know, if you still want a case from among my seven categories, or whether it will suffice for one your teaching assistants to find you such a case.

  65. Nemo June 11, 2011 3:32 pm

    New Here: The point is the one that I’ve been making all along. That Congress’ power to grant patents is cabined by the IP Clause, and, thus, Congress may only grant patents that promotes the progress of science and the useful arts, and that only the inventor of an invention advances the progress of science and the useful arts, at least where the inventor has been competent, honest, and diligent in seeking a patent for his invention. That is my point, and it is one that three Justice of the United States Supreme Court have affirmed, two in the majority and one in concurrence.

  66. New here June 11, 2011 4:24 pm

    “Congress may only grant patents that promotes the progress of science and the useful arts”

    I’d question “may only” as it seems to me to suggest some predetermined idea of what a class of invention is. If so, that would not only not promotes the progress of science and the useful arts but have Congress dictate. I doubt that any SCOTUS member would even remotely be thinking in such terms.

    Just take Microsoft v i4i, the Court I believe, didn’t step on Congress and over step in the law that would cause any harm, harm having an impact upon the directive “promotes the progress of science and the useful arts”.

    From the arguments:

    JUSTICE GINSBURG:

    “But just taking RCA
    itself, Cardozo said through all the verbal variances
    there runs this common core of thought and truth, that
    one otherwise an infringer who assails the validity of a
    patent bears — upon its face, bears a heavy burden of
    persuasion and fails unless his evidence has more than a
    dubious preponderance.”

    In the work that promotes the progress of science and the useful arts some degree of protection in valid and if such protection is limited or otherwise diluted by dubious preponderance the protection is lost to what adds up to a waste of time and losses.

    Please be clear about what it is you’re saying by “may only” and your insights on the protection(s) in the law that such work as that promotes the progress of science and the useful arts with those inventions that pass grade to be granted a patent.

  67. New here June 11, 2011 4:29 pm

    Re: #66 is @Nemo

    typo: Should read-
    In the work that promotes the progress of science and the useful arts some degree of [protection is valid] and if such protection is limited or otherwise diluted by dubious preponderance the protection is lost to what adds up to a waste of time and losses.

  68. Bobby June 11, 2011 5:10 pm

    Nemo,
    Given that context, I would see it possible to have multiple parties accurately described as inventors. While only one part can invent something unknown to anyone in the world or even something unknown to anyone in the US, multiple parties can invent something unknown to what is defined as prior art. However, I am bit skeptical of arguments using statutes to define what is constitutional. Certain elements of statutory prior art are arbitrary, and could be changed by a change to those statutes, making them an unstable reference point.

    Gene,
    I think you are approaching the ‘promote the progress’ element from the wrong angle. Patents are not rejected directly because they do not promote the progress. They are rejected by certain statutory rules of examination, and those sets of rules have to promote the progress, or at least conceivably appear capable of doing so. The courts put a large amount of faith in Congress in both copyright and patents, but absent those rules, the faith in Congress may waiver. For example, if an act were passed that removed the requirement of non-obviousness, the courts might decide that a patent system without those requirements can’t possibly promote the progress, and was thus not within Congress’s vested powers.

  69. Gene Quinn June 11, 2011 5:22 pm

    Bobby-

    You say that I am approaching “promote the progress” from the wrong angle and then say: “Patents are not rejected directly because they do not promote the progress. They are rejected by certain statutory rules of examination…”

    That is what I have been saying over and over again. You cannot reject claims on failure to promote the progress, but rather on statutory basis.

    It is undeniably true that an invention does not need to promote the progress in order to be patented. It just needs to be useful, novel and nonobvious. That can, and does happen, with inventions that are inferior to the prior art.

    -Gene

  70. Bobby June 11, 2011 6:37 pm

    Gene,
    “It is undeniably true that an invention does not need to promote the progress in order to be patented. It just needs to be useful, novel and nonobvious.”
    What you are saying is akin to claiming that a recognized shape doesn’t need to be a rectangle, it just needs to be a square. If Congress has done a good job, then we will effectively separate the patents that granting will return more than their social cost from those that won’t.

    “That can, and does happen, with inventions that are inferior to the prior art.”
    Even inferior inventions can promote the progress, particular if an invention is not wholly inferior. You appear to be seeing the state of the art as a single point instead of a something multifaceted. Judge Rich said in “Principles of Patentability” that many contended that the Ford Model T was technically inferior to its contemporaries, but the notion that Henry Ford didn’t advance the art of production is ridiculous to claim in light of analysis today. Lower grade with cheaper production is itself an improvement if you are capable of looking at things from more than a single, exceptionally narrow viewpoint.

  71. Gene Quinn June 12, 2011 12:22 pm

    Bobby-

    Why are you refusing to acknowledge the truth that there is no requirement that an invention be an improvement to obtain a patent?

    You say: “Even inferior inventions can promote the progress, particular if an invention is not wholly inferior.”

    Really? Brilliant! An inferior invention can promote the progress if it is not inferior. I almost can’t believe you wrote that. That is like saying the sun won’t rise unless it does. Even when you are completely wrong you can find things to say that refuse to concede. Why are you so pathologically afraid of acknowledging you are incorrect?

    So tell me, what is the statutory basis for making an rejection or regulatory basis for making an objection under the rational that a particular invention fails to promote the progress?

    I know you will respond, and I know you won’t give any answer, because promoting the progress is not required.

  72. Bobby June 12, 2011 1:41 pm

    “Really? Brilliant! An inferior invention can promote the progress if it is not inferior.”
    There is general inferiority and there is inferiority in a specific regard. For example, in most usage, a rocket propelled car is inferior to an ordinary sedan. However, when it comes to setting land speed records, the rocket propelled car is superior. The rocket propelled car is inferior overall, but superior for a certain niche. Thus, the rocket propelled car is inferior but not wholly inferior. Even if an implementation was wholly inferior, some new aspect of that implementation may be useful in something else.

