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October 23, 2008

Staying Alive

As Wall Street floats on an ocean of dumb money, so invention floats on an ocean of dumb patents. Frequently, patent holders solicit Patent Hawk services with "lame duck" patents - a solitaire patent, often with weak claims, without any continuation. Are prosecution firms, many well-known nameplates, so inept as to not advise their clients to grow a portfolio, so as to improve claim scope coverage? So inept to not have a clue as to how patents are enforced, even as many of those firms work both prosecution and litigation? Repeated anecdotal evidence over the years answers a bit too emphatically "yes."

File early, file often. Keep your patent potential alive.

Gobbledygook claims leaving you wondering about patent quality with your current firm? If it's quality you seek: Platinum Patents.

Posted by Patent Hawk at October 23, 2008 2:09 PM | Prosecution

Comments

Keep every "patent family" alive by filing a continuation for the entire 20 year period. That's just good practice.

Posted by: JD at October 24, 2008 6:17 AM

Yeah, file early, file often...

Then we end up with zillions of worthless junk patents for non-inventions

Some of the strongest patents were issued for simple original breakthrough ideas and didn't need any continuations
Examples ? RSA patent of the cryptography hall of fame
You can file continuations on toolbar patent all you want but it's not gonna change anything other then keep patent examiners busy and irritated (I assume you are doing patent prosecution yourself, otherwise it's also gonna leave you flat broke...)

Posted by: angry dude at October 24, 2008 6:54 AM

Yup, because of JD's correct attitude (i.e., there is zero incentive not to file continuations for 20 years), Congress will have to step in... though with Congress having a 9% approval rating (that's lower than the PTO allowance rate) I wouldn't hold my breath for that to happen.

My feeling is it's time to ditch the presumption of validity for issued patents that have continuations pending. If applicant says, "My claim scope isn't yet fixed" and "I didn't get it right the first time" by filing continuations, then there's no reason to presume the PTO got it right the first time either. And with every continuation filed by an applicant, the Examiner should get 2X the hours/BD for examination, to look back at previously issued claims too, to make sure they were properly examined.

Then you'll see the continuation filing rate drop like a stone.

Once applicant is satisfied with the issued claim scope in a "patent family" and no continuations are pending, then let the presumption of validity kick in full force like it does now after issuance - and the applicant will still be able to rely without detriment on the patent grant.

Posted by: NIPRA anonymous at October 24, 2008 8:32 AM

"And with every continuation filed by an applicant, the Examiner should get 2X the hours/BD for examination, to look back at previously issued claims too, to make sure they were properly examined."

That's not a bad suggestion. But what the PTO should really do is give 2nd, 3rd, etc. continuations more scrutiny on issues like written description and enablement. That's where the power to curtail endless continuation practice really lies.

Unfortunately, the average examiner has no idea how to establish a prima facie case of lack of written description support or non-enablement. The PTO would have to train some experienced examiners in each TC to be able to handle these cases. As the central re-exam unit(s) is a collossal (sp?) failure, it is unlikely the PTO could manage yet another specialized examining unit/group.

Your idea to lower the presumption of validity to a preponderance is a good one. Unlikely to make it into a patent reform bill that could pass, but a good suggestion.

Of course, all of this presumes that continuation practice is what is leading to the backlog and pendency problems.

I for one believe that the pendency and backlog are the direct result of PTO (mis)management's directive that "quality = reject, reject, reject" and the subsequent decision to abandon the rule of law in ex parte patent prosecution. The implementation of the illegal "second pair of eyes" program, as a component of the "quality = reject, reject, reject" directive, also contributes quite a bit to the backlog and pendency.

Throw in the examiner production (i.e. count) system, which incentivizes examiners for issuing horrible first OA's, and rewards them for generating RCE's, and you have the perfect storm.

When PTO (mis)management accepts its responsibility to "get it right the first time," instead of the "get it wrong an unlimited number of times" that currently reigns, there's no rule package that could be passed that will reduce pendency and the backlog.

Posted by: JD at October 24, 2008 8:46 AM

"Of course, all of this presumes that continuation practice is what is leading to the backlog and pendency problems."

Continuations certainly are the fuel that allows Examiners to survive under the archaic count system. They (continuations) aren't the problem, per se, but they have enabled the PTO not to fix itself.

The backlog of course arises from the fact that the "true" allowance rate (70-75%) hasn't changed significantly, since patent applicants' expectations haven't changed. Rather, it's just taking three or four go-rounds (continuation, appeal, RCE) now to get there, rather than just one. Hence, you are correct: "reject, reject, reject" has caused the churning which has caused the backlog... and quality hasn't improved despite the lip service.

Posted by: NIPRA anonymous at October 24, 2008 9:05 AM

hawk, jd, nirpa, etc.,

Until you attorneys get through your think skulls a couple of basic points, nothing will change.

1) As they teach back in basic programming GIGO. Garbage in garbage out. Quit shoveling in all the crap you file on & things will improve. (Yes, you have the "right" to file on whatever piece of garbage you want. But it just makes the problems worse.) The filing of "frivolous" patent applications needs to be dealt with like they would deal with a frivolous lawsuit. It would help to cut down on the interstellar spaceships and inter-dimensional travels and movie scripts and swinging and wedding proposals and other clearly frivolous applications. These need to be examined just like any other.

And patenthawk's claims in his applications on toolbars are SOOO ridiculous they should have a place of their own. (You never did respond to my comments about your claims back when you 1st posted them a month or so ago.)

Too many people (small inventors to huge multi-national corps.) treat a patent like a lottery ticket. It is NOT! But their attorneys tell them "File as broad and vague as possible so we can go after more people. You get too specific and someone might determine what you invented and that it isn't what the ones we are suing are doing." (paraphrasing. And this is based on what has been written here & patetnlyO & other similar blogs by attorneys). Maybe you do this because of the courts. If so, complain about THEM and do something to change them!

These things are a HUGE contributor to the backlog & the problems at the PTO.

