Short Title
This Act shall be known, and may be cited, as the Patent Act of the Benevolent Dictatorship of Baja LasVegastan.
Any vassal of the Benevolent Dictatorship, such as the United States of America, may use this Act as a base for its own deviant patent law.
All vassals are hereby notified that any deviation from this Act will result in unmitigated disaster, but the Benevolent Dictator will allow them to discover this on their own.
The Baja LasVegastan Patent Office
The Baja LasVegastan Patent Office ("the BLVPO") is hereby created.
The BLVPO shall be directed by a Commissioner of Patents ("the Commissioner").
The Commissioner shall be appointed by the Secretary of Commerce.
The Commissioner, together with the Commissioner of Trademarks and the Register of Copyrights, shall be subject to the policy direction and management supervision of the Under Secretary of Commerce for Intellectual Property.
The amount of any "required fee" payable under this Act shall be set by the Commissioner pursuant to his rule-making authority under the Administrative Procedure Act.
A maintenance fee is required four, eight, and twelve years after the patent is granted.
Maintenance fees shall be set at a level which reasonably approximates the costs of operating the BLVPO, other than the variable costs of providing services for which fees are collected.
The eight-year maintenance fee shall be twice that of the four-year fee, and the twelve-year maintenance fee shall be twice that of the eight-year fee.
The fee may be paid, without surcharge, at any time during the six months before it is due. It may be paid, with a 50% delayed-payment surcharge, at any time during the six months after it is due.
If the fee is not paid within six months after it is due, then the patent expires. An expired patent may be revived, upon payment of the required fee, under the same conditions as are required for reviving an abandoned patent application.
Required fees for services, other than maintenance fees, shall reasonably approximate the variable costs of providing the service. The Commissioner may waive fees for a service if he determines that the variable costs are de minimis.
If an applicant considers that the examiner is requiring a fee which should not be required, he may object, stating his reasons for objecting in writing.
If the examiner persists in the requirement, then the examiner shall state his reasons for persisting in writing.
The applicant must then either pay the fee or appeal to the Board of Appeal, using the procedure which applies to appeals generally.
The applicant may raise no new objection on appeal. The examiner may raise no new requirement on appeal.
All required fees, including maintenance fees, are hereby appropriated to the Commissioner for the use of operating the BLVPO.
A budget act of the Benevolent Dictatorship may re-appropriate a part of the fees payable under this Act to an alternative use, or may authorize the President to divert a part of the fees payable under this Act to an alternative use.
Unless the budget act explicitly states otherwise, every such re-appropriation or authorization shall be construed as a directive to the Commissioner:
to impose a re-appropriation surcharge on the maintenance fees, including on the 50% delayed-payment surcharge, which are required under this Act; and
to remit the re-appropriation surcharge to the Treasurer of the Benevolent Dictatorship for expenditure for the alternative use.
Every such re-appropriation surcharge shall be a uniform percentage of the fee, and shall be in an amount which is reasonably sufficient to generate the funds which are re-appropriated or diverted to the alternative use.
Any person may pay any fee, including any surcharge.
The Commissioner shall maintain a Patent Library of published documents in the useful arts.
Any person may deposit such a document into the Patent Library.
Any person may deposit an abstract of such a document into the Patent Library, together with the location of a copy of the document, if the copy of the document is:
in a library which has a current inter-library loan agreement with the Patent Library; or
Every document in the Patent Library shall be available for inspection by any member of the public.
The deposit of a previously unpublished document into the Patent Library is a publication thereof.
The Commissioner shall charge no fee for receiving, indexing, or otherwise processing the deposit of a document, or of an abstract thereof.
Whenever a person deposits a work in the Library of Congress as a part of the registration thereof, the Register of Copyrights shall briefly examine the work to determine if it contains material pertaining to the useful arts.
If it does contain such material, then the Register shall require the depositor to also deposit a copy thereof into the Patent Library.
The copy which is deposited into the Patent Library need not be the best edition, but must be legible, and may be in an electronic format which is satisfactory to the Commissioner.
If it does contain such material, then the Commissioner shall accept the document.
If it does not contain such material, then the Commissioner shall refuse the document. He shall destroy the document if it is a copy made under Section 3(l) of this Act.
The Commissioner shall charge a copy fee for making copies of documents, but shall otherwise fund the library by maintenance fees.
Documents in the Patent Library are subject to the Copyright Act.
Copyright protection does not attach to any idea, procedure, process, system, method of operation, concept, principle, or discovery by mere reason of its inclusion in a document in the Patent Library.
Copyright protection does not attach to the abstract of any patent or published patent application, foreign or domestic. It also does not attach to an abstract, deposited into the Patent Library, of a document located elsewhere.
It is not an infringement of copyright to copy a document for the purpose of tendering it for deposit into the Patent Library, provided that the copy is actually tendered for deposit into the Patent Library within ten days.
The Commissioner may determine that:
a document, tendered for deposit into the Patent Library, contains a trade secret; that
accepting the document would violate the Defend Trade Secrets Act; and that
Definitions
An "invention" is a discovery in any of the useful arts, as claimed in a granted patent or in a patent application.
The subject matter of an "invention" may include:
any useful:
process;
machine;
manufacture;
composition of matter;
abstract idea;
natural phenomenon; or
law of nature;
any other part of any of the useful arts; or
any useful improvement of any of the above.
A "process" includes:
any processing of matter, energy, information, or combination thereof;
any new use of a previously-discovered discovery; and
all products of the process.
An "embodiment" of a claimed invention is a physical manifestation of the invention. It may be a literal embodiment or an equivalent embodiment.
A "literal embodiment" of a claimed invention is an embodiment in which each element of the claim literally appears as an element of the embodiment.
An "equivalent embodiment" of a claimed invention is an embodiment in which each element of the claim either:
literally appears as an element of the embodiment; or
appears as one of the embodiment's elements which is equivalent to the claim's corresponding element.
An element of an embodiment is "equivalent" to the corresponding element of the claim if, and only if, the two elements perform the same function.
