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June 15, 2008

The Snake

Criticism of the USPTO has reached comical proportions, and the joke is on us: inventors and prosecutors. When there is a universal howl from the U.S. patent bar about the agency, while the PTO itself crows about a lurch down in allowance rate, and a federal court rules that the PTO acting illegally, you may think something afoot. Joff Wild of IAM Magazine, sitting comfortably across the pond in merry old England, wonders.

Wild, in his 15 Jun 2008 entry, criticizes fellow blogger Gene Quinn for lambasting the PTO and lamenting "that the Patent Office has stopped working and examiners are outright not following the law and refusing to issue Patents all because PTO Quality Review has become punitive." Wild's where's-the-beef critique: "Maybe all this is true. But if it is, where is the evidence?"

Wild thinks Quinn should worry about bad publicity:

More serious than all of that, however, is the potential harm that those making unsubstantiated accusations could be doing to the system that they say they care so much about... [I]f you keep telling innovators and investors that, in fact, they are living in a country whose government, in the words of Mr Quinn, "does not have the ability, resources and knowledge to handle innovation" and one where "most patents issues will not stand up under real scrutiny during litigation", what kind of message does that send out? To my ears, it is advising innovators and investors to stay well clear of the United States. If they start listening to that message, where is that going to leave Mr Quinn and his colleagues in the US patent bar?

Wild, showing how he thinks by projection, thinks that all patent attorneys should think about is what's good for their business.

Gee Joff, perhaps it should occur to you that maybe Mr. Quinn is a bit less self-interested, less concerned about what foreigners will think, and more worried about a return to sanity in examination practice, for the sake of integrity in the U.S. patent system.

Consider the source. Joff Wild = USPTO apologist.

March 22, 2008: "What the Patent Prospector and other Dudas critics fail to acknowledge is that fee diversion has ended on his watch." Needless to say, the Patent Prospector had its answer to that.

Last October, Wild had no criticism for the PTO with its illegal attempt to limit examination with its cutoff claims and continuation rules.

If the lawsuits fail and the rules do become an established element in the US patent application process, practitioners will find a way to live with them - they will have no other choice. This is, no doubt, what the USPTO expects to happen. Indeed, some in the office say in private that they believe the rules will very soon be turned into an opportunity by firms, which will develop specific continuations expertise that can be sold at a premium to clients.

The most significant angle Wild reported on the continuations rule-making was that screwing inventors out of their inventions could be good for patent agent business. Do we see a pattern to Wild's cogitations?

In the same article, Wild had a Rodney King "can't we all just get along?" moment:

[I]t seems to me that the relationship between the USPTO and practitioners is profoundly unhealthy at the moment. That cannot be good for anyone who is interested in the future of the US patent system. There is real venom - sometimes even contempt - in the language I have been hearing from members of the US patent bar over the past few days when they speak about the office. It is actually quite shocking. Fences need mending and they need mending fast.

Quite shocking indeed. Wild acknowledges the venom, but can't see the snake.

Posted by Patent Hawk at June 15, 2008 12:55 PM | The Patent Office

Comments

Hawk, may I ask, is the misnomer "Jeff Wold" deliberate, on your part? Is that some sort of pun? For his name is actually Joff Wild. And what is the snake, in your field of vision? I had always thought it was the way patents are litigated in the USA. For all persons involved in filing, prosecuting, examining at the USPTO have been crying in unison now for some considerable time "It's not my fault. The courts made me do it". So, shouldn't Joff (Joff) be noticing the same vitriol, from his desk in little old common law England, the chosen venue for pharma patent litigation, in the sleepy old Europe of 500 million consumers with health problems.

Posted by: MaxDrei at June 16, 2008 12:14 AM

Hi Max:

My misnomer, now corrected, was a simple dyslexia on my part. Thanks. Cripes, you’d think if I were to take the time to insult someone, I’d at least get their name right. Really hurts the libel suit to get it wrong. ;-)

Otherwise, honestly, you lost me. But thanks for writing.

Posted by: Patent Hawk at June 16, 2008 2:59 AM

Sorry to be so opaque. My point is that Exrs and attys are just acting rationally. If the dialogue at the USPTO has descended to vituperation and acrimony, there's something wrong systemically, because there has been no such descent in common law England, where Exrs and attys working for the same masters also act rationally. What's wrong is not PTO management but the way patents are litigated in the USA. That's what drives atty behaviour, no? It doesn't have to be like that. See England.

Posted by: MaxDrei at June 16, 2008 3:54 AM

MaxDrei:

I also don't fully follow your thinking. The Patent Office should not be at all concerned with patent enforcement, infringement, and the like. The Patent Office's job is to issue patents that are novel and unobvious.

I have been at this game only about a decade, as a full time prosecutor, but the current situation is terrible. We have hit an all time high in the ratio between client dollars spent versus progress at the Patent Office. I hold personal interviews where the Examiners state, by mandate, no applications will be allowed this quarter, or the allowance rate is limited to 10%, etc. Then the Patent Office issues a mandate with respect to 101, or 112, and for 6 to nine months ridiculous 101 and 112 rejections are issued in virtually every case. The client gets worn down, and would be happy to take anythine (not the scope to which he is entitled, but absolutely anything). But, the Examiner offers nothing, through ridiculous interpretations of the prior art, and ridiculous conclusions regarding obviousness.

Posted by: The Mad Prosecutor at June 16, 2008 7:10 AM

Mad

I have never had an examiner explicitly say that he is restricted to an allowance ceiling, but a lot of my cases sure feel like that. This would be dishonesty equivalent to examiners taking bribes, which probably happens more than is reported, too.

If there is evidence of systemic quotas or ceilings on allowance, the patent bar ought to absolutely flip out and start throwing bricks, rocks, mandamus suits, and everything else they can get their hands on at Dudas & Co. Hard evidence would be required in the form of a whistle-blower examiner doing the right thing (for a change).

But even if the evidence were there, how do you kick start the kind of mass-action required? It would take an organization of inventors and prosecutors sizable resources and t-fortitude. The existing bar groups and inventors groups are all so spineless it's laughable. They stand on the side while individuals like Tafas do the heavy lifting. We need the equivalent of an ACLU for inventors.

Posted by: Babel Boy at June 16, 2008 8:18 AM

Babel:

I agree. All I can say is we must do what we can to stand behind Tafas and his kind, until we can organize ourselves better. Perhaps this is what the IP bars should make their main concern and speak against.

Posted by: The Mad Prosecutor at June 16, 2008 11:49 AM