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January 8, 2010

Nabbed

However one may wish the USPTO well, they certainly are stingy bastards, seemingly bent on cheating their constituency, inventors, at every turn. Herein, Wyeth has to fight all the way to the CAFC to get their patent legally extended because the patent office was tardy in allowing a grant. This episode is a sad comment on David Kappos, early in his tenure at the helm of the agency.

Wyeth and Elan Phara v. David J. Kappos, Under Secretary of Commerce for IP and Director, USPTO (CAFC 2009-1120) precedential

There's no more concise way to put this than how the court did, other than to say that the PTO came up with curmudgeonly formulaic interpretation of the law, which was ridiculous, then stubbornly insisted on it.

On summary judgment, the United States District Court for the District of Columbia held that plaintiffs Wyeth and Elan Pharma International Ltd. (collectively, "Wyeth") were entitled to extended patent term adjustments under 35 U.S.C. § 154(b) due to the Patent and Trademark Office's (the "PTO's") delay in prosecuting their patent applications. Because section 154(b) expressly permits this legal relief, this court affirms.

In 1994, the law changed the effective term of a patent from seventeen years commencing from issuance to twenty years from filing. See Pub. L. No. 103-465, § 532, 108 Stat. 4809, 4984 (1994). With the change came new ways of compensating patentees for PTO-caused delays during prosecution. Under the previous seventeen-year regime, PTO-caused delays could not affect patent terms because the term commenced upon issuance after any delays during patent acquisition. Under the twenty-year term, however, those delays consumed the effective term of a patent.

In 1999, the American Inventors Protection Act amended 35 U.S.C. § 154(b) to address this new problem. The new Act promised patent applicants a full patent term adjustment for any delay during prosecution caused by the PTO. This promise took the form of three distinct "guarantees" in 35 U.S.C. § 154(b)(1):

(A) Guarantee of prompt Patent and Trademark Office responses.--Subject to the limitations under paragraph (2), if the issue of an original patent is delayed due to the failure of the Patent and Trademark Office to [meet deadlines specified in clauses (i)-(iv)] . . .

the term of the patent shall be extended 1 day for each day after the end of the period specified in clause (i), (ii), (iii), or (iv), as the case may be, until the action described in such clause is taken.

(B) Guarantee of no more than 3-year application pendency.--Subject to the limitations under paragraph (2), if the issue of an original patent is delayed due to the failure of the United States Patent and Trademark Office to issue a patent within 3 years after the actual filing date of the application in the United States . . .

the term of the patent shall be extended 1 day for each day after the end of that 3-year period until the patent is issued.

(C) Guarantee or adjustments for delays due to interferences, secrecy orders, and appeals.--Subject to the limitations under paragraph (2) . . .
the term of the patent shall be extended 1 day for each day of the pendency of the proceeding, order, or review, as the case may be.

(emphases added). To summarize, paragraph A (the "A guarantee" or "A clause") promises "prompt [PTO] responses" by extending the term of the patent one day for each day the PTO does not meet certain examination deadlines in subdivisions (i)-(iv). Id. § 154(b)(1)(A). One of these deadlines, for instance, requires a first response to a filed application within fourteen months. See id. § 154(b)(1)(A)(i). Paragraph B (the "B guarantee" or "B clause") extends the term of the patent one day for each day issuance is delayed due to the PTO's failure "to issue a patent within 3 years after the actual filing date of the application in the United States." Id. § 154(b)(1)(B). Last, paragraph C allows for adjustments relating to delays resulting from interference proceedings, secrecy orders, and appeals. Id. § 154(b)(1)(C). At issue in this case are the A and B guarantees.

Both the A and B clauses are expressly subject to paragraph 2's "In general" limitation:

In general. To the extent that periods of delay attributable to grounds specified in paragraph (1) overlap, the period of any adjustment granted under this subsection shall not exceed the actual number of days the issuance of the patent was delayed.

Id. § 154(b)(2)(A) (emphasis added). In other words, this limitation restricts the period of adjustment when any of the "periods of delay" "overlap." This case asks this court to interpret and enforce the guarantees in the face of an "overlap" and "periods of delay" under section 154(b)(2)(A).

Almost every law offers opportunity for vagaries by its enforcer, as does this one.

Section 154(b)(3) of the statute directs the PTO to "prescribe regulations establishing procedures for the application for and determination of patent term adjustments under this subsection." Id. § 154(b)(3) (emphasis added). Under the guise of that authority, the PTO promulgated 37 C.F.R. § 1.703(f) in 2000: "To the extent that periods of adjustment attributable to the [guarantees] overlap, the period of adjustment granted under this section shall not exceed the actual number of days the issuance of the patent was delayed." (emphasis added). Other than adding the term "periods of adjustment," this language repeated the text of section 154(b)(2)(A). The regulations later defined "periods of adjustment" as "the number of days, if any, in the period beginning on the day after the date that is three years after the date on which the application was filed . . . ." 37 C.F.R. § 1.703(b) (2000). The regulation supplied no explanation about implementation or application of these rules.

The PTO pulled a shenanigan that left applicants sometimes holding the short straw.

In 2004, the PTO amended the regulation to replace "periods of adjustment" with "periods of delay." 69 Fed. Reg. 21706 (2004). The PTO contended that this substitution clarified the regulation:

The language of former § 1.703(f) misled applicants into believing that [periods of A-delay] and [periods of B-delay] were overlapping only if the [period of A-delay] occurred more than three years after the actual filing date of the application. If an application is entitled to a [B-]adjustment . . . the entire period during which the application was pending before the [PTO] . . ., and not just the period beginning three years after the actual filing date of the application; is the period of delay under 35 U.S.C. 154(b)(1)(B) in determining whether periods of delay overlap under 35 U.S.C. 154(b)(2)(A).

Id. (emphasis added). Thus, the "period of delay," according to the PTO's new definition, caused the B guarantee to start with the filing of the application, not three years later. Under that interpretation, "overlap" between A adjustments and B adjustments can arise and begin during the pendency of the patent application. For example, if a patent entitled to twenty days of A adjustments issues twenty days after the three year mark, then it is only entitled to a total of twenty days of adjustment. In other words, the entire period of A delay "overlaps" with the entire period of B delay. Using this framework, the PTO uses either the greater of the A delay or B delay to determine the appropriate adjustment but never combines the two.

Wyeth filed suit seeking an extension of 722 days, whereas the PTO only adjusted 492 days.

In district court, the PTO tried to throw its legal weight around, arguing substantive rule making power. That didn't fly. That notwithstanding, the district court found the PTO interpretation nonsensical.

Citing section 154(b)(3) as evidence of a delegation of authority to draft regulations, the PTO sought Chevron deference for its interpretation. See Chevron U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837 (1984).

The district court sided with Wyeth, finding first that the PTO "does not have the authority to issue substantive rules, only procedural regulations regarding the conduct of proceedings before the agency." Wyeth v. Dudas, 580 F. Supp. 2d 138, 141 (D.D.C. 2008) (citing Merck & Co. v. Kessler, 80 F.3d 1543, 1549-50 (Fed. Cir. 1996)). The district court further found that even if Chevron was applicable, it would have rejected the PTO's interpretation as contrary to the plain language of the statute. As the district court put it: "The problem with the PTO's interpretation is that it considers the application delayed under [the B guarantee] during the period before it has been delayed." Id. at 142 (emphasis in original).

The CAFC affirmed pitching the PTO's calculator, after bending over backwards to accommodate it, as courts are generally wont to do for the government.