How many of you have the cojones to tell a possible client "Don't waste your money. This will never become an enforceable patent."? My guess is ZERO. And DO NOT tell us (i.e., lie to us) & say that you don't ever know for "sure" that something is old or well known. (You DON'T WANT to know) Or that the claims are crap as filed (the vast majority are. And foreign are even worse.). That is just a CYA.


2) The typical JD B$ of "When PTO (mis)management accepts its responsibility to "get it right the first time'"

How many times do YOU get it right the first time?? My guess is ZERO based on what we see from most applications (as well as YOURS that I have looked at in edan. And I don't mean, for now, applications you worked at in the office.). And your comments about the "applicant" not always getting it right the 1st time around is just more B$. You want us to "get it right the 1st time" but you admit that you all can not do it and YOU are "supposed" to know what the invention is and your "inventor" should know something about what is already in the field they work in.
How about filing a clean, understandable spec & at least SOME claims that you would seriously expect to be allowable? THAT would help speed things up a WHOLE lot. But, like all the attorneys tell us (at least off the record) the LAST thing they want is a 1st action allowance.

2) Yes, the PTO has a LOT of internal problems. I have said so myself many times. But until you & yours admit & accept that you are as much part of the problem, there will be no solution. Or do you ALWAYS want the government to step in & fix all of the problems by themselves. This country is (or at least wasn't) based on the govt. fixing things but enabling the people to fix the problems.


You want the truth? Clearly, you can't handle the truth!!

MVS

Posted by: Michael Valentine Smith at October 24, 2008 2:29 PM

Readers, please: What's wrong with the way the EPO is successfully managing its ever-increasing numbers of filings? You don't see in Europe the Dude's zillions of worthless junk patents. Why?

Posted by: MaxDrei at October 24, 2008 2:29 PM

MVS,

Thanks for commenting. My, you certainly ate your bowl of grumpies this morning.

“patenthawk's claims in his applications on toolbars are SOOO ridiculous.” Thanks. Please offer yourself as an expert to Microsoft on this matter. I’m sure the court is just waiting with bated breath to hear you opine.

“You never did respond to my comments about your claims.” Perhaps, MVS, you should consult a patent attorney, who may tell you that a participant in litigation is well advised to curtail public commentary on pending litigation. If you are a patent attorney, and were not aware of the wisdom of such discretion, perhaps that alone makes a statement as to the quality of your practice.

-----

As to other comments, thank you.

It is no exaggeration that Patent Hawk probably deals with far more patents per year than most litigation attorneys, and quite a few more than prosecutors who grind out applications. What’s more, Patent Hawk practice specializes in invalidation, as well as patent vetting and appraisal. I do not know of anyone who approaches the intensity of experience with patents at the nitty-gritty level of quality, day-in, day-out.

That said, I see a lot of problematic patents. I also see some impressive invention. I have repeatedly seen, close-hand, the devastation that KSR has wrought in lowering the bar of obviousness. I cannot make the sweeping statement that junk patents are a systemic problem with the U.S. patent system. I can make the sweeping statement that the USPTO is dysfunctional. I can make the sweeping statement that the courts have unwisely encouraged litigation and that the CAFC and SCOTUS have thoughtlessly made litigation a crapshoot by their inane case law in the past few years. Those districts, such as the Eastern District of Texas, that have so-called “rocket dockets,” are shining beacons of economy in patent litigation, and should be a model for the rest of the country, not an object of derision. Of course, only serial patent infringers and their lackeys deride efficient courts.

The biggest shame I see, and the point of the entry, is that inventors place too much trust in their patent agents/attorney, by not even bothering to read their applications and claims to make sure that their claims, especially, make sense. More than anything, that check on patent quality would result in a huge improvement. Of course, examiners could insist on better claims using §112 ¶ as a basis for rejection. But the genesis of the problem is with pathetic prosecutors, who draft such weak and obtuse claims.

Posted by: Patent Hawk at October 24, 2008 6:26 PM

I would tell you what an idiot you are, but I think Hawk's sarcasm can't be topped.

"Please offer yourself as an expert to Microsoft on this matter. I’m sure the court is just waiting with bated breath to hear you opine."

ROFLMAO

Posted by: JD at October 25, 2008 1:43 PM

Oops, almost forgot this gem from Hawk:

"Perhaps, MVS, you should consult a patent attorney, who may tell you that a participant in litigation is well advised to curtail public commentary on pending litigation. If you are a patent attorney, and were not aware of the wisdom of such discretion, perhaps that alone makes a statement as to the quality of your practice."

Hawk, stop, I've already broken one rib I'm laughing so hard!

Posted by: JD at October 25, 2008 1:45 PM

"But, like all the attorneys tell us (at least off the record) the LAST thing they want is a 1st action allowance."

Please do issue me all the 1st action allowances you want. I'll then draft an even broader set of claims and file my continuation.

Sorry for so many posts, Hawk, but there was just too much good stuff in that ridiculous post of his.

Posted by: JD at October 25, 2008 1:49 PM

"I'll then draft an even broader set of claims and file my continuation."

If you can do that, then you didn't do your job right the first time. Why would an inventor keep you on the pay roll?

I bet your loyal customer won't be so happy when a 10 second googling invalidates your first claims and all the more broad ones you draft subsequently once they get to litigation. But, I guess that's no concern of yours is it?

Posted by: random at October 26, 2008 2:42 PM

6k, you're an even bigger idiot that that other guy.

Can't determine exactly what claim scope is possible until 1) the examiner produces the art from whatever search is conducted and 2) construes the claim terms.

You'll find all of this out when you get to your monstrous firm.

Then again, you'll probably never make it out.

Posted by: JD at October 27, 2008 6:12 AM

"As they teach back in basic programming GIGO."

This is the VERY PROBLEM with the current PTO mentality: the folks themselves at the PTO no longer believe it is THEIR ROLE nor within their capability to be the FILTER that filters out the garbage (paper or plastic? it's all the applicant's fault??) According to MVS, the PTO is simply a PIPELINE (or a CONSTRICTION with delay) that rubber stamps the applicant's work - and in many arts MVS is not far from the truth, or from the heart of the problem.