    “So tell me, what is the statutory basis for making an rejection or regulatory basis for making an objection under the rational that a particular invention fails to promote the progress?”
    I’ve already said that it is addressed indirectly. Congress sets up rules, and those rules hopefully lead to acceptance and rejection in a manner that leads to more progress than we’d have absent this system. The standard that they have hopefully attained isn’t just giving patents to inventions that promote the progress, but ones that promote the progress enough to outweigh their social costs. Rich said that progress happens by “the expected skill of ordinary workers in the arts and by the unobvious developments which would not occur spontaneously from the application of such ordinary skill.” The expected skill of ordinary workers in the arts alone results in progress, but not to an extent that we should grant patents for it, as “they will be made anyway, without the ‘fuel of interest’ which the patent system provides.” Distinguishing between the two is what examination is for, and and is a key element in how congress can actually PROMOTE progress.

  73. Blind Dogma June 12, 2011 2:13 pm

    The topic of constitutionality has been picked up by Dennis Crouch at Patently-O:

    http://www.patentlyo.com/patent/2011/06/first-to-file-and-the-constitutional-argument.html

    Note: there is no confustion as to the possibility of a second inventor (i.e. first inventor is not redundant).

    In fact, as Dennis notes: “If the proposed first-to-file regime is unconstitutional by granting rights to other than the “first inventor,” then these longstanding elements of the law are as well. ” – Nemo – this is the thought that Gene and I have been trying to express to you when you state both that the current regime supports only first inventor to file and the “promote the progress” is supported by the current “Act.” We are trying to point out to you that currently the “Act” fully acknowledges more than a “first” inventor as a “true” inventor.

    As my counter-points to your thoughts on inventorship have shown – your argument on “first and only the very first” fails. Still.

    You still carry the burden of production and the burden of persuasion.

  74. Nemo June 12, 2011 2:24 pm

    Gene: As Justices Clark and Daniel and Douglas have taught us, the core substantive and procedural provision of the Patent Act, particularly the requirement for patentability are the operational embodiment of the requirement that an invention promote the progress of science and the useful arts. What we have in U.S. Const., Art. I, sec. 8, clause 8 (IP Clause) is the constitutionally mandate standard that cabins Congress’ authority to grant letters patents and that all inventions must meet. Speaking for the Court, Justice Clark says precisely that: “This is the standard expressed in the Constitution and it may not be ignored. And it is in this light that patent validity ‘requires reference to a standard written into the Constitution.’ Great A. & P. Tea Co. v. Supermarket Equipment Corp., supra, 340 U.S. at 154, 71 S.Ct. at 131 (concurring opinion).” Graham v. John Deere Company of Kansas City Calmar, Inc v. Cook Chemical Company Company v. Cook Chemical Company, 383 U.S. 1, 5-6, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966) It is in light of the standard of the IP Clause “that patent validity ‘requires reference to a standard written into the Constitution.’ Id. at 5-6. And Justice Daniel tell us that yes the Patent Act does embody the standard of the IP Clause: “The true policy and ends of the patent laws enacted under this Government are disclosed in that article of the Constitution, the source of all these laws, viz: ‘to promote the progress of science and the useful arts,’ contemplating and necessarily implying their extension, and increasing adaptation to the uses of society.” George Kendall, Leander Ware, and George Jencks, Plaintiffs In Error v. Joseph Winsor, 62 U.S. 322, 328, 21 How. 322, 16 L.Ed. 165 (1858). So promoting the progress of science and the useful arts is the mandatory injunction of the IP Clause, which Congress must follow in setting the requirements for patentability and for determining the validity of patents.

    But Justice Clark makes it clear that Congress may use in the Patent Act whatever linguistic formulations that it believes best operationally accomplish the mandate of the IP Clause: “Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.” Graham v. John Deere Company of Kansas City Calmar, Inc v. Cook Chemical Company Company v. Cook Chemical Company, 383 U.S. 1, 5-6, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). And, of course, that is precisely what Congress has done in the Patent Act. Congress‘ task is to operationally implement the IP Clause, using “the policy which in its judgment best effectuates the constitutional aim.” Id. at 6. We see how Congress has done that first and most importantly in the requirements for patentability, each of which operate to bar inventions that do not promote the progress of science and the useful art and thus, give operational effect to the standard for patentability set forth in the IP Clause. We begin with patentable subject matter. Certain things, among them things found in nature, may not be patented because to do so would not promote science and the useful arts but would merely monopolize the common patrimony of mankind. Novelty is, of course, required, because that which is already in the prior art can’t promote the progress of science and the useful arts, because it is already known. An obvious invention also does nothing to advance the progress of science and the useful arts, so it too is not patentable. And, of course, an invention which isn’t useful ipso facto can’t promote the progress of science and the useful arts. And since one of the purposes of the IP Clause is to promote the progress of science and the useful arts by disclosing the invention, the invention must be adequately describe so that it becomes available in the prior art in the instance of a published patent. This is not an exhaustive list, for there are many other provisions of the Patent Act where Congress moves to implement the IP Clause. And, of course, Congress may achieve other aims in the Patent Act, provided that they do not contradict the mandate of the IP Clause. But the IP Clause must, whatever its linguistic formulations, carry out the mandate of the IP Clause. “Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim.” Graham v. John Deere Company of Kansas City Calmar, Inc v. Cook Chemical Company Company v. Cook Chemical Company, 383 U.S. 1, 5-6, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), Clark, J., writing for the Court.

    So if I were to provide you with cases where either a court or the USPTO has denied patentability on the grounds of the fundamental requirements for patentability, I would be presenting you with inventions that were denied patentability because they did not promote the progress of science and the useful arts, though it was done using other linguistic formulations, the ones found in the Patent Act that operationally implement the IP Clause.

    This has clear implications for any attempt by Congress to enact a first-to-file requirement in the Patent Act. To the extent that Congress did such a thing, it would only be constitutional provided that it promoted the progress of science and the useful arts. And since an inventor, who diligently, honestly, equitably, and competently according to constitutional law seeks to patent his invention, is the only person who promotes the progress and science of the useful arts, Congress would have to so limit and devise its first-to-file rule so that such an inventor is granted the exclusive right to patent his invention for its first-to-file rule to be constitutional.

    Nemo.

  75. Nemo June 12, 2011 2:45 pm

    Dear Blind Dogma: And for the arguments that I made supra, supported by Justices Clark and Daniel, you, Gene, and those supporting the first-to-file movement are wrong. There is no constitutional problems with the other provisions of the Patent Act, because, as Justice Daniel, held, an inventor engages in misconduct takes himself outside of the protection of the IP Clause, because, by his misconduct, he does not promote the progress of science and the useful arts. See George Jencks, Plaintiffs In Error v. Joseph Winsor, 62 U.S. 322, 21 How. 322, 16 L.Ed. 165 (1858). Where the Patent Act forecloses the inventor right to patent because of his misconduct or lack of diligence, that is perfectly consistent with the mandate of the IP Clause, U.S. Const., Art. I, sec. 8, clause 8. Id.