Under the PTO's strained interpretation, B delay can occur anytime after the application is filed. To the contrary, the language of section 154(b) does not even permit B delay to start running until three years after the application is filed. The PTO's position cannot be reconciled with the language of the statute.

This court has also examined the legislative history of the 1999 Act but finds nothing to rescue the PTO's cause. In the first place, only a "most extraordinary showing of contrary intentions" by Congress justifies a departure from the plain language of a statute. Garcia v. United States, 469 U.S. 70, 75 (1984). Far from intentions contrary to the meaning of section 154(b), the legislative history generally supports the interpretation required by the statutory language itself.

The CAFC noted that the statute is at least a bit brain dead too.

Under certain scenarios, both the PTO's interpretation and the statute itself result in some imbalanced treatment of similarly-situated patentees.

Regardless of the potential of the statute to produce slightly different consequences for applicants in similar situations, this court does not take upon itself the role of correcting all statutory inequities, even if it could. In the end, the law has put a policy in effect that this court must enforce, not criticize or correct. See Harbison v. Bell, 129 S. Ct. 1481, 1493-94 (2009) (Thomas, J., concurring) (quoting Eldred v. Ashcroft, 537 U.S. 186, 222 (2003) ("Even if the proper interpretation of a statute upholds a 'very bad policy,' it 'is not within our province to second-guess' the 'wisdom of Congress' action' by picking and choosing our preferred interpretation from among a range of potentially plausible, but likely inaccurate, interpretations of a statute.")).

In the finale -

Section 154(b)'s language is clear, unambiguous, and intolerant of the PTO's suggested interpretation.

Affirmed.

Posted by Patent Hawk at January 8, 2010 12:22 AM | The Patent Office

Comments

"There's no more concise way to put this than how the court did."

Pretty much true. I call it the "A + B formula" (Wyeth and the Federal Circuit) v. the "the greater of A or B formula" (the PTO).

Posted by: EG at January 8, 2010 6:22 AM

IMHO, running the patent clock from filing was one of the biggest blunders the PTO ever made. I believe it was done in an attempt to reconcile US practice with ROW, but ROW had it wrong, not the US.

The ROW wants to suck maintenance fees out of applicants from day one, so naturally the clock starts ticking on day one. EPO is the worst. You sit there for 4 years waiting for a first OA and all the time your client is paying maintenance fees. Of course, it profits the EPO to let the application sit for as long as possible. If the application is rejected after a 5 year examination period, they still get 25% of the total maintenance fee -- on top of filing fees. S-C-A-M.

And you know Kappos is going to bite at the delayed examination bait. But I'll bet you my farm against your pig that at the same time the PTO will go to the maintenance-fees-from-filing-date scam. In any case, presumably the section 154 3-year examination clock will then start to run from the date the demand for examination is made.

The other issue in this extension analysis is that patent protection can be retroactive to the date of publication. So, depending on the case, as it now stands you can get a section 154 extension out on the front end of the patent's life, but you can also extend protection retroactively from allowance to date of publication.

I suspect that the Lorentz time contraction must fit in here somewhere and bend the whole patent time dimension. It's getting that complex.

Posted by: Babel Boy at January 8, 2010 9:42 AM

Babel,

Keep in mind that the protection from the publication is only for those claims as published. You are in the same boat with examination delay as the vast majority of claims do not make it unchanged from that publication date to the issue date.

Posted by: breadcrumbs at January 8, 2010 10:26 AM

Babel, here's what I just wrote in the Crouch blog:

"Monkey, concerning annuities due at the EPO before issue, think on this:

1) After issue, you have got yourself a bundle of national patent rights in up to 40 countries. In each such country, maintenance in force depends on paying the Patent Office of that country an annuity.

2) In the European Patent Convention Art 67, you can get "compensation" for acts committed by an infringer after WO publication and before issue.

3) While the app is pending at the EPO you can i) sculpt the claims to the emerging infringement and ii) file a divisional, directed to anything disclosed in the WO.

4) The EPO does an accelerated exam program called PACE. No reason needed, no fee need be paid. Hardly anybody uses it so, when an Applicant does actually request it, it's "Action This Day". Why doesn't anybody ask for it though?

So, tell me again, the reasons why you are in such a hurry to get a grant certificate out of the EPO."

So, Babel, any fresh thoughts (other than how expensive Europe is)?

Posted by: MaxDrei at January 8, 2010 10:59 AM

Now, now, Max. Don't be taking personal offense just because EPO is the saddest, dumbest, most rip-off system in the world. That does not reflect on you, personally, except, possibly, to the extent that those of us who don't complain about the rip offs of our respective systems, perpetuate those rip-offs.

You caught me at a bad time -- just when I'm again trying to bring an application that has been allowed in US, Can, JPO, SIPO, and Korea into line with EPO's addition-of-new-subject-matter-by-deletion idiocy. Don't get me going on how badly prosecution in EPO sucks.

Posted by: Babel Boy at January 8, 2010 2:21 PM

The PTO had this one right. Delays caused by the PTO before the 3 year mark should not be credited twice to the applicant. The assumption, of course, is that each day of delay that happens during the first three years of prosecution causes a one-day of overall extension to the patent pendency. I think this is a reasonable assumption. What the CAFC does here, is cause each day of delay prior to the three-year period to be counted twice, once as an A-delay for a PTO-caused delay in issuing an Office Action, and once again for each day that PTO-caused delay extends the pendency beyond 3 years.

In light of this, I think the PTO's interpretation was entirely reasonable, and shows the skill of the planitff's attorneys in convincing the court that it contravenes the "plain language" of the statute.

I think this needs a legislative fix.

Posted by: Defector at January 8, 2010 6:01 PM

Babel, I'm sorry you don't like the EPO but it is a First to File jurisdiction which does mean that it has to be strict with those individuals who do their defining of their invention (or their enablement, or their written description) after filing, rather than before filing at the EPO.

New subject matter by deletion? What's strange about that? You weren't by any chance amending to ABDEF, were you, during EPO prosecution a claim that you drafted and filed, and which the EPO searched, as ABCDEF?

I don't know why you think I have taken offence. I'm merely trying here to excise a few misapprehensions about the EPO. Education is noble, no?

Posted by: MaxDrei at January 9, 2010 1:33 AM

"Education is noble, no?"

- Babel must have been in a "non-thinking" non-learning fun mode, eh MaxDrei?


Defector,
"The assumption, of course, is that each day of delay that happens during the first three years of prosecution causes a one-day of overall extension to the patent pendency. I think this is a reasonable assumption."

This is NOT a reasonable assumption. That assumption would comingle the separate guarantees. The timelines over at Patent Docs show the separation nicely.

The guarantees are separate. The Office violation of one guarentee does not give them a free pass to violate another. Early misses are NOT causily (sp?) linked to long term misses.

Look at it this way with the following hypothetical - the Office miraculously provides a FAOM one month after my filing. I respond at two months and the Office misses a response date by two months - no real big deal (I get pta of two months). The clock is at 9 months. The Office reply is an allowance and all future dealings are timely except the Offfice forgets to actually give me my patent until four years after my file date (second PTA of one year). Are you trying to say that the violation of the second guarantee should be able to swallow the first violation? The Office had more than two years and still missed. No free passes to the Office for violating multiple and separate guarantees!