When such an attitude riddles it seems the entire organization, then the PTO is virtually performing NO USEFUL function. MVS, if you think this way (that the applicant should filter the garbage), isn't it just best we just turn fully to a registration system, since even the staunchest PTO advocates cry out loudly in the streets that the PTO CANNOT SEPARATE THE WHEAT FROM THE CHAFF, and that the responsibility of determining what is patentable MUST of necessity lie with the applicant?!!

When in the course of human events.... and take some personal responsibility, please MVS, for the love of country - in the adversarial process, you (not the applicant) are supposed to be the filter. Otherwise, we can save a ton of money on PTO salaries, etc. by going to an applicant-run registration system.

[Speaking as an ex-Examiner. In the 1980's, we weren't "blame shifting" onto the applicant like is so popular today, but we probably worked harder and developed more expertise than is common today - actually PTO microcosm is merely a reflection of a much larger societal problem. There is a reason "depressions occur about once every 70 years - a human lifetime - and MVS I'm afraid your attitude is symptomatic of the problem, not the solution.]

Posted by: NIPRA anonymous at October 27, 2008 6:42 AM

"...MVS I'm afraid your attitude is [symptomatic of] the problem, not the solution."

Typo corrected.

Posted by: JD at October 27, 2008 7:05 AM

Been out of contact for a while, so haven't had a chance to respond to your diatribes.

You guys clearly did not read ALL of what I said, but like all "good" attorneys, picked a couple of words/lines, took them out of context & then tried to invalidate everything.

Sorry, it will not work!

You ALL act like I said that the work from the PTO was 100% perfect & all of the filings are 100% garbage. I didn't say anything of the sort. Try actually READING what I said.

Go ahead, I have time to wait....

Among the things I said was:
"Yes, the PTO has a LOT of internal problems. I have said so myself many times. But until you & yours admit & accept that you are as much part of the problem, there will be no solution."

Based on your responses, you are in denial and refuse to concede that you & yours are a substantial part of the problem. It will not fix everything if the office fixes its many problems if you all do nothing to fix those problems on the outside.

Nirpa, WHERE did I say "all the applicant's fault"? I DARE you to find ANYWHERE that I have ever said such a thing.
And, again, where did I ever say "the PTO is simply a PIPELINE (or a CONSTRICTION with delay) that rubber stamps the applicant's work"? Answer NEVER!
And, I also NEVER said anything at all like "the responsibility of determining what is patentable MUST of necessity lie with the applicant".
Try actually READING what I wrote.

Nirpa, if you were an ex examiner from the 80's, which is when I started, then you SHOULD realize that the quality of applications has dropped dramatically in the last 25 years. Claims are worse, specs are worse, and the average attorney and their responses, as well as the average examiner, are worse. Back then, it was not common to see a "bad" response. Now, probably between 25-35% are "bad" responses.
The WHOLE system has gotten worse. From BOTH sides!

While I will say that Hawk appears to agree with some of what I said, since JD said that those comments were "sarcasm" I will have to go along with what he has decreed. After all, we all know that JD is ALWAYS 100% correct. If you do not think so, just ask him & he will tell you.

I will say that it is amazing still how much some people (on the outside) complain about the "bad" (JD, note the quotes; that means I may not necessarily believe that the term applies. I know I have to spell these things out for you.)patents that get issued but they do not seem to ever question the applicants ans attorneys that file these "bad" patent applications. Why is that?? Probably because you all have the bar doing PR for you & we only have the likes of POPA & Dudas for the office. Again, if these patents are so "bad", then the filers are as responsible as the examiners and should be held responsible. Just like filing a frivolous law suit.

As to my shots about the Hawks patent (NOT the one you originally posted about), clearly those comments about you not responding were just an easy shot across the bow. I thought that should have been obvious. Then again, like my mother always used to say, "You know what thought did...."


MVS

Posted by: Michael Valentine Smith at November 9, 2008 8:04 PM

"After all, we all know that JD is ALWAYS 100% correct. If you do not think so, just ask him & he will tell you."

As long as you know, MVS, that's enough for me.

And with all due respect to your proposed jihad against "frivolous" applications, exactly what are you proposing? What standard are you going to use? Who's going to make the determination? The legally ignorant and incompetent (mis)management of the PTO? Do you even know, or have any clue, as to how many lawsuits are declared to be frivolous on an annual basis?

Seriously, if an application is "frivolous" how hard is it to reject? Aren't those easy counts for the examiners? Aren't those easy stats for PTO (mis)management to pile onto its heap of record breaking quantity at record breaking quality? What exactly are you complaining about? Shouldn't all of the examiners be thrilled about getting easy counts rejecting frivolous applications?

BTW, I have never, let me repeat, never, complained about "bad patents." In fact, I have consistently challenged those who do complain about "bad patents" to produce the evidence that would invalidate them, or to shut up.

I still don't understand why people whose job it is to examine patent applications complain about having too many applications to examine.

I guess we should all hope that application filings drop to 1980's levels and the PTO can RIF all of those examiners they've hired in the past 5-6 years.

Of course, if that happens, the legions of uselessdonothingknownothingdeadweightGS-15's they've "promoted" over there may have to go back to actually examining.

Uh-oh!

Posted by: JD at November 10, 2008 7:57 AM

"Nirpa, WHERE did I say "all the applicant's fault"? I DARE you to find ANYWHERE that I have ever said such a thing."

You brought up "GIGO", and that has been the mentality of the self-excusing non-patent qualified leadership of the PTO for the last 7+ years. "If a bad patent issues, it's because the applicant filed garbage, not (proximately) because we issued garbage!" Garbage should be rejected MVS, never to rise again.

Applications will never be perfect, unless you want the applicant to do the examiner's work... but if you want that, why would we additionally pay examiners to do imperfect work? Similarly, no one is expecting examination at the PTO to be perfect. The system doesn't pay for that kind of administrative quality.

"And, again, where did I ever say "the PTO is simply a PIPELINE (or a CONSTRICTION with delay) that rubber stamps the applicant's work"?"

Again, you brought up "GIGO" which has been the exact attitude of PTO management, as if the PTO CANNOT separate the wheat from the chaff - if you file garbage, we'll issue garbage! (In actuality, separating the wheat from the chaff should be the PTO's only function, but you are 100% correct when you say GIGO it can no longer perform that function.)

