Principles of Patent Reform
Principles of the Optimal System
Principles of the Reform Process
Expert Discussing the Project
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The most harmful US government agency is the US PTO.
An obvious sign of its archaism and inefficiency is its use of telephones, as they did 100 years ago, as the main method of communication with the US PTO.
With a budget of $5 billion per year, US PTO issues patents for 2-3-5 years or more.
Its patents are inaccurate and contribute to subsequent long-term and very costly patent disputes.
In the era of the decisive influence of new technologies, such activities of the US PTO costs the US economy hundreds of billions, perhaps a trillion dollars, every year.
Bureaucratic chaos in the US The PTO causes cases of arbitrary publication of military, secret inventions and facilitates leaks of classified information.
The official goal of the US patent system is to maximize the efficiency of the national economy by providing incentives for the protection of inventors under optimal conditions for the public use of inventions.
In reality, the patent system is designed and operates primarily to maximize the income of the patent lawyer class, which is rapidly increasing as a result of the senseless and counterproductive complication of this system.
The corporate and technology communities have become accustomed to the fundamental flaws of the patent system and regard them as the natural norm.
In fact, an optimal patent system can be fast, cheap and efficient.
In the current era of fierce competition between new technologies in the US and China, the ineffective and harmful patent system is causing great harm to the US economy.
Previously, the author has already described the properties of an optimal patent system in articles
«Changing the Patent Law» — blogspot.com/2023/09
«National Patent Consortium» — blogspot.com/2023/09-
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Principles of operation of the optimal patent system
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Conformity with the principles of epistemology.
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The criterion for patentability of inventions is the creation of objects and/or processes with qualitatively new properties.
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Claims must describe only the necessary properties of objects and/or processes by means of which the qualitatively new properties are created.
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The manifest principle of protection.
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Public patent depositories, arbitrations, and auditors.
All meaningful information documents and processes must comply with the principles of epistemology –
linkedin.com/pulse/tec-eugene-gershman
Texts must consist of separate statements.
Each statement must describe one elementary property of an object/process.
Statements consist of 1-3 short phrases.
In patent disputes, the objects of judicial discussion are specific errors in the claims of invention descriptions and in the arguments of the inventors and opponents.
Patent courts / arbitrations make decisions based on the materials of these discussions.
The necessary condition for the “Inventive Step” is the creation of objects and/or processes with qualitatively new properties as a result of the application of a claimed invention.
Claims must describe only the invented necessary properties of objects and/or processes by means of which the qualitatively new properties are created.
The requirement to create the qualitatively new properties and the formalization of claims strengthen the right to public protection of inventions, increase their effectiveness, and significantly reduce the number of ineffective patents.
Establishing the qualitative novelty of properties significantly facilitates and reduces the subjectivity of the assessment of the “Inventive Step”.
Investors will purchase only inventions featuring qualitatively new properties of objects and processes.
The principles of epistemology, the principle of creating the qualitatively new properties, and the formalization of claims will significantly reduce the number of patent disputes and simplify, accelerate, and reduce the cost of resolving them.
These principles will significantly simplify patent searches, including through the use of AI.
The vast majority of patents will include material from private patent audits of the inventions — presented in the form of expert discussions — to attract investors.
Patents may be deposited in public and corporate depositories.
All patent depositories and their copies must be registered with the national public agency and with international patent organizations.
Perhaps public patent depositories could use Blockchain technology.
Public and corporate associations may establish patent arbitration tribunals.
In the USA and some other countries, patents are issued on the “grant” basis.
This principle is a feudal vestige of the function of monarchs to grant certain people “exclusive privileges”, in particular, the exclusive use of inventions.
This principle is slow, expensive and ineffective.
In republican societies, the “manifest” principle of establishing patent protection is much more effective.
Any individual or legal entity deposits their invention in an officially registered depository and pays a state fee for patent protection.
The fee minimizes the deposit of low-quality inventions.
One of the fundamental principles of invention is “The best element of a system is the missing element”.
Therefore, the best US PTO is US PTO abolished.
The transformation of this state “monster” – a fundamentally flawed, bureaucratic system – into an effective social system will happen easily, quickly and cheaply.
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Principles of the Reform Process
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The national technological and business communities — rather than juridical and political organizations, which are capable only of exacerbating the existing system's flaws — must reform the patent system.
Technological and business associations must conduct correct expert discussions on various reform projects and publish the proceedings.
The technological and business communities will reject flawed projects and select the optimal one.
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The reform process must be evolutionary.
During the transition period, the USPTO and the new system will operate in parallel, with the USPTO’s activity gradually decreasing as the new system’s activity increases.
Existing patents — retaining their original terms — may be reformatted in accordance with the new system's epistemic principles and deposited in new depositories.
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Technological and business associations must establish Internet patent depositories and arbitrations.
These associations may found «The National Patent Consortium» to register patent depositories and arbitrations.
Through «The National Patent Consortium», the national technological and business communities will submit a bill to the US Congress regarding the protection of patents deposited in registered depositories.
Adherence to epistemological principles will vastly simplify, facilitate, and accelerate the process of reaching consensuses when making collective decisions.
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Expert discussing the project
Controversial theses of the article Critical statements of opponents | Author's Comments
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"All meaningful information documents and processes must comply with the principles of epistemology." As such, it is a vague statement: “epistemological principles” are not a single system of mandatory rules that all documents and processes must comply with. Different epistemological schools differ, for example, regarding the nature of knowledge, the criteria of justification, and the role of observation, induction, deduction, etc. Consequently, it is not possible to deduce specific requirements for patent documents and procedures from this thesis.
| The principles of epistemology necessary in the patent system are described, for example, in my article «Technology of the efficiency of science, innovation, management» – linkedin.com/pulse/tec-eugene-gershman : 1 Texts must consist of separate statements.Each statement must describe one elementary property of an object/process.Statements consist of 1-3 short phrases. 2 The objects of judicial discussions are specific errors in the statements of invention descriptions and in the arguments of the inventors and opponents. 3 Patent courts make decisions based on the materials of these discussions. |
"Texts should consist of individual statements. Each statement should describe one elementary property of an object/process." This does not follow from epistemology. One statement may well describe: For example, a statement of the form: Therefore, the requirement “one statement = one elementary property” cannot be considered a universal principle of correct knowledge . | " A relationship between several properties; a causal connection; a condition; a mathematical dependence; an action of a process; "combination of components" are the properties of objects. "Relationship between variables" is a property of an object. "The requirement 'one statement = one elementary property'" is not a "Universal principle of correct knowledge", but it is an optimal format for effective logical thinking and productive discussions.