Posted by: Noise above Law at January 9, 2010 6:49 AM

Exactly, Noise. In your example, the (I think reasonable) assumption is that the issue would have occurred two months sooner had the allowance not been two months late. I agree that this may or may not actually be the case all the time but in general that is how the office operates. Things get placed in a first-in, first-out queue. Any delay that occurs at the front end will cause a corresponding delay on the back end. (For the record I was a primary Examiner who left the Office in 1996.)

Posted by: defector at January 10, 2010 12:24 AM

To further illucidate my point, lets change your example to one where the first OA is issued 3 years after filing. The A-delay is 36 months mius 14 months, or 22 months. Everything is timely after that and the application issues after 6 months for total pendency of 3.5 years or 42 months. The B-delay is 6 months. The reasonable assumption is that, had the PTO Issued the OA at 14 months, the pendency would not have extended beyond 3 years. By not taking the larger of the A and B delays, 6 months of the 22 month A delay is counted twice, since that delay caused all of the B delay.

Posted by: Defector at January 10, 2010 12:40 AM

Defector,

You do provide a nice hypo - however you are not showing why my hypo is overcome, or why the government deserves a free pass for violating separate guarantees.

Here's a hint why your logic of "...assumption is that the issue would have occurred two months sooner had the allowance not been two months late." fails: The guarantees are SEPARATE.

Whether the Office chooses to allow a failed guarantee of action (the first "A" delay) to continue unabated is the government's choice.

Just as easily, the government could mandate that any application that has already incurred an "A" delay be examined with dispatch in order to meet the SEPARATE guarantee of overall pendency. I do NOT think it reasonable at all for the government to choose to violate one guarantee and merely do nothing to prevent violation of a second SEPARATE guarantee,

Our two hypos can be beautifully shown in the pictures at Patent Doc:
http://www.patentdocs.org/2010/01/wyeth-v-kappos-fed-cir-2010.html#comments

Your hypo can be answered with the second picture, wherein the appropriate portion of the second "A" delay would actually NOT be added, as it would lie within the "B" delay period. That picture shows that your hypo IS met with the ruling as it is, and shows why the ruling is correct in order to meet my hypo.

Posted by: Noise above Law at January 10, 2010 9:15 AM

I agree the guarantees are separate, however that does not suggest to me that a single delay should be counted twice, just because it results in a violation of both guarantees.

Here's the thing: If you accept my reasonable assumption (and it appears that you do not) that every A delay results in a corresponding B delay, where the pendency lasts beyond 3 years, then the PTO is not getting a free pass for either delay under my analysis. Under the court's interpretation, some A-delays that occur prior to the 3-year date are counted twice -- once as an A-delay, and once as a B-delay that was caused by the A-delay.

Your hypeo is not "overcome" unless you accept the assumption that an A-delay that occurs prior to the 3-year date will ultimately result in a B-delay.

I don't see how the Patent Docs timeline answers my hypo. In my hypo, there was no A-delay after the 3-year date, and at the same time, it is clear that the entirety of the B-delay was caused by the A-delay, i.e., the first OA occurring past the 14-month guarantee.

Honestly, I think the district court and the CAFC were duped on this one, because they never made the causal connection between A-delays and B-delays. But the link between the two are pretty clear to anyone that has worked in the Office.

Posted by: Defector at January 11, 2010 10:57 AM

Defector,

The point is that the single delay ONLY causes both delays IF the Office allows it to.

You are trying to force a causal connection when there is truly not one there.

The second and separate delay is a CHOICE - one which can be changed and one that can be so done to prevent an "A" delay from becoming a "B" delay.

I am NOT inclined to allow such a thing as lazy and bad management to violate two SEPARATE guarentees and pay once, nor am I not inclined to think it reasonable that such a thing must be a foregone conclusion. Your assumption simply is NOT reasonable.

Haven't you ever heard of a catchback plan?

"Your hypeo is not "overcome" unless you accept the assumption that an A-delay that occurs prior to the 3-year date will ultimately result in a B-delay." - this is pure nonsense. You need to look past the first picture, see the second picture and actually read the captions.

Try again, and don't let your beliefs get in the way.

Posted by: Noise above Law at January 11, 2010 11:33 AM

"The point is that the single delay ONLY causes both delays IF the Office allows it to. "

That's kind of unreasonable :(

I mean seriously Noise, we're more than reasonable with you practicioners here at the office. Accomodating even. This is simply a matter of gentlemanly behavior and your side is failing. Hard.

"You are trying to force a causal connection when there is truly not one there."

But there kinda is. That's the issue. Also the issue is the proper interpretation of of the statue which I covered on the O like you asked me to and then never heard any of your smart mouthing back about.

"The second and separate delay is a CHOICE - one which can be changed and one that can be so done to prevent an "A" delay from becoming a "B" delay."

Not really, and especially if the A delay happens right before the 3+ year B part starts. Office actions don't appear out of thin air you know. If one is delayed one day then it is necessarily delayed for all the rest of the days after the delay.

Also, the major problem in Wyeth's argument is that the Limitation ties all the garuntees into one for the purposes of determining what the adjustment is limited to. Granted, it could be worded clearer, but looking at it from the perspective of the law drafter it is fairly clear cut in the office's direction.

Posted by: 6000 at January 11, 2010 4:37 PM

6000,

Please provide the link to your reply at the O('l Trainwreck).

And your beginning statement on the post above is, of course, wrong. What else is new?

You think it is reasonable to violate two SEPARATE guarantees? Why bother then with two SEPARATE guarantees if they are indeed causally related? I heard you did miserable on your LSAT logic games - Here's a chance to try again.

Once there, try also to explain my Hypo where the time span covers more than two years of inactivity.

As far as reading and understanding Law - no thank you to your intepretation. A good first indicator of the veracity of a statemnt of law is take the direction 6000 tells you and go the opposite way. You never answered my challenge of showing even one place where your interpretation trumped my view. Including this topic if I'm not mistaken.

Posted by: Noise above Law at January 11, 2010 9:37 PM

"You think it is reasonable to violate two SEPARATE guarantees?"

You're talking about "guarantees" I'm talking about the business, the actual work, of producing an office action. If the work is delayed, then it gets delayed, i.e. under any and all "guarantees".

My response to you was in the thread on Wyeth on PO, the one where you specifically asked me to dump all my links.

"Why bother then with two SEPARATE guarantees if they are indeed causally related?"

Because you are concerned about both situations covered under the guarantees? They're both separate concerns until you consider the delay periods overlapping. That's why they put in the Limitation.

Overall, I still couldn't hardly care less either way other than this "interpretation" of the law leads to outlandish results, as admitted by the Fed Circ. That would be just plain bad law. Stat fix is in order if nothing else.

"I heard you did miserable on your LSAT logic games - Here's a chance to try again."

This situation is not analogous to Logic games. It is however analogous to Logical Reasoning and especially to Reading Comp. Logic games are analogous to situations where you have evidence before you and you are trying to see what the evidence dictates. That is not the same as a situation of statutory construction.

"You never answered my challenge of showing even one place where your interpretation trumped my view."

It doesn't "trump" anything. It is simply the directly applicable statutory construction, and it just so happens that it leads to the least outlandish results. It would be correct for the justice dept. to decide a petition is in order or to inform congress to get this under control swiftly.

"Once there, try also to explain my Hypo where the time span covers more than two years of inactivity."

Your hypo includes the "miraculous" occurance:

"Look at it this way with the following hypothetical - the Office miraculously provides a FAOM one month after my filing."

which is not "miraculous" at all. It is not realistic, and probably hasn't even happened in the last two decades.