    And, of course, I disagree, based on the authority and arguments, supra, that there can ever be more than one inventor, except in the circumstance of co-inventors who are working jointly on the same invention or, perhaps, in the unlikely circumstance of two distinct inventors who invent the same invention at precisely the same moment. Otherwise, there is–by standard dictionary definitions of the 18th century and today, which are in accord and which are used by the IP Clause and by the Patent Act at 35 U.S.C. § 100– just one inventor, the person who originally creates the invention.

  76. Gene Quinn June 12, 2011 2:53 pm

    Nemo-

    I am quite sick of reading about Supreme Court Justices in your non-responsive comments. The truth is you cannot point to a single case EVER where patent claims have been rejected for failure to promote the progress.

    You say: “So if I were to provide you with cases where either a court or the USPTO has denied patentability on the grounds of the fundamental requirements for patentability, I would be presenting you with inventions that were denied patentability because they did not promote the progress…”

    100% false. If you want to continue to spew falsehoods please go do it somewhere else.

    Why do you refuse to acknowledge the truth that every Tuesday when patents are issued in the U.S. there are patents granted to inventions that are not by anyone’s definition an improvement?

    Why do you continue to refuse to acknowledge that an invention can be patented if it exhibits patentable subject matter, is useful, is novel and is nonobvious even if it is a step backwards? You still haven’t addressed the toilet hitch example which clearly demonstrates this point.

    Why can’t you provide a single rejection by an examiner that doesn’t rely on 101, 102, 103 or 112 and merely relies on Article I, Section 8 of the U.S. Constitution? Because they don’t exist.

    You simply do not understand patent law in the United States.

    -Gene

  77. Gene Quinn June 12, 2011 2:54 pm

    Nemo-

    By the way… still waiting on a response to whether you are a patent attorney. After initially thinking you were, I tend to agree with BD that you are not a patent professional.

    -Gene

  78. Gene Quinn June 12, 2011 2:56 pm

    Bobby-

    You say: “There is general inferiority and there is inferiority in a specific regard.”

    That may be true, but it doesn’t change the fact that you said an inferior invention can promote the progress if it is not inferior. That statement is the type of nonsense we have grown accustomed to from you, I know, but changing the paradigm and pretending you are correct is getting old.

    -Gene

  79. Nemo June 12, 2011 3:21 pm

    Gene: I do not acknowledge that no patent claim has ever been rejected because it did not promote the science of progress and the useful arts, because it is not true. The contrary is true, because when a patent examiner or a court relies on sections 101, 102, 103 or 112 to reject a patent, he or she, as the United States Supreme Court has held, is using the operational equivalent of U.S. Const., Art. I, sec. 8, clause 8 (IP Clause). It is sort of like saying 4 or 2+2 or 1+1+1+1; they all equal four. Sections 101, 102, 103 or 112, as they are used to determine patentability, are the IP Clause manifested in the form that Congress thinks either advisable or necessary to determine the validity of patents based on the IP Clause. It is that simple.

    Gene, your argument isn’t with me; it is with the United States Supreme. Good luck with that one.

    Nemo

  80. Bobby June 12, 2011 3:23 pm

    Gene,
    “but it doesn’t change the fact that you said an inferior invention can promote the progress if it is not inferior.”
    No, I said that it is in a better position to promote the progress if it is not ‘wholly inferior.’ An inferior invention and a wholly inferior invention are two very different sets. My apologies if I fail to make my exact meaning clear on occasion, but this was certainly not a change of paradigm, and this particular instance likely falls down to inattention on your part to important adjectives in my post.

  81. Nemo June 12, 2011 3:32 pm

    And Gene: I don’t know how you are defining a step backward. But if an invention is novel (new), useful, and not obvious it adds to the sum of knowledge, and that promotes progress of science and the useful arts. I believe that I have a U.S. Supreme Court precedent for that proposition of law as well.

    As for my identity, you may be able to determine that if I write a note on this subject in my alma mater’s law review or in its specific law review for IP matters.

  82. New Here June 12, 2011 5:37 pm

    Looking up the word ‘innovation’ I decided to look in a source that has served well before.
    http://www.etymonline.com/index.php?term=innovate

    In the consideration of inferior as it may be applied to something claimed being new, is it that I couldn’t dismiss inferior as nothing more — as it being just the state of a given time that an invention is conceived — that the time being my knowledge and knowledge of other inventions around me.

    That I believe brings a question about any direction given to “innovation”. My point is, if an inventor (A) fails to complete an invention, complete as far as the best it can be accomplished; so does any innovation by an inventor (B) fail as being inferior innovation in light that the invention by (A) is dataed — however (B) completed.

    The thought process that inventors use is far too complex to establish a direction for innovation. Should it be the accomplishment — in the invention that as in inventors (A) & (B) above, that something “new” was accomplished by something (A) didn’t achieve and only viewed as inferior because the sum total of the invention isn’t the whole that is dated.

    Thanks.

  83. Nemo June 12, 2011 7:18 pm

    I am amending my comments numbers 79 and 81, supra, to correct some infelicities of style to read as follows:

    Gene: I do not acknowledge that no patent claim has never been rejected because it did not promote the science of progress and the useful arts, because it is not true. The contrary is true, because when a patent examiner or a court relies on sections 101, 102, 103 or 112 to reject a patent, he or she, as the United States Supreme Court has held, is using the operational equivalent of U.S. Const., Art. I, sec. 8, clause 8 (IP Clause). It is sort of like saying 4 or 2+2 or 1+1+1+1; they all equal four. Sections 101, 102, 103 or 112, as they are used to determine patentability, are the IP Clause manifested in the form that Congress thinks either advisable or necessary to determine the validity of patents based on the IP Clause. It is that simple.

    Gene, your argument isn’t with me; it is with the United States Supreme Court. Good luck with that one.

    Nemo

    And Gene: I don’t know how you are defining a step backward. But if an invention is patentable subject matter, novel (new), useful, and not obvious, it adds to the sum of knowledge, and that promotes progress of science and the useful arts. I believe that I have a U.S. Supreme Court precedent for that proposition of law as well.

