Reforms: First Inventor to File
The current “first to invent” system in the United States may be changed in future patent law reforms as proposals to establish a “first inventor to file” patent system are being considered. A first-inventor-to-file system has been endorsed by the American Bar Association, American Intellectual Property Law Association, the National Academy of Sciences, the National Association of Manufactures, the Intellectual Property Owners Association, the Biotechnology Industry Association, and the Federal Circuit Bar Association. The bottom line question, however, is whether these reforms will bear out the assumption that they will produce a kinder, gentler system.
New Copyright Process for High-Volume Users.
The Copyright Clearance Centre (CCC) and the Online Computer Library Centre (OCLC) have announced that bookstores, copy shops, libraries and other high-volume users of copyrighted materials will soon experience a more efficient copyright permission process. The centres have joined forces to provide a streamlined online service for users of the OCLC's catalogue services.
The U.S. Joins Madrid Protocol.
Effective November 2, 2003, the United States of America has joined an international trademark treaty referred to as the Madrid Protocol. This new procedure will allow U.S. companies to more easily acquire foreign trademark rights abroad and also allow foreign companies to more easily acquire U.S. trademark rights. The downside is that it makes preliminary availability searching more complex and less certain because under the Madrid Protocol the governing law foreign international applications that extend to the U.S. permits a two month delay between the time an international application is filed in a foreign country and the time it has to be reported in the United States. As a practical matter, we feel that these potential consequences will be infrequent. Nonetheless, an applicant for a new trademark should know about these possibilities as they proceed. Our office will work with this new law to make this transition as smooth as possible.
Opposing proposed Resolution to Lessen the Eemedies for Inequitable Conduct.
Our office recently opposed a proposed resolution to lessen the remedies for inequitable conduct. Patent protection is a constitutionally mandated privilege given in exchange for a complete and truthful disclosure of the invention. Inequitable conduct by an applicant before the Patent Office is a material breach of that exchange and it allows a patent to be wrongful obtained. Inequitable conduct by an applicant can affect an examiner’s determinations and reward an applicant with years of patent protection until the inequitable conduct is disclosed. Lessening the relief for inequitable conduct would benefit the patentee at the expense of all others in our society –competitors and consumers alike. The privilege of a patent and the right to its enforcement should not stand on the back of a weakened remedy for wrongful procurement.
Duty To Disclose Information Material To Patentability Continues Throughout Prosecution.
A recent decision of the Court of Appeals for the Federal Circuit confirmed that each individual associated with the filing and prosecution of a patent application has the duty of candor and good faith in dealing with the Patent Office which includes the duty to disclose to the Office all information known to that individual to be material to patent ability. The duty to disclose information exists with each pending claim until the claim is canceled or withdrawn from consideration. So if anything in the marketplace or anywhere is discovered, while the patent application is pending, the applicant or his attorney are required to provide that information to the Patent Office for consideration by the Examiner in issuing the patent.
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