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April 30, 2008

Garbage In

Jon W. Dudas, USPTO numero uno: "We are getting more and more unpatentable ideas, worse and worse quality applications." Craven worm lying through his teeth, or imbecile trying to impress the rubes? You be the judge.

You may rightly discern that the above query is insupportable as an either/or proposition.

Dudas, quoted in the New York Times, backed up his accusation with stats: " Historically, in the last 40 years, the allowance rate -- the percentage of applications ultimately approved -- hovered around 62 percent to 72 percent. It went up to 72 percent in 2000, but dropped to 43 percent in the first quarter of this year." Statistics as truth - ask Mark Twain.

What Dudas is trying to accomplish by denigrating patent attorneys and agents is a mystery. Perhaps he thinks attributing the dramatic dip in allowance rate to improved quality examination would be unbelievable, as well it should be.

The precipitous plunge in allowance rate was accomplished by fiat: management directive to "reject, reject, reject." The upshot, anticipated by the PTO, has been a piling up of appeals. The anticipation of increased appeals prior to the allowance rate plunge itself is evidence of the fiat.

Dudas masterminded, to use the term loosely, an illegal attempt to curtail patent applications and examination, recently quashed by a federal district court. Recent behavior indicates that Dudas prefers lashing out rather than licking his wounds.

The patent office cannot hire & retain enough examiners to meet workload, as pay and working environment are deficient. With a boss who irrationally rants, this should come as no surprise.

Posted by Patent Hawk at April 30, 2008 4:28 PM | The Patent Office

Comments

Or maybe the difficulty in enforcing patents has led the large publicly-traded companies that are the biggest customers for them to spend less for high quality work.

Posted by: Michael Martin at April 30, 2008 3:52 PM

Michael,

Thanks for the comment. You seem an imaginative fellow.

Maybe patent prosecutors nationwide have taken to eating chips of lead paint off the sides of their trailer homes. It was probably a snack serving suggestion in their newsletter. That would also explain rising salsa sales.

Posted by: Patent Hawk at April 30, 2008 5:04 PM

Hawk -

Let me pose a question (and put aside your animus for Dudas for the moment): You are a searcher. People give you some features they feel are novel. Maybe they actually give you a set of claims. How many times do you write back and say "Nope. I got nothin guys, congrats! Swammi says first action allowance is in your future." How many times? Spare us the cloak and dagger, you'd never put anything in writing, etc self promotion, but does everyone who comes to you looking for a pre-filing search have a patentable idea?

I think MM has a point. Whether you believe it or not, a good portion of the claims I see (I would say more than Mr. Dudas quotes) aren't even in the ball park. Attorneys dont need a salty searcher with a vitriolic blog, they need Google. I've stopped bitching about searching because I can reject 90% of my cases with Google & Google scholar. Its almost laughable.

Maybe this is what Dudas is talking about? Ever think about that? Seriously - do you tell EVERYONE who comes to you for a pre-file search that they've got something? Claim 1 is spot on. How about your new "law firm?" Do you guys just file stuff? Do you think some of your colleagues might do just that?

By the way, any plans on blogging the cases you guys are prosecuting? See if a client will let you. I think that would be entertaining for both sides of this business.

Posted by: random.examiner at April 30, 2008 7:03 PM

random.examiner, thanks for the comment.

I wish Jon Dudas well. Actually, I wish him to be better. Dudas has a responsibility to uphold, and he is failing miserably, and far too publicly. Incompetence is one thing, raving incompetence something else.

Bad patents, and bad patent ideas, are ubiquitous. Patent Hawk specializes in invalidation, and does, pardon the pun, a bang-up business.

On the patenting side, most patent ideas brought to us are dismissed out of hand, and most patentability searches damn the prospect.

But Dudas’ comment was to a trend: “worse and worse...” Ridiculous. If anything, post-KSR, there is a bit more circumspection.

Frankly, we also discourage clients from patenting. Petty patents aren’t worth the trouble. Platinum Patents is about getting our clients patents that have a shot at profit. We let them know what they face after they get a patent, and are they willing to jump through those hoops post-issuance to try to monetize their IP. We do provide cradle-to-grave care, for the few we are willing to take.