And then it also utilizes the other non-realistic:

"The Office reply is an allowance and all future dealings are timely except the Offfice forgets to actually give me my patent until four years after my file date"

The office "forgets" to issue your allowed patent for 3 years after NOA (and presumptive quick fee payment)? Sista please. Stop trying to go to unrealistic extremes. You could at least bother to craft a reasonable hypo.

Then you go on to ask, based on your unrealistic proposal:

"Are you trying to say that the violation of the second guarantee should be able to swallow the first violation? The Office had more than two years and still missed. No free passes to the Office for violating multiple and separate guarantees!"

Yes I'm saying that. It's what the law, which is tailored to REALISTIC situations, demands. Further, it is, even in your unrealistic proposed situation, perfectly reasonable. You got a whole year of PTA. You'll be just fine.

Don't you love how "the justice dept" will decide whether or not to persue further legal action rather than a man with balls at the head of the PTO? Talk about passing the buck. Ridiculous.

Posted by: 6000 at January 12, 2010 3:18 PM

"the one where you specifically asked me to dump all my links."

not dump 6, share - I recall that you did not. I also now recall that you rambled fairly incoherently. I did not read it. so don't get all happy thinking that you stumped me. You had a gobbly-gook meltdown and I didn't feel like wading through a hipdeep pile of slime.

"You never answered my challenge of showing even one place where your interpretation trumped my view." - It doesn't "trump" anything.
Nice non-answer 6. BTW - the challenge of you actually posting that any one item was over at patent docs. you tried to change the terms of my challenge, but I said no. You ran.

"until you consider the delay periods overlapping."
Which is exactly how the ruling went - so why are you upset? - Oh yeah, you think a period of delay should start before the start of the delay - must be that impeccable LSAT logic showing up.

"This situation is not analogous to Logic games."
Wait I see your problem - you don't have a clue as to what logic actually is, or where it shows up. Trust me, as an attorney you will never come to work to play logic games, yet you use the real skill in practically everything that you do - if you want to do things right, that is. You also have the worst reading comprehension I've seen on the blogs - even Michael R. Thomas reads better than you. Worst aspect of all - you think you are actually skilled (these are the triple threats that powers your persistent shield of ignorance).

"Yes I'm saying that. It's what the law, which is tailored to REALISTIC situations, demands."

Obviously not. And that was your buddy Rader slamming the Office big time on what the law demands. Chevy chevy chevy huh what?

And yet another item to add to the list of things that 6 gets wrong, and cannot comprehend.

Posted by: Noise above Law at January 12, 2010 6:29 PM

"Which is exactly how the ruling went - so why are you upset? "

I'm hardly "upset", as the decision doesn't really affect me.

However, that is not how the ruling went. As I explained, clearly, in my "rambling", the court is inappropriately considering what the "periods of delay" under the various sections are. That is, their understanding of what the periods of delay being referred to in the Limitation actually are. They have the first "period of delay" correct in that it is anytime the office does one of a few things, like taking over 4 mo to respond. However, The second "period of delay" doesn't start 3 years after filing. It starts, just like the section in the law clearly states, during *application pendency*. If you need further clarification, you can wade through my "rambling" on PO.

"Trust me, as an attorney you will never come to work to play logic games,"

No, but evidencial situations arise which many lawyers attest are fairly analogous to a logic game. That is the justification for keeping them on the test.

"You also have the worst reading comprehension I've seen on the blogs "

Oh, that's why I ace that section! Ridiculous.

"Obviously not. And that was your buddy Rader slamming the Office big time on what the law demands. "

Like I said before, I ha te to po po Rader, but perhaps he had a headache that day and felt generous.

"And yet another item to add to the list of things that 6 gets wrong, and cannot comprehend."

I comprehend your mistaken view very well. And I also comprehend, which you apparently cannot, why the office feels differently. And I can also understand why the office has taken a stand on the issue. They're not taking a different position for shts and giggles you know. They're not even taking a different position because they somehow begrudge apps effective term. They're taking a different position because the law is ambiguous in what the "periods of delay" are since the only "period of delay" mentioned in the second part is *application pendency*, even though one who is concerned with their PTA would immediately think, as Wyeth, and yourself, do that the "period of delay" is referring to the actual days delayed. Not so. When read from the perspective of a law drafter it clearly is not speaking of such a thing. It is referring to the announced periods in the statute. The second of which is application pendency. Thus, the ambiguity arises when the statute is read from different viewpoints. The office takes the viewpoint of congress, you, and Wyeth, take the viewpoint of the person interested in obtaining PTA.

As it just so happens, the office's interpretation leads to much more reasonable results than the other interpretation does.

You might learn, some day, that half of reading comprehension is reading from the perspective of the author. In this case that happens to be Congress.

Posted by: 6000 at January 13, 2010 12:55 PM

I should add, I don't blame Rader, it was up to the PTO attorneys to make this point and drive it home. They're a worthless lot from what I read of their arguments.

Posted by: 6000 at January 13, 2010 12:57 PM

6,

A simple thought experiment that even you should be able to handle.

Applicant Z and Applicant Y each file an application on the same day.

Each application is examined, rejected, and replied to in a similar manner and timeframe and each next Office action is late, thus incurring an unquestioned "A" delay prior to the three years from filing date (there exists an "A" delay separate - separate as in the court's legal determinative sense - from any "B" delay).

Z application is in an art unit that is snowed under. Y application is in an art unit starved for work. All further exchanges are timely except the Z application is not picked up again until four years later.

Under your logic, the incurred "A" delay MUST entail a "B" delay, and this MUST be the case for both applications, even though the Y application passes to issue before the three year mark.

Practicing the skills of the logic games, explain why the logic put forth (either by the Office or by how you think the Office should have done so)must fail in this instance.

Hint - "A" delays do NOT strictly cause "B" delays.

Another logic game - the COURT pointed out that a delay period cannot start before the start of the delay. WIth logic, show that why this MUST be true.


I will also extend the question I asked Defector to you: Haven't you ever heard of catchback plans? Most anybody with any real world experience recognize the concept.

Posted by: Noise above Law at January 14, 2010 4:50 AM

A few more choice 6 tidbits:

“However, The second "period of delay" doesn't start 3 years after filing. It starts, just like the section in the law clearly states, during *application pendency*.”

- with this logic, a delay period starts before there is any delay. This is a completely nonsensical holding foisted by the Office in an attempt to rewrite law that it does not like. We have been over this before 6, the Office is not at liberty to try to make something ambiguous in order to attempt to apply its reasoning due to ambiguity. No chevy chevy chevy – huh what allowed.


""Trust me, as an attorney you will never come to work to play logic games,"
No, but evidencial situations arise which many lawyers attest are fairly analogous to a logic game. That is the justification for keeping them on the test."

- Context 6, context – don’t parse my note, even though that’s how you show your reading comprehension (or lack thereof). Compare to how the note continues: “yet you use the real skill in practically everything that you do”. That’s some sharp reading you exhibit – I did not comment on the justification for keeping or not keeping logic games on the LSAT. The fact is, as I wrote, the logic is used everyday.

Unfortunately for you, that logic is used WHILE reading.

Reading comprehension involves more than simply the ability to read and remember what you WANT to remember – it involves the use of logic to make sense of what you read and synthesize the various items you read into a cogent whole. I never said that you did not know HOW to read (you read with a filter on). The factof the matter is, your poor reading comprehension; that is, reading only to enforce your pre-existing viewpoint, is something you glory in, and is something that maintains your shield of persistent ignorance.

