Patents Redux Again

Posted by $ MikeMarotta 8 years, 1 month ago to Legislation
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"First to file (FTF) and first to invent (FTI) 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,[1] including the United States, which switched to a first-inventor-to-file (FITF) system on March 16, 2013 after the enactment of the America Invents Act.[2] There is an important difference between the strict nature of the FTF under the EPO and the FITF system of the USPTO. The USPTO FITF system[3] affords early disclosers some "grace" time before they need to file a patent,[4] whereas the EPO does not recognise any grace period, so early disclosure under the FITF provisions is an absolute bar to later EPO patent.
[1] Zach Carter (June 11, 2011). "Patent Reform Refuses To Die, Congress Keeps Cashing In". The Huffington Post. Retrieved July 31, 2013.
[2] USPTO: "America Invents Act: Effective Dates"
[3] Zuhn: "USPTO Issues First-Inventor-to-File Examination Guidelines and Final Rule"
[4]Kravets: "First-To-File Patent Law Is Imminent, But What Will It Mean?" --

Ayn Rand wrote: "As an objection to patent laws, some people cite the fact that two inventors may work independently for years on the same invention, but one will beat the other to the patent office by an hour or a day and will acquire an exclusive monopoly, while the loser's work will then be totally wasted. This type of objection os is based on the error of equating the potential with the actual. The fact that a man _might_ have been first doesn't alter the fact that he _wasn't_. Since the issue is one of commercial rights, the loser in a case of that kind has to accept the fact that in seeking trade with others he must face the possibility of a competitor winning such a race, which is true of all types of competition." -- "Patents and Copyrights" _The Objectivist Newsletter_ May 1964. Reprinted in _Capitalism the Unknown Ideal_, Chapter 11.

Ayn Rand was alluding to - and accepting as real - the urban legend that Elisha Gray and Alexander Graham Bell raced each other to the Patent Office. In fact that is not what happened.

"Gardiner Hubbard, Bell's lead partner in what would become the Bell Telephone Company, had his lawyer file Bell's patent application for the telephone in the U.S. patent office in Washington, D.C. on February 14, 1876. Gray's lawyer filed Gray's caveat the same day. Under the U.S. patent laws of 1876 (and until 2011), a patent was granted to the first to invent and not to the first to file, and therefore it should not have made any difference whether Bell or Gray filed first. The popular belief was that Bell arrived at the patent office an hour or two before his rival Elisha Gray, and that Gray lost his rights to the telephone as a result. That did not happen, according to Evenson."

In short, Ayn Rand had her facts wrong. Her point remains, however. By whatever standard, someone will be first, and everyone else will be frozen out.

it is interesting to note that this change during the hated Marxist-Muslim-Liar-in-Chief Administration has yet to receive insightful comments from any patriotic American patent lawyers dedicated to the Constitution in the Gulch. Perhaps it does not matter how we decide who was first.

The Institute of Electrical and Electronic Engineers (IEEE) does think that it matters: "IEEE-USA, which represents the interests of more than 215,000 engineers, scientists and allied professionals in the U.S., opposes the Patent Reform Act of 2007 (H.R. 1908). We believe that much of the legislation is a disincentive to inventiveness, and stifles new businesses and job growth by threatening the financial rewards available to innovators in U.S. industry. Passage of the current patent reform bill language would only serve to relax the very laws designed to protect American innovators and prevent infringement of their ideas." --

"Although the act includes a number of small changes, the meat of it is considered the biggest shakeup at the USPTO since 1952. Formally known as H.R. 1249, the act was penned by Sen. Patrick Leahy (D-VT) and Rep. Lamar Smith (R-TX), the duo who introduced the Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA). For product designers and makers and DIYers the proverbial monkey wrench is being thrown into the mechanism for filing a patent — and the timing with which you do so. Today, if you file a patent, someone can come along and tell you they had that idea first, and with much documentation and legal wrangling, deny you the right to apply that invention. Tomorrow, nobody will care who came up with the idea first — only who filed it." --

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  • Posted by dbhalling 8 years, 1 month ago
    As with most of Mike’s posts this is long and some parts are true and some parts are just nonsense. Of course Mike is not a patent attorney and I am sure he has a busy life and cannot vet every issue in this relatively obscure area. I will provide my point of view on some of these issue based on a Natural Rights and Objectivist point of view.

