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« USPTO Proposes Rules Changes for Implementing AIA Provisions -- Statute of Limitations Provisions for Office Disciplinary Proceedings | Main | USPTO News Briefs »

January 17, 2012

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Comments

What a waste of time and money this report was. Setting aside the question of whether or not the USPTO is the best organization to prepare this sort of report, if members of Congress were really interested in these questions, they would have commissioned such a report BEFORE enacting changes in the statute; and if they were going to do it AFTER enactment to assess its effects, then they should have waited a few years. But maybe a few jobs were created to prepare the report - do any members of Congress have kids who recently graduated college and needed employment? My hunch is that valuable PTO resources were squandered on this when they could have been put to good use on worthwhile projects.

Kevin, in my crankiness I forgot to thank you for posting this.

"making the nature of the finding a political, rather than a factual, statement."

I welcome the details, but alas, am very very disappointed that crtical points were whitewashed with this report.

This was an opportunity to have Congress remove some of the serious deficiences, and the political and very one-sided bent of "Everything's Great" misses the chance.

Kevin,

Your assessment that it is simply too early to assess the impact of PURD because there's is insufficient empirical data/studies is the correct one. That this Report would suggest otherwise undermines its credibility and supports the comment by Skeptical that this Report was primarily a "whitewash" to satisfy the legislative mandate and "appease" the Congressional overseerers. Yet another reason why the AIA is the Abominable Inane Act.

EG,

I fear that it is worse than what my initial comment portrays.

I am touched by this comment in the conclusion:

"Providing suitably limited prior user rights in a first-inventor-to-file system is an appropriate response to an inherent inequity such a system creates..."

I have to ask, we KNOW that the system we voted in has such an inherent inequity, and yet we follow that inequity with PUR (which in my mind induces MORE inequity, regardless of the USPTO report)?

Why?

Unfortunately, the answer is quite obvious: follow the money and look at just who was pushing for this change. Look at how the Office looks to everything but the patent clause (which with no small hubris is noted as being silent on this - that silence should have been a clue to STOP).

There is a valid policy reason to pursue the PURD, which is in the block quote in the post. It speaks to the failure of the GATT/TRIPS/WTO scheme to get developing countries to respect Western IP rights, something highlighted in the USTR Reports discussed periodically here as well as further treaty provisions like the Doha Declaration. This is not to say that these things are intrinsically wrong (it is naive to believe governments in those countries will put respect for IP over their populations' real medical and other needs), but that we need to consider the threat to prosperity that derives not from "cheap knock-offs" of goods being sold in the US but that can and will be sold abroad.

That being said, there is much that is disingenuous in the Report and elsewhere in the arguments of the PURD proponents. It is a real problem for US manufacturing companies who develop lots of "inventions" and use them internally, only to be threatened by possible future patenting. This is analogous to the business methods situation but only to a point: the company facing business methods patents had eschewed patenting themselves because there was a belief that those types of inventions were not patent-eligible. In the manufacturing case, the non-patenting entities enjoy the benefits and advantages of the undisclosed process inventions up to the time that they are independently developed and patented. The problem is that these companies want to eat their cake and have it too, saying it is "unfair" that the later inventor can use a patent to prevent them from using methods that they developed in the past. The right answer is that the public cost of nondisclosure is true monopolization, since those trade secret practices will never go into the public domain unless there is a patent. While it is simply human nature to desire this outcome, it isn't good policy.

"This is analogous to the business methods situation but only to a point"

Agreed. My understanding was that the business method exception was only meant for a temporary period (whether stated so or not) and only to alleviate that gap in understanding. It was not meant to enforce a "secret zone" at all, and definitely not to be entrenched. Patenting of any new business method inventions was to be the desired route of all competitors in patent law (whether the Office or Justice Stevens thought that proper or not).

Skeptical,

I do share your pessimism about this PURD provision and just about everything else this oxymoronic AIA inflicts on us. As I've said before, we'll rue the day that the Abominable Inane Act was passed.

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