    As for my identity, you may be able to determine that if I write a note on this subject in my alma mater’s law review or in its specific law review for IP matters.

    And to everyone who participated in this discussion, especially you, Gene, I heartily thank you. You have done much to aid my thinking and conclusions on this topic and have put me well on the way of the research and writing for a note on this topic, should I chose to do so.

    Sincerely,
    Nemo

  84. Nem June 12, 2011 7:24 pm

    Oops: I think that I have it right now

    Gene: I do not acknowledge that no patent claim has ever been rejected because it did not promote the science of progress and the useful arts, because it is not true. The contrary is true, because when a patent examiner or a court relies on sections 101, 102, 103 or 112 to reject a patent, he or she, as the United States Supreme Court has held, is using the operational equivalent of U.S. Const., Art. I, sec. 8, clause 8 (IP Clause). It is sort of like saying 4 or 2+2 or 1+1+1+1; they all equal four. Sections 101, 102, 103 or 112, as they are used to determine patentability, are the IP Clause manifested in the form that Congress thinks either advisable or necessary to determine the validity of patents based on the IP Clause. It is that simple.

    Gene, your argument isn’t with me; it is with the United States Supreme Court. Good luck with that one.

    Nemo

    And Gene: I don’t know how you are defining a step backward. But if an invention is patentable subject matter, novel (new), useful, and not obvious, it adds to the sum of knowledge, and that promotes progress of science and the useful arts. I believe that I have a U.S. Supreme Court precedent for that proposition of law as well.

    As for my identity, you may be able to determine that if I write a note on this subject in my alma mater’s law review or in its specific law review for IP matters.

    And to everyone who participated in this discussion, especially you, Gene, I heartily thank you. You have done much to aid my thinking and conclusions on this topic and have put me well on the way of the research and writing for a note on this topic, should I chose to do so.

    Sincerely,
    Nemo

  85. Bruce Burdick June 13, 2011 12:43 am

    Your article is BS. You have your facts backwards and your law wrong and that leads you to the wrong conclusion. You would be better to support independent inventors, follow Honest Abe and leave cheating inventors to ISC and the Coalition for Patent Piracy.
    See http://www.burdlaw.com/blog/?p=162

  86. Blind Dogma June 13, 2011 8:03 am

    Nemo,

    With all due respect, you are blowing smoke when it comes to the item that I am trying to pin you down with, to wit, the definition of “inventor.” You seem to want it both ways – that others can rightly claim inventorship (per the laws) but that there still is only one inventor and thus the first inventor to file concept is somehow unconsitutional. You cannot have it both ways.

    As a matter of housekeeping, as far as any invention that is inferior (even inferior in toto), but still is useful, novel and non-obvious (and one that supports the rest of the laws regarding proper patentability), I actually agree with you and (gasp) Bobby, that such an invention meets the consitutional mandate for promoting the progress. To be clear, I have long advanced Judge Rich’s concept that such an invention adds to the warehouse of man’s knowldege and as thus merits the idea of “promotion.”

    One reason why I believe so is that innovation is not always linear. The capture and sharing – even of such inferior knowledge may spark the creativity of some future inventor. Also, the notion of making lemonade (flavored Kool AId) out of lemons is itself an inventive activity. The human ability to turn an inferior product into something else and repurpose that product is a direct offshoot, and is actually just another way, of promotion (the wild success of sticky-notes comes to mind).

  87. Nemo June 13, 2011 11:26 am

    Dear Mr. Burdick: I read your article. We both get to the idea that it is the inventor, subject to his good conduct and diligence in filing his patent application, who has the exclusive right to patent his invention, though we get there by different routes. I maintain that U.S. Const., Art. I, sec. 8, clause 8 (IP Clause) implies that the inventor, or first inventor to use the incorrect terminology that is in vogue, has the exclusive right to patent, because it is only the inventor who promotes the progress of science and the useful arts, while all subsequent inventors merely restate the inventor’s invention. You, on the other hand, make a cogent analysis of Stanford, where you show that Chief Justice Roberts holds that it is the inventor who retains his exclusive rights to patent and thus, has the exclusive right to assign his patent rights. Were it to be otherwise, subsequent inventors and the inventor would all have inchoate rights to assign their patent rights in the same invention. The result would be a race to the USPTO to see which of those subsequent inventors would be the first to file, thus first to perfect his inchoate right to patent. And until one subsequent inventors or his assignee perfects his right to patent the invention by winning the race to the USPTO, each of the n-inventors could assign his patent rights to others, and each of those assignments would be valid, as far as it went, though it would go no further than he who would be quickest in getting to the USPTO.

    Such nonsense would completely divorce the Congress’ granting of letters patent from promoting the progress of science and the useful arts and would transform the granting of patents into a race to the USPTO, a race which finds no basis in the U.S. Constitution and which is contrary to the clear mandate of the IP Clause, that Congress’ granting of letters patent must promote the progress and science of the useful arts.

    But let me thank you for pointing out another problem with the first-to-file rule: The resulting race to the USPTO that is both contrary to the clear mandate of the IP Clause and fundamentally inequitable in that it deprives the inventor of the benefit of the exclusive right to patent his invention. And thanks also for the the quote from President Lincoln: “Adds the fuel of incentive to the fire of genius.” It is wonderful stuff for a note or an appellate brief.

    Nemo

  88. Gene Quinn June 13, 2011 11:56 am

    Bruce-

    With all due respect it is your article that is BS, not mine. Your analysis is confused, the article poorly written, and your conclusions ridiculous. Do you accuse everyone who supports the bill as being anti-inventor? How about the many independent inventor groups around the country who are run by independent inventors themselves? Are those independent inventors and their groups that support patent reform anti-themselves? You can pretend all you want, but you don’t seem to know the industry very well, or the patent laws.

    First, the type of comment you provide here is not acceptable. You need to set forth your comments positively here, not merely redirect to another website.

    Second, you seem to proclaim knowledge of patent law but don’t seem to understand something as fundamental as inventorship. You say I demagogue the issue when I say that the patent laws recognize someone who subsequently invents as an inventor, when that is as completely true as any statement that could be made about patent law and inventorship. So why must you lie to make your point? Interesting.

    So why not inform us as to what 102(f) means and why it is not completely subsumed by 102(a)?