As to your shots about HAWK's PATENT, you should reread MPEP 1701. You are a poor PTO employee if you don't know the MPEP (or you are a good Bush administration employee if you don't care about justice).

P.S. My take on what Office quality should be, from a Patently-O comment (I do not lay all the responsibility for quality on the Office, not do I think applicants should be filing garbage. But I know ecomomics, and if you require all applicants to file perfect applications, you will just stifle innovation). I would put the link in, but Patently-O comment links don't quite work since the site redesign:

"I have always thought that patents undergo a "bifurcated" examination, i.e. in two stages.

All patents receive a first stage examination at the USPTO. This helps weed out the majority of silly claims. This first stage examination is non-adversarial (i.e. ex parte, though I realize the USPTO represents the public) and it is, economically speaking, relatively inexpensive (and therefore not thorough) so as not to overburden society.

The second stage examination is much more expensive, but only a small minority of patents ever enter this stage. This examination occurs in an adversarial process (licensing negotiations, litigation, etc.), it is a great deal more thorough, and costs a great deal more than the first stage. However, because it only affects a small n% of the patents, society in not overburdened by the cost of this stage either (yet).

To do a complete examination on all patents simply doesn't make economic sense (e.g. because no one except the patentee is interested in the validity of many patents that issue). However, one needs to ask, at what point has the first stage become so ineffective that it should be replaced?

Posted by: real anonymous | Aug 17, 2007 at 08:57 AM"

Posted by: NIPRA anonymous at November 10, 2008 8:12 AM

I'll respond to JD's B$ 1st, since he posted 1st.

Clearly, you are being obstinate just for the sake of doing so. And you also clearly missed the sarcasm with respect to you.

Yes, those "frivolous" or $tupid (or, arguably fraudulent) applications should be easy to reject. SO WHAT?? That is not the issue we are (trying) to discuss. What I would like to know is WHY the attorneys out there do not bear SOME responsibility in what they file? How can you in good conscious or ethically (talking "real" ethics, not what they teach you in law school) file claims that you KNOW (or in reality should know) are not patentable? You can pull all that fake "Well I never specifically saw that in my own hands, so I didn't know for a fact it was out there." line, but we all know how that is. Another form of don't ask, don't tell. You DON"T want to know if it is out there, so why take any risk and educate yourself as to the art or the real world? It is a completely phony form of ignorance that is no better than a CYA position. And you know it.

And I am not complaining "about having too many applications to examine". I AM complaining about how the system is ABUSED! You seem to (willfully) miss that point. Maybe because you are a contributor to the abuse. And even if we are talking about a relatively small % of the total # of files (which I think we are), the # of cases is still substantial. Even 10% is pushing 80-100K of the backlog.

And, in my opinion, what Hawk discussed to start this thread is bordering on abuse and is clearly the attitude that has pushed the patent system to become another form of the lottery and to the brink of disaster.

As for "bad" patents, I don't know if you have said that there are any "bad" patents or not. I didn't state that YOU said there were.

But, defining a "bad" patent as something that should not have issued (immaterial of it's practicality or enforceability since "bad" does not necessarily mean "industry destroying"), there are clearly many patents that are almost universally agreed to as "bad".

Can you honestly state that the "stick" patent was not a "bad" patent? If you want prior art, look out under most any tree and you will see prior art that kills 102 many of the claims.
Or how about the IBM "bathroom reservations" patent. There is PCT prior art that kills is 102, as well.

Are these "bad" patents? Can you say that they are not? Honestly??

MVS

Posted by: Michael Valentine Smith at November 10, 2008 12:41 PM

"Yes, those "frivolous" or $tupid (or, arguably fraudulent) applications should be easy to reject. SO WHAT?? That is not the issue we are (trying) to discuss. What I would like to know is WHY the attorneys out there do not bear SOME responsibility in what they file?"

MVS, obviously you don't know history, or apparently the MPEP. In the 1980s, the Office could (and would) reject applications for being frivolous, fraudulent or against public policy. In the 1990s, there was a policy change, where the PTO affirmatively decided to no longer reject applications for being "frivolous" - and open the flood gates to all sort of candy-coated applications! (This was during the golden age of patenting, where Office directives warned Examiners about making "contentious rejections", and companies were trying to bolster the size of their patent portfolios to be more lucrative for cross-licensing, ala IBM.) See e.g. MPEP 706.03(a) which constrained and constrains Examiners to not reject applications for being frivolous:

"A rejection under 35 U.S.C. 101 for lack of utility should not be based on grounds that the invention is frivolous, fraudulent or against public policy. See Juicy Whip Inc. v. Orange Bang Inc., 185 F.3d 1364, 1367-68, 51 USPQ2d 1700, 1702-03 (Fed. Cir. 1999) ("[Y]ears ago courts invalidated patents on gambling devices on the ground that they were immoral..., but that is no longer the law...Congress never intended that the patent laws should displace the police powers of the States, meaning by that term those powers by which the health, good order, peace and general welfare of the community are promoted...we find no basis in section 101 to hold that inventions can be ruled unpatentable for lack of utility simply because they have the capacity to fool some members of the public.")."

And you wonder why frivolous applications are filed? Well, because the public knows they will be allowed! (And they provide monetary gain in cross-licensing. YOU CANNOT BLESS FRIVOLOUS APPLICATIONS AS AN AGENCY AND THEN EXPECT APPLICANTS TO STOP FILING THEM!! This isn't rocket science, MVS.)

Again, since the Lehman era (1993-present), the PTO has been largely acting as a headless organization (Dickinson excepted), exercising no flow-control whatsoever over the GIGO-stream, and now the whole country is reaping the consequences of policies put in place by the unqualified leadership (or by court decisions guided largely by PTO solicitors where were not advocating sound patent policy because they knew no better).

http://www.nipra.org/politics.html

Posted by: NIPRA anonymous at November 10, 2008 1:16 PM

"What I would like to know is WHY the attorneys out there do not bear SOME responsibility in what they file?"