An element of an embodiment may be a stated range of a parameter. It may be a literal range or an equivalent range.
Regardless of whether the stated range includes a qualifier (such as "about" or "approximately"):
a parameter value falls within the literal range if it falls within the range as stated without any qualifier; and
a parameter value falls within the equivalent range if, even though it falls outside the literal range:
when the parameter is at that value, the invention maintains its effectiveness in producing its stated purpose; and
such effectiveness can be confirmed by routine experimentation.
Experimentation with respect to a value of a parameter is "routine" if an ordinarily skilled artisan would have seen, a priori, the benefit of expending the time and money needed to determine whether the invention maintains its effectiveness in producing its stated purpose, when the parameter is at that value.
A person "practices" an embodiment of a claimed invention within the Benevolent Dictatorship if he:
makes, uses, or sells that embodiment within the Benevolent Dictatorship; or
imports that embodiment into the Benevolent Dictatorship.
An "ordinarily skilled artisan" is a person in the Benevolent Dictatorship who has:
ordinary skill in making and using previously-discovered inventions in the art to which a claimed invention pertains, or with which it is most nearly connected;
ordinary skill in searching for published documents at the BLVPO;
ordinary skill in assessing the costs – both in time and in money – and the benefits of making and using previously-discovered inventions in that art; and
access to:
ordinary technology;
the published documents which are available, at the BLVPO, to the ordinary searcher for documents, including:
documents in the library maintained by the Commissioner; and
documents on an Internet website which is accessible from the BLVPO;
an ordinary budget; and
an ordinary amount of time.
An invention is "made" when an enabling description of it is reduced to a document in writing.
A description of an invention is "enabling" if an ordinarily skilled artisan, after examining the document:
could make and use an embodiment of the invention, whether the embodiment is literal or equivalent; and
would recognize the benefit of making and using that embodiment of the invention, even after allowing for the costs – both in time and in money – needed to so practice.
An embodiment of an invention is included in a claim of a patent application if, and only if, the embodiment is enabled by the application as of the date on which the embodiment is practiced. An embodiment is excluded from the claim, even if thus enabled, if the terms of the claim describe the embodiment neither literally nor figuratively.
A document in "writing" may be on paper, an electronic medium, or any other tangible medium of expression.
A document is "published" when an ordinarily skilled artisan has access to an English language copy of the document at the BLVPO, including:
documents in the library maintained by the Commissioner; and
documents on an Internet website which is accessible from the BLVPO.
An "English language copy" of a document includes a machine translation of an on-line document which is in a non-English language if, and only if:
the location of the on-line document is can be determined by an ordinarily skilled artisan from a different document, or from a database, which is in the English language; and
the ordinarily skilled artisan who has access to the on-line document also has access to software which can machine translate it into an English language document which is also enabling.
An invention claimed in patent or patent application is "not obvious" if, and only if:
an ordinarily skilled artisan, after reading the patent or patent application at any and every time during the seven years before the patent was applied for, would have been enabled to practice an embodiment of the claimed invention; and yet
during all that time, no one actually published an enabling written description of the invention.
Patent families:
A "patent family" is a group of patents and/or patent applications, whether domestic or foreign or mixed, each member of which either:
claims priority to some other member ("parent application") of the family; or
supports a claim of priority which is made by some other member ("child application") of the family.
If a child application claims priority to two or more parent applications, each of which is in a different family, then the families become a single family.
A person "infringes" a claim in a patent if he:
practices an embodiment of the claimed invention within the Benevolent Dictatorship;
provides a good or service to another person within the Benevolent Dictatorship, the good or service having no substantial use other than to practice, or assist in the practice of, an embodiment of the claimed invention;
possesses a good within the Benevolent Dictatorship, the good having no substantial use other than to practice, or assist in the practice of, an embodiment of the claimed invention;
offers or agrees to do, within the Benevolent Dictatorship, any of the foregoing; or
induces another person to do, within the Benevolent Dictatorship, any of the foregoing.
Prior practice
A "prior practitioner" is a person who regularly practices, within the Benevolent Dictatorship, an embodiment of an invention which is thereafter claimed in a patent or published patent application; that is, who:
regularly engages in acts, within the Benevolent Dictatorship, which would be an infringement of the claimed invention; but
does so before the application or patent is published.
Prior practice of an embodiment of an invention has no effect on the patentability of an invention:
regardless of whether the practice was public or private; and
regardless of whether the practice was regular or irregular;
except to the extent that the prior practice is accompanied by publication of an enabling written description of the invention.
A "subject invention" is an invention:
by a contractor under a funding agreement with the Benevolent Dictatorship;
which is made in the performance of work under the funding agreement.
Filing and Examination of Application
Every person who makes an invention shall be entitled to a patent thereon upon application filed with the Commissioner.
The application must be accompanied by the required application fee.
The applicant must pay the required classification, search, and examination fees before examination will begin. The applicant may delay payment until notified pursuant to Section 6(c)(ii) of this Act.
The application must include an enabling written description of the invention. It may include drawings, and may conclude with one or more claims.
If an application concludes with no claim, then the application shall be construed as claiming only the embodiment which literally includes every element which appears anywhere in the application. A claim to "the invention substantially as shown and described", or words of similar import, shall also be so construed.
An applicant may amend the application to add new matter as desired.
The applicant is required to pay the following fees:
an application-amendment fee;
an additional classification fee, if additional classification is required;
an additional search fee, if additional search is required;
an additional examination fee, if additional examination is required;
a multiple-invention fee, if several inventions have been included within a single application; and
a publication fee.
Application priority
The priority date of the application is the date upon which the last application-amendment was made, except to the extent of subject matter which is:
identified in the amended application as having an earlier priority date, stating it; and
accompanied by remarks particularly describing the pages and line numbers, in the original application or earlier amendment, where the subject matter appears.
The remarks shall be published together with the application as amended.