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"In patent disputes, the objects of judicial discussion are specific errors in the claims of invention descriptions and in the arguments in dispute..." This does not correspond to the subject of patent disputes. A patent dispute may concern, for example: Moreover, a dispute can exist without either party making a “mistake in assertion.” It is particularly important that a correct statement of a technical fact does not in itself determine the existence or absence of a patent right. It is still necessary to apply legal norms to the established facts.
| The subjects of patent disputes and the subjects of judicial discussions of these disputes are related in meaning, but not identical. "Patent claims; novelty; obviousness/non-obviousness; patent infringement; sufficiency of disclosure; written description; certainty; patentability; priority; ownership; bad faith; scope of patent rights; damages" and other circumstances may be the subject of disputes. But logical and rational decisions of the courts can only be based on proven errors in the statements of the parties to the dispute. All other discussions are just useless rhetoric. In the absence of false statements, disputes have no rational meaning. Erroneous "statements of technical fact" eliminate patent rights. The "applicable legal rules" that constitute the elements of the flawed patent system must be abolished along with the entire system and replaced by a qualitatively new patent system . |
"Patent courts make decisions based on the materials of these discussions". This is factually incorrect as a general description of the trial process. The court makes a decision based on the evidence, procedural material, applicable law and judicial precedents, and not simply on the basis of “discussion materials”. Furthermore, in U.S. patent litigation, significant importance attaches to the rules of evidence, the burden of proof, claim construction, and the determination of facts by the court or a jury — depending on the specific issue. | "Evidence and procedural material" contains materials from discussions of alleged errors in the statements of the parties to the dispute. The "burden of proof" lies with the disputant who reports alleged errors in the opposing party's statements — incorrect terms, logical contradictions, and inconsistencies with the facts.
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“A necessary condition for an “Inventive Step” is the creation of objects and/or processes with qualitatively new properties.” This is the main substantive error in this legal concept. In the US patent law, "non-obviousness" (35 U.S.C. §103) does not require the creation of "qualitatively new properties". An invention may be non-obvious even if its components or properties are already known. For example, the non-obviousness of a combination of known elements may be significant. In addition, in patent law there are inventions based on a new application of known technologies, new configurations, improvements and other results that do not necessarily have a “qualitatively new property”. Therefore, the proposed criterion is not equivalent to the American criterion of non-obviousness. | The overwhelming majority of experts believe that establishing the "non-obviousness" of an invention is a fundamentally flawed method of determining its patentability. This method does not have any rational basis and, therefore, is absolutely subjective. The semantic weakness of this method results in the issuance of patents for a large number of quasi-inventions with little novelty, a large number of patent disputes, and excessive effort in studying "cluttered" patent files. Inventions that do not "possess a qualitatively new property" should not be granted patent protection. Indeed, “the proposed criterion is not equivalent to the American criterion of non-obviousness,” which is fundamentally flawed due to its purely subjective and counterproductive nature.
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"New property" can mean at least two different concepts: 1. a property that did not exist before; 2. a property that was known in another object, but was first discovered or obtained in this object. The Patent law does not use "qualitatively new properties" as a universal legal criterion for "inventive step" – inventive step. Consequently, without a specific definition, this term cannot clearly perform the function of a patentability criterion. | “Qualitatively new property” is a fundamental category of epistemology. The qualitative novelty of the properties of the object of the invention is established relative to its known analogues.
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“The criterion for patentability of inventions is the creation of objects and/or processes with qualitatively new properties.” This is also too narrow a criterion in relation to the current patentability system. Patentability in the United States is not limited to a single criterion. Specifically, there are specific requirements for: Therefore, “the creation of qualitatively new properties” cannot replace the entire set of patentability requirements. | Indeed, the qualitative novelty of the properties of the objects of inventions is not a sufficient, but is a necessary condition for patentability.
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"The requirement to create qualitatively new properties... significantly reduces the number of ineffective patents." From the very introduction of such a requirement for the creation of qualitatively new properties, it does not logically follow that the number of “low-efficiency” patents will decrease. It may simply exclude from patentability a certain class of inventions, including potentially useful inventions that do not create a qualitatively new property. That is, the causal relationship: | The history of technology and patent practice show that effective inventions create objects with qualitatively new properties. Objects without such properties do not significantly increase the efficiency of their use relative to known analogues and do not recoup the costs of them. The only result of patenting such "poor quality" inventions is the "cluttering" of patent databases.
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“The establishment of qualitative novelty of properties significantly facilitates and reduces the subjectivity of the assessment of the ‘Inventive Step’.” This does not follow from the definition of the criterion itself. On the contrary, determining whether a property is “qualitatively new” may itself require a complex comparison with prior art and scientific and technical analysis. Furthermore, the current standard of "obviousness" is already a legal test applied to prior art and the level of a qualified specialist in the relevant field. Therefore, it cannot be logically concluded that the new criterion will necessarily reduce subjectivity. | "The current standard of 'obviousness' is already a legal test" which is purely subjective and ambiguous. Precisely formulated descriptions of qualitatively new properties of objects do not eliminate, but significantly reduce subjectivity and increase the objectivity and persuasiveness of decisions on the patentability of inventions.
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“The principles of epistemology and the principle of creating qualitatively new properties will greatly reduce the number of patent disputes.” This does not follow from the previous provisions. For such a statement to be true, a causal mechanism must be established: epistemological rules — change in examination — change in quality of patents — reduction in uncertainty — reduction in disputes. There is no such mechanism in the presented text. | The principles of epistemology and the principle of creating qualitatively new properties greatly facilitate the identification of errors in the stated patent claims. Patent errors are the basis of disputes. The fewer mistakes, the fewer disputes.