    1) Yes the US now has a FTF system with a very limited grace period. The American Invents Act (AIA) (2011 fully implement in 2013) significantly limited the grace period. This hurts independent inventors and startups.
    2) First Inventor to File. This is propaganda pushed by advocates of the AIA. There is no such thing as the first inventor to file. The inventor is the first person to create an invention. In historical US patent law there was one exception where a non-inventor could obtain a patent and that was if the inventor suppressed their invention. Because of this the AIA is unconstitutional and I have written about this and a lawsuit has been filed on point. For more see

    3) Ayn Rand was taken in by the myth of the race to the patent office. I have written on this exact point on my blog. For more information see The procedure to determine who was the inventor was called an “interference” and was removed in the AIA, partly because the proponents argued simultaneous invention almost was never used and therefore interferences were not needed.

    4) There were bills introduced almost every year from at least 2007, but there was no ACT, because it was not passed. The culmination was the AIA passed in 2011. IEEE was right to oppose all these so-called patent reform bills.

    5) The AIA was not the biggest or only change in our patent laws since 1952. The Reagan administration passed a number of changes to strengthen our patent laws. These continued into the early 1990s. In 2000 the Clinton Administration was able to pass “patent reform” that significantly limited the rights of inventors.
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  • Posted by $ 8 years, 1 month ago
    "With the America Invents Act of 2011, which was signed by President Obama on September 16, 2011.[9] The law switched U.S. right to the patent from the previous "first-to-invent" system to a "first-inventor-to-file" system for patent applications filed on or after March 16, 2013.[2] Many legal scholars[10][11][12] have commented that such a change would require a constitutional amendment. Article I, Section 8, Clause 8 of the US Constitution gives Congress the power to “promote the Progress of ... useful Arts, by securing for limited Times to ... Inventors the exclusive Right to their respective ... Discoveries.” These scholars argue that this clause specifically prohibits a first-inventor-to-file system because the term "inventor" refers to a person who has created something that has not existed before."

    [9] 16 Sept 2011 press release re signature of AIA
    [10] Glenn and Nagle: "Article I and the First Inventor to File: Patent Reform or Doublespeak?", in IDEA—The Intellectual Property Law Review, Volume 50, Number 3 (2010)
    [11] Simon: "The Patent Reform Act’s Proposed First-To-File Standard: Needed Reform or Constitutional Blunder?", in THE JOHN MARSHALL REVIEW OF INTELLECTUAL PROPERTY LAW, 2006
    [12] Selective compilation of papers on FTF constitutionality published between 2001-2009 (9 papers)
    [13] Meredith and Grzelak: "“Letter to House and Senate Leaders and Judiciary Committee Members Opposing Adoption of the Patent Reform Act of 2007 (S. 1145/H.R. 1908).” The Institute of Electrical and Electronics Engineers, Inc. – United States of America, 27 August 2007

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  • Posted by $ Temlakos 8 years, 1 month ago
    How odd that the EPO would behave this way.

    I remember another race to competing patent offices. And it didn't involve Alexander Graham Bell and Elisha Gray.

    It involved Thomas Edison and William Freese-Greene. The invention: cinematography. Film. "The movies."
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    • Posted by khalling 8 years, 1 month ago
      'I 'd have to research further. It would have been a specific country not the EPO. In the US it would not have been "a race to the patent office" because at the time inventor meant inventor not first to file for the invention. Most likely there were differences in how each invention worked and there at least hundreds of inventions in even the earliest cinematography.
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  • Posted by khalling 8 years, 1 month ago
    " is interesting to note that this change during the hated Marxist-Muslim-Liar-in-Chief Administration has yet to receive insightful comments from any patriotic American patent lawyers dedicated to the Constitution in the Gulch. Perhaps it does not matter how we decide who was first. "
    GODS' HAIRY BALLS! sit down, son!
    ah, the paper clip. so innovative, to this day, there are paperclip inventions. many important inventions appear mundane after the fact. But you can get a sense from the book I shall link to of the number of inventors it took to create many of these inventions we take for granted. and if gone tomorrow, would make our lives much more difficult. Myself, I am paperless. But I have used a paperclip to hold the bangs out of my eyes, to make a chain, to pick a lock.
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