Because the applications are not frivolous. Your opinion of what constitutes "frivolous" is meaningless. Who cares what you think of the application? I don't. The applicants don't.

You didn't answer any of my questions. How are you going to implement this jihad of yours? Are applications going to be rejected as frivolous? What standard are you going to apply? Who is going to apply that standard? The legally ignorant examiners? The legally ignorant and incompetent mid-level (mis)managers? And how can you call something frivolous if you can't produce a prima facie case against it under any of the requirements for patentability set forth in 35 USC? Are third parties going to be allowed to object to an application as being frivolous? Is "frivolity" going to be a grounds for re-exam? How to you propose to sanction or punish a patentee or attorney for a frivolous granted patent? If it was frivolous, why'd the PTO issue it?

You love to spout off about how the patent bar bears some blame for the backlog and pendency. You could not be more wrong. Frivolous applications should die a quick death in examination. They should be fodder for all of the "outstanding" examination qaulity and quantity that is going on over there. Same with 3rd continuations and higher, which examiners spend about 1/10th the time on as they do for regular new cases, but get the same amount of counts. But the cases don't die. Ever wonder why that is? Could it be because they aren't as frivolous as you think they are.

And your constant repetition of that old examiner fairy tale that attorneys are filing claims they KNOW are not patentable is beyond annoying. I have never filed a claim that I "knew" was not patentable. I file claims that are exactly on the line of patentability all the time. That's my job. It's your job to prove me wrong. If you can. Based on the performance of the examining corps, most of them can not.

"You DON"T want to know if it is out there, so why take any risk and educate yourself as to the art or the real world? It is a completely phony form of ignorance that is no better than a CYA position. And you know it."

As NIPRA has pointed out to you, if you expect me, or my clients, to search and examine the claims, what the heck are we paying you for? You can't be so delusional as to actually believe that applicants are going to be willing to pay the squadrons of donothingknownothinguselessdeadweights over there to just rubber stamp what they've already paid their attorneys to do.

"Yes, those "frivolous" or $tupid (or, arguably fraudulent) applications..."

You really should take NIPRA's advice and review MPEP 1701. Don't say you haven't been warned.

"I AM complaining about how the system is ABUSED! You seem to (willfully) miss that point. Maybe because you are a contributor to the abuse."

I'm not missing anything. Well, not anything that makes sense. But, as nothing you've said makes any sense, maybe I am missing something.

I don't even know what you mean by "abuse." Hawk clearly does not regard filing continuations to be abuse and agrees with me that keeping the application pending through a continuation is good practice. And it is.

Every single paper I file with the PTO complies with the law. Wish I could say the same for what the PTO puts out.

"Are these 'bad' patents? Can you say that they are not? Honestly??"

I would call any patent that was issued when there is clearly anticipatory, or obviating, prior art that is readily available to the examiner a "bad" patent. The question, though, is: why did the examiner issue it if there was so much art? Why are you angry at the applicant/patentee? You're railing on and on and on about how applicants and attorneys should "know" that the claims to those inventions are not patentable, and you're expecting the applicants and attorneys to "educate" themselves about the prior art, but you're giving the examiners who examined those cases, who are supposed to be expert searchers if nothing else, a pass. Talk about hypocricy. It's name is MVS.

"MVS, obviously you don't know history..."

Just add it to the list of all the other things he doesn't know. It's getting pretty long.

"YOU CANNOT BLESS FRIVOLOUS APPLICATIONS AS AN AGENCY AND THEN EXPECT APPLICANTS TO STOP FILING THEM!! This isn't rocket science, MVS."

Well, it is to them.

Posted by: JD at November 10, 2008 2:14 PM

NIRPA, I know & understand what you say in your last post. BUT, just because that is what has happened does NOT mean that it needs to continue or that the policy is correct. Can you all not see that??

I have NOT been saying that all these "frivolous", etc. filings "are" illegal or improper. I am saying that they should be MADE improper. Do you understand the difference??

Yes, there have been a LOT of bad decisions by the courts & PTO management over the last few decades. That does not mean we have no recourse but to live by them. I am talking about a "CHANGE" to the system.

Clear enough now?

And I do generally agree with you about the people that have been in the top position starting with, and possibly heading the list, Lehman. Most examiners think he was the worst in the last 20 years.

As to your preceding post, what I just said covers most of it, I think. However, a couple points do need to be addressed.

Firstly, a point I have made here, above & elsewhere: a lot of the quality of actions (particularly rejections) by examiners is very low. That needs to be improved. Also, the quality of applications (not talking content or merit, but the actual written material - spelling, punctuation, etc.) needs to be improved (yes, an extra cost/burden for the applicant but how much does spellchecking or a grammar check cost in time or $?). And the quality of attorneys and their responses need to improve (we regularly see nearly as many "bad" responses as you see "bad" actions).
ALL sides need to improve. But it seems the attorneys just want to say that the PTO has problems but refuse to admit there are a lot of problems on your side of the table as well.

Secondly, I am aware of 1701. And I do not believe that I have violated it, even assuming that you actually believe that I work at the pto. This is an anonymous post from a individual citizen and not posted as being a representative of the pto or the opinion of an "examiner". Just the opinions of a citizen of the US. Even without that caveat, I never said that the patent was invalid (and the one I did remark about was not the one that Hawk posted about being in litigation). I just said that the claims looked "ridiculous" and asked him if HE thought that they were really patentable. Anything more than what was actually written is in the interpretation provided by the reader. A fine line, maybe, but still the proper side of the line.

Lastly, your idea about a 2 stage examination is something that has been floating around for a long time. While there may be flaws with it, it may be that its time has come.

MVS

Posted by: Michael Valentine Smith at November 10, 2008 2:34 PM

JD,

Your garbage deserves little response, so that is what it will get.

Firstly, I as stated above, I am aware of 1701. I never accused you, Hawk or anyone else specificially of doing anything illegal or improper. I used the generic "you". Just like you refuse to name examiners names or cite SN for cases of yours that you think the prosecution has been particularly bad by the examiner. Patents like the "stick" patent have already been reexamined by the office or been given up by the applicant/assignee. So, again, we are talking about patents that are not in force. Our discussions have all been about generalities. Unlike some of the mud-slinging that goes on over at usptoexaminers.com. THAT is specific and nasty. And possibly actionable by some of the aggrieved parties.