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"...they will simplify, speed up, and reduce the cost of resolving patent disputes." The same thing: the introduction of the aforementioned principles does not logically lead to the simultaneous simplification, acceleration and reduction of the cost of judicial resolution. Especially because litigation costs depend not only on the complexity of the technical allegations, but also on experts, disclosure, interpretation of claims, infringement analysis, damages, and other procedural issues . | Compliance with the principles of epistemology and the description of qualitatively new properties greatly increases the effectiveness of all intellectual actions, including legal proceedings. High efficiency of litigation significantly reduces the time, costs and likelihood of errors in patent dispute resolution.
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"These principles will greatly simplify patent searches." This is also not a logical consequence of the previous theses. Patent searches are driven primarily by the need to discover relevant prior art. If patentability requires the additional establishment of “qualitatively new properties,” the search will have to establish not only the existence of known technical solutions, but also the presence/absence of the corresponding properties. Therefore, the proposed criterion does not mean that the search will become easier. | The principles of epistemology and qualitative novelty of properties will significantly reduce the number of low-value patents. These principles will formalize and shorten invention descriptions. These conditions will significantly simplify and facilitate patent searches. “Qualitatively new properties” will be recorded in patents. Therefore, when conducting patent searches, it will not be necessary to "additionally establish these properties," but simply to read their ready-made and, as a rule, laconic descriptions in patents . |
"...including through AI" The use of AI in itself does not follow from the epistemological principle and the criterion of qualitative novelty. AI can indeed be used for patent searches and document analysis, but this is a separate technological claim and not a consequence of the proposed legal criterion . | Formalization and minimization of invention descriptions and reduction of the number of patents will greatly increase the efficiency of AI analysis of them.
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"Public Patent Arbitrations" If this is formulated as a principle of the proposed reform, there is no factual error: it is your normative proposal. But if it is meant that patent disputes in the US are now resolved by public patent arbitration, this would be a factual error. The current system includes federal courts, the USPTO / PTAB , and a variety of other statutory procedures; there is no universal system of "public patent arbitration" in the sense described. | In the new public patent system, the main institution for resolving patent disputes will be “public patent arbitration”.
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"The manifest principle of protection" There is also no factual error here if this is the title of the principle you are proposing. But the term itself does not indicate which specific legal structure is meant. If it is understood that the right arises solely as a result of registration/filing of an application without subsequent examination of the content, this will already be a specific statement about the protection mechanism, which must be considered separately . | The manifest principle of protection is used in the patent systems of many countries and has a well-known mechanism for establishing patent protection as a result of depositing an invention in a registered depository.
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"Patents may be deposited in public and corporate depositories." Under the current US system, depositing a document with a private or corporate depository does not create a patent right. A patent is a legally granted exclusive right, not just a document deposited in a file. If we are talking about your proposed system, it is not a mistake as a normative proposal; the mistake would be to treat such a deposit as an already existing patent protection mechanism . | Depositing inventions in public and corporate depositories is a component of the future public patent system.
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"All patent depositories and their copies must be registered... with international patent organizations." There is no universal international organization that registers all patent depositories and all their copies. WIPO administers international intellectual property treaties and systems, but is not a global registry of all national or private depositories . Furthermore, requiring each copy of a document to be registered with multiple international organizations would create duplication rather than necessarily increase legal certainty. | An international organization for the registration of patent depositories in different countries can be created and operate similarly to the Internet Corporation for Assigned Names and Numbers – ICANN. As public patent systems expand to new countries, WIPO may well be able to register national, corporate and private depositories.
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"Perhaps public patent depositories could use blockchain technology." This in itself is not a semantic error. However, Blockchain primarily provides the properties of record-keeping, time-stamping, and data integrity. It does not establish: Therefore, Blockchain cannot, by itself, perform the function of patent examination or the establishment of patent law. | Blockchain technology can be the basis for public patent depositories.
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"Public and corporate associations may establish patent arbitration tribunals." As a proposed institutional model, this is not a mistake. It would be a mistake to assume that any such arbitration automatically acquires state jurisdiction over patent rights. Patent rights in the United States are based on federal law, and arbitration rights are determined by law and the agreement of the parties. A private association cannot, by itself, grant itself the authority of a federal court or the US PTO. | Public and corporate patent arbitration will be the main institution for resolving patent disputes. In rare cases where parties to a dispute disagree with arbitration decisions, they will appeal to state courts. State courts will use arbitration awards as authoritative expert opinions and, in most cases, will repeat their decisions.
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"In the USA and some other countries, patents are issued on the basis of the 'grant' principle." This is a significant semantic error. The term "grant principle" is not a generally accepted legal designation for the current American patent system. Furthermore, the US patent is indeed government grant , but this does not mean that the state arbitrarily “grant[s]” a privilege at its own discretion. The issuance of a patent is regulated by federal law and is carried out subject to the fulfillment of the requirements established by law . | Government agency US PTO issues patents . This function implements the “grant” principle. The US PTO bureaucracy operates largely arbitrarily and “grants” privileges at discretion of their officials.
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"This principle is a feudal vestige of the function of monarchs to grant certain people 'exceptional privileges'." This is a historically and legally incorrect identification. Modern patent law does have historical ties to the privileges granted by monarchs and states. But the modern American patent The grant is not a feudal privilege in the legal sense. The U.S. Constitution specifically grants Congress the authority to grant inventors a limited exclusive right to promote the progress of science and the useful arts. | A rudiment is not an identity. The US government is "gracious" but has a hard time giving innovators what they could have freely and quickly and use to much greater public benefit for the national economy without Government involvement.
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"...to monopolize the use of inventions." There is a terminologically important semantic error here. A patent does not give the right to “exclusively use the invention” in the sense of a guaranteed right of the patent holder to use it. A patent primarily provides the right to exclude others from certain acts covered by the patent claims. The patent holder may not have the right to use the technology, for example, if it requires a license from another patent holder or there are other legal restrictions. | While this rhetoric is not relevant to the topic of the public patent system under discussion, it should be pointed out that a patent prohibits anyone other than its owner from using the invention.