You are NOT going to improve, because you don’t recognize that you need to improve – yet you keep on getting matters of law wrong and have to cough up lame excuses like “the Judge must have felt generous”.


"You also have the worst reading comprehension I've seen on the blogs "
Oh, that's why I ace that section! Ridiculous.

- See comment above.


"Obviously not. And that was your buddy Rader slamming the Office big time on what the law demands. "
Like I said before, I ha te to po po Rader, but perhaps he had a headache that day and felt generous.

- See comment above.


They're taking a different position because the law is ambiguous in what the "periods of delay" are

- See comment above.


since the only "period of delay" mentioned in the second part is *application pendency*,

- Tell me 6 – how is *application pendency* a period of delay? Delay of what? Even a perfectly prosecuted application with no “A” delays and issued prior to three years from filing date has *application pendency*.


"The office takes the viewpoint of congress,"

- obviously not – see the articles at Patent Docs.


"you, and Wyeth, take the viewpoint of the person interested in obtaining PTA."

- And some other authority… oh wait, that would be the Courts. And in a rather sharp fashion at that.


"You might learn, some day, that half of reading comprehension is reading from the perspective of the author. In this case that happens to be Congress."

- See comment above regarding filter. It is plainly evident that you do not even realize (or realize and simply do not care) that you filter everything. That shield makes your world view rather hazy. Stop and think why you consistently take positions that do not pan out. Stop and think why you could not answer even a single item to the Patent Docs challenge that I gave you.

Stop and think – no return post is needed.

Posted by: Noise above Law at January 14, 2010 9:20 AM

NAL,

Way to give it to 6!

Posted by: EG at January 14, 2010 10:00 AM

"All further exchanges are timely except the Z application is not picked up again until four years later."

Simple, *unrealistic* examples are not really the best kind Noise.

"Under your logic, the incurred "A" delay MUST entail a "B" delay, and this MUST be the case for both applications, "

I never said that. My logic doesn't hold that a B delay must necessarily result. It could be that the app dies in one way or other before 3 years. My logic holds that IF a B delay occurs AND if there was a prior A delay, then the A delay *resulted in the B delay*.

"Using *logical reasoning skills*, explain why the logic put forth (either by the Office or by how you think the Office should have done so)must fail in this instance."

"the logic of the office" is different than what you think it is. As I just stated above, A delays CAN cause B delays, and they do so in the instance where there are A delays PRIOR to B delays. A delays do not HAVE TO CAUSE B delays. This later statement is all very well agreed upon by everyone I do believe. You just fail to recognize that A delays CAN cause B delays, and do so in the instance where they come before B delays.

"the COURT pointed out that a delay period cannot start before the start of the delay. WIth logic, show that why this MUST be true."

It must NOT be true because the only "delay period" in the 2nd guarantee is *application pendency*. The "delay period" being referred to is not the period where delay is accruing, i.e. the days that the applicant will get back, it is the period of time which is attributable to the grounds stated.

Oh, and just FYI it isn't "my" logic. Just because I can understand it doesn't make it "mine". It's congressional "logic" that the PTO happens to espouse as well. As an aside, that's why it is so screwy. Only a lawmaker would write such nonsense.

"with this logic, a delay period starts before there is any delay."

Infrakingenius Noise. You're finally catching on. Kudos to you. Put quotes around "delay period", realize that it is a period of time that is attributable to a specified thing, and you're catching on even more.

"is a completely nonsensical holding foisted by the Office in an attempt to rewrite law that it does not like."

Why would it not like it? I've already told you. This has nothing to do with the office not liking the lawl or applicants. Obviously Kappos would have not even had the lawsuit go forward to judgement, and he would probably preclude the justice dept from allowing the case to go any further he

"Context 6, context – don’t parse my note, even though that’s how you show your reading comprehension (or lack thereof). Compare to how the note continues: “yet you use the real skill in practically everything that you do”. That’s some sharp reading you exhibit – I did not comment on the justification for keeping or not keeping logic games on the LSAT. The fact is, as I wrote, the logic is used everyday. "

You don't even understand my comment back to you. My comment is stating that logic games are analogous to EVIDENCIAL situations not STATUTORY CONSTRUCTION situations. Whereas you keep trying to analogize them to STATUTORY CONSTRUCTION. Go d you have a hard time comprehending anything, even when I spell it out for you.

"You are NOT going to improve, because you don’t recognize that you need to improve – yet you keep on getting matters of law wrong and have to cough up lame excuses like “the Judge must have felt generous”."

Hah, I believe I stated that the most likely thing was that the PTO lawlyers had a bit of epic fail in them. Couldn't even write the correct argument down from what I can see.

"Tell me 6 – how is *application pendency* a period of delay?"

More precisely it is a period of delay ATTRIBUTABLE TO GROUNDS specified in paragraph (1)". In fact it is the only PERIOD that is ATTRIBUTABLE to the FOLLOWING GROUND SPECIFIED:

(B) GUARANTEE OF NO MORE THAN 3-YEAR APPLICATION PENDENCY.

"Delay of what?"

It has nothing to do with what is being delayed, it has to do with it being a PERIOD relating to delays that arises under the grounds of part B.

"Even a perfectly prosecuted application with no “A” delays and issued prior to three years from filing date has *application pendency*. "

Agreed. Like I said, it has nothing to do with a delay itself happening, it is the PERIOD which is associated with calculating delays. Like I said, you have to take a look at the statute from the perspective of a person writing a law, not a person trying to understand how the law will pertain to them.

Put it this way, if you were a person writing the LIMITATION law, how would you reference the time periods in the above guarantees? I mean the "time periods" not the "days of delay that will be adjusted". You would refer to them as "periods of delay". Remember, the "time periods" include some days that get excluded under the various guarantees. And you, the law drafer, want to reference the "time periods" not just the "days that the applicant will get". How do you do it? You refer to the "periods of delay attributable to grounds... blah blah blah".

"obviously not – see the articles at Patent Docs."

I haven't seen anything at Docs that states congress feels any differently than the office. I'll check it out, but I doubt there is anything there since I've already read it.

Congressional review. The end.

Posted by: 6000 at January 14, 2010 1:01 PM

You both disgust me. NAL -- you rely on ad hominem attacks and repetition of "separate guarantees" (capitalized for emphasis) because your position is baseless. This is why I stopped reading Patently-O. If you're going to pollute the relatively good signal-to-noise ratio with your incessant "noise" then I'll have to stop reading comments altogether. I don't have time to read your B.S., and frankly the fact that you have time to write it causes me great concern.... for your clients.

At the end of the day, you cannot refute the absurdity of the court's decision, and my initial comment that this decision requires a legislative fix.

Posted by: Defector at January 14, 2010 4:56 PM

Defector,

My apologies for disgusting you. The ad hominem is a bad habit - I will try to curb it.

As to the baseless position, I will say that such a statement of yours is not defensible.

Perhaps you agree with 6, who must twist and scramble in order to pervert the plain meaning into what he (and likewise the Office) attempt to make it to mean. The courts have slapped that effort down - and hard. However, the words - capitalized for effect or not - still have to be understood as they are. I am not certain why you think such is baseless - the courts certainly took an opposite view - because you have not put forth any cogent position to address those words (you put forth a hypo, but then had to use a "reasonable" position that was unsupported and not agreed to).

