Congress has essentially asked the U.S. Patent and Trademark Office an impossible question: What would happen if prior user rights were implemented in the United States? More concretely, it has asked as to the impact of this defense on innovation, and as to non-U.S. implementations of prior user rights. But problems exist with both approaches. Future innovation rates are hard to predict. Foreign data may be hard to gather comprehensively. Moreover, the application of prior user rights in exogenous procedural environments (i.e., foreign courts) may be misleading. A better approach is to comprehensively gather empirical data on U.S. doctrinal analogues, including prior inventorship rights.
This project was conceived by Professor Mark Lemley; and commissioned and financed by the Coalition for Patent Fairness (“CPF”). Lex Machina, Inc. conducted an empirical study investigating the empirical incidence of litigation merits determinations surrounding 35 U.S.C. §102(g)(2), which the Leahy-Smith America Invents Act (the “Act”) replaces, in part, with the prior user rights defense. Id. The CPF took no part in data analysis.