Claim priority
The priority date of a claim (including an amended claim) is the date upon which the last claim amendment was made, unless the claim is:
identified as having an earlier priority date; and
accompanied by remarks particularly describing the pages and line numbers, in the original application or earlier amended application, where subject matter appears which enables the claim.
A claim is deemed to have been filed on its priority date.
The Commissioner shall recognize claims of priority to a foreign patent application, pursuant to treaty.
The Commissioner shall not not recognize any claim of priority, in one domestic application, to the filing date or priority date of any other domestic patent application or patent, since:
properly-identified new matter may be added to a domestic patent application at any time before it it is granted; and
a granted domestic patent may be re-opened as an application at any time before the patent expires.
Search and preliminary examination
An examiner under the supervision of the Commissioner shall make:
a search for enabling publications;
a preliminary examination of the claims; and
a preliminary determination of the patentability of each claim.
The search, preliminary examination, and preliminary determination shall be made within one year after payment of the examination fee.
In making the search, preliminary examination, and preliminary determination, the examiner shall give to each term of a claim its broadest reasonable interpretation, except to the extent that the patentee has explicitly given it a different interpretation.
The examiner shall preliminarily allow or reject each claim.
If several inventions have been included within a single application, the examiner shall require the patent applicant to pay a multiple-invention fee, equal to an additional set of fees for each additional invention.
For each additional set of fees, the applicant may:
pay the additional set of fees, without objection;
decline to pay the additional set of fees, thereby abandoning the claims which are directed to the additional invention; or
object to the requirement to pay the additional set of fees.
The applicant may designate which invention or inventions are to be examined if some or all of the additional sets of fees are not paid.
If one invention is paid for, and no designation is made, the examiner shall examine the first claimed invention.
If several (but not all) inventions are paid for, and no designation is made, the examiner shall examine the first claimed inventions.
A patent applicant is under no duty to submit publications to the examiner to supplement the examiner's search.
However, an applicant may submit up to twenty publications to the examiner, in which case the examiner shall make the preliminary determination of patentability based upon those twenty publications and upon such other publications as the examiner's search may reveal.
If a patent application is part of a patent family, then the applicant shall (notwithstanding the foregoing absence of duty to submit publications):
identify all members of the family to the examiner;
authorize the examiner to have access to all members of the family; and
so identify and authorize the examiner as to every other application within thirty days after the application becomes a new member of the family.
If a foreign patent office does not honor such authorizations, then the applicant must provide a provide to the examiner a copy of each document which is added to a foreign patent application's file, within thirty days after:
adding it; or
being notified, by the foreign patent examiner or by a third party, that it has been added.
Patent claims shall be allowed as follows:
The examiner shall allow a claim if he is satisfied that:
the claimed invention is useful;
the application includes an enabling written description of the claimed invention;
no enabling written description of the claimed invention was published before the patent was applied for, except as stated in the Section 5(h) of this Act; and
the claimed invention is not obvious.
At the applicant's request and upon payment of the required granting fee, the examiner shall grant a patent on any or all allowed claims, whether or not the examiner rejects any of the remaining claims.
If additional claims are thereafter allowed, the examiner shall grant an additional patent on such additional claims at the applicant's request and upon payment of an additional granting fee. Each patent is subject to its own set of maintenance fees.
A patent grant becomes effective when a granted patent is published or re-published.
Publication is effective when the patent or other document has been placed on the Commissioner's website.
At the applicant's request, and upon payment of the required formal-patent fee, the Commissioner shall issue a manually-signed formal patent to the applicant, on paper and with an affixed ribbon and raised seal.
At the request of any person, and upon payment of the required certified-copy fee, the Commissioner shall issue a certified paper or electronic copy of any document in the BLVPO to that person. This includes a certified copy of a granted patent.
Patent claims shall be rejected as follows:
The examiner shall reject a claim if he is satisfied that:
the claimed invention is not useful;
the application fails to include an enabling written description of the invention as claimed;
an enabling written description of the claimed invention was published before the patent was applied for, except as stated in the Section 5(h) of this Act; or
the claimed invention is obvious.
The examiner shall state his reasons for the rejection, and shall not on appeal rely on any new reason.
A claim in a granted patent is void if it is thereafter discovered that it should have been rejected.
Notwithstanding Sections 5(f)(i)(c) and 5(g)(i)(C) of this Act, the publication of a document related to a claimed invention does not affect the allowability of the claim if the document was published during the grace period, or more than fifty years before the priority date of the claim.
A document is "published during the grace period" if it is published:
by the applicant; and
less than a year before the priority date of the claim.
A document published "by the applicant" includes:
a document which was published under his authority; and
a document, published by anyone after a publication of a document by the applicant (or under his authority), to the extent that the subject matter of the two documents is the same.
The publication of a document during the grace period does not affect prior practitioner rights.
Claims may be amended as follows:
A patent claim is "amended" by providing the claim as amended and paying the required claim amendment fee.
The claim may not be amended to include matter which is entirely absent from the application.
The claim may be amended to include matter which is not present in the unamended claim.
A claim may be amended by:
re-writing the claim;
canceling the claim; or
presenting a new claim or claims.
When a claim (including a previously amended claim) has been rejected by the examiner, the applicant may:
amend (or further amend) the claim; or
refuse to amend (or further amend) the claim.
If the applicant amends (or further amends) the claim, the examiner shall examine the amended (or further amended) claim. If he determines that an additional search is required, he shall require the applicant to first pay an additional search fee.
A claim may be amended as many times as it is rejected. It may not be amended after it has been allowed unless the allowance is withdrawn.
An applicant may preliminarily amend a claim if it has not yet been either rejected or allowed.
"Claim" includes a claim which has been previously amended.
The preliminary amendment shall be considered only if the applicant pays a preliminary amendment fee.
If the examiner has begun examination of the claim as phrased without the preliminary amendment, then the applicant must also pay an additional claim amendment fee.
If the examiner determines that an additional search is required, then the applicant must also pay an additional search fee.
