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What I meant was establishing diligence toward reduction to practice in the process of "swearing behind a reference." In other words, providing documentation that corroborates the sworn statements regarding the inventive acts within the Rule 131 declaration. If you've been able to establish diligent efforts sufficient to get behind a reference simply by "sign[ing] your name to a piece of paper", I'd like to see the file of the case. That certainly has not been my experience in prosecution.
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From the experience of this patent practitioner, it is not in practice "all but impossible" to swear behind a reference on the grounds of diligence toward reduction to practice, at least in responding to an Office Action during prosecution. I cannot opine on how difficult that might be in the litigation context. On the larger question, after all these years that patent reform has kicked around, I have YET to hear a convincing policy rationale favoring first-inventor-to-file. There is much rhetoric based on "efficiency" -- but simply tossing a coin would be efficient, too. The policy reasons behind "harmonization" also escape me -- it is not an absurd result for one party to have a patent in one country and another party to have that patent in another country. I would hope that the desired national policy (or even, dare we way, "justice") regarding which party ought to prevail would be useful. Guess not.
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We'll be at our local zero-carbon-footprint shrine (see http://tinyurl.com/2atc2wq ). We heard they'll have the roof and end walls open -- hope they'll be running the air conditioners with the windows open for 10/10/10!!! We'll be driving the V8 Yukon out there too, to mark the day.
This free-beer post has no relevance to the case before the SuprCt. If the Court were to follow this reasoning, it would be another Dred Scott decision in which the Court's policy preference defines the law. This post should be directed to Congress if a change in direction in the statute is desirable. Which it is not. A programmed machine is still a machine. Indeed, to the outside world, a programmed general purpose computer operates identically to a computer built with custom-hard-wired logic to accomplish the same function. Distinguishing patentable subject matter because it is "software" is like denying patent protection to car engines with electronic ignition control while granting patents to engines that have a distributor and points.
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