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August 25, 2010

On A String

From reading his newsletter, one gathers the decided impression that Greg Aharonian has the emotional stature of an infant. [I know I'll get comments from readers who will swear their infants are more mature than Greg. Point taken.] In his ranting newsletter, where screaming ALL CAPS and !!!!!!!! are the norm, Aharonian boiled over newly minted patent 7,779,753, which claims a tea ball on a serving string. Congratulations to Ms. Winnie Yu for securing intellectual property protection for her creative endeavor. Perhaps Ms. Yu would be so gracious as to invite Mr. Aharonian over for tea. Or, upon thoughtful consideration, perhaps not.

Subject: PATNEWS: Getting a patent on adding a string to an existing product

!20100825 Getting a patent on adding a string to an existing product

For those of you on the verge of blowing your brains out after fighting too
many idiotic Office Action rejections over serious inventions, well here it
is, the last idiocy you need to pull the trigger:

PRIOR ART: a ball of tea wrapped in string

PROBLEM: how do you get the tea out of the cup after it soaks?

SOLUTION: ADD A FREAKIN STRING

or, in this universe, and at least a zillion nearly overlapping universes in
the multiverse:

U.S. Patent 7,779,753
TEA BALL WITH [A FREAKIN] STRING!!!!!!!!
(issued 24 Aug 2010, filed April 2006)
Inventor: Winnie Yu (Berkeley, CA)

Claim 1:

1. A tea serving comprising:

a plurality of generally whole tea leaves: a binding string that
encircles and binds tea leaves into a tea ball wherein said
binding string is in direct contact with said tea leaves;

The Background section, common sense, reality, and entire zipcode of San
Francisco (Chinatown) put this completely in the prior art.
Thus, THE IMPROVEMENT COMPRISING BEING:

a serving string having a length with a first end that is attached
to said tea leaves of said tea ball and a second end that is free
from and can extend a distance away from said tea ball,

THE FREAKIN INVENTION, somehow distinguished from when the white paper tab
on your Lipton teabag falls off, leaving you holding a string that is
attached to the tea binded by the teabag.

whereby said tea ball can be lowered into and removed from a
container of tea water by grasping the second end of said
serving string and lowering or raising it as desired.

Again, somehow distinguished from when the white paper tab on your Lipton
teabag falls off, leaving you holding a string that is attached to the
teabag.

So yes, aim, set the trigger, pull and blow your brains out to then never
have to deal with an idiotic Office Action while contemplating how this
patent issued.

Greg Aharonian
Internet Patent News Service

Mr. Aharonian might be well advised to take his own advice and put us out of his misery.

Posted by Patent Hawk at August 25, 2010 5:17 PM | Prosecution

Comments

I suspect that the good Mr A has not given enough consideration to Professor Duffy's "timing" theory of obviousness. If string-bound tea leaf bundles are as old as the hills, and string-suspended tea bags are too, and manufacturers use exactly the same string material to make both the binding string and the suspending string, and both products have co-existed on the market, ubiquitous for donkey's years, yet nobody thought, in all those years, to use the old binding string also as a suspending string, well then it can't have been obvious can it, or somebody would already have done it. Stands to reason, dunnit? With this invention, a prior art mono-functional length of string is transformed into a multi-functional length of string. Such is classically a non-obvious step.

Then again, the EPO's "problem and Solution Approach " to obviousness gives a PTO Examiner an easy to use tool to incinerate this claim in less than 5 minutes, just like it did the claim in the KSR case.

Mind you, these days it is "secondary considerations" that are decisive, when weighing the obviousness issue. Is Winnie by now selling her balls on a string faster than her hot cakes?

Has anybody read through Winnie's USPTO file wrapper yet?

Posted by: MaxDrei at August 25, 2010 10:45 PM

Readers, having read this patent, all two columns of it, I see that the only prior art in sight is that cited by the PTO Exr, and I'm interested in the Duty of Candor, as it applies to patent attorneys who draft and prosecute.

For example, what if they are aware that conventional tea bags do have a suspension string (by the way, is there any adult American of more than average intelligence and awareness who is not aware of that fact?). If they then deliberately choose not to include that fact in the app as filed, or in an accompanying IDS, and instead write the usual "There is a need".....and...."surprisingly" guff in support of the patentability of the suspension string, are they in breach of the Duty?

