July 18, 2005
Just a Patent Examiner (JAPE) is a self-deprecatingly titled weblog that is blowing my mind with candor.
JAPE used my impermissible hindsight entry as a springboard to make the point that examiners endemically have limited attention span, entirely sidestepping, and thus by example demonstrating my point that Examiner's generally don't seem to understand 35 USC §103(a) combination requirements as a basis for rejection, particularly in light of the case law - namely, there has to be some documented evidence to point to, not just the bird-brained hand-waving regularly encountered in such rejections.
JAPE recently pointed out that clowntime is definitely not over at the patent office. But why should the patent office be a magnet for competence? In fact, considering alternative career choices, the patent office should be filled with the inexperienced just starting their careers, as JAPE pointed out, grievously green guardians of invention, and, for examiner geezers, bless their hearts, those too comfortable to go make a lot more money in the private sector; brains and ambition at least sometimes having a positive correlation.
Here's something JAPE wrote that makes a good point: "There’s also the fact that sending out a rejection gives the examiner a chance to perform a new search the next time around, with a fresh set of eyes." MPEP 706.07 states, "the invention as disclosed and claimed should be thoroughly searched in the first action and the references fully applied". So much for examiners even knowing, let alone playing by the rules.
What's the upshot? Not necessarily that crappy patents are being granted, which has been the stalking-horse complaint of corporate patent-enforcement-gutters masquerading as reformers. In fact, JAPE confirmed what prosecutors with experience already know or suspect: allowance from the patent office is right now sphincter-maximus. All the public patent reform brouhaha, stirred by wailing corporations sick of being nailed for infringement by small inventors, has made the patent office tighten up, like Archie Bell & The Drells (okay, I'm showing my age). The shame remains of too many examiner bozos on the bus. What's the point of having the Spanish Inquisition in the patent office if the result still resembles something approximating a random walk allowance regime because of widespread examiner incompetence?
What's the solution for prosecutors? Two strikes and appeal to the Patent Board, hoping for more august reasoning. Hope, after all, springs eternal.
Posted by Patent Hawk at July 18, 2005 12:00 AM | Prosecution
Hey! I've been there!
My exmainer was so incompetant he used the 103 excuse "combine patent A in light of patent B in light of patent C" any your invention is obvious. I was naive and appealed (more $$) then conference called and appealed again (more $$). The examiner changed gears and said all I needed was to re-submit witht he workd "automatic" in the claims. Then he rejected gain! I appealed threatened a complaint(yet more $$) and his supervisor said his pet peeve was the use of (you guessed it) "automatic" in a claims. Bled my business to death and no patent. But his quota got a buck-up each time. I finally figured it out. He never acutally read the patent! I asked an attorney to look at it and he said, that is common - a lot of them just run a search engine and compare claims without ever reading the content of the applcations. I was shocked. PTO fraud and it is rampent accepted practice. They actually get promoted by the number of rejecting patents and number of repeat submissions.
Caveat Emptor! Wow! I really am
Posted by: JustaNutherPatentSucker at January 9, 2009 8:22 PM