As to blogging our prosecution cases, we need to do more. That is an category that we want to provide more helpful coverage for prosecutors. I’ve thought about blogging my own submarines, but it’s difficult storytelling - turning technicalities and absurd rejections into entertainment.

What’s really happening isn’t that patent application quality is degrading. It’s that patent examination has become abysmal in the past three years. Examination on the merits is practically a fiction now. Personally, having been prosecuting since 2000, in the past couple of years, I’ve gone from comity to fighting tooth and nail, going to appeal ASAP, and holding off continuations and divisionals, waiting for improvement in PTO examination quality. It’s that bad.

Posted by: Patent Hawk at April 30, 2008 10:26 PM

It's not about quality.

It's about "substance".

Is Dudas a man of substance? Did he earn his Director wings the hard way by coming up through the ranks, by slogging it out in the trenches with ordinary examiners and day-to-day practitioners? Or did he ride to the sky on a chariot powered by the vaporware of political whimsy and atta boy attitude? Is this the best that he can do with his time (and our money), to propose insane continuation rules, to insist on and then brag about skyrocketing rejection rates? Is this what we accept in our leadership, someone who falls for substanceless mind games like talking about the "quality" of only the inventors and not of the examiners for whom he has direct line responsibility? Someone who knocks others without looking in the mirror? Someone who has no meaningful metrics of his own for fairly measuring work product on both sides of the table, meaning that of the examiners as well as of the inventors? Where's the beef? Where's the substance? We've heard the "quality" noise long enough. Getting sick & tired of it. Now show us the solid stuff.

Posted by: step back at May 1, 2008 5:25 AM

Heck, patent applications are just that - applications. Some of them issue as patents, but most don't (at least in the current environment)
As long as patent filing fees pay for adequate examination (which they don't right now) what is Dudas's f****** problem ?
The agency is self-funding, there are plenty of unemployed scientists and engineers on the streets of America who can be trained to be good patent examiners. US taxpayers will only benefit from more and more garbage patent applications which never issue as patents but pay for examiners' bread and butter.
At some point corporations will realize that there is no point in wasting money like that and will scale back their garbage filings
Until then raise patent filing fees and enjoy your life
(heck, if you pay 12-15 thousand bucks to patent attorney what difference does it make if you pay additional 1000 or 2000 bucks in PTO filing fees? None whatsoever to most patent filers)

What is the problem ?

Posted by: angry dude at May 1, 2008 6:00 AM

OK, guys . . . let me jump into this fray. I agree with at least one thing each of you is saying.

Is Dudas nano-cephalic? Just look at the continuation rules fiasco. Does he have the leadership qualities of a nematode? Just look at the morale in the USPTO. But, hey, you can see the light in the tunnel -- he'll be gone within a year. And who will replace him? More of the same -- another unqualified political suck-butt.

The "Dudas problem" is not in the product, it's in the process. As patent professionals we should be organizing right now, while we're in the halcyon of patent reform, to push for the enactment and enforcement of laws that guarantee quality leadership in the USPTO.

Issue 2 - raised by Random and not entirely addressed by the Hawk. Without a whisper of doubt there are patent professionals out here skunking clients by pressing them to file costly applications for what are obviously dead ideas. I have sued two of them for just that, and won jury verdicts. I wish I could sue more. It is absolutely outrageous, the crap that patent people pull on their clients.

And that is another issue that needs to be addressed by patent reform. The American Inventors' Act does not reach these greedy, licensed cretins. It should.

Interestingly, after getting the verdicts on these ghouls I went to OED because I had a duty to. What did the OED suit say? "I don't see a problem." And he refused to provide me a copy of his opinion.

Yeah, the PTO needs to clean up its act. But so do the practitioners.

Posted by: Babel Boy at May 1, 2008 8:40 AM

Dufas wouldn't know a bad patent if it hit him in the head.

Posted by: bierbelly at May 1, 2008 9:00 AM

"Someone who knocks others without looking in the mirror?"

That, I would say, describes Jon Dudas' professionalism in a nutshell - the finger-pointing, self-approving attitude....