Posted by: MaxDrei at August 26, 2010 2:36 AM

MaxDrei,

As you admit to having read the application, you will have noticed that conventional tea bags were simply distinguished in that application.

It appears that you are trolling for an issue with "If they then deliberately choose not to include that fact in the app as filed".

Reading the tea leaves, as it were, the particular flavor of type of tea processing specializing in the unfolding flower effect beckons to more than the average intelligence and awareness.

As to the file wrapper, my curiosity notes a surprising brevity in the notice of allowance (after three years of examination including an RCE).

Posted by: Anon at August 26, 2010 3:58 AM

Anon. Sorry I'm not following you. Where in the application? Do you mean claim 5 and col 1, line 23? If so, then the writer admits that tea bags are known but not that they are conventionally provided with a suspension string, to pull the bag out of the brew after a perfect X minutes of brewing.

I'm not trolling, just genuinely curious what is ethical.

Your point on the conventional opening of tea flowers not confined in a bag. Is that in the claim. Would it help your argument if it was?

Your point on the file wrapper. Is that irony, or something to do with "wearing down the Examiner"?

Posted by: MaxDrei at August 26, 2010 5:05 AM

Max and Greg both have either serious intelligence or vision problems.

If a guy cannot see the difference between tied whole tea leaves, and chopped tea in a bag, you probably don't want him doing your searches.

I don't think I have ever seen a whole tea leaf in my life, and I'm d***ed sure I've never seen one tied to a string.

Aharonian, as per usual, doesn't have a clue. This is not a patent about tea bags, strings on tea bags, or tabs on strings on tea bags. (It's not even about Republican moron tea baggers or tabs on strings on Republican moron tea baggers.)

That, gentlemen, is the entire point. There is NO FRICKIN' BAG!!!! If before seeing this patent anyone would have asked you to devise a way to make a cup of tea leaving no tea remaining in the cup and without using a tea bag or container, the best you would have come up with would be "duh."

As to the suggestion that the inventor was required to disclose some PA on tea bags, Max is as goofed up as Greg. If something is as well known in this world as tea bags are -- which is the premise of Max's complaint -- there is no need to disclose.

If you claim a novel balloon made of lead and filled with air, are you required to cite a reference for rubber ballons? How about a reference for the air? Don't be daft.

Personally, I'd buy a box of this product in a blink, and would likely say to m'self while enjoying the tea -- why didn't I think of that?

Posted by: Babel Boy at August 26, 2010 7:25 AM

The main point I wanted to make is: What's the thing on the degeneration in the quality of drawings in US patents?

When I started out this hand-drawn garbage would have never made it to the examiner's desk, much less into the patent.

Posted by: Babel Boy at August 26, 2010 7:31 AM

Babel, may I ask, have you read the patent yet? Are you supposing that these tea balls (bunch of tea leaves tied up with a string) are the invention? The way I read the patent, col 1, line 7, in Berkeley, CA, they are as old as tea bags.

Once upon a time, long years ago, that old staple commodity, the tea bag, did not have a suspension string. Then it did. Once upon a time tea balls had no suspension string. Then along came Winnie's "invention".

Tell me again, where am I seeing it wrong?

Posted by: MaxDrei at August 26, 2010 8:45 AM

When a patent attorney claims that a patent claim should not have issued, I would appreciate if they would state a specific rejection which should have been made.

Posted by: patent prosecutor at August 26, 2010 9:53 AM

"Your point on the file wrapper. Is that irony, or something to do with 'wearing down the Examiner'?"

This is not wearing down the examiner. Granted, this patent is as obvious as the nose on your face, but the examiner never made a coherent rejection, so the applicant kept pointing that out. If the examiner is too lazy and/or dumb to make a rejection that forces the applicant to go away, no wearing down is necessary. Unless you consider repeatedly pointing out the examiner's laziness and/or stupidity to be "wearing down the examiner," which I don't.