Your use of such words as baseless and absurdity is not supported. Your idea of "reasonable" is not supported. Ironic it is that such unsupported words can be categorized with the very definition of ad hominem that you deplore. So get off your high horse, prove your point about my position being BS, and don't worry about my clients - they will be just fine.


You clamor for a legislative fix without establishing that a fix is needed. I understand what you want - but your want is immaterial.

Posted by: Noise above Law at January 15, 2010 4:00 AM

...to be clear, (I realize you mean an alternate version):

Definitions of ad hominem on the Web:
appealing to personal considerations (rather than to fact or reason); "ad hominem arguments"
wordnetweb.princeton.edu/perl/webwn

Posted by: Noise above Law at January 15, 2010 7:52 AM

btw 6, concerning your "I haven't seen anything at Docs that states congress feels any differently than the office. I'll check it out, but I doubt there is anything there since I've already read it."

for your re-reading pleasure (avert your eyes Defector - this won't be pretty - for 6):

"The panel also found nothing in the legislative history of the statute that would support the Office's interpretation"
- http://www.patentdocs.org/2010/01/wyeth-v-kappos-fed-cir-2010.html

and


"According to the PANEL opinion, the plain language of the statute, AS WELL AS the LEGISLATIVE HISTORY, evinced a Congressional intention to restore to patent holders term lost as a result of the change in U.S. law implementing the provisions of the GATT treaty."

and

(The opinion quotes the legislative history, that "[t]hus, no patent applicant diligently seeking to obtain a patent will receive a term of less than the 17 years as provided under the pre-GATT standard; in fact, MOST WILL RECEIVE CONSIDERABLY MORE," citing H.R. Rep. No. 106-464, at 125 (1994) (emphases added).)

- both from http://www.patentdocs.org/2010/01/the-federal-circuits-wyeth-v-kappos-decision.html

Come again with your great reading skills.

(sorry Defector, but 6 and his shield of persistent ignorance deserves no break from the ad hominem).

Posted by: Noise above Law at January 15, 2010 4:15 PM

Noise:

"The point is that the single delay ONLY causes both delays IF the Office allows it to."

No, that's not true. The causal link is there and unavoidable by the Office. This is an area that we disagree on and I think its because you don't understand how the Office operates, and how it must operate, and that is, on a first come, first serve basis (by in large). This means there is a queue for every operation, and if there is a delay on the front end it necessarily entails a delay on the back end. It's unavoidable.

"Haven't you ever heard of a catchback plan?"

Ummm, no. I googled it and this page came up in the top 10 responses. Others were not relevant. Care to enlighten us?

"Your use of such words as baseless and absurdity is not supported."

I used "baseless" to refer to your arguments that because the guarantees are separate, a delay that causes both guarantees to be broken should be counted twice. Rather than refuting that with a cogent analysis, you kept repeating yourself and your conclusion without providing any basis for your conclusion. I used the term "absurd" because the result the court reached is absurd, as the court itself admitted (they just said that the status quo can create absurd results, which, while I agree that the status quo was unfair in some cases, it was not as absurd in its results as the court's new construction.

"because you have not put forth any cogent position to address those words (you put forth a hypo, but then had to use a "reasonable" position that was unsupported and not agreed to)."

Yes exactly. I put forth a hypo and resorted to a position of reasonableness. If you read my comments, I never said the court wrongly construed the statute. What I said was that the PTO's interpretation was reasonable and was according to how the statute should be interpreted. I don't disagree that the court interpreted the statute according to how it was written, which is why I said it needs a legislative fix. The statute was badly written and I think the intention of the drafters was lost in the verbiage. That's my opinion. It is based on my reading of the statute, my understanding of the operation of the PTO, and my sense of fairness.

"You clamor for a legislative fix without establishing that a fix is needed. I understand what you want - but your want is immaterial."

A fix is needed because the court's interpretation is unfair, and in fact more unfair than the PTO's alternate interpretation.

Posted by: Defector at January 21, 2010 7:11 PM

Defector,

Admittedly, replying with ad hominem is the easier route. To reply in an intellectually progressive manner involves determining the level of sophistication that the other party has. How detailed must the answer be? What principles of law does the person likely know?

In trying not to be belittling, I offer the following in response:

Emphasis, including capitalization on the fact that the guarantees are separate (i.e. distinct) was not, and still is not, addressed by your position. A fundamental precept of law is that the words of the law have meaning. If, as according to your logic that any “A” delay must cause an ensuing “B” delay, then there would be no need to have two separate guarantees. Your logic makes the law meaningless.

Your reliance on the Office operations as a de facto rationale is not a reasonable position. The Office not only CAN takes items out of queue, it routinely does so (e.g. expedited examination). Your refusal to believe otherwise is simply unreasonable - it is not that I do not understand how the Office works – it is that you don’t understand that how the Office works – how it chooses to work is part of the problem. As I posted, and you failed to respond, the Office has within its power the ability to refocus examiners to handle those applications that already have incurred an “A” delay so that no “B” delay is incurred. The only reason (with a very limited exception) why an “A” delay MUST also incur a “B” delay is by Office choice. The limited exception – which you did capture in your hypothetical, was when the “A” delay coincides near the very end of the three year period before the “B” delay is started to be computed, or broaches that three year starting date. In such a case, the proximity would not allow the Office to catch back. Important to note that in my (and the Court’s) reading of the law, the actual amount of “A” delay past that three year mark is NOT counted twice.

Your level of sophistication may prevent me from explaining catchback plan, or rather from you understanding what that means – What you consider irrelevant may be precluding you from the best explanation – not to be attacking, but your rationale exhibited in your posts displays a certain lack of logic and I cannot force you to understand concepts that I would find plainly obvious. In a nutshell, a catchback plan entails a re-prioritization of activities in order to compensate for an event that would otherwise cause an entire project to slip. Your clinging to the current Office choice of sticking to its queue may prevent you from realizing that that operation is indeed a choice that can be reasonably changed. Also, I am not sure just who the “us” is in your post – I hope that you are not aligning yourself with 6.

Your explanation of your choice of using “baseless” is faulty. Just because you do not understand my explanation does not make it any less cogent. My explanation is not only cogent, but in line with the Court’s, and thus in line with the Law. I indeed explained the basis for my conclusion – you simply did not grasp (either you were unable to grasp, or you chose not to).

“and resorted to a position of reasonableness.” – Except, as I told you, your position is not reasonable. In parts, your unreasonableness is based on your misunderstanding of choice, your non-understanding of catchback planning, and your lack of understanding about principles of law and why the fact that the guarantees are indeed separate and distinct must be read so.

“…and I think the intention of the drafters was lost in the verbiage.” Actually, the posts I supplied for 6’s re-reading enjoyment show that the intention is NOT lost in the verbiage. Congress intended the law to act as it has. The Court recognized this and stated so. The law is not perfect, but does reflect the intent. The Court’s position is simply that it cannot rewrite the law to go against the intent found.

“A fix is needed because the court's interpretation is unfair, and in fact more unfair than the PTO's alternate interpretation.”
This is ad hominem on your part. You bandy about the term “unfair” and claim a relative degree without substantiated or reasoned arguments, but merely as your opinion. The court’s opinion is completely fair and simply matches to the law as written and as intended. The fact that you cannot recognize that the Court acted exactly as it should in relation what Congress wrote is telling. Whether Congress’s intentions were “fair” is a completely different story which when commingled obfuscates not only the case at hand, but the entire process and workings of our legal system.