    While you are at it, why don’t you also explain why the law uses the term “first inventor to file”? If, as you seem to suggest, an inventor is only the first person to invent why would the law so uniformly and thoroughly employ a redundancy?

    Finally, I had to laugh when you praised my website as normally being great. I guess that is code for it is great as long as you agree with me, but when you disagree it stinks. Thanks for the laugh on a Monday morning. Much appreciated.

    -Gene

  89. Gene Quinn June 13, 2011 12:03 pm

    Nemo-

    You do realize that even under first to invent there is still a race to the Patent Office, right? Do the terms “diligence” or “statutory bar” mean anything to you? How about “priority filing”?

    You do realize that the first to invent but second to file almost never prevails, correct? The first to invent is successful in .002% of cases, which I realize is in part due to the fact that the first to invent is almost universally the first to file.

    I know you prefer not to answer questions and instead simply write “promote the progress… did I already say promote the progress.” Nevertheless, I will ask you the same thing I asked Burdick — why does the law uniformly refer to “first inventor to file” if the person who invents first is the only one who is an inventor? I can’t wait to hear what Justice Daniels said about that!

    -Gene

  90. Blind Dogma June 13, 2011 1:15 pm

    Gene,

    I predict that Nemo will rattle off some inconstistent recitation of Supreme Court decisions with his usual conclusory statements and proclaim victory in the exchange.

    I am still waiting for him to overcome my rejection of his statements regarding the definition of “inventor” and his obvious doublespeak when attempting to have “inventor” defined both ways.

    He seems to think that merely repeating his conclusion serves as proof, and that not addressing the counterpoints makes those counterpoints disappear.

    He might actually post a full recapture of all his comments in one string. I tend to think that he may feel that such “smoke” really hides his lack of answers (answers that are on point and do not try to claim portions of positions so that he can try to have things both ways).

    Stan,

    How is the research coming on the Doublespeak Delight Kool-Aid?

  91. Nemo June 13, 2011 1:50 pm

    Gene: Though the law refers to first inventor to file, as the U.S. Supreme Court and its subordinate courts have held for more than two hundred years, the inventor’s right to patent trumps the first-to-file provided that the inventor can prove his claim. That, as Chief Justice Roberts, recently wrote is the law of the land today. So race to the USPTO all you want, today, if the inventor appears, can prove his claim, and is not barred from exercising his exclusive right to patent his invention by some misconduct on his part, his exclusive right to patent prevails, no matter who is the first to file at the USPTO. And that comes to us from Justice Roberts in Sanford. That makes four Justices of the United States Supreme Court, three writing for the majority and one in concurrence.

    But don’t let us not forget Justice Quinn, who here, most vehemently dissents. Mr. Justice Quinn, what court is that where you sit and issue your wise judgments? It certainly must be superior to the U.S. Supreme Court, given the way you heap such scorn upon the holdings of that court and the pronouncements of its Justices.

    Blind Dogma: I gave you 35 U.S.C § 100, which expressly defaults to the standard definition of inventor. I gave you the standard definition of inventor, which expressly states that an inventor is the one who first creates the invention. And I showed that based on the leading dictionary of the 18th Century, inventor meant exactly the same thing in the 18th century that it means today, the one who originally creates the invention, and therefore, that is what the word inventor must have mean when the Framers used it in U.S. Const., Art. I, sec. 8, clause 8. Since the U.S. Constitution, as well as the Patent Act, set the definition of inventor to be he who first devises the invention, all to the contrary is error.

    But Blind Dogma, we are repeating ourselves. Unless you have something new to argue, we shall have to agree to disagree. I will stick the definition of inventor provided the IP Clause and U.S.C. § 100, and you can stick with what Justice Daniel–was it Justice Clark?–referred to in another context, as the patent law’s imprecision of language.

  92. Gene Quinn June 13, 2011 3:11 pm

    Nemo:

    You say: ” Though the law refers to first inventor to file, as the U.S. Supreme Court and its subordinate courts have held for more than two hundred years, the inventor’s right to patent trumps the first-to-file provided that the inventor can prove his claim.”

    Citation please.

    I grow tired of your nonsense. Allow me to crush you with truth and actual citations.

    The Patent Act of 1836 included a defense to infringement that would allow the defendant to demonstrate that the patent owner was not the “first inventor.” The defense in the 1836 Act explained that the defendant would prevail if the patentee was “not the original and first inventor of the thing patented, or of a substantial and material part thereof claimed to be new.” So the language obviously points to the understanding that the patentee would have been a subsequent inventor.

    The United States Supreme Court has explained: “it is well settled that a concealed, forgotten, or abandoned invention is not a bar to a patent to a subsequent inventor.” Alexander Milburn Co. v. Davis-Bournonville Co., 270 U.S. 390. So obviously there is one who is a “first inventor” and there are others who are “subsequent inventors.”

    Moreover, the Federal Circuit has explained: “as between an earlier inventor who has not given the public the benefit of the invention, e.g., because the invention has been abandoned without public disclosure, suppressed, or concealed, and a subsequent inventor who obtains a patent, the policy of the law is for the subsequent inventor to prevail.” OddzOn Prods. v. Just Toys, 122 F.3d 1396, citing W.L. Gore & Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540. So obviously there is such a thing as a “subsequent inventor” in the view of the Federal Circuit, which is completely consistent with what the Supreme Court says.

    So who is fooling who Nemo?

    Looking forward to your response.

    _Gene

  93. Blind Dogma June 13, 2011 4:30 pm

    Blind Dogma: I gave you 35 U.S.C § 100, which expressly defaults to the standard definition of inventor

    No, Nemo – I took your standard default definition and showed you expressly where it failed to hold what you wanted it to hold, and in fact, it holds what I say it holds. – 18th Century dictionary and all.

    Your response – a repeat of your first statement does not overcome what I have shown you. The burden is still yours.

    Furthermore, I point out to you the doublespeak you wish to employ and avoid the finding that the current Act of Congress speaks directly against your suppoesed definition of only a single inventor – and you have no reply to the Act, and merely state (again witht he conclusory statement without support) that any such statements must be in error.

    Pray tell Nemo, please tell me how you wish to talk yourself out of the fact that the current Act boxes you in so?

    I too await.