If the applicant refuses to amend (or further amend) the claim, he shall so state.
The applicant shall also state his reasons for so refusing, and shall not on appeal rely on any new reason.
If the next action taken by examiner does not allow the unamended claim, this shall work as a second rejection of the claim.
The examiner shall point only to the reasons stated in the earlier rejection as cause for rejecting the claim for a second time, and shall not on appeal rely on any new reason.
Quarterly, the Commissioner shall select a random portion of every original examiner's claim-related proposed office actions, and shall cause them to be reviewed by a senior examiner.
The senior examiner shall ordinarily be the supervisor of the original examiner.
A "claim-related office action" is an original examiner's allowance or rejection of a pending claim.
It includes every claim-related office action at every stage of examination. It is not limited to an action which ends examination, that is, which:
finally rejects a claim; or
approves a claim for inclusion in a patent about to be granted.
It does not include an original examiner's requirement that the applicant pay an additional fee.
The actual office action to be taken shall be determined by the senior examiner, if the proposed action by the original examiner is incorrect.
The Commissioner shall publish, annually, for each original examiner:
the number of claims correctly allowed;
the number of claims correctly rejected;
the number of claims incorrectly allowed; and
the number of claims incorrectly rejected.
The Commissioner shall consider these numbers when making personnel decisions.
The reviews by senior examiners shall be similarly and randomly reviewed by examiners who are even more senior, all the way up to the Commissioner. Senior examiners at all levels shall also be subject to the foregoing publication and personnel procedures.
On request, an applicant shall be shown the review chain between:
the examiner who is examining his application; and
the Commissioner.
If an applicant is not shown the review chain within thirty days after his request, this works as an allowance of all pending claims.
A patent expires twenty-one years after the earliest priority date of any claim in the patent, or twenty years after payment of the examination fee, whichever happens first. However:
The expiration date shall be:
extended day-for-day for each day of unreasonable delay by the Commissioner; and
reduced day-for-day for each day of unreasonable delay by the applicant.
The failure of the Commissioner to make a preliminary determination of patentability is unreasonable to the extent that it takes place more than a year after the payment of the examination fee.
The failure of the applicant to pay the examination fee is unreasonable to the extent that it takes place more than a year after the payment of the filing fee.
The failure of either the Commissioner or the applicant to take action on the merits is unreasonable to the extent that it takes place more than sixty days after the other has taken action on the merits.
Publication of Applications
The application shall be confidential until sixty days after the examiner's preliminary determination of patentability.
If the applicant expressly abandons the application before that sixtieth day, then the abandoned application shall remain confidential.
If the application is not thus abandoned, then the examiner shall promptly thereafter publish (or republish) the application and preliminary determination of patentability.
The applicant may at any time request that the application be published (or republished), tendering the required publication fee. The examiner shall promptly do so.
Each week, the Commissioner shall determine and publish the examination fee payment date of the oldest unexamined application.
The oldest unexamined application is the application, by any applicant:
for which an examination fee has been paid but no preliminary determination of patentability has yet been made; and
which has the oldest examination fee payment date.
If an applicant has not yet paid the examination fee, and any part of the application has an effective filing date which is before the examination fee payment date of the oldest unexamined application, then the Commissioner shall notify the applicant of this fact.
The notification shall include an invitation to pay either the examination fee (together with classification and search fees), or the publication fee, within sixty days.
Notification shall not be made before ten months after the application's earliest effective filing date.
If the applicant pays the examination fee (together with classification and search fees), examination shall begin.
If the applicant pays the publication fee, the application shall be published.
If neither fee is paid, the application is abandoned.
Once an application has been published, the entire file shall be open to the public.
Publication of a document or group of documents is complete when it has been placed on the Commissioner's website.
Conflicting Patents
A claim in a domestic patent or application "conflicts" with a prior domestic patent or application when:
the priority date of the claim is after the priority date of the prior patent or application, but before the publication date of the prior patent or application; and
the claim of the later patent or application claims subject matter which is claimed by the prior patent or application as published.
A claim is not invalidated by a conflicting patent or application. However:
the owner of the prior patent or application, and persons authorized by him, may practice embodiments which are claimed in both patents; and
such practice shall be without any requirement of accounting to the owner of the patent or application with the later priority date.
If claims in two patent applications have the same priority date, then the owner of either patent or application (and persons authorized by him) may practice embodiments which are claimed in both patents or applications. Such practice shall be without any requirement of accounting to the owner of the other patent or application.
Opposition to Patent Applications
The publication of an application, together with the preliminary determination of patentability, is an invitation to any member of the public to oppose the application.
The applicant shall not be compelled to respond to any preliminary determination of patentability except during the sixty days following the expiration of six months after the publication of the application and preliminary determination of patentability. This six-months-plus-sixty-days period is not a period of “unreasonable delay” within the meaning of Section 4(k) of this Act.
Within six months after the application and preliminary determination of patentability are published, any person may oppose the application on the grounds that any claim should be rejected.
Each opposer may submit up to twenty publications in support of this opposition.
Each opposer shall pay the required opposition fee.
Within sixty days after the application and preliminary determination of patentability are published, the applicant may serve a copy of the application and preliminary determination of patentability on any person, together with an invitation to oppose the application.
The applicant shall concurrently pay the opposition fee to the Commissioner. The Commissioner shall retain the opposition fee if an opposition is made by the served person within six months after the application is published, and shall refund the fee if no such opposition is made within that time.
If the served person files such an opposition within six months after the application is published, then the applicant shall pay a second opposition fee to the served person, and the opposition shall proceed as above.
If the served person does not file such an opposition within six months after the application is published, then the served person is forever estopped from asserting that any claim of the patent is void.
The foregoing estoppel also applies to persons who are in privity with the served person.
Whenever an applicant amends a claim, he shall notify all opposers within thirty days. Each opposer then has sixty days to explain to the examiner why the claim should be rejected, even as amended. The sixty-day period for the examiner to take action without "unreasonable delay" (within the meaning of Section 4(k) of this Act) begins when all opposers have taken action on the merits, or sixty days after all opposers have been notified, whichever happens first.