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"This principle is slow, expensive, and ineffective." From the fact that the state provides a patent grant after the examination, it does not logically follow that the issuance principle itself is the reason for the slowness and high cost. The duration and cost depend on the specific architecture of the examination, the application requirements, the number of US actions PTO , appeals, expert workload and other factors. Therefore, the causal relationship between " grant principle " and "slow, expensive" are not established in this thesis. | The fundamental law of sociology is "All bureaucracies are slow, expensive, and inefficient". Only independent and free producers and innovators can act effectively. |
“In republican societies, the ‘manifest’ principle of establishing patent protection is many times more effective.” There are two semantic problems here. Firstly, a republican form of government does not inherently imply the manifest principle of patent protection. A republic can have both grant and other systems. Second, “many times more effective” is a comparative statement that requires defining a measurable criterion of effectiveness. The absence of a preliminary examination in itself does not prove a multiple increase in the efficiency of the entire system. | Unlike feudal monarchies, a Republican society provides the legal opportunity for a free “manifest” principle of establishing patent protection in a public patent system. No more years of red tape and litigation with the US PTO dramatically accelerates the use of inventions.
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"Any natural or legal person deposits his invention... and pays a state fee for the patent protection function." There is a fundamental problem here: depositing an invention does not automatically establish that a person is the inventor or the copyright holder, or that the subject matter meets the requirements of patentability at all. Moreover, “paying a fee for the patent protection function” and “obtaining a patent right” are legally different things. | The deposit establishes the person who receives protection for the invention and the date of its priority. The patent owner pays a fee and receives state services to protect the invention.
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"The fee minimizes the deposit of low-quality inventions." This causal statement does not follow from the very fact of the existence of the duty. The fee may reduce the number of applications, but not necessarily low-quality ones. High fees can also discourage the registration of high-quality inventions, especially those belonging to entities with limited financial resources. Therefore, it is impossible to logically identify: | The filtering function of duties acts on pathological graphomaniacs and inventors of the "perpetuum-mobile". Low-income authors of high-quality and effective inventions will find venture “angels” and pay a fee.
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| The most significant hidden error of the entire structure is the confusion of three different concepts: deposit of a document — establishment of priority — grant of a patent right. These are not the same thing.A deposit can prove that a certain document existed at a certain point in time.But this does not in itself follow: Who has the right to a patent. Is the object new. Is it non-obvious. Does it meet the disclosure requirements. What specific actions are prohibited for third parties.Therefore, the transition from “deposit” directly to “patent protection” is the key semantic problem of the proposed design. | The public patent system will be created through a collective agreement of national corporate and technology communities, which may establish a "National Patent Consortium." This agreement will establish that the patent depositor is responsible for the veracity of the grounds of its patent claims, and that these grounds will be considered veracity until they are found to be false by a patent arbitrator. The participants of this agreement (Consortium) will voluntarily comply with it. Conflicts will be resolved primarily by arbitration. The National Patent Consortium will demand legislative establishment of judicial protection for patents in the rare cases where arbitration decisions are ignored. |
“Evidence and procedural material are materials from discussions of the alleged errors in the statements of the parties to the dispute.” These are not identical concepts. Evidence may relate not to errors in the statements of a party, but to facts that have legal significance: the existence of a prior art , the content of the patent formula, the fact of using the technology, dates, product structure, sales volume, etc. For example, in a dispute over infringement , proof that the defendant used a particular construction is not necessarily proof of the defendant's "fallacy of assertion". | In legal proceedings, descriptions of “facts of legal significance” are contained only in the statements of the parties to the dispute. "Evidence that the defendant used a particular design" is contained in the plaintiff's allegations, not the defendant's. In such a case, the defendant's task is to point out the errors in these statements of the plaintiff.
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"The burden of proof is on the disputant who discloses the alleged errors in the opposing party's assertions." This is legally inaccurate. The burden of proof is determined by the specific legal claim or issue, not by the person reporting the error in the assertion. For example, in a typical patent dispute, the patent owner bears the burden of proving infringement under the preponderance standard of the evidence -- preponderance of evidence. While the party challenging the validity of an issued patent typically bears the burden of proving invalidity — invalidity under the clear standard and convincing evidence. Furthermore, there is a distinction between burden of persuasion and burden of production (the burden of persuasion and the burden of proof): the latter may shift from one party to the other during the course of the trial. The Circuit makes this distinction explicitly. (California Court of Appeal) Therefore, the assertion that the burden of proof is determined by which party accuses the other of making an erroneous statement is inconsistent with the structure of American evidentiary law. | Plaintiffs always bear the “burden of proof” that constitutes the main content of the claims. Defendants may point out errors in the allegations in the claims or agree with these allegations. In turn, plaintiffs may point out errors in the defendants' controversial assertions or agree with these assertions.
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"Erroneous 'statements of technical fact' eliminate patent rights." This is not true as a general statement. An erroneous technical statement may have different legal meanings depending on what the statement is, where it is made, whether it relates to the mandatory element of patentability or claim , and what legal consequences are provided by law. The mere fact of a technical error does not automatically eliminate patent rights. | Any erroneous statements in the patent claim materials eliminate the right to patent protection. In particular, erroneous statements of technical facts are sufficient grounds for the elimination of the right to patents.
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Author's Statement: "Logical and rational decisions of the courts can only be based on proven errors in the statements of the parties to the dispute. All other discussions are merely useless rhetoric." is not a consequence of the given definition of "assertion fallacy". In litigation there are questions of law which are neither assertions of technical fact nor errors in such assertions. For example, the interpretation of a legal standard and the application of a legal rule to established facts. In the American patent system, even in PTAB proceedings, the rules explicitly require specification of how a claim should be construed and how the claim, as construed, violates a particular statutory basis. | All interpretations and explanations consist of statements. Statements found by the court to be erroneous are sufficient grounds for the court to decide to defeat the applicant of such statements.