  94. Nemo June 13, 2011 5:15 pm

    Gene: Chief Justice Roberts, writing for the Court in BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY v. ROCHE MOLECULAR SYSTEMS, INC., ET AL. (slip Opinion) (Decided, 6 June 2011):

    “Although much in intellectual property law has changed in the 220 years since the first Patent Act, the basic idea that inventors have the right to patent their inventions has not. Under the law in its current form, “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter . . . may obtain a patent therefor.” 35 U. S. C. §101. The inventor must attest that “he believes himself to be the original and first inventor of the [invention] for which he solicits a patent.” ——————

    “§115. In most cases, a patent may be issued only to an applying inventor, or—because an inventor’s interest in his invention is “assignable in law by an instrument in writing”—an inventor’s assignee. §§151, 152, 261.

    “Our precedents confirm the general rule that rights in an invention belong to the inventor. See, e.g., Gayler v. Wilder, 10 How. 477, 493 (1851) (“the discoverer of a new and useful improvement is vested by law with an inchoate right to its exclusive use, which he may perfect and make absolute by proceeding in the manner which the law re- quires”); Solomons v. United States, 137 U. S. 342, 346 (1890) (“whatever invention [an inventor] may thus con- ceive and perfect is his individual property”); United States v. Dubilier Condenser Corp., 289 U. S. 178, 188 (1933) (an inventor owns “the product of [his] original thought”). The treatises are to the same effect. See, e.g., 8 Chisum on Patents §22.01, p. 22–2 (2011) (“The presump- tive owner of the property right in a patentable invention is the single human inventor”).”

    Gene, so here we have it once again from the United States Supreme Court. Justice Roberts lays out the entire history of the Court’s 220 years of precedent, holding that the inventor has the exclusive right to patent his invention, and that the inventor is: the discoverer of a new and useful improvement and, as such, is vested by law with an inchoate right to its exclusive use, which he may perfect and make absolute by proceeding in the manner which the law re- quires. Id at 7. Note that the inventor is he who discovers a new and useful improvement and that he has the exclusive right to use his invention, which he may perfect and make absolute by proceeding in the manner which the law requires. Id. at 7. Earlier in the opinion, Justice Roberts notes that Congress’ power to patent is that as set forth by U.S. Const. Art. I, sec. 8, clause 8 (IP Clause’s), which is to grant letters patent for inventions that promote the progress of science and the useful arts. Id. at 6.

    Gene why are you handling me these softballs? Are you testing my ability to get research done? Or my ability to read a case? Or are you just getting me to show you the constitutionally fatal flaws in the first-to-file rule presently before the Congress?

    So the first-to-file folks, if that misbegotten bill passes the Congress, shall almost certainly have the pleasure of trying to persuade Justice Roberts that he got the entire history of federal jurisprudence on the meaning of inventor and on the inventor’s right to exclusively patent his invention wrong. I can’t wait and hope to be there to view that scene, as the folks on my side quote Justice Roberts’ precedent back to him, while the folks on your side try to persuade him that he is wrong. Note also that the 7 to 2 majority includes the most conservative Justices, presumably those that the first-to-file folks would rely on to affirm the constitutionality of the position. But whether conservative or liberal, the Justice where just two short of unanimity, as seven joined Justice Roberts’ opinion.

    If you want more citations on the basis propositions of law supporting my argument, that the inventor is he who discovers the invention and is the person with the exclusive right to patent it, just select from among the cases, all prior U.S. Supreme Court precedents, cited by Justice Roberts. I hope that, as a lawyer, this will conclude the matter for you. Blind Dogma, however, doesn’t think much of Supreme Court precedent, so I’ve no doubt that he shall denigrate the Court and persist in his legally baseless opposition.

    Gentlemen, unless you can come up with some U.S. Supreme Court precedents, for nothing can be superior to the U.S. Supreme Court and/or some reference to the U.S. Constitution that rebuts my cited Supreme Court precedents, references to the express language of the Constitution, and citations to the express language of the Patent Act that conclusively support my argument, I don’t see any point in continuing this debate.

    Nemo

  95. Nemo June 13, 2011 5:25 pm

    Blind Dogma: Justice Roberts has something special just for you: “Our precedents confirm the general rule that rights in an invention belong to the inventor. See, e.g., Gayler v. Wilder, 10 How. 477, 493 (1851) (“the discoverer of a new and useful improvement is vested by law with an inchoate right to its exclusive use, which he may perfect and make absolute by proceeding in the manner which the law re- quires”); Solomons v. United States, 137 U. S. 342, 346 (1890)” BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY v. ROCHE MOLECULAR SYSTEMS, INC., ET AL. (slip Opinion) (Decided, 6 June 2011) at 6-7. So the inventor is the discoverer of a new and useful improvement. Id. at 7. “Discoverer” of a new and useful improvement pretty much settles the issues, for, while there may be subsequent inventors, there can be only one inventor, who discovers a new and useful improvement. All subsequent to the inventor are not new!

  96. Blind Dogma June 13, 2011 5:39 pm

    Nemo,

    Yet again, you offer a Supreme Court quote that in no way affects what I have posted.

    The long and short is that “inventor” simply does not mean “single only first ever inventor.” Not in any dictionary. Not in any Court case. Not in any Patent Act, and Not in the constitution.

    As I posted well (now very well) above, an inventor who does not share his invention, who keeps his light under a bushel does create the opportunity for a second inventor to be a True inventor (covering time lapse). ALso, there can be two true inventors who simultaneously invent unbeknownst to each other. You have NEVER successfully countered these two examples.

    My post way back at 38 still stands true.

    Once again, your “pretty much settles the issues” is merely a conclusory statement that is simply false. I have shown you how it is false (in two separate ways – see the aforementioned post 38).

    You have failed to successfully respond to my post – the burden is still yours.

  97. Blind Dogma June 13, 2011 5:43 pm

    Further, Nemo,

    Accordign to your logic of post 95, the Office currently engages in unconsitutional behavior anytime a first inventor abandons or otherwise loses his right to a patent and a second inventor is awarded a patent – You have some explaining how the law (35 USC 102) allows such an unconstitutional action.

    So you see – You are doubly wrong, my friend.