The applicant may amend a claim at any time after opposition has begun.
The applicant in an opposition may fail to respond to the examiner's action on the merits within sixty days. This failure acts as an abandonment of the application. It may be reinstated only under the general rules applicable to reinstatements.
An opposer in an opposition may fail to respond to the applicant's amendment of a claim, or to the examiner's adverse action the merits, within sixty days. This failure acts as an abandonment of the opposition. It may be reinstated only under the general rules applicable to reinstatements.
An application under opposition shall be examined the same as an application not under opposition, except that:
the extended time period for the examiner's response, and the reduced time period for the applicant's and opposers' response, remain in effect; and
the examiner shall give to each term of a claim its ordinary and customary interpretation (rather than its broadest reasonable interpretation), except to the extent that the patentee has explicitly given it a different interpretation.
The examiner shall consider up to twenty additional publications from each opposer. The publications must be submitted to the examiner within sixty days after being notified of a claim amendment, and must be accompanied by an additional opposition fee, or they shall be disregarded.
Eminent Domain
The Commissioner shall have the right to take a privately-owned patent, on behalf of the Benevolent Dictatorship, under the power of eminent domain.
Such a taking of a privately-owned granted patent extends also to the taking of a privately-owned patent application.
Such a taking also extends to the taking of a compulsory license under a privately-owned patent or patent application.
A province of the Benevolent Dictatorship shall have the right to take a compulsory license under a privately-owned patent or patent application, but shall not have the right to take the patent or patent application itself, under the power of eminent domain.
The taking of a privately-owned patent (or patent application, or compulsory license thereunder) shall be for public use, and just compensation shall be paid, as in takings of privately-owned property generally.
The Benevolent Dictatorship, and the several provinces of the Benevolent Dictatorship, shall be subject to damages for patent infringement.
The Benevolent Dictatorship, and the several provinces of the Benevolent Dictatorship, shall not be subject to an injunction against patent infringement unless the Benevolent Dictatorship or province refuses to invoke eminent domain as a defense to a sought-for injunction.
A taking under the power of eminent domain is a compulsory counterclaim to a suit against the Benevolent Dictatorship, or against any of the several provinces of the Benevolent Dictatorship, for patent infringement.
Secrecy Orders
The Commissioner shall impose a secrecy order on an application if he determines that its publication would be contrary to the national interest.
The Commissioner shall consult with other government agencies in making this determination.
The applicant shall not reveal the subject matter of the application to any member of the public, nor to any foreign patent office, unless:
six months have passed since the date of application; or
the Commissioner has permitted such revelation in writing.
While the secrecy order is in effect:
The application shall be processed to the point of allowing or twice rejecting each of the claims (including appeals to the Board of Appeal and to the courts), but no patent shall be granted.
No person shall reveal the subject matter of the application to any member of the public, nor to any foreign patent office, except under such reasonable conditions as the Commissioner may determine.
If the applicant reveals the subject matter of the application in violation of the above, then the application becomes void. The applicant may also be prosecuted under the Criminal Code.
A secrecy order expires a year after it is imposed.
During the last three months of its effectiveness, the secrecy order may be extended for an additional one year period. An unlimited number of annual extensions may be made.
The application shall be published for opposition when the secrecy order expires or is lifted.
If an opposition is filed within six months after publication, then examination shall resume, under opposition.
If no opposition is filed within six months after publication, and at least one claim has not yet been allowed, then examination shall resume without opposition.
If no opposition is filed within six months after publication, and all claims have been allowed, then the patent shall be granted on the allowed claims upon payment of the granting fee.
The time during which the secrecy order was in effect shall be added to the term of the patent.
A secrecy order is a "taking" of property within the meaning of the Constitution.
The applicant may apply to the Commissioner for just compensation at any time after the secrecy order is imposed and until six months after the patent is granted.
Within six months after such application, the Commissioner shall determine the amount of compensation.
In making this determination, the Commissioner shall consult with the agency on whose behalf the secrecy order was imposed. The compensation shall be paid from that agency's appropriation.
If the Commissioner fails to make a determination within six months, the applicant may apply to the courts for a writ of mandamus to compel the Commissioner to act. The Commissioner shall pay the applicant's legal expenses unless he shows that the failure was unintentional or unavoidable.
As with adverse determinations generally, the applicant may appeal the imposition of a secrecy order to the courts, as provided by the Administrative Procedure Act.
Such appeals may also be taken from:
an extension of a secrecy order; and
an inadequate amount of compensation.
Such appeals shall be under seal while the secrecy order is in effect.
If the applicant asserts only that the amount of compensation is inadequate, and demands a jury, then the court shall stay trial until the secrecy order expires or is lifted, and shall then try the adequacy of compensation to the jury.
Statutory Invention Registrations
A patent applicant may request that the applicant be converted to a statutory invention registration.
A request for conversion to a statutory invention registration acts as an abandonment of all claims and as a request to publish the application as a statutory invention registration.
Appeal
The Board of Appeal shall consist of senior examiners appointed by the Commissioner, sitting in panels of three. No panel member shall be the original examiner.
When all claims have been either allowed or twice rejected by the examiner, the applicant may appeal the rejected claims to the Board of Appeal by giving notice of appeal and paying the required appeal fee.
Once the rejected claims have been appealed:
the examiner may not withdraw the rejection;
the applicant may make no claim amendment; and
neither the examiner or the Board of Appeal may raise any new ground of rejection.
For each claim, the Board of Appeal shall consider only the reasons originally stated by the examiner for rejecting the claim, and the reasons stated by the applicant for refusing to amend it.
The Board of Appeal shall consider each appealed claim, and shall either sustain the rejection or allow the claim as appealed.
At the applicant's request, the Board of Appeal shall grant a patent on any or all allowed claims, whether or not any or all of the rejected claims have been further appealed to the courts.