Secondly, I regularly say, as you well know, that (here above & elsewhere) the quality of office actions, particularly rejections, needs a lot of improvement. That does NOT exempt your side from ALSO needing to make improvements!

And it looks like you are now saying that there ARE bad patents out there (things that should have been rejected but were allowed instead). So that line you can now drop as we have proof.

And you notice how you can NEVER post any rebuttal to someone without making personal attacks. THAT says a lot about you & your character.

MVS

Posted by: Michael Valentine Smith at November 10, 2008 2:51 PM

"I am saying that they should be MADE improper."

Too funny. Can't provide any specifics on how that can be done, but wants to do it anyway.

I don't actually believe you work at the PTO, I know you do. It's the only place such ridiculousness could actually survive.

Posted by: JD at November 10, 2008 2:57 PM

"Unlike some of the mud-slinging that goes on over at usptoexaminers.com. THAT is specific and nasty. And possibly actionable by some of the aggrieved parties."

Truth is the ultimate defense.

"I never accused you, Hawk or anyone else specificially of doing anything illegal or improper."

Except this post, maybe? "You seem to (willfully) miss that point. Maybe because you are a contributor to the abuse."

Oops. You should do a better job of keeping your nonsense at least consistently nonsensical.

"And it looks like you are now saying that there ARE bad patents out there (things that should have been rejected but were allowed instead). So that line you can now drop as we have proof."

Like I said, I've never complained about "bad patents" in the sense that people talk about. For example, you can find any number of posts from idiots, like Mooney, whining about Amazon's "one click" patent as an example of a "bad patent," but they can never produce any evidence to invalidate it. If I'm aware of evidence that would invalidate a particular patent, I will post it. If not, you won't hear a peep from me.

"And you notice how you can NEVER post any rebuttal to someone without making personal attacks. THAT says a lot about you & your character."

I don't see anything personal in any of my posts. Again, the truth is the ultimate defense. If the truth hurts, so be it. But it ain't personal.

Posted by: JD at November 10, 2008 3:10 PM

JD, the word "maybe" is conditional. Remember?

Personal attacks like:

"Just add it to the list of all the other things he doesn't know. It's getting pretty long." OR

"I would tell you what an idiot you are," OR

"6k, you're an even bigger idiot that that other guy."

And these are just a few from above. ALL of your posts everywhere are riddled with them. It is one thing to disagree with someone, it is another to have to resort to insults & personal attacks. It shows the weakness of your arguments. You didn't learn that back in debating class?

You may say "I don't see anything personal in any of my posts. Again, the truth is the ultimate defense. If the truth hurts, so be it. But it ain't personal." But what you post are NOT truths but your own unsupported opinions (i.e., slander). I can say the same & a lot more about you & your work if I wanted to get personal. I don't. And if you believe that ALL of the work you ever did was 100% perfect you are an arrogant fool. No person is perfect all the time.

MVS

Posted by: Michael Valentine Smith at November 10, 2008 3:28 PM

The list of what you don't know abou the law would stretch from the earth to the moon and back. Several times. Not my opinion. Just a fact. With just a dash of hyperbole.

I don't think my work is perfect. It's a work in progress. But it's way better than anything you could produce.

Unlike you, I'm actually learning every day. I'm not just regurgitating examiner fairy tales that were told to me by the incompetents running the PTO.

So no, you can't say the same about me and my work. And that's what's got you so upset.

Not my problem.

Posted by: JD at November 10, 2008 3:50 PM

Try to answer one, just one, of the questions I posed to you regarding your scheme to make frivolous patent applications illegal.

Here's my prediction: you won't. Because you can't. Because you have no idea what you are talking about.

Is pointing that out a personal attack?

I'm sure you'll answer that one.

Posted by: JD at November 10, 2008 4:05 PM

JD, even when you try to say you don't make personal attacks, you make baseless personal attacks (e.g., "way better than anything you could produce" You have NO WAY of knowing what I can or can not produce. Again, baseless personal attacks. You don't even realize that you do it all the time.).

I'll admit you know more about the "law" than I. I didn't go to a law school or become a lawyer. That DOES NOT make you any better than I. As much as you like to think it does. I believe that, on average, I could write as good a claim or response as you can. And I also am sure that I can examine an application better than you can.

And, I DO learn & improve in what I do all the time. You "say" you do but you always act like you are perfect. Just like you always going on about wanting to have examiners "get it right the 1st time" (which ideally they should; so should you). But, no one is perfect. Remember?

As for you "request" for proposals, it appeared to be another one of your random rants rather than a reasonable request for information.

However, NIRPA provided much of how things used to be. Changing laws, etc., as needed to go back to such a system would be one (probably not ideal) solution. Another might be limiting the number of continuations from an allowed application. Maybe a 2 stage examination process. Maybe much stronger IC laws for the filing of applications where the attorney or applicant knew or "should have known" that the claims as filed were clearly not patentable (using a "man on the street" standard of what is known instead of "one of ordinary skill in the art" to give the applicant as much leeway as possible).

Just a few ideas off the top of my head. Most, or all, would require changes to the laws, but that is another matter. And some have more merit than others. But, at least there are ideas and not baseless personal attacks. Happy?

Now, where are YOUR ideas to improve the system (other than simply remove pto management-that's on its way)???

MVS

Posted by: Michael Valentine Smith at November 10, 2008 4:39 PM

"You have NO WAY of knowing what I can or can not produce."

I don't need to see what you can produce to know I can do better. That's a fact. Sorry if that upsets you. In an argument as to what the law is, what the law requires, from both sides - the PTO and the applicants/patent bar- there is no comparison between you and me. I know the law and you don't. Not my opinion. Not personal. Simple fact. Our discussion of "adequate traversal of Official Notice" proved that. I argued the law and you just kept blathering, "Well, but, uhm, the MPEP says..."