  98. Nemo June 13, 2011 6:04 pm

    Blind Dogma: Are you reading the Supreme Court precedents that Justice Roberts cited, supra at my #94. Here are a few more: (“whatever invention [an inventor] may thus con- ceive and perfect is his individual property”); United States v. Dubilier Condenser Corp., 289 U. S. 178, 188 (1933) (an inventor owns “the product of [his] original thought”). The treatises are to the same effect. See, e.g., 8 Chisum on Patents §22.01, p. 22–2 (2011) (“The presump- tive owner of the property right in a patentable invention is the single human inventor”).” The one that pretty much settles it is this: “The presumptive owner of the property right in a patentable invention is the single human inventor.” Not a collection of subsequent inventors but the single human inventor, who owns the product of his own original thought which he may perfect and make absolute according to law. And who is the inventor? He is: “the discoverer of a new and useful improvement is vested by law with an inchoate right to its exclusive use . . . .” BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY v. ROCHE MOLECULAR SYSTEMS, INC., ET AL. (slip Opinion) (Decided, 6 June 2011) at 6-7. So the Court is saying precisely that the inventor is the discoverer of the invention, and not anyone else. That is what the words mean: Discoverer: be the first to find or observe (a place, substance, or scientific; New: not existing before; made, introduced, or discovered recently or now for the first time. Given those definition of new and discoverer, the inventor can only be he who discovers the invention, and that, as the Court says supra, is a single person. That settles the matter.

    And I’ve dealt with that inventor failing or refusing to disclose several times already, supra, and shall not repeat it again. Read my prior posts, supra.

    Blind Dogma, Justice Roberts citations to the Court’s own precedents settles this issues or at least it does for all reasonable and sane persons. And since nearly all judges are both reasonable and sane and obey the precedents of the U.S. Supreme Court, you would not survive a motion to dismiss nor would you escape sanction for bring frivolous claims or defense to the extent that such claim or defense depended on your utterly refuted definition of inventor.

  99. Nemo June 13, 2011 6:08 pm

    Blind Dogma: You are hopeless. I cited Justice Daniel explanation and holding of why such foreclosure of the inventor’s right to patent is constitutional, because the inventor’s misconduct removes him from the protection of the IP clause.

    Blind Dogma, since you are not reading my posts or are simply choosing to ignore them, there is no point in continuing to debate this issue with you. Good day.

  100. Gene Quinn June 13, 2011 6:10 pm

    Nemo-

    Your citations all talk about “an inventor” but clearly do not support your position. Talk of “an inventor” does not prove or disprove that there can be a first inventor and there can be a subsequent inventor. So you seek to prove that the term “inventor” means “first to invent” but you provide no proof. You merely conclude “inventor” means “first inventor” because Chief Justice Roberts repeatedly said “inventor.” You are quite amusing. You must be fun at parties!

    In any event, you will be delighted to read my latest article, which conclusively proves that everything I have written is true and everything you have written is false. See:

    http://ipwatchdog.com/2011/06/13/does-inventor-in-the-constitution-mean-first-inventor/id=17689/

    Dating back at least to 1813 there has been a concept of subsequent inventors. See what you can find when you actually look for relevant cases to prove your point rather than the Monty Python-like research you do that says “inventor” means “first inventor” because “an inventor owns patent rights.”

    You crack me up!

  101. Gene Quinn June 13, 2011 6:13 pm

    Nemo-

    Really? Is that the best you can do? “Our precedents confirm the general rule that rights in an invention belong to the inventor.” Exactly how does that prove “inventor” means “first inventor”? It also ignores the reality that since at least the 1870s the Patent Office has allowed interference proceedings to determine if the subsequent inventor gets the patent. It also ignores the reality that there are dozens of cases from the Supreme Court relating to interference proceedings, including those where the first inventor is NOT awarded the patent. OMG!

    -Gene

  102. Nemo June 13, 2011 6:19 pm

    Gene: Read the rest of Justice Roberts’ string citations, where the Court defines inventor to be the discoverer of the invention. BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY v. ROCHE MOLECULAR SYSTEMS, INC., ET AL. (slip Opinion) (Decided, 6 June 2011) at 6-7. Here is one of them, which I cited in my #94: (“the discoverer of a new and useful improvement is vested by law with an inchoate right to its exclusive use, which he may perfect and make absolute by proceeding in the manner which the law re- quires”); Solomons v. United States, 137 U. S. 342, 346 (1890). Then look up the definitions for “discoverer” and “new.”

  103. Nemo June 13, 2011 6:26 pm

    And Gene: As you well know an interference proceeding does not refute or contradict the Court’s rule that the first-to-invent is the owner with the right to patent, because an interference proceeding is about whether the inventor is the inventor, that is, whether the inventor on the patent application is first in the prior art or whether there is some instance of prior art that precedes him. In other words, it is a challenge to whether the inventor is in fact the inventor. There is nothing about that which contradicts the Court’s precedents and my argument.

  104. Nemo June 13, 2011 6:33 pm

    Gene: I will have to get to your latest article later, perhaps late tomorrow or this Wednesday.

  105. Gene Quinn June 13, 2011 7:07 pm

    Nemo-

    The cite you provide proves you wrong. It says, in relevant part: “which he may perfect and make absolute by proceeding in the manner which the law requires.” The inventor MAY perfect. What happens if the inventor does not perfect as the law requires? I wonder also what the law requires? Oh wait… we know what the law requires. It requires the inventor to move with dispatch to file or a subsequent inventor who files first will receive the patent instead.

    So once again, your citation still does not provide any proof that the term “inventor” must mean “first inventor.”

    As for your understanding of interference proceedings, where to begin. Really, you should study up on the patent laws. You might enjoy the reading.

    You say that interference proceedings are not about first to invent but rather about whether the inventor is the inventor. Wrong and wrong.

    Such a ridiculous statement about interference proceedings, which are known by everyone to be the cornerstone of a first to invent system, remove all doubt if any still remained regarding your knowledge (or lack thereof) regarding the patent laws. I would have to think it would be a better use of your time to learn the patent laws than to pontificate as if you already know them when you clearly do not.

    -Gene

  106. Nemo June 13, 2011 9:08 pm

    Gene: And what of “the discoverer of a new and useful improvement is vested by law with an inchoate right to its exclusive use . . .” The first part of the quote defines inventor to be the discoverer of a new and useful improvement. (The plain definitions of “discoverer” and “new” permit no other conclusion.) That is a single unique person or group of co-inventors, who is/are the first to invent the invention, so whatever you think his/their rights are according to law, he/they is/are the only one/ones to have them. No subsequent other inventors are allowed, unless the inventor or co-inventors misbehave(s) so that he takes himself/themselves outside of the protection of the IP Clause with the result that his/their right to patent is/are foreclosed by law or equity.