If the applicant objects to any action by the examiner other than the rejection of a claim (such as the requirement to pay an additional fee), he shall state his reasons for so objecting, in writing.
If the examiner persists in the action, the examiner shall also state his reasons for so persisting, in writing. The applicant must then either:
comply with the action; or
give notice of appeal and pay the required appeal fee.
As with appeals from rejected claims, once the action has been appealed:
the examiner may not withdraw the action;
the applicant may not comply with the action;
the Board of Appeal shall consider only the reasons originally stated by the applicant for objecting to the action, and the reasons stated by the examiner for persisting in it; and
the Board of Appeal shall either sustain the action or overrule it.
There shall be no briefs before a panel of the Board of Appeal. Both the applicant and the examiner may make oral argument. Such oral argument is limited to support for their respective previously-stated written reasons. The Board of Appeal shall either sustain the rejection or other action, or overrule it.
Time spent on appeal is "unreasonable delay" (within the meaning of Section 4(k) of this Act):
by the applicant, if the examiner's action is sustained; or
by the Commissioner, if the examiner's action is overruled.
The Commissioner shall publish all decisions by the Board of Appeal:
when the decision is made, if the patent application is open to the public at that time; or
when the patent application is opened to the public, if the application is not open to the public when the Board of Appeal's decision is made.
The Board of Appeal shall follow the doctrine of stare decisis. If either the applicant or the examiner contends that the decision of the Board of Appeal does not follow the doctrine of stare decisis, then he must further appeal to the Commissioner.
Further appeal is complete for the applicant, in case the examiner's action is sustained, when he files his appeal brief and pays a second appeal fee.
Failure to do so within sixty days after the Board's decision renders the decision unappealable.
The examiner must file a responsive brief within sixty days after the appeal is complete. Failure to do so acts as an allowance of all appealed claims.
Further appeal is complete for the examiner, in case his action is overruled, when he files his appeal brief.
Failure to do so within sixty days after the Board's decision renders the decision unappealable.
The applicant must file a responsive brief within sixty days after the appeal is complete. Failure to do so acts as an acceptance of the examiner's action.
The Commissioner must act on the appeal within sixty days after the responsive brief is filed.
Failure to do so acts as an allowance of all appealed claims, or as an acceptance of the examiner's action, as the case may be.
The Commissioner, in deciding how to act, may seek and obtain such advice as he may see fit. He may not, however, delegate his authority to act.
The applicant may appeal the Commissioner's decision to the courts.
The Commissioner's decision becomes unappealable sixty days after it is made, unless a court rule or another statute provides for a different period.
Appeals to the courts are governed by the Administrative Procedure Act.
When the decision has become unappealable, examination resumes.
The examiner must withdraw the action if the examiner's action is overruled. Failure to do so, within sixty days after the decision has become unappealable, acts as an allowance of all appealed claims.
The applicant must comply with the action if the examiner's action is sustained. Failure to do so, within sixty days after the decision has become unappealable, acts as a cancellation of all examiner's-action-sustained claims.
Treaties
The Benevolent Dictatorship accedes to:
the Paris Convention for the Protection of Industrial Property ("Paris Convention");
the Patent Cooperation Treaty ("PCT");
the Patent Law Treaty ("PLT"); and
the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS").
The Commissioner shall promulgate rules for complying with the Paris Convention, the PCT, the PLT, and TRIPS. These rules shall be as close as practicable to the rules for regular examination.
Re-Opening of Examination
The owner of a granted and unexpired patent may file a request that examination of any or all claims of the patent be re-opened.
The procedures, and fees, of a regular examination (including, as appropriate, opposition) apply also to a re-opened examination.
The entire file of a re-opened patent application shall be public from the date of its re-opening.
The owner of the patent may may submit up to twenty publications to the examiner, in addition to the publications submitted or otherwise considered during the original examination.
The claims which are re-opened have the force only of published but not granted claims.
The claims which are not re-opened remain in full granted-claim force.
The re-opened claims may be broader, the same as, or narrower than the claims of the original patent. If any claim is broader, even in part, then the broader claims are subject to intervening prior practitioner rights in the broadened area.
The required fee for re-opening a patent is the same as the fee for filing and examining a patent application.
Infringement
A person who infringes a claim in a patent, after the patent is granted, is liable to the patent owner. The infringer:
shall pay damages (but in no event less than a reasonable royalty) to the patent owner; and
shall cease such infringement, regardless of whether the law generally applicable to injunctions so requires.
It is not an infringement of a claim in a patent for a prior practitioner to continue to regularly practice the embodiment previously practiced, at the same or any lesser level of practice.
This prior practitioner right extends to equivalents of the embodiment, and to persons in privity with the prior practitioner, including both:
the immediate and remote suppliers to the prior practitioner; and
the immediate and remote customers of the prior practitioner.
"Level of practice" includes a level for which the prior practitioner has made substantial preparations, even if actual practice has not been made or has not been completely made.
It is not an infringement of a claim in a patent for a person to practice an embodiment of a claimed invention for research or educational purposes. This exemption does not apply to inventions in the fields of research or education, respectively.
A person may infringe an invention claimed in a patent between the day on which the patent application is published and the day on which the patent is granted.
Such as infringer is liable to the patent owner, on a suit brought after the patent is granted, but only if the infringing embodiment is both:
an embodiment of an invention as claimed in the patent application as published; and
an embodiment of an invention as claimed in the patent as granted.
The infringer:
shall pay a reasonable royalty to the patent owner for these post-publication but pre-grant infringements, but is not otherwise liable for damages; and
shall cease such infringement, regardless of whether the law generally applicable to injunctions so requires, subject to prior practitioner rights.
Except as otherwise provided by law, no recovery shall be had for any infringement committed more than six years prior to the filing of the complaint or counterclaim for infringement in the action.
Inter Partes Review
A person who is sued for patent infringement may assert that a sued-upon patent claim might be void. Any such assertion is a compulsory counterclaim.