Posted by: pong at August 26, 2010 11:59 AM

Sorry, while I don't agree with Greg's tone, I agree with his substance. A quick Google search turned up this reference, dated 2003, which states:

"Air-drying is another method to preserve herbs and spices. One method of air-drying entails tying a string to the base of a bundle of whole plants, sprigs, or seed heads. Make sure the bundle is small enough for adequate air circulation and uniform drying. Then hang the bundle upside down in a warm (68 to 90ºF), well ventilated, dry and dark place. The herbs or spices are placed in the dark because essential oils break down in sunlight."

Posted by: Defector at August 26, 2010 3:54 PM

And how is air drying related to soaking a full tea leaf in the act of making tea?

Posted by: Pedantic Pete at August 26, 2010 4:30 PM

Did you read the claim at all pete?

Posted by: 6000 at August 26, 2010 7:52 PM

Any fresh thoughts today, Babel? For an answer to my question, yesterday at 8.45am, I should be grateful.

Defector, thanks. I don't care much for Greg's tone either, but never mind that. As a topic for debate, substance is certainly more fun.

I wonder what it cost Winnie, to get her case to issue, and the Presumption of Validity, so many years after filing it. Is her lawyer paid by the hour, I wonder, or was she astute enough to agree instead to share with him the upcoming yummie royalty flow?

I wonder, incidentally, whether these danged clever dangling tea balls are on the market yet.

Posted by: MaxDrei at August 27, 2010 12:40 AM

Does your question answer my question 6000?

Posted by: Pedantic Pete at August 27, 2010 3:00 AM

From the patent:

“Tied tea is a known form of tea in which generally whole leaves of tea are held (tied) together by a string and rolled to form a compact parcel of tea in any one of several different solid shapes …

The advantage of tied tea balls is that they are convenient to carry, are a pre-measured amount of tea and a delight to watch as they open into "flowers" of unexpected shapes and colors. Also, since they are not contained within a bag or similar container, the tea leaves are able to fully expand and expose most, if not all, of their surface area to the water.

While teas of various varieties have been used to make tied tea balls … it has always been necessary to use some utensil to remove the tea ball from the water to either stop the tea from further brewing or to use the tea ball to brew a different cup or pot of water.”

Is anyone seriously going to argue that a teabag on a string is not killer 103 art for a teaball on a string?

Posted by: Hagbard Celine at August 27, 2010 3:56 AM

"Is anyone seriously going to argue that a teabag on a string is not killer 103 art for a teaball on a string?"

Obviously, this was not as killer as you think.

The examiner here had five shots at putting together such a killer argument.

He obviously failed.

Aside from the constant and rather petty 112 sparring,
the examiner tried with a 102 (miss - not all elements);
103 (miss - the 103 was based on applicant not disclosing the invention as solving any stated problem);
103 (miss - exact same lame logic with absolutely no comment on applicant's previous rebuttal - RCE gravy train ticket, thank you)
102 (miss - attempted to 102 on the client's own supplied drawings, but oops - not all elements)
103 (miss - tea bag, again).

Sure the applicant has moxy, but this is a rather pathetic example of examination. Didn't the poor examiner's supervisor feel obliged to step in at any time during this process?

Posted by: Pedantic Pete at August 27, 2010 6:13 AM

Max: Babel, may I ask, have you read the patent yet? Are you supposing that these tea balls (bunch of tea leaves tied up with a string) are the invention? The way I read the patent, col 1, line 7, in Berkeley, CA, they are as old as tea bags.

Sorry to take so long to reply, Max. I've actually got a few clients to attend to now and then. Not many, but they seem to come in flocks.

Yes, you may ask. And, yes, I have.

As your above quote indicates, you think that the "invention" is found in the background. The invention is in the claims. You remind me of my clients who want to incorporate limitations from the background into the claims in order to amend around killer art, thinking that if it's anywhere in the spec, it's "the invention," and claimable.

Hagbard: Is anyone seriously going to argue that a teabag on a string is not killer 103 art for a teaball on a string?

Yes. The strings are structurally and functionally equivalent. No argument there.

But the teabag and the teaball are neither structurally nor functionally equivalent. The fxn of the bag is to contain chopped up tea leaves for seeping, which is a word I have never used before in my life. The fxn of the ball is to seep (there it is again!) whole tea leaves and for the aesthetic reasons disclosed in the patent.

You want closer PA than Lipton? Try Tampax.

Posted by: Babel Boy at August 27, 2010 6:59 AM

With apologies to Neil