Mark Lemley – Ready for Patenting Patent’s problematic approach to what we want to encourage when we grant a patent. Long struggle with what you are giving us is simply an idea/conception or an actual thing/reduction to practice. Various doctrines point in different, sometimes conflicting directions; most obvious is §102(g) priority rules under pre-AIA provisions—tried very hard to split the baby; invention is reduction to practice + conception + diligence in working to reduce to practice to figure out first inventor. Even pre-AIA, thumb on scale in favor of early filing/against reduction to practice in various ways. Constructive reduction to practice is the easiest thing to do—get a patent application on file and you’re done in a priority contest; everyone else needs fairly substantial evidence. If you have an idea, you can (1) tinker and try to make a working device; that’s costly and lengthy, or (2) head to the…
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