You claim to have seen my work. Why don't you show us all an example of yours. Let me guess, you're gonna dodge that request too.

Shocking.

"I didn't go to a law school or become a lawyer. That DOES NOT make you any better than I. As much as you like to think it does."

Never said, or thought, that. That's your own insecurities messing with your head.

"I believe that, on average, I could write as good a claim or response as you can."

This boast, of all your silly statements, demonstrates your ignorance. You have no idea what goes on in private practice. You think that because you've read thousands of applications and responses that means you could write one. Guess what? It doesn't. It's like thinking you could write a novel as well as William Faulkner because you've read some novels.

I was an examiner for 9+ years. And I've been practicing law for 9+ years. And I can tell you from personal experience that the transition from examining to practicing is difficult. If you ever found yourself as an associate or agent at a law firm and had somebody come into your office and drop an invention disclosure on your desk and tell you to draft an application, you would be completely clueless. Applications don't come already written and get dropped on your desk. You might get some one or two paragraph description of the idea of the invention and that's it. You'd then be told to draft an application and a set of claims that cover the invention, and oh, by the way, make sure they also cover these two competitors' products.

Would you have any idea what questions to ask the inventors? Would you have any idea what to ask the in-house counsel as to covering their competitors' products.

You wouldn't. Trust me. I went to law school and struggled with those situations when I first started practicing. And I had 9+ years of experience as an examiner. I had no idea what I was doing. But I learned.

The fact that you've convinced yourself that you could just bebop from the PTO over to private practice and right off the bat do as good a job as somebody who's been practicing it for 9+ years demonstrates the unbelievably shocking depth of your ignorance. Not my opinion. Not personal. Fact.

"As for you 'request' for proposals, it appeared to be another one of your random rants rather than a reasonable request for information."

Wrong. You said to NIPRA that the filing of "frivolous" applications should be made illegal. I put forth a host of questions as to how you would implement such a scheme and asked you to answer one, JUST ONE, and you can't. Exactly like I said.

"Now, where are YOUR ideas to improve the system (other than simply remove pto management-that's on its way)???"

I've proposed several. I've proposed changing the production system to provide a unique disposal time for every application based on its length, number of claims, number of prior art references in the mandatory search. I've proposed changing the rules to prohibit the "appeal-reopen-appeal-reopen" game that examiners, and managers, play. I've proposed having 3rd and higher continuations examined by examiners who've been trained, really trained, in the law of written description and enablement.

Your big idea is to "make filing frivolous applications illegal." And when pressed to provide even one credible proposal for implementing such a scheme, your response is, "JD is personally attacking me! Boohoohoohoo!"

You're ridiculous. Not my opinion. Not personal. Fact.

Posted by: JD at November 11, 2008 4:42 AM

"Another might be limiting the number of continuations from an allowed application. Maybe a 2 stage examination process. Maybe much stronger IC laws for the filing of applications where the attorney or applicant knew or "should have known" that the claims as filed were clearly not patentable (using a "man on the street" standard of what is known instead of "one of ordinary skill in the art" to give the applicant as much leeway as possible)."

Not sure how I missed these gems. These "proposals" are so utterly silly as to defy description.

Posted by: JD at November 11, 2008 4:48 AM

MVS, I know you work at the PTO since you have access to eDAN.

"Most examiners think he was the worst in the last 20 years."

Now I know you're in middle or upper management - every working Examiner I've talked to has said Dudas is the worst. Every one. Most have no idea who Lehman was. Wake up MVS - just MAYBE you're part of the problem.

(And by the way, two-stage examination is a reality already, so I really know you're in management because you haven't a clue about how things presently work outside the PTO. We only need to revamp the "first stage" (i.e., get rid of those who hold to the GIGO no-work attitude), or switch to a registration system. Actually, the "second stage" should be revamped too if we revamp the "first stage", but that's a topic for another post.)

"ALL sides need to improve. But it seems the attorneys just want to say that the PTO has problems but refuse to admit there are a lot of problems on your side of the table as well."

Pot, meet kettle! Hasn't Director Dudas et al. just wanted to say that the attorneys are the problems and refuse to admit there are a lot of problems on your (the PTO's) side of the table as well? According to him and the FINO Ms. Peterlin (Federalist in Name Only), everything's peachy-keen at the PTO as long as Congressional aides get their GS-15 or SES salaries! According to every one of their public statements, nothing's ever been better at the PTO!! Well, haven't they learned well how to lie under their tutors, and become fully as false as what they seek after? All I see and hear from Director Dudas is "our record breaking year" and "lowest ever allowance error rate"! Hey MVS, isn't the recurring banner in the atrium is getting just a tad bit old?? Don't you think the PTO underlings (like you) will soon catch on? How many more record-breaking years in a row will they use it for, do you think? Just maybe the "record breaking allowance error rate" will be reported as 3.3% in 2008, 3.2% in 2009, 3.1% in 2010 - ya think? Well, it would be if Jon W. Dudas were still the Director.

STOP DRINKING THE KOOL-AID, MVS!! Haven't you even noticed the banner doesn't have a year printed on it? How convenient! Putin could use it in the new Communist Russia too! And some people would believe him.

Again, MVS, this isn't rocket science. The PTO needs real leadership, or it will continue on its course as a headless organization.

Sincerely,

niRPa, a.k.a. NIPRA anonymous (c'mon MVS, you're making me feel guilty - like I've picked a fight with someone I shouldn't have... so I'll stop now. JD, go easy on him....)

Posted by: niRPa a.k.a. NIPRA anonymous at November 11, 2008 5:42 AM

"JD, go easy on him...."

I'll try. But his silly boasts can't just go unanswered.

Posted by: JD at November 11, 2008 7:01 AM

NIRPA,

You must have missed that I was agreeing with a lot of what you said. Go back & actually read it all.

I will say it again very clearly. BOTH THE PTO & THE OUTSIDE NEED TO IMPROVE THE WORK PRODUCT!