Posted by: Noise above Law at January 22, 2010 7:15 AM

Noise --

I see you took the easy route, but a couple of your points merit a response.


"If, as according to your logic that any “A” delay must cause an ensuing “B” delay, then there would be no need to have two separate guarantees."

Two guarantees are still needed because the A-delay only causes a B-delay if the prosecution extends beyond 3 years. I stated this earlier, but abbreviated my explanation because I thought that was understood by now. I guess I was wrong.

"Your clinging to the current Office choice of sticking to its queue may prevent you from realizing that that operation is indeed a choice that can be reasonably changed."

Sure, a particular application can be taken out of turn, but that would cause more delays of cases that arrived at the Office ahead of the particular application, so the net result would be the same amount of delay for everyone, just with a less fair distribution of delay. In other words, if I took your case out of queue and completed a task ahead of other people, than all those other people would experience increased delays, which would incur adjustments of their pendencies. This is what I mean when I say "unfair." It would be unfair to take one particular case out of turn to reduce the B-delay in the face of an A-delay, which inevitably will result in more delays for everyone else.

You and I obviously have different definitions of "reasonableness" and "fairness."

You accuse me of ad hominem attack for saying "a fix is needed because the court's interpretation is unfair." I think you're mistaking what I mean when I say "unfair," confusing "unfair" with "unreasonable." The court's interpretation may be reasonable in light of the language of the statute, but still be unfair, because it leads to an unfair result. (In either case, it is not an ad hominem attack, which is an attack against a person, not an idea.) Assuming the court's interpretation is in line with Congress' intention, then both are unfair.

I am ending the discussion here (at least my end of it).

Posted by: Defector at January 22, 2010 2:00 PM

So that’s what I get for being nice(r) and going light on the ad hominem and explaining things in detail – a smart ass comment about taking the easy route and someone “deigning” to grace me on points that person thinks merit a response – when they are merely cherry picking things they want to have the last word on. To top it off, when I take the time to establish points in law, that person gets in a huff and says “no mas”.

Defector you are an unbelievable coward. You could at least say thank you for the enlightenment I provided as to how our legal system is supposed to (and does) work.

As to tasking you with an ad hominem, try to reread my post with the various definitions of ad homimen. You offer no substantial fact or reason for your position and your position boils down to only your opinion and your feeling about what is reasonable and fair. This by definition is ad hominem. I invite you to base your opinion in fact or reason (reason that can hold up to analysis – yours does not). It is your choice to run away rather than intelligently defend your position.

You like to wield words that you truly don’t understand – much like you like to wield logical arguments when you don’t realize the extent of the logic you are attempting to use. For instance, you maintain that an “A” delay MUST have a one to one relationship with a “B” delay, yet try to also hold the position that there are applications that have “A” delays that do not have “B” delays. Under your logic, this is an impossibility. Instead of seeing this, you maintain trying to hold a dual position that just points out your lack of ability to put forth a meaningful position and defend that position. You would do all of us a favor by refraining from posting until you have actually thought through your position, rather than merely going on feelings.

As to the Courts being unfair. You evidently have no understanding of the legal system. The courts acted in perfect fairness and in fact it would be unjustifiably unfair for them to not behave as they are supposed to. If you have a beef with Congress, you need to take it up with them. There is a long line for that. And if you took the time to actually understand the rationale for the law in the first place, Congress was looking out for US inventors when they crafted the Law. Your incorrect and so called “reasonable” and “fair” view shafts inventors for the benefit of the Office alone. In the correct view, all inventors benefit – even those that would be displaced by my suggestion still benefit. You unfortunately cannot see this and are still way too pro-Office. The indoctrination has not been erased from you yet.

Try thinking of the two separate and distinct guarantees as in the “and” sense. You get guarantee one AND guarantee two. The law is not written in the “or” sense of you getting guarantee one OR guarantee two. The Office must live up to both guarantees. The guarantees are meant to make the Office move. This is best accomplished with the “and” sense. And this makes the Office move for everyone. While it is true that the Office has limited resources and that by addressing those applications that have merited an “A” adjustment ahead of those that have not, you risk creating more applications with “A” adjustments, BUT everyone still is “made whole” with the guarantees. No one is actually treated unfairly and shafted out of a guaranteed adjustment. Your logic plainly shafts certain applicants and lets the Office de facto avoid their lawful responsibility of the separate guarantees. Yes we do have different views on fairness. Yours is not defensible.


I am also curious to your view on other established Office procedures. Using your logic of causing delays for everyone else being manifestly unfair, would you say that ANY program for advanced examination is blatantly unfair? Rather than some sense of reasonableness or fairness, this only points out your rigidity with a first-in first-out (FIFO) philosophy. You are correct in that we have different views on reasonable. Your unyielding view on FIFO is completely unreasonable. Even companies that actually create output know that there is no such thing as a 100% FIFO system. Even the Office does not have such a system – even though you don’t get the implication of this. The Office currently engages in the practice I suggest, just not in the area I suggest. Are you saying that all those other programs are unfair? Will you be crusading to stop those programs? Aren’t you forgetting that the case at hand is a lawful requirement that must be met? Are you not realizing that even under your interpretation of “A” or “B”, that any effort to expedite an application in either “A” or “B” territory results in your opinion of unfairness? Are you even aware of the logical consequence of your position that strict FIFO would actually make ALL applications late? There’s more than a million applications waiting. Under your strict FIFO – EVERY current application must be finished before the Office would be allowed to begin processing any of these. Wake up Defector – take a course in logic and put some effort into thinking logically and legally before you post your inanities. Or at least have the decency of recognizing when you are being schooled.

Class dismissed.

Posted by: Noise above Law at January 23, 2010 7:19 AM

Noise, in most of your post, I have absolutely no idea what you're talking about. I ended the convo because we're obviously never going to agree and I don't have time to waste on a hopeless exercise. I never attacked you personally or the court or the Office, as you attack me continuously. I never said anything about 100% FIFO, and I understand in some cases applications are taken out of turn for good or bad reasons. But these are the exceptions, not the rule, and the law should attempt to make the system as fair as possible for everyone. The decision by the CAFC makes the system less fair. Fairness is not determined subjectively. Merriam Webster defines it in terms of justice and equity. (As a lawyer, you should be familiar with such concepts as justice and equity.) Fairness is a matter of scientific study. See, e.g., http://www.jstor.org/pss/4140415. I never said that the Office benefits or that inventors are shafted. In reality, the only people "shafted" are the public because inventions are kept out of the public domain for a longer period than is fair under the court's interpretation. I never said the courts were unreasonable or that they should have decided the case differently. I never said that expedited prosecution procedures were unfair, and I don't think they are because everyone has the same opportunity to take advantage of these procedures, and the extra delays they cause to non-expedited applications have a legitimate policy justification. Seriously, I wonder who you're arguing against because it can't be me.

Posted by: Defector at January 25, 2010 9:58 AM

Defector,

I attack not you but your rotten position. I'm sorry that your position is so bad that it appears that I am attacking you. I am sure that you are a nice enough guy, as long as you are not in the field of logic or law.

The exercise would not be hopeless if you came to the field of legal logic armed and ready. Truly, I can be convinced, but you need more than the poor logic and the ad hominem arguments you have presented (btw, ad hominem means more than just personal attacks - see above).

Your clung-to logic that "B" delays MUST come from "A" delays boils down to 100% FIFO. You disagreed with my stance, yet gave no substantial and credible reason why (because you "feel" a certain way doesn't cut it).

