Patents War: First to File vs. First to Invent

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SP
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Re: Patents War: First to File vs. First to Invent
SP   10/10/2012 6:15:21 AM
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Thanks Nicole and Jacob.

Jacob
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Re: Patents War: First to File vs. First to Invent
Jacob   10/10/2012 5:55:29 AM
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1 saves

SP, the patent registering offices have their own provisions to check whether the filed in details are forged or original. After that they will publish it for another 3-6 months for collecting opinions and defenses. If anybody has any objection, it can be filed within this time frame.

The Source
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Re: Challenging AIA constitutionality
The Source   10/8/2012 1:56:14 PM
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Dear Eldredge, MadStad & Bolaji,

I am very interested in whether any court finds the first-to-file system of the Leahy-Smith America Invents Act (AIA) to be unconstitutional.  There are those who vehemently say yes, and those who strongly disagree. Mr. Stadnyk sees his court case battle as similar to the opposition waged against the Patient Protection and Affordable Care Act, which the Supreme Court recently upheld.

In the New York Times article mentioned in my story, Stadnyk is quoted as saying "Others took on Obamacare, and this is my fight."  He goes on to say: "My property would be given away by the government under this new law."

Interesting.  We will see how far this case goes.

Thanks for your comments.

Nicole


The Source
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Re: Patenting Process
The Source   10/8/2012 1:38:36 PM
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Dear SP,

There are and have always been mechanisms in place to either help inventors defend their patents or to challenge patent infringement. From what I gather in your note, you seem to be skeptical as to whether any system can completely defend an inventor's patent.  I guess the USPTO will say it is doing the best that it can under the legal framework within which it operates.  The analogy, although it's an extreme one, is the criminal justice system which has been known to find individuals guilty of a crime and years later evidence surfaces that exonerates the individual. We can't always depend on humans to the right thing, but we must trust humans and the systems that they create, at least some of the time.    

Thanks for your response and for reading my article.

Nicole  


Bolaji Ojo
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Re: Challenging AIA constitutionality
Bolaji Ojo   10/7/2012 11:51:51 PM
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Fortunately, the US Supreme Court may get to rule on issues like this although it may be years before a challenge is mounted. Hopefully, the court would do what it was set out to do in a non partisan way.

MadStad
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Re: Challenging AIA constitutionality
MadStad   10/7/2012 7:56:43 AM
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Section 8 does say that "Congress shall have power to . . .", but the phrase "ignore this Constitution and enact whatever it wants" is not on the list. Section 8 is a limitation on the powers of Congress, not a blank check. If Congress has the power to do whatever it wants, then why bother listing specifics in Section 8?

The fact is that Congress cannot simply make laws doing whatever it wants. If Congress believes that a provision of the Constitution should be changed, then there is a process for doing so. The problem is that they know they would lose if they had to openly debate the intellectual property clause, so instead they chose to quietly enact a new law that rewrites the clause, in the hopes that nobody would object. They get away with this all the time because Americans no longer have a working knowledge of nor respect for the document that created the greatest country the world has ever known. This is why America is in deline right now, severe decline, but rather than managing it or simply accepting it as the "new normal", we must fight it.

If you invented something then it is your property. Period. Doesn't matter who filed the paperwork first. That's what our founders believed, and that is what they said in Article 1, Section 8, Clause 8. It is the ONLY power of Congress that is specifically spelled out as to how it must be applied. Your right to your intellectual property was enacted in 1788. The rights to free speech, freedom of religion, to bear arms, etc. were first proposed in 1789 in the Bill of Rights. In other words, our founders felt this IP clause was so important that it came ahead of all of the other rights we are very familiar with. Yet now our Congress has swept aside 220 years of patent law and this clause, without due process. Even if you don't know the specifics of this case, that fact alone should cause you to call your representative and say, "Excuse me, just what do you think you're doing?" This is your country. Fight for it before it is gone. I am.

 

Eldredge
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Re: Patents War: First to File vs. First to Invent
Eldredge   10/6/2012 7:47:36 PM
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With the first-to-invent system, it was strongly recommended that the inventor(s) maintain good records of their ideas and progress in the development of the ideas to workable practice, preferably in patent notebooks. These records needed to be witnessed and dated by two people who understood the invention. If two entities filed for the same invention, these records could establish who was the first to invent, and who was diligent in refining the invention to practice.

Eldredge
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Re: Patents war
Eldredge   10/6/2012 7:41:56 PM
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@Barbara,

    While some of the AIA changes have been implemented as of mid-September, the change to a first-to-file system will not be implemented until March. It's difficult to say how this change will affect the ability to obtain a patent more quickly. At the same time, the USPTO has been increasing their staff of patent examiners to address the backlog, so we have multiple variables changing at nearly the same time. It will probably be hard to tell if the changes streamlined anything, at least for awhile.

Eldredge
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Challenging AIA constitutionality
Eldredge   10/6/2012 7:36:39 PM
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The first-to-file system is unconstitutional, Stadnyk's legal team asserts, because it awards the patent to the person who wins the race to the patent office, rather than to the inventor.

I'll have to find out more about this case. I'm not sure how it can be claimed to be unconstitutional.

The U.S. Constituion states in Section 8 that "The Congress shall have power....to promote the Progress of Science and the useful Arts by securing for limited time to Authors and Inventors the excusive right to their respective writings and discoveries"

It seems like this leaves the decison of a first-to-file versus a first-to-invent system up to Congress to determine. In both cases, however, the patent applicant must establsih that he/she is an inventor. I;m not sure if a constitutionality challenge will prevail.  Any thoughts?

Barbara Jorgensen
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Patents war
Barbara Jorgensen   10/5/2012 3:51:20 PM
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Sounds like the latest development in an ongoing debate. I thought I'd read that the new system was supposed to streamlline the application process. Not only has that not happened, but it does seem to be weighted in favor of the inventor that has the most patience or deepest pocketbook.

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