Clear enough?? I never said (even though you 2 keep trying to force it on me) that the quality of examination is high. For allowances it is probably acceptable for the system we have. The quality of rejections is very low. Much lower than what it is given credit for. That is one thing JD & I have agreed on (though he hates it when I agree with him. One of those passive/aggressive relationships ;)

So, now quit foisting on me the ridiculous idea that the quality at the office is high. It isn't anywhere near what it should be. And I do not think it is anywhere close to what it is claimed to be by Dudas, etc.

As for Lehman, the only reason most examiners don't think that he was probably the worst of the last 20 years (again, something I agreed with you on "since the Lehman era (1993-present), the PTO has been largely acting as a headless organization").
And, as you well know, the only reason examiners would think that Dudas (who I am NOT defending; his admin has messed things up a lot, starting with the various rule packages) was the worst is because they don't know of any other (your quote "Most have no idea who Lehman was"). Most examiners have probably come in under Dudas, so that is all they know. Like asking a 10 year old child who was the worst president they know. They only know of Bush so that is their answer. Try asking people that have been there for 15+ years & see the response you get. Dudas is probably ahead of both Lehman and Rogan (not saying much there :) Bad response NIRPA. I expect better of you.

And, NIRPA, how can you quote "ALL sides need to improve. But it seems the attorneys just want to say that the PTO has problems but refuse to admit there are a lot of problems on your side of the table as well." and STILL read it as saying that the quality of the PTO is great & everything is the attorney's fault?? THAT conclusion is really warped. Sorry, but it is. The two are 190 degrees opposite.

And, finally NIRPA, I am not looking for a fight from you. I actually think that we are saying a lot of the same things if you actually read what I say & not read it though a JD filter. I want to see the patent system to be improved &, ultimately, make this country a better place. Without a strong patent system the whole economy will get a whole lot worse than what it already is. And, to do that, we ALL need to see what we are contributing to the problems & then become a part of the solution.

MVS

PS, BTW, I am definitely NOT a drinker of the Kool Aid (R). I am the one that asks those "unpleasant" questions at meetings. The types of questions that can get you notices in the "wrong" way.

Posted by: Michael Valentine Smith at November 11, 2008 11:06 AM

"I want to see the patent system to be improved &, ultimately, make this country a better place. Without a strong patent system the whole economy will get a whole lot worse than what it already is. And, to do that, we ALL need to see what we are contributing to the problems & then become a part of the solution."

MVS, I agree with you 1000% (well not about GIGO*) - if only (more of) PTO management could see what you have said in your last post.

Sincerely,

niRPa

*it should be GIGA after GIGR

Posted by: niRPa at November 11, 2008 11:14 AM

JD,

To quote one of our great presidents, "There you go again." Taking things out of context & partial quotes to try to "prove" your point. Nice attorney tactic. I'm sure you learned that in law school, too.

For example, I did not say that I could write a complete application as well as you (didn't say I couldn't, but that's a different issue. Leave it open.) What I said, and I will quote it for you:
"I believe that, on average, I could write as good a claim or response as you can."

So that is "claim or response". That goes to evaluating art & what is known out there, or being performed by competitors, as you said. I can do those things & do them well.

And, as a further point, I also said "on average". For an "average" case I do believe that I can do those thing as well as you. You yourself may well have been able to do that when you started at your 1st firm. A more "sensitive" case, yes, you would definitely have an advantage because you have more experience. I have no problem admitting that. Writing a spec you may be able to do better than I. Again, I didn't claim to do it better.

As for your "ideas" to improve the system, most of those I, and many others, have shot down time & time again for their various flaws, but you still bitterly cling to them like a gun or religion.

And, you wanted suggestions and I gave them to you. You, of course, just dismiss them as "so utterly silly as to defy description" without anything to back it up. Again, typical of your bulling attitude.

And, finally, to once again show your arrogance and how highly you think of yourself, you said:
"It's like thinking you could write a novel as well as William Faulkner because you've read some novels."

So, now you are saying that you are the William Faulkner of patent applications?? ROFL!!

Typical.

John-boy PLONK


MVS

Posted by: Michael Valentine Smith at November 11, 2008 11:20 AM

"So that is 'claim or response'. That goes to evaluating art & what is known out there, or being performed by competitors, as you said. I can do those things & do them well."

Yeah, based on how many times you've done it so well in the past. Which is ZERO.

"For an 'average' case I do believe that I can do those thing as well as you."

There are no "average" cases. You would know that if you ever bothered to venture forth from the safety of your donothingknownothinguselessdeadweightGS-15 position.

If you were to venture forth, you would find that you are about 6 months ahead of the typical first year patent prosecution associate straight outta law school who'd never seen a patent prior to their first law firm job. Maybe 6.5 months. I'm feeling generous today.

Not my opinion. Not personal. Fact.

"Writing a spec you may be able to do better than I."

Boy, that's some understatement.

"As for your 'ideas' to improve the system, most of those I, and many others, have shot down time & time again for their various flaws, but you still bitterly cling to them like a gun or religion."

Shot down by you?! ROFLMAO. You're beyond delusional.

"And, you wanted suggestions and I gave them to you. You, of course, just dismiss them as 'so utterly silly as to defy description' without anything to back it up."

Wrong. I asked you at least half a dozen questions on how your "make filing frivolous applications illegal" scheme would work, and asked you to answer ONE, JUST ONE, of those questions, and you've ignored my requests time and time again.

You must've learned that in examiner school.

Feel free to answer any ONE of them. I'll wait.

"So, now you are saying that you are the William Faulkner of patent applications??"

Uhm, no. I was referring to your ridiculous conclusion that you can write a claim or response as well as I can based on all that great practice experience you've had at the PTO of punching up boilerplate form paragraphs to cite inapposite case law that you've never read.

I've read plenty of novels. Doesn't mean I could write one.

You've read plenty of applications, claims, and rsponses. Doesn't mean you could write any of those. In fact, your first attempts would be comical. If you ever bothered to try your hand at it. But you're too warm and cozy over there just repeating to yourself, over and over, "Uh,but, er, well, the MPEP says..."

Twenty plus years of "working" at the PTO has reduced your reading comprehension to the non-existent level.

On second thought, you're right where you belong. Don't bother venturing out.

Posted by: JD at November 11, 2008 12:15 PM