"The decision by the CAFC makes the system less fair. Fairness is not determined subjectively"
Yet, you have only given subjective rationale. Any rationale that you thought was objective I have shown not to be.

Claiming you don't understand me does not change that.
Not understanding catchback planning does not change that.
Not recognizing that the Office has power to choose (and does choose) does not change that.
Ignoring that the guarentees are separate and distinct does not change that.
Ignoring that the Courts HELD that they were ruling in accord with the intent of Congress does not change that.

Yet, poor poor Defector, why is Noise above Law attacking him so.

"the only people "shafted" are the public because inventions are kept out of the public domain for a longer period than is fair under the court's interpretation."
- Again with the baseless "fair". Try reading my posts. Do so slowly if needed. The fact that you cannot see that I am arguing against what you HAVE said (and its logical endpoints) clearly shows that you need to put forth a lot more effort into understanding law and logic.

Do you know how to actually put together a legal argument? Here's a clue - if the Office did not abrogate its lawfully required guarantees (each and every separate and distinct one), then the public would not be shafted. Yet, you want to absolve the Office of its legal duty, shaft the inventor and say that's more fair.

"a legitimate policy justification"
Yes, hmm, following the law as it is put forth by Congress - you don't find that a legitimate policy justification?

Seriously, I am willing to be convinced of the error in my thinking. I am willing to admit the error in my understanding of law. But you have to actually have some type of substantial argument. You have to actually address my points with more than your feelings. Its not that I don't care about your feelings, its just that the law requires more. The public deserves more.

Posted by: Noise above Law at January 25, 2010 1:29 PM

You continue to misunderstand or misstate my position. Perhaps this is mutual.

Posted by: Defector at January 25, 2010 1:49 PM

Let's start with

"The assumption, of course, is that each day of delay that happens during the first three years of prosecution causes a one-day of overall extension to the patent pendency."

and

"that every A delay results in a corresponding B delay"


Is this not equivalent to "any "A" delay MUST cause a one-to-one "B" delay"?


I'm pretty sure that I neither misstate nor misunderstand your position.

I am not certain that you misunderstand MY position, as you have not yet answered any of my points or shown where I might be wrong (except for the touchy-feely opinions of yours).

Try again (or try for the first time).

I can be convinced by good argument - really.

Posted by: Noise above Law at January 25, 2010 2:53 PM

btw - Dennis over at the Trainwreck has posted a statistical sample of the your so-called "less fair" impact - 71% of patent holders in the time frame would be shafted.

71%

Posted by: Noise above Law at January 25, 2010 2:57 PM

Noise, I have qualified that A delays will result in B delays "where the pendency lasts beyond 3 years" multiple times. I admit I didn't mention that in each of my posts -- sometimes I figured it was clear from the context, and sometimes I assumed it would be understood by a reasonably intelligent reader, because that is what we are talking about.

Posted by: Defector at January 27, 2010 5:11 PM

Noise, I have qualified that A delays will result in B delays "where the pendency lasts beyond 3 years" multiple times. I admit I didn't mention that in each of my posts -- sometimes I figured it was clear from the context, and sometimes I assumed it would be understood by a reasonably intelligent reader, because that is what we are talking about.

If you want to be completely pedantic about it, in general, and on average, an A-delay will result in a B-delay to the extent that pendency lasts beyond 3 years.

Posted by: Defector at January 27, 2010 5:12 PM

Defector,

It not a matter of being pedantic, and as gentle as I can be, your logic is worthless. In essence you want to assume a causal relationship but for no other reason that the subset would fit your feelings.

Cold clear logic does not work that way. You have still failed in both putting forth a non-ad hominem position, and failed to address any of the logic (legal and otherwise) in my positions.

Try again, or still, try for the first time.

Posted by: Noise above Law at January 27, 2010 6:58 PM

Noise, you're welcome to your opinion. I am confident that your insults, your repetitive misstatements of my position, and your failure to state a clear position on your own, other than my position is "worthless," would prove to any casual observer that you're an idiot.

Posted by: Defector at February 2, 2010 10:13 AM

Defector, that is correct.

Posted by: Casual Observer at February 2, 2010 6:22 PM

Defector - your logic continues to be in error - thus your conclusion that I am an idiot is also in error. It does not take a casual observer to see that.

I thought you were done posting?

If you are not done, at least then have something intelligent to say. Then, I won't be able to insult you.

As to some type of "failure to state a clear position on my own" - do you know or understand law? Did you take reading comprehension classes from 6? I back my position with a discussion of law in contrast to your position which merely boils down to your opinion and feelings. My position is backed with substantive authority. I repeat myself in part because you STILL have not presented anything of substance to back your position, nor have you used any substantive legal logic to nullify my positions. If you would only do so, we could move the discussion (debate?) forward.

Posted by: Noise above Law at February 6, 2010 6:56 AM

Noise, I'm going to have to go with Defector on this one.

Posted by: Casual Observer at February 6, 2010 7:06 PM

casual,

...and that's supposed to mean... what exactly?

feelings and opinions - I have no use for those in a discussion on law. Put up or shut up.

Posted by: Noise above Law at February 6, 2010 7:32 PM

I mean simply that you failed to make a convincing case. Defector's arguments were more persuasive.

Posted by: Casual Observer at February 7, 2010 9:44 AM

Casual,

Your position is not sustainable. You deem mere conjecture, feelings and opinion over a position based in law and citing prominent authority - as such, I will take your comments to be compliments.

Thank you.


I would also invite you to try your hand at putting together a cogent argument for Defector's position if you desire. Like I said - I'm willing to admit my error in law or fact if shown with reasoning based in substance. We haven't seen any of that from Defector.

Posted by: Noise above Law at February 7, 2010 10:35 AM

Noise, as a casual observer, it would be improper for me to interject my position into the arguments. As my name implies, my duty is simply to evaluate the facts and arguments presented before me. I have done so, and found yours to be lacking. Don't take it personally.

Marcia Clark was a very good attorney,but every now and then even she ran into a Johnnie Cochran. It happens to everyone.

Posted by: Casual Observer at February 8, 2010 8:06 AM

casual,

You will have to pardon my disbelief. I simply have to question the basis of your decision - since you give none. You offer no insight other than "I find your side lacking". Just like Defector's ad hominem, such statements carry no weight. Without more, you have said nothing.

If you cannot (or will not) make a cogent argument, at least make a cogent defense of your position. What facts and substantive argument so swayed you?

Was it the appeal to the personal sense of fairness that shafts 71% of applicants? Do tell.

Was it the appeal to some undisclosed number of cases where the "A" delay MUST correspond to an day to day "B" delay - but only in those cases (undisclosed) where that relationship actually does exist - ignoring all the other cases where the two delays don't match up because such cases defeat the logic that Defector wants to cling to (funny applying that logic universally, from some small and undisclosed population....) Do tell - how solid is YOUR sense of logic?


Is there some school of legal thought out there that is based completely on conjecture, feelings, lack of substantive reasoning, disregard for authoritative sources and twisted logic?


PS - the Cochran analogy is cute - but patent law is a bit different than criminal law, is it not? Also, as the real world results indicate - my position does seem to the non-casual, legally trained observer to be the correct one (this is equivalent to the trash talk comeback of pointing up to the scoreboard and simply smiling).

Will you reply with vacuous statement, or put some meat into the discussion?

Posted by: Noise above Law at February 8, 2010 9:43 AM