[BTW, I too have nothing against Jon Dudas personally, and do hope the attitudes he has displayed professionally (including his "do unto others as you have judged them" attitude) and his inability to judge others' actions correctly do not carry over to his personal life.]

Babel, I agree with you in one sense - I think what we've experienced in the last year or so is in large part a reaction to problems that have, through (mea culpa) neglect and even greed, been permitted to creep into the system. In hindsight, I believe the bar should have done more to voice concerns over the quality problems that was (or should have been) plain for all to see. Unfortunately, folks like me were probably just waiting for the PTO to get their act together (naively thinking it was the PTO's job to issue quality patents), not realizing that the PTO would use the very patent quality problems as a justification to try to abdicate from their governmental responsibility and to go on a rampage to vilify patent holders and applicants....

I guess I now see patent issuance quality as a responsibility shared between the applicant and the PTO, out of necessity. But I am glad I still don't have to tell the folks at McDonalds how to correctly make a Big Mac for me....

Posted by: NIPRA anonymous at May 1, 2008 11:22 AM

Dudas is just filling his role as a future CPF consultant. CPF is not suckers and you don't expect them to set up Dudas' golden paracheute for free now, do you????

Posted by: anoymousAgent at May 1, 2008 12:49 PM

Kevin Noonan at Patent Docs thoroughly rips through the New York Times article (link).

Posted by: Patent Hawk at May 1, 2008 2:27 PM

Kevin Noonan at Patent Docs said:
"What the Times doesn't consider, or refuses to mention, is that there will be consequences for the rest of us as well. Will the American public be happy with an outcome that increases the number and decreases the costs of the newest electronic gadget, while at the same time decreasing the number of new drugs."

Kevin doesn't quite understand how innovation in high tech works.
There won't be any new gadgets in the absence of strong patent protection.
Nobody wants to be a sucker and come up with some new revolutionary tech only to see it stolen the next day by the likes of mshits and ciscos of the world.

Posted by: angry dude at May 1, 2008 7:06 PM

I have no axes to grind in relation to the following examples. I get worked up as a former patent examiner noting the increasing tendency to write "smoke and mirrors" claims and applications that are as close as possible to the prior art and are as difficult as possible to examine, causing examiners to either work heroically to force the applicants to craft valid claims or to simply throw up their hands and "pass it out" when merely different to be dealt with by the courts.

Look at the CAFC's recent invalidations of claims that mix method steps into apparatus claims or claim limitations that are not supported in the specification as examples of lousy application and claim drafting nevertheless resulted in allowed patents. I have one recently issued 100+ page patent in my collection of the absurd directed to a von Neuman machine that in the text recites that the inventive system can perform every English language verb in Merriam-Webster (page after page of verbs) and has a dependent claim reciting the copying of the universe into replicated universes. An Examiner that did not bother to read beyond claim 1, which was allowed due to an equally absurd structural (but impossible to infringe)limitation "passed it out".

I have noticed that more and more applications have been filed in the last 10 years with content free claims that violate all of the longstanding claim drafting rules, e.g., "system" claims that only recite "a system that does function A, that does function B, that does function C, etc., without any explicit recitation of structure or means. How can such claims possibly be examined? I would start by rejecting the claims as indefinite and demanding that the applicant corellate every recitation to structure described in the specification, which no doubt will reveal that the application writer forgot to include supporting structure. Lazy claim writing results in an insufficient written description.

Consider another notorious example of overly broad and perhaps unsupported claims, the 11,000+ nearly identical claims in the Angiotech International patent applications that attempt to cover any medical device that fibroses in the body to have a medically beneficial effect. Most any foreign body fibroses when implanted, usually without any medical benefit, but sometimes with, e.g. fabric hernia repair patches, urethral slings to treat incontinence, epicardial pacing leads having fabric skirts to encourage tissue ingrowth, fabric sewing rings for heart valves, implantable pulse generator surfaces treated to inhance tissue adhesion, etc. Divisional applications to specific parallel claim sets of the 11,000 have been filed having clims like this:

1.A method comprising introducing into a patient in need thereof, a therapeutically effective amount of a fibrosing agent or a composition comprising a fibrosing agent, where the fibrosing agent induces a fibrotic response at a specific site within the patient, thereby providing the patient with treatment for an orthopedic condition.