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"The overwhelming majority of experts believe..." This is a factual statement about the opinion of the professional community. It does not follow from the argument presented. Without defining who exactly is considered an expert and without data on their positions, it is impossible to assert the existence of an overwhelming majority | All authors of publications on the criterion of "non-obviousness" of inventions, which the Author has read, declare the fundamental flawedness of this method of determining patentability.
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"This method has no rational basis." This is not literally true. Non-obviousness has a certain rational legal construction: it compares claimed invention with prior art and it is assessed whether the achievement of the stated result was obvious to a specialist in the relevant field. In American law, this criterion is enshrined in 35 U.S.C. §103 and developed by judicial practice. One can argue with its objectivity or effectiveness, but the assertion that the method has no rational basis at all is too broad. | There is no formalized model of a “qualified specialist”. Therefore, objective and rational proof of “obviousness/non-obviousness” is, in principle, impossible. Judicial practice confirms the ineffectiveness of this patentability criterion.
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"...therefore, there is something absolutely subjective" "Totally subjective" is too strong a statement. The application of non-obviousness does indeed have an evaluative component, but the evaluation is limited by legal standards, prior art , the level of qualified specialist and the established factual circumstances. It is therefore not absolutely subjective in the sense of an arbitrary individual opinion. | Criteria for “qualified specialist level” do not exist.
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"The semantic weakness of this method causes the issuance of patents..." Here a causal relationship is established that does not follow from the previous statements. Even if the non-obviousness criterion is subjective or imperfect, it does not follow that its weakness is the reason for the issuance of a large number of patents with little novelty. Furthermore, "minor novelty" and "obviousness" are different legal categories. A patent can contain a new result and simultaneously be obvious to a skilled person. | The semantic weakness of this method is not the only, but the main reason for the issuance of a large number of patents with little novelty. The statement “A patent may be obvious to a person skilled in the art” cannot be objectively and rationally substantiated.
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"...a large number of quasi-inventions with little novelty." Here, there is a conflation of novelty and non-obviousness. In American patent law, novelty and obviousness are distinct requirements. An invention can be new but obvious; conversely, the question of obviousness is not determined simply by the degree of "novelty". | The “obviousness” method is a fundamental and unimprovable flaw in the current legislation. Therefore, this vicious method must be eliminated from patent law.
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“Inventions that do not possess a ‘qualitatively new property’ should not have patent protection” This is not a consequence of the above provisions. This is a normative proposal, not an established fact. Furthermore, it would exclude from patent protection certain possible combinations of known elements, new applications of known technologies, and improvements, even if the resulting result satisfies the current non-obviousness criterion. | “Combinations of known elements, new applications of known technologies and improvements” may well create qualitatively new properties of the objects of inventions and meet this criterion of patentability.
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“A qualitatively new property” is a fundamental category of epistemology.” In this general form, this is an unproven statement. A "qualitatively new property" is not a generally accepted fundamental category of epistemology as a whole. This concept may be used in certain philosophical or methodological concepts, but this does not guarantee its universal status in epistemology. | ChatGPT reports: "The category of "qualitatively new property" is used in dialectics, ontology and philosophy of science". "Epistemology" is a synonym for the philosophy of science.
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“The qualitative novelty of the properties of the subject of the invention is established relative to its known analogues.” There is a potential semantic ambiguity here: “qualitative novelty” is not defined. If we are talking about properties that were not present in known analogues, this is one statement. If we are talking about a qualitatively different manifestation of an already known property, that is different. Without a criterion for distinguishing these cases, the statement does not establish an unambiguous procedure for determining qualitative novelty.
| “A qualitatively different manifestation of an already known property” is a qualitatively new property. The establishment of the presence of a “qualitatively new property” of an object is a subjective expert assessment. However, a “qualitatively new property” is usually described in one short phrase, the meaning of which is assessed by experts and courts. While “non-obviousness” is assessed based on the entire lengthy description of the invention. That's why: the probability of coincidence of the property assessments of a number of experts is significantly greater than the probability of coincidence of non-obviousness assessments; The persuasiveness of property assessments for courts is many times stronger than the persuasiveness of assessments of the non-obviousness of invention descriptions. |
"Qualitative novelty... is a necessary condition of patentability." This is not true as a statement about current US patent law. Neither §101, nor §102, nor §103 establish a universal requirement formulated as the presence of a “qualitatively new property”. Therefore, this may be your proposed new criterion for a reformed system, but it is not a necessary condition for patentability in the current US system. | The qualitative novelty of the properties of the objects of inventions is the criterion of patentability in the proposed public patent system.
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“The history of technology and patent practice show that effective inventions create objects with qualitatively new properties.” This is too broad a generalization. It depends on what is considered a “qualitatively new property” and an “effective invention”. Without defining these concepts, it is impossible to establish whether all or the vast majority of effective inventions actually meet this condition. | As a rule, the effectiveness of an invention is its profitability. As a rule, highly profitable inventions create objects and processes with qualitatively new properties.
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“Objects without such properties do not significantly increase the efficiency of their use relative to known analogs...” This does not follow from the definition of “qualitatively new property”. A new invention can yield a significant economic or technical effect through a novel combination of already known properties, or by altering parameters, design, the method of application, etc., even if no property emerges that you would define as "qualitatively new". | This follows from the results of commercial practice of using inventions. “New combinations of already known properties, changes in parameters, designs, and methods of application” can very well create qualitatively new properties of objects. If such properties are not created, such inventions generally do not generate profit.
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"...and don't cover the costs." This is a separate economic statement that does not follow from the absence of a qualitatively new property. Economic payback depends on price, production costs, scale of application, demand, alternative technologies, and many other factors. Technical novelty and economic payback are different characteristics. | Qualitatively new inventions bring profits. Other inventions tend to be loss-making.
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"The only result of patenting such 'poor quality' inventions is the 'cluttering' of patent databases." This is the most powerful unfounded generalization. Even if we assume that an invention does not have a “qualitatively new property,” its patenting may have other consequences: for example, the creation of an exclusive right, the disclosure of technical information, the possibility of licensing, or the formation of information about the boundaries of existing rights. Therefore, the statement “the only result” does not follow from the previous theses. | Indeed. Such quasi-inventions are often used for "patent wars" and other abuses of patent law.