If an accused infringer asserts a compulsory counterclaim that a sued-upon patent claim might be void, the court shall stay the litigation so that the accused infringer may request inter partes review of the sued-upon patent claim by the Commissioner.
The failure to assert that a sued-upon patent claim might be void, within the time required to assert compulsory counterclaims, estopps the accused infringer from thereafter asserting that the sued-upon claim is void.
Inter partes review, including payment of the required review fee, must be requested within six months after the stay is granted. Failure to so request acts as a lifting of the stay, as an abandonment of the assertion of voidness, and an estoppel of the accused infringer from thereafter asserting that the sued-upon claim is void.
Inter partes review acts as a re-opening of examination, with both:
no presumption of the claims' validity; and
the opportunity to amend a claim as many times as it is rejected.
On inter partes review, the examiner shall:
give to each term of a claim its ordinary and customary interpretation (rather than its broadest reasonable interpretation), except to the extent that the patentee has explicitly given it a different interpretation;
consider only the submissions of the patent owner and the accused infringer; and
take no action on his own motion.
The patent owner and the accused infringer must respond to each other's submissions within thirty days. When both parties have made submissions, the examiner must take action within thirty days. The patent owner and the accused infringer must respond to any adverse action by the examiner within thirty days. None of these periods may be extended.
The failure of either party to respond on time acts as an admission of validity or voidness, as the case may be. If the examiner fails to take action on time, the adversely affected party must apply for a writ of mandamus within fifteen days. The failure of the adversely affected party to apply for mandamus on time acts as an admission of validity or voidness, as the case may be. Venue for the writ lies in the district court in which the patent litigation is pending.
When all claims under inter partes review have been either confirmed (perhaps as amended) or twice rejected by the examiner, as in ordinary examination, the applicant may appeal the rejected claims to the Board of Appeal. The accused infringer may appeal the confirmed claims. Appeal requires notice of appeal and payment of the required appeal fee.
As in ordinary appeals:
There shall be no briefs at the Board of Appeal in an appeal from inter partes review.
Oral argument shall be confined to the written reasons given to the examiner.
For each claim, the Board of Appeal shall consider only the reasons originally stated by the accused infringer during review for rejecting the claim, and the reasons stated by the patent owner during review for refusing to amend it.
The patent owner may make no claim amendment on inter partes appeal, nor may the examiner, the accused infringer, or the Board of Appeal raise any new ground of rejection.
The inter partes Board of Appeal shall make its decision within thirty days. If the inter partes Board of Appeal fails to take action on time, the adversely affected party must apply for a writ of mandamus within fifteen days. Venue for the writ lies in the district court in which the patent litigation is pending. The failure of the adversely affected party to apply for mandamus on time acts as an admission of validity or voidness, as the case may be.
Appeal to the Commissioner, and to the courts, may be taken from the inter partes Board of Appeal as from appeals from the Board of Appeals generally. Venue for the appeal lies in the district court in which the patent litigation is pending.
Between the day on which the original patent is granted and the day on which the inter-partes-reviewed patent is granted, a person who practices an embodiment of an invention claimed in the original patent is liable to the patent owner as an infringer if the embodiment is also an embodiment of an invention claimed in the reviewed patent. In this case, the infringer:
shall pay damages (but in no event less than a reasonable royalty) to the patent owner; and
shall cease such infringement, regardless of whether the law generally applicable to injunctions so requires, subject to prior practitioner rights.
The procedures, and fees, of a regular examination apply also to inter partes review except as stated above.
Declaratory Judgment
The Declaratory Judgment Act does not apply to patent infringement.
Any person may give written notice to a patent owner of specific acts which the notifying person intends to perform.
The notice must state what the notifying person's contentions are as to why these acts do not infringe one or more specified claims of the patent, or why these claims are void, or both.
The notice must include supporting evidence of these contentions, sworn to by persons who are available for cross-examination.
The notice must explicitly mention this section of this Act.
Such notice is a constructive infringement of every claim which is specified in the notice, as though the intended acts had actually taken place at the ordinary level of practice and in the ordinary course of trade.
If the patent owner sues the notifying person for constructive infringement, the notifying person may defend only by use of the contentions and supporting evidence which are included in the notice.
The patent owner may sue the notifying person for constructive infringement within six months after being given such notice. His failure to do so:
estopps him from thereafter asserting that the specified acts, when performed by the notifying person at any time, infringe the specified claims; and
estopps him from thereafter asserting that the specified acts, when performed by any other person more than a year after notice is given, infringe the specified claims.
Inventions Funded by the Benevolent Dictatorship
Whenever a contracting officer of the Benevolent Dictatorship issues a request for proposal to a potential contractor under a funding agreement, the request shall require the proposal to propose two different funding levels:
a funding level if the Benevolent Dictatorship is to have ownership of subject inventions; and
a funding level if the contractor is to have ownership of subject inventions.
When selecting from among competing proposals, the contracting officer shall consider both:
the probable value of the subject inventions; and
the additional funding which the Benevolent Dictatorship will be required to pay in return for ownership of the inventions by the Benevolent Dictatorship.
A proposal may, but is not required to, include provisions for granting royalties to the individual inventor or inventors of subject inventions.
If the funding agreement provides that the Benevolent Dictatorship shall have ownership of subject inventions, then the agreement must obligate the contractor to periodically notify the contracting officer of all subject inventions which have been made since the previous notification. The contract must also obligate the Benevolent Dictatorship to:
indicate, to the contractor, which inventions it intends to file patent applications on, and in which nations;
actually file such an application, within one year after the notification:
in the Benevolent Dictatorship; and
in all foreign nations with which the Benevolent Dictatorship does not have a treaty under which the foreign nation recognizes priority of a patent application filed in the Benevolent Dictatorship;
actually file such an application in all foreign nations, within the time required by the treaty:
with which the Benevolent Dictatorship does have a treaty;
under which the foreign nation recognizes priority of a patent application filed in the Benevolent Dictatorship;
notify the contractor if, in the Benevolent Dictatorship or in any foreign nation, it will not initiate or continue prosecution of an application, or will let a patent lapse;
in each patent, include:
a statement which identifies the contract under which the invention was made; and
notice of the Benevolent Dictatorship's rights in the invention;
convey to the contractor, upon written request, title to the patent rights to any subject invention, in the Benevolent Dictatorship or in any foreign nation, if the Benevolent Dictatorship fails to file, does not continue a prosecution, or will allow a patent to lapse in that nation; subject, however to the retention by the Benevolent Dictatorship of a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced for or on behalf of the Benevolent Dictatorship the subject invention throughout the world; and
periodically report on the utilization of subject inventions.
