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International/Foreign Activities

International/Foreign Activities. Paris Convention Prior user rights – article 4(b) p. 510 Westinghouse case and variants Recent plant cases Recent developments China joined WTO 2001. Prior User Rights. Do not exist under US law EXCEPT business method patents, 35 USC 273

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International/Foreign Activities

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  1. International/Foreign Activities • Paris Convention • Prior user rights – article 4(b) p. 510 • Westinghouse case and variants • Recent plant cases • Recent developments • China joined WTO 2001

  2. Prior User Rights • Do not exist under US law • EXCEPT business method patents, 35 USC 273 • Well-known in foreign patent law • Theoretical case in favor of them

  3. The case for prior user rights • Stephen M. Maurer & Suzanne Scotchmer, The Independent Invention Defense in Intellectual Property, 69 Economica 535-547 (2002) • Prior user rights efficient if cost of duplicating invention are not too high • John S. Liebovitz, Note, Inventing a Nonexclusive Patent System, 111 Yale L.J. 2251 (2002).

  4. Westinghouse 6.28.1905 Armstrong files US Spring, 1904 De Kando builds invention on Valtellina Railway, Italy 5.4.04 Waterman brings knowledge of DeKando into US

  5. Westinghouse holding • Foreign activity communicated to person entering US cannot establish conception date in US • NB: role of old statute section 4923 • “foreign patent or publication” the only relevant foreign activities under US law

  6. Westinghouse fine points • Priority vs anticipation • See p 520 • Neither party gets patent? Both anticipated? • ONLY Armstrong patent validity at issue in Westinghouose case • Priority would be a different matter!

  7. Priority rules • Thomas case p. 521 • Foreign activity can be used to establish US priority date WHEN INFO ENTERS US • See cases in Badie article p. 521

  8. Recent plant patent controversy • In re Zary and In re Elsner • Foreign public sale of embodiment of US invention • Popeil Bros., 494 F2 162 (7 Cir 1974) (foreign sale of patented item, dscribed in instruction manuals; manuals constitute publication)

  9. Foreign sales cont’d • LeGrice rule, 301 F2 929 (CCPA 1962) • Supplement disclosure with knowledge of one skilled in art

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