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"The current standard of 'obviousness'... is purely subjective and ambiguous." "Ambiguous" is not necessarily a mistake if you mean having evaluative content. But “purely subjective” is too strong a factual statement. In American law, obviousness is determined not by the arbitrary personal opinion of an expert, but by an established legal test, including prior art, the level of an ordinary specialist and a number of objective factual circumstances. There is a subjective / evaluative component, but this does not mean “pure subjectivity” . | The “ambiguous”, arbitrary method of establishing obviousness and patentability causes a high probability of erroneous patenting and multiplies the number of patent disputes many times over. “The level of an ordinary specialist” is a “purely subjective” parameter.
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“Precisely formulated descriptions of qualitatively new properties of objects… greatly reduce subjectivity and increase the objectivity and persuasiveness of decisions on the patentability of inventions.” This does not follow from the very fact of the accuracy of the description. A more precise description may indeed reduce uncertainty about a technical fact, but not necessarily the subjectivity of the legal assessment of patentability. Questions remain regarding prior art, obviousness, claim construction, and the application of the legal standard. | Experts and courts evaluate “precisely formulated descriptions of qualitatively new properties of objects” much more simply and easily than long, non-formalized descriptions of inventions. This significantly increases the likelihood of identical patentability assessments by different experts. In the future public patent system, “legal assessment of patentability” will depend on the creation of qualitatively new properties of the objects of inventions.
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"Patent errors are the basis of disputes. The fewer errors, the fewer disputes." The first part is overgeneralized. A patent dispute can arise even without a patent error: for example, the parties may disagree in good faith on the interpretation of the claims or on whether a specific product is covered by the claim. Therefore, the logical chain "errors — disputes" is not a complete model for the emergence of patent disputes. The second part — "the fewer errors, the fewer disputes" — may be true as a hypothesis, all other things being equal, but does not follow as a necessary law from the first part. | If “the parties differ in their interpretations or assessments,” then the statements of one or both parties contain errors. Patent errors are one of the causes of disputes. The subjects and causes of disputes may be unlicensed uses of technical solutions that correspond to varying degrees to patents that do not contain errors. “Laws” are not followed, but postulated.
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"The principles of epistemology... greatly increase the effectiveness... of legal proceedings." Here a causal effect is asserted that is not established by the previous theses. Moreover, the efficiency of legal proceedings includes not only the quality of logical analysis, but also the speed of consideration of evidence, procedural rules, the distribution of functions between the court and the parties, etc. | “The speed of consideration of evidence, procedural rules, the distribution of functions between the court and the parties, etc.” are, first and foremost and to a decisive extent, determined by the observance of the principles of epistemology in legal proceedings.
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"High efficiency of litigation significantly reduces... the likelihood of errors in patent dispute resolution." This is not true as a general statement. Faster or cheaper production is not necessarily more accurate. There may be a trade-off between speed, cost and accuracy . Therefore, increasing efficiency in one dimension does not automatically mean reducing judicial errors. | “Efficiency of judicial proceedings” is an integral, complex parameter that combines duration, cost and erroneousness of decisions.
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"The principles of epistemology and qualitative novelty of properties will greatly reduce the number of low-value patents." This does not follow from the very introduction of these principles. It is necessary to separately prove that it is the proposed procedure that will exclude primarily low-value patents, and not simply reduce the total number of applications/ patents. | The principles of epistemology and qualitative novelty of properties will help to identify possible errors in inventions by their authors and, as a result, improve the quality of inventions and patent applications.
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"These principles will formalize and shorten the descriptions of inventions." This does not follow automatically from the requirement to describe qualitatively new properties. Formalization may reduce the volume of some descriptions, but at the same time technical disclosure may require a significant amount of information. | Descriptions of qualitatively new properties of objects of inventions, descriptions of inventions and claims of inventions are different parts of patents.
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"These conditions will significantly simplify and facilitate patent searches." This does not yet follow from the previous provisions. Even if each patent briefly specifies new properties, the search prior art must still establish whether the relevant property or technical solution existed before the priority date. Therefore, the presence of a brief description of the feature in a new patent does not eliminate the need to search the prior art. | Formalized descriptions of inventions and descriptions of qualitatively new properties of their objects, indeed, “do not eliminate the need to search in the prior art”, but … will significantly simplify and facilitate patent searches both when drafting patents, and when using inventions, and in patent disputes. |
"Qualitatively new properties" will be recorded in patents. Therefore... it will be necessary... to simply read their finished... descriptions." Here, a logical transition occurs from the presence of a description of a property in the patent under consideration to the ability to determine its novelty without additional research. To establish that a property is truly new, it is not enough to read the applicant's own description. It is necessary to compare it with known technical solutions and establish whether such a property was absent previously. | Indeed, “it is necessary to compare with known technical solutions and establish whether such a property was absent previously”. However, comparisons and establishment of concise and formalized descriptions of qualitatively new properties of objects are made significantly simpler, easier, and with a lower probability of errors than subjective and informal assessments of the “non-obviousness” of inventions.
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"Formalization and minimization of descriptions... and a reduction in the number of patents will greatly increase the efficiency of AI analysis." This is a plausible technological hypothesis, but not a logical consequence. Text shortening can reduce the amount of data to process, but it can also remove the context that AI needs to analyze it properly. Therefore, a reduction in the volume of documents does not automatically lead to a multiple increase in the accuracy or overall efficiency of AI. | “The context required by the AI for proper analysis,” is included in the patent by the inventor. Therefore, the volume of this context will be optimal according to the author’s decision.
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"In the new public patent system, the main institution for resolving patent disputes will be 'public patent arbitration'." If this is a proposal for the future design of your system, there is no factual error here. But the word "arbitration" has a specific legal meaning. Arbitration is usually based on the agreement of the parties and differs from state court. Therefore, the statement requires a distinction between a public authority and an arbitration body. The word "public" in itself does not turn arbitration into a state court. | The vast majority of patent disputes will be resolved by arbitration tribunals established by public associations or by experts by agreement of the parties. In rare cases where the parties disagree with arbitration decisions, they may file claims in state patent courts. State courts will use the materials of arbitrations and, in most cases, will repeat the decisions of arbitrations.