If the funding agreement provides that the contractor shall have ownership of subject inventions, then the agreement must obligate the contractor to:
periodically notify the contracting officer of all subject inventions which have been made since the previous notification;
indicate, to the Benevolent Dictatorship, which inventions it intends to file patent applications on, and in which nations;
actually file such an application within one year after the notification;
in the Benevolent Dictatorship; and
in all foreign nations with which the Benevolent Dictatorship does not have a treaty under which the foreign nation recognizes priority of a patent application filed in the Benevolent Dictatorship;
actually file such an application in all foreign nations, within the time required by the treaty:
with which the Benevolent Dictatorship does have a treaty;
under which the foreign nation recognizes priority of a patent application filed in the Benevolent Dictatorship;
notify the Benevolent Dictatorship if, in the Benevolent Dictatorship or in any foreign nation, it will not initiate or continue prosecution of an application, or will let a patent lapse;
in each patent, include:
a statement which identifies the contract under which the invention was made; and
notice of the Benevolent Dictatorship's rights in the invention;
convey to the Benevolent Dictatorship, upon written request, title to the patent rights to any subject invention, in the Benevolent Dictatorship or in any foreign nation, if the contractor fails to file, does not continue a prosecution, or will allow a patent to lapse in that nation;
grant to the Benevolent Dictatorship a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced for or on behalf of the Benevolent Dictatorship the subject invention throughout the world; and
periodically report on the utilization of subject inventions.
Practice Required
A patent owner must practice at least one claim of the patent, at the ordinary level of practice and in the ordinary course of trade, within three years after the patent is granted or four years after it is applied for, whichever period expires last.
The invention may be practiced directly by the patent owner, or by one or more licensees, or both.
If governmental approval is required before an invention may be practiced (as, for example, approval by the Food and Drug Administration of a patented pharmaceutical), then time spent by the patent owner (or by one or more licensees, or both) in diligently seeking such approval is excluded from the above period.
Time spent in litigation is excluded from the above period. "Litigation" includes:
in court: all proceedings; and
in the BLVPO: inter partes review, but not opposition.
Importation of an embodiment of an invention is a much a "practice" of the invention for this purpose as it is a "practice" of the invention for the purpose of infringement.
If a patent owner does not practice the patent as described above, then any person may apply to the Commissioner for an order that the patent owner auction off a compulsory license to the highest bidder for a one-time cash payment.
Such a compulsory license shall be non-exclusive and shall not be transferable, even in the form of the grant of a sub-license, except as a transfer of that part of the enterprise which exploits such license, including the goodwill of that part.
The license shall be for a term of four years, and shall begin no earlier than one year after the expiration of the period stated in Section 18(a), above.
If the patent owner is practicing the patent as described above, at the end of three years into the license term, then the compulsory license shall expire at the end of its four-year term.
If the patent owner is not practicing the patent as described above, at the end of three years into the license term, then the compulsory license shall be re-auctioned for an additional four year term when the four year term ends.
If a compulsorily licensee is not practicing the patent as described above, at the end of three years into the license term, then:
the compulsory license shall expire at the end of its four-year term; and
the compulsory licensee is not eligible to bid at any re-auction.
Enforcement of This Act
Whether an invention is new, whether it is useful, and whether it is non-obvious are issues of fact to be decided by the jury.
The prevailing party is entitled to recover costs of patent litigation between private parties unless the trier of fact finds that the conduct of the non-prevailing party was objectively reasonable.
"Costs" includes reasonable attorney's fees.
"Litigation" includes:
in court: all proceedings; and
in the BLVPO: inter partes review, but not opposition.
The failure of the applicant to meet a deadline has the following consequences:
The failure acts as an abandonment of the application, unless the applicant:
demonstrates that the failure was unintentional or unavoidable; and
pays the required reinstatement fee.
The period during which the failure was pending is a period of "unreasonable delay" by the applicant within the meaning of Section 4(k) of this Act.
Reinstatement of the application shall be subject to intervening prior practitioner rights.
The failure of the Commissioner, or of any examiner or Board under his supervision, to meet a deadline has the following consequences:
The failure acts acts as an allowance of all claims, unless the Commissioner:
demonstrates that the failure was unintentional or unavoidable; and
pays an allowance-withdrawal fee – equal to the reinstatement fee – to the applicant.
The period during which the failure was pending is a period of "unreasonable delay" by the Commissioner within the meaning of Section 4(k) of this Act.
If the allowance-withdrawal fee is not paid to the applicant within sixty days after the applicant draws the Commissioner's attention to the failure to meet the deadline, then the applicant shall be entitled to a writ of mandamus commanding the Commissioner to grant the patent, and to pay the applicant's expenses in seeking the writ.
Unless otherwise stated, every action has a sixty-day deadline for response.
An action taken by the Commissioner does not start a deadline period for an applicant (or opposer) until it has been both:
mailed or emailed to the applicant (or opposer); and
placed on the BLVPO's website (in a secure area available only to the applicant if the application has not yet been published).
An action taken by an applicant (or opposer) does not start a deadline period for the Commissioner (or for an opposer or the applicant, as applicable) until it has been both:
mailed or emailed to the Commissioner, opposer, or applicant, as applicable; and
sent to the BLVPO's website (in a secure area available only to the applicant if the application has not yet been published), and receipt has been acknowledged.