This reads on any of the above prior art devices that fibrose inc on it to cause except the "thereby" clause (all other claim sets have such "thereby" clauses pointing to other parts of the body).

Posted by: mdtvet at May 6, 2008 6:30 AM

I have no axes to grind in relation to the following examples. As a former Examiner, I get worked up noting the increasing tendency to write "smoke and mirrors" claims and applications that are as close as possible to the prior art and are as difficult as possible to examine, causing examiners to either work heroically to force the applicants to craft valid claims or to simply throw up their hands and "pass it out" when merely different words are identified to be dealt with by the courts.

Look at the CAFC's recent invalidations of claims that mix method steps into apparatus claims or claim limitations that are not supported in the specification as examples of lousy application and claim drafting nevertheless resulted in allowed patents. I have one recently issued 100+ page patent in my collection of the absurd directed to a von Neuman machine that in the text recites that the inventive system can perform every English language verb in Merriam-Webster (page after page of verbs) and has a dependent claim reciting the copying of the universe into replicated universes. An Examiner that did not bother to read beyond claim 1, which was allowed due to an equally absurd structural (but impossible to infringe) limitation, "passed it out". Like the notorious bar soap with religious inscription patent years ago, these absurd patents are hopefully just amusing and embarrassing to the USPTO. But, their issuance simply encourages the filing of more and more absurd patent applications by irrational pro se inventors who consume USPTO resources.

On the professional side, the current wisdom of avoiding "means plus function" claims and to use as few words as possible in Claim 1 also increases the burden on the USPTO. I have noticed that more and more applications have been filed in the last 10 years with content free, minimalist, claims that violate all of the longstanding claim drafting rules, e.g., proper antecedent basis, positive, not inferential, recitations of structure, and connective language that ties the elements together, not simply a parts list.

For example, I now see "system" claims that only recite "a system that does function A, that does function B, that does function C, etc., without any explicit recitation of structure or means or connection between the functions, and where novelty lies in one functional word. These claims place an undue burden on the Examiner who has to search through the specification to figure out what the claim scope might be and to see if the recitations are supported. I would start by rejecting the claims as indefinite and demanding that the applicant correlate every recitation to structure described in the specification, which no doubt will reveal that the application writer forgot to include supporting structure. Lazy minimalist claim writing often results in an insufficient written description that the writer of course cannot see.

Consider another notorious example of overly broad and perhaps unsupported claims, the 11,000+ nearly identical claims in the set of Angiotech International patent applications that attempt to cover any medical device that fibroses in the body to have a medically beneficial effect. Most any foreign body having any porosity or tissue reaction (like silicone) fibroses when implanted, usually without any medical benefit, but sometimes with, e.g., fabric hernia repair patches, urethral slings to treat incontinence, epicardial pacing leads having fabric skirts to encourage tissue ingrowth, fabric sewing rings for heart valves, or surface area modified metal cases of implantable pulse generators or surfaces of dental, hip or knee implants that encourage tissue or bone adhesion, etc. Divisional applications to specific parallel claim sets of the 11,000 have been filed having claims like this:

1. A method comprising introducing into a patient in need thereof, a therapeutically effective amount of a fibrosing agent or a composition comprising a fibrosing agent, where the fibrosing agent induces a fibrotic response at a specific site within the patient, thereby providing the patient with treatment for an orthopedic condition.

This reads on any of the above prior art devices that induce fibrotic responses except for "orthopedic" in the thereby clause (all other claim sets have such "thereby" clauses reciting to other parts of the body than those I mention above). All of these claims are "merely different" in a new use sense. The applicants have merely recited uses that are not already widely known. To my knowledge, there are no section 103 secondary considerations, as these uses are all speculative at this time. One examining team should craft a 103 rejection under "obvious to try" KSR standards and take the issue all the way to the CAFC. That would ultimately reduce the burden on the USPTO and provide another "new use" set of guidelines for claims of this type.

So, IMHO, these examples reflect undue burdens on USPTO resources that should be dealt with expeditiously and emphatically.

Posted by: mdtvet at May 6, 2008 7:03 AM