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April 5, 2008

Quality Submission

Carlos Gutierrez, Secretary of Commerce, "the voice of business in government," wrote a letter to the Senate, praising to the skies "Applicant Quality Submission" (AQS), a scheme to force patent applicants to scour the prior art before filing a patent application, as part of S.1145, the pending Senate patent bill. The clamor for AQS by the patent bar is deafening in its silence.

Hal Wegner coyly appraises:

The AQS system being so strongly pushed by the PTO to be a part of Leahy S.1145 represents the single most bizarre legislative reform in modern patent history. The AQS is not a new system that is untested, but is a failed incarnation of a system that was put into practice two years ago sub nom the accelerated examination petition system.

The procedure involving an Examination Support Document or ESD (similar to today's proposed AQS) is so very cumbersome that even for the special cases selected for accelerated examination, only a small percentage were able to pass procedural muster. An 85% failure rate for an AQS-like system was reported on September 15, 2007.

The international implications are pointed out in a note from the same date (also attached): Clearly, imposition of draconian measures such as this will surely lead to retaliation by foreign patent granting authorities that will make life for American corporate patent applicants seeking overseas protection problematic.

The bottom line: The very low success rates in the first year of the accelerated examination program involved voluntary selections by applicants and not a mandatory program. A fortiori, subjecting small entities and individual inventors - and big corporations - to the AQS will create utter chaos which will reverberate not only domestically but also internationally: Retaliation against American applicants will surely result.

Posted by Patent Hawk at April 5, 2008 12:28 AM | The Patent System


Hawk, tell me please, how can I read the "Note" on international implications. I'm curious. And sceptical.

Posted by: MaxDrei at April 5, 2008 1:10 AM

Of course NONE of this will be reported in the business press.
They will speak about how this bill helps "harmonization" even though this AQS initiative (with, of course, file wrapper estoppel) does precisely the OPPOSITE.
The best we can expect from the business press is ANOTHER article about how the patent system "broken" supported ONLY by anectodal evidence including: (i) the "method for swinging a swing" patent and (ii) the "peanut butter and jelly" patent". Hey guys - you haven't written AGAIN about these two patents for AT LEAST 3 weeks - time for them to regurgiate the same article yet AGAIN for the 350th time - need to keep those advertising dollars from HP/Dell/M$ flowing !!!

Posted by: anonymousAgent at April 5, 2008 9:10 AM

Do you have an opinion regarding the Patent Reform Act, particularly Applicant Quality Submission" (AQS)?

Then contact your Senators. Send them an email. It doesn't have to be a lengthy note -- a simple No (or Yes) to Patent Reform Act and/or AQS suffices. The numbers are totaled by aides and given to the Senator(s) periodically on various issues.

Let them hear your voice on the issue.

Posted by: James Ruland at April 6, 2008 8:16 AM

AQS imposes odious impositions on patent applicants that the foreign governments may in time reciprocally impose on U.S. applications. Quid pro quo. The prediction was Hal’s.

As to writing Congress, a reminder that their favorite stationary comprises large unmarked bills. Ink is silent, but money talks.

Posted by: Patent Hawk at April 6, 2008 5:08 PM

Thanks Hawk. It used to be the province of the little countries to impose tiresome special requirements on those applying for patents. Now it seems to be the big jurisdictions, what with claims fees at the EPO and all. At least the EPO claims fees requirement bites on only a tiny proportion of cases, to shut out system abuses. The 90% of normal cases (factoring in multiple dependency and European ideas of claim interpretation) escape untouched. Shame the solution in the USPTO bears down on 100% of new filings, no? Meanwhile, Australia just cancelled its IDS structure. Useless, it discovered.

Posted by: MaxDrei at April 6, 2008 10:30 PM

To Hawk:

True money talks a great deal, but ink does matter. Remember Shamnesty (Immigration Malform)? Isn't it worth 10 minutes?

Posted by: James Ruland at April 7, 2008 11:26 AM