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"The manifest principle of protection is used in the patent systems of many countries..." This is too broad a factual statement as it stands. There are different systems of registration, deposit, notification and substantive examination, and the term “manifest principle” does not have a single universal content in all national patent systems. | The "manifest principle" establishes that the publication of patents in registered depositories triggers their legal protection, i.e. prohibits their unlicensed use until a court declares them invalid.
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"...has a well-known mechanism for establishing patent protection as a result of depositing an invention in a registered depository." This is the most significant semantic error. Depositing a document and establishing patent protection are not the same thing. Even in a system where a registration or declaratory approach is in effect, it is necessary to establish what legal consequence registration has. The mere placement of a description of an invention in a depository does not automatically transform a technical solution into a patent right. Furthermore, if the depository is simply a registered depository, the registration of the depository does not automatically mean that the state has recognized the contents of the deposit as patentable or has granted the right to exclude third parties. | In the proposed public patent system, depositing a patent would establish its legal protection. Government agencies will maintain this protection until the patent is invalidated in court.
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"Deposit of an invention" and "deposit of a patent document" are different actions. In the first case, we are talking about a technical object/description, in the second – about a legal document. The legal consequences of these actions cannot be considered the same without a special definition. | Depositing a patent in an official depository gives it the legal status of a protected patent.
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"Deposit of inventions... is a component of the future public patent system." There is no semantic error here if you are really talking about the future system you are proposing. This is a normative provision, not a statement of current law. | Yes, this is the principle of the concept of the proposed patent system.
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"An international organization... may be created and operate similarly to ICANN ". There is no logical error in this statement: an international organization of this type could, in principle, be created. However, one substantive difference is: ICANN manages the global system of unique Internet identifiers, while the International Patent Organization would be expected to deal with legally significant rights arising under national laws. Therefore, the analogy with ICANN shows the possibility of creating an international coordinating organization, but does not in itself show that such an organization will be able to register or legally recognize patent depositories. | International organizations are created on the basis of agreed national laws. World Intellectual Property Organization – WIPO is quite capable of coordinating national public systems on the proposed principles. Gradually, as national patent systems are reformed, they will join the international organization.
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"Blockchain could be the basis for public patent depositories." There is no semantic error. Blockchain can indeed technically be used as the basis for a system for registering deposit records. But this does not mean that the Blockchain itself determines the legal validity of a patent. That was the point of my original statement, not your current thesis. | Blockchain is mentioned as one of the possible technologies in the future patent system that is recognized by the legal system.
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"Public and corporate patent arbitration will be the main institution for resolving patent disputes." If this is a description of the future proposed system, there is no error. The error arises only if it is asserted that such bodies would automatically acquire state jurisdiction while current U.S. law remains in place. | “Current American patent law” will be completely abolished as a result of the gradual, evolutionary development of the public patent system.
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"In rare cases... they will appeal to state courts." There is a semantic problem with the term "appeal". If the arbitration is a private arbitration, the state court is usually not simply the next appellate instance above it. The possibility of judicial review of an arbitral award is determined by special rules on arbitration and the grounds for vacatur / confirmation. In proposed future system, you can, of course, establish a different mechanism, but then the state court will carry out precisely the judicial review provided for in your system. | Any person may file a lawsuit in state court. This court will use the materials of the previous arbitration. In most cases, state courts will agree with arbitration decisions.
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"State courts will use arbitral awards as authoritative expert opinions and, in most cases, will repeat their decisions." There is a significant logical problem here. An arbitration award and an expert opinion are different types of legal documents. An expert opinion represents the opinion of a specialist. The arbitration award resolves the dispute and establishes the outcome of the arbitration proceedings. Moreover, if a state court is obliged to repeat an arbitral award in most cases, then the arbitral tribunal effectively gains a significant portion of judicial power. This is no longer simply the use of "expert opinion". | The State Court is by no means “obliged to repeat the arbitral award”. However, arbitration tribunals operating on the basis of epistemological principles and the establishment of qualitatively new properties of the objects of inventions will make well-founded, evidence-based and highly convincing decisions. Therefore, state courts will generally agree with arbitration decisions.
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"The USPTO bureaucracy operates in a largely arbitrary manner and 'grant[s]' privileges at the discretion of its officials." There is a semantic problem here in the word "arbitrary". The USPTO does make individual decisions on applications, and the examination contains value judgments. But examiners' decisions are limited by federal patent law, USPTO rules , MPEP , administrative procedures, and the possibility of administrative and judicial review. Therefore, the presence of significant discretion does not imply arbitrariness. If by "arbitrarily" you mean not the absence of legal restrictions, but the excessive subjectivity of individual assessments, that is a different assertion. | The US PTO System is too bulky. Monitoring its internal procedures and suing it is very difficult, time-consuming and expensive. Therefore, US officials PTOs commit arbitrariness without control and with impunity.
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"The US government is 'graciously' ... giving innovators what they can have freely..." There is a significant legal error here. The inventor does not have a natural or automatically existing right to a patent, which the state simply “graciously” grants to him. Patent law is an exclusive right created by law. It is the legislation that determines under what conditions such a right exists and what its scope is. | These rules are based on the archaic, feudal grant principle of patenting. This harmful principle will be replaced by the manifest principle of patenting. The patent will not be an “exclusive right”, but a free right.
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"...what they can have freely and quickly and use to much greater public benefit... without the participation of the Government." It also contains several non-consequential assumptions. Without the state establishing an exclusive right, the inventor can indeed use the technical solution himself, if this is not prevented by other rights and laws. But it does not follow that he will be able to obtain the exclusive right to prevent others from using the same solution. It is precisely this distinction that is fundamental: freely using an invention and having the legal right to exclude others from using it are not the same thing. | In the process of transforming the patent system, the corporate and technological national communities will demand that Parliament establish a law on the protection of publicly deposited patents.
