The ‘nother of invention

What’s all this I hear about the Supreme Court’s opinion in Stanford v. Roche?

I do some patent litigation, yes, but I leave the heavy lifting on doctrinal and policy matters — unless I have to argue them in a brief — to the likes of Gene Quinn, whose IP Watchdog blog has been on fire the last week over the debate that some maintain the Stanford opinion has ignited, and right on the eve of proposed legislative reform of the patent laws, as to the meaning of “invention” (conceptually the heart of entitlement to a patent).  The question is, or supposedly is:  does the Constitution’s language prohibit a patent regime that permits a later “inventor” who files a patent first (“first to file”) to have superior rights over a later-filing, but early-originating, “inventor”?

Gene has not minced words about this.  In a post from a week ago, he wrote as follows:

I have been watching in utter amazement as individuals with a variety of experience in the patent field debate the constitutionality of the first to invent proposals.   This started when those who will not allow truth and accuracy to deter from their arguments started saying that the Supreme Court ruled first to file unconstitutional in Stanford v. Roche.  That argument was, and still remains, specious becauseStandord v. Roche had nothing to do with the issue, nowhere in the case did Chief Justice Roberts make such statement, hint that he was thinking such a thing, or say anything colorably related to such a conclusion.  See Did the Supreme Court Rule First to File Unconstitutional?

Now the argument is morphing into a discussion of whether the word “inventor” must mean “first inventor.”  This very question is being seriously raised in some academic circles, by some patent practitioners who ought to know better, and by those who simply want to kill patent reform at all costs even if they have to engage in gross misrepresentation in order to do so.  Indeed, there are those ranging from neophyte to relatively experienced that are seeking to change history, ignore logic and refuse to acknowledge well established patent law precedent in order to twist the word “inventor” in the U.S. Constitution to mean “first inventor,” which would then call into question the constitutionality of the first to file provisions of patent reform now before the House of Representatives; H.R. 1249.

Simply stated, the overwhelming evidence suggests that the United States Supreme Court, the Federal Circuit and even early political and judicial leaders of the United States all envisioned the truth that one can legitimately be called an inventor even though they are not the first to invent.  Unlike the many arguing in this debate I will actually prove this if you keep reading, with actual citation to cases and statutes.

Not everyone who has commented on these posts at Gene’s blog has agreed with him, and the debate has been both heated and sophisticated.  (Or not so sophisticated.) Gene has followed up, in fact with, a post yesterday called “First U.S. Patent Laws Were First to File, Not First to Invent.”  In case you had any question about his view of the matter.

All things being equal, you could do worse to get your sound bites from these exchanges.

Originally posted 2011-06-20 12:11:34. Republished by Blog Post Promoter