    But we know what those laws are. It is that law that is consistent with the constitutional mandate of U.S. Const., Art. I, sec. 8, clause 8 (IP Clause), that the Congress may only promulgate such patent law as promotes the progress of science and the useful arts by investing the inventor with the exclusive right to patent, subject only to that inventor being honest, competent, equitable, and diligent in perfecting his right to patent. That is the law by which the inventor perfects his exclusive property rights in his invention. See U.S. Supreme Court citations in my earlier posts.

  107. Gene Quinn June 14, 2011 11:28 am

    Nemo-

    I’m done communicating with you on this thread. If you want to continue your ridiculous argument with me you have to do it on the new post. That way everyone can compare your ridiculous positions with the 200 years of case law I go through that proves your position clearly and unambiguously incorrect.

    -Gene

  108. Bruce Burdick June 15, 2011 5:40 pm

    Gene,
    Nope, it is still your article, and now your comments, that are BS. I understand you are having a difficult time defending your position now that you have boxed yourself into a pro-FTF corner, but I thought better of you than to act like a cornered rat who lies and rants.

    Don’t attribute words to me that I have not spoken or written. You are a liar to say I accuse everyone who supports the bill as being anti-inventor, and you should know better than to do that. Where did you get that ridiculous notion? There are many things in the bill that are pro-inventors. Ending fee diversion, for example.

    You asked how about the many independent inventor groups around the country who are run by independent inventors themselves? Very few support you on FTF and you know it. In fact, I do know the industry very well, and the patent laws. We both do.

    I don’t take instructions from you. I will redirect to another website if I choose. What is acceptable to you is not controlling to me. I link so that I do not have to cut and paste or retype and so that no one, such as you, can edit or censor what I say. I suspect that is one of the reasons why you also put in the effort to have your own blog. You link to other sites numerous times on your homepage and in your articles, so it is hypocritical of you to try to impose that limit on others. I do not put that restriction on comments to my blog. If you are such a coward as to edit out my links I will just find another way. Censorship, particularly self-serving dual standards like you seem to want, just detracts from your blog. Not a problem, as I have my own blog.

    Apparently it is you, Gene, who does not really understand something as fundamental as inventorship. You falsely accuse me of saying you demagogue the issue when you say that the patent laws recognize someone who subsequently invents as an inventor. Shame on you for lieing. That’s not what you said and not what I said either. What I said, if you would calm down and read carefully is that you demogogue (perhaps you should look up the word before spouting off foolishly) when you say that the patent laws recognize someone who subsequently invents as THE SAME AS the first inventor. The second inventor is NOT regarded the SAME AS the first, unless you ignore 102(a), 102(e) and 102(g). The first inventor has superior rights unless the first inventor loses those right by taking or failing to take certain steps spelled out in the statutes and rules. But, apparently ignoring the facts is okay to you if your back is against the wall defending your flawed position on FTF in the face of pretty clear words from Chief Justice Roberts that make you look silly. The law does not make the second inventor the SAME AS the first inventor, no matter how you “spin” it. Only if the first inventor screws up and does not take the proper steps does the second inventor step into the same shoes as the first inventor, otherwise the second inventor is SOL. Sure the second inventor is an inventor, but sure as hell not treated the SAME as the first inventor like you said he was. You apparently have trouble admitting when you are wrong.

    You ask “So why not inform us as to what 102(f) means and why it is not completely subsumed by 102(a)?”
    Sarcasm and snide comments are the haven of losers, but I will politely respond to your snide comment. 35 USC 103(f) simply means what it says “(f) he did not himself invent the subject matter sought to be patented”. An applicant is not entitled to a patent if he is not an inventor, i.e. if he derived it from someone else. 102(f) also means patents are issued to inventors not assignees, although assignees can own them by virtue of assignment from the inventor. 102(f) would NOT prevent a second inventor from getting a patent so long as the second inventor “himself invented the subject matter sought to be patented.” If you have trouble understanding that Patent 101 concept, you might reread Stanford v. Roche. 102(f) is not completely subsumed by 102(a) because 102(a) also means what it says “(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent” and because 102(a) has been interpreted by the courts to require that this “known or used” be PUBLICLY known or used to fall within 102(a). Neither 102(f) nor 102(a) is subsumed at all because 102(a) adds a different prohibition, namely that, even if the second inventor did not derive the invention, the second inventor is not entitled to a patent if the public already had possession of the invention at the time the second inventor invented. As we both know, 102b is normally used and cited instead of 102a, because 102(b) is an absolute bar as of a date certain (one year prior to effective filing date). The Office and/or Court do not waste time unnecessarily determining the date of invention so as to apply 102(a) if a sufficient 102(b) reference exists.

    You are either a fool or a shameless liar to say I seem to suggest an inventor is only the first person to invent, when I specifically said just the opposite. Which one are you? You apparently did not read the linked article at http://www.burdlaw.com/blog/?p=162 or you would know better.

    You say you had to laugh when I praised your website as normally being great and that I guess that is code for it is great as long as you agree with me, but when you disagree it stinks. That is the one part you got mostly right. What you missed is that when you disagree with me, you are always wrong, and thus not great. LOL Seriously though, I think you are wrong on FTF and need to get a life and get off the FTF bandwagon and quit ignoring the importance of rule 131 Affidavits to underfunded second-to-file small inventors. Interferences are not a significant issue as they are seldom used and seldom won by small inventors, but it is disingenuous of you to contend that is the issue on FTF when you know very well it is the loss of Rule 131 affidavits and the introduction of a mountain of new quasi-prior-art that is the real downgrade under FTF. It appears FTF is going to pass a pro-big-business Congress that appears to just use talking points that they seldom understand, but that does not mean it is good, wise, or Constitutional. If it does you are a big part of the reason. If we harmonize our system with the inferior systems of other countries, you will have played a key role in gutting the system for small inventors. Sure some independent inventors know the system well enough to file quickly on all their preliminary half-baked ideas if FTF passes, but the conscientious small inventor who waits until he/she has a real best mode and real enablement will be screwed in your Brave New World. For that “step back” to step back’s comment 12 above and see what the future holds as you envision it should be.