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"While this rhetoric is irrelevant to the topic of the public patent system under discussion, it should be pointed out that a patent prohibits anyone other than the owner from using an invention." In this context, it is a denial of the relevance of the argument. If the proposed public system is intended to replace the current patent grant deposit system, the question of what kind of right the inventor receives and whether he can exclude third parties is directly related to the architecture of the proposed system. Therefore, the distinction between the "right to use" and the "right to exclude others" has a direct semantic bearing on your concept. | The proposed concept of a public patent system does not imply any change in the rights of patent holders.
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"The fundamental law of sociology is 'All bureaucracies are slow, expensive, and inefficient'". There is no such generally accepted fundamental law of sociology. This is a general statement about bureaucracy, not an established sociological law without exceptions. | The rarest exceptions confirm the adequacy of this objective law.
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"Only independent and free producers and innovators can act effectively." The word "only" makes the statement factually incorrect: just because independent producers can act effectively does not mean that government agencies, corporations, or other institutions cannot act effectively. | “Government organizations are unable to operate effectively” due to the inherent fundamental properties of their information and control systems.
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“A republican society provides the legal opportunity for a free ‘manifest’ principle.” The form of government itself does not create such a legal possibility. The Republic may establish any of the various models of patent protection by legislation. Therefore, the connection “republic – the possibility of the manifest principle” is not necessary. | Republican society provides the legal opportunity for a free “manifest” principle. Unlike a republic, a feudal society provides patent protection only on the basis of the grant principle.
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"The absence of years of red tape and litigation with the USPTO dramatically speeds up the use of inventions." If we are talking about the proposed system, the absence of examination can really reduce the time to registration / deposit. But this does not automatically mean that the actual use of the invention will be accelerated. Commercialization is also influenced by funding, production, licensing, regulatory approvals , demand, availability of infrastructure and other factors. | The public patent system will bring the use of patents closer by several, and sometimes even decades.
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"The deposit establishes the person who receives protection for the invention..." This does not follow from the deposition itself. A deposit may establish who filed the document, but it does not establish who is legally entitled to patent protection. For example, the applicant may not be the actual owner of the invention, or there may be a dispute over the right to the invention. In the proposed system, such a consequence can be established by a special rule, but it is a result of the system rule, and not a natural property of deposition. | Yes, the new patent law will establish that the patent depositor or purchaser is the owner and copyright holder.
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"The deposit establishes ... the date of its priority." This is only possible if the rules of your system specifically give deposition such a legal consequence. The mere existence of a record in a depository does not establish a universal international or national patent . priority date . | The new patent law will establish that the moment a patent is deposited, its protection begins.
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"The patent owner pays a fee and receives state services for protecting the invention." Here patent law and public service are mixed. If we are talking about a future system, the state may indeed charge a fee for a certain protection service. However, the “protection service” itself does not explain what kind of exclusive right the depositor has and against whom it operates. | The function of state protection of inventions is the forcible seizure and transfer of property in accordance with court decisions on violations of patent protection.
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"The filtering function of duties acts on pathological graphomaniacs and inventors of the 'perpetuum mobile'." The fee may indeed filter out some applicants with low expected application value. But there is no reason to assert that it is pathological graphomaniacs and supporters of perpetual motion machines will be mostly excluded. The fee filters primarily by the willingness and ability to pay, and not directly by the quality of the invention. | The proposed concept of a public patent system does not envisage changes in patent fees.
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"Low-income authors of high-quality and effective inventions will find venture "angels" and pay the fee." This isn't universally true. Some will find funding, others won't. The absence of an investor may be due not to the quality of the invention, but rather to the stage of development, the market, risk, or the lack of a commerciall product, etc. | With a very high probability, low-income authors of high-quality and effective inventions find venture investors and pay a fee. |
Status of the “National Patent Consortium”. If the Consortium is a voluntary private association, its rules do not in themselves become national patent law. Participants may voluntarily accept obligations, but this does not mean that persons outside the consortium are obligated to recognize its patents or arbitration decisions. | In the process of transforming the patent system, the corporate and technological national communities will demand that Parliament establish a law on the protection of publicly deposited patents.
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"The agreement shall establish that the patent depositor shall be responsible for the veracity of the basis of its patent claims..." The agreement may establish such contractual liability of the participants, but this does not automatically entail liability to third parties or the state. | This liability arises in patent litigation.
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"...the grounds are considered reliable until they are recognized as false by patent arbitration." Here the presumption of validity and the validity of patent law are mixed. If a statement is considered reliable only until an arbitration decision, this may be a rule of the consortium's internal system. But it does not follow from this that state courts or persons who are not parties to the agreement are obliged to be guided by such a presumption. | The upcoming law on the protection of publicly deposited patents will establish such a presumption.
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"Conflicts will be resolved primarily by arbitration." This is possible as a design of the future system, but only for entities that have agreed to the relevant mechanism, unless the law establishes mandatory jurisdiction. Voluntary membership in a consortium does not in itself create arbitration jurisdiction over third parties . | Parties who disagree with the arbitration decisions may file suit in state courts, which will operate under the future law on the protection of publicly deposited patents.
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"The consortium will demand legislative establishment of judicial protection of patents..." The consortium itself may propose or lobby for such legislation, but “requiring” in the sense of the legal emergence of such an obligation on the part of the state is incorrect. Legislative protection is established by the competent legislative body, not by a private consortium. | In the process of transforming the patent system, the national corporate and technological communities urge that Parliament establish a law to protect publicly deposited patents.
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"The parties to this agreement... will voluntarily comply with it" The author simultaneously describes the system as voluntary and as a system whose results must be ensured by state judicial and legal protection. A voluntary agreement does not in itself create an obligation for the state to protect the rights it has created. This requires a separate legal mechanism that establishes exactly what rights the state recognizes and what actions the courts are obliged to suppress. | All individuals and legal entities generally voluntarily adhere to generally accepted and traditional norms of morality and behavior. In rare cases of violations of these rules and legal prohibitions, victims may file lawsuits in state courts against the violators. Courts will act under the future law on the protection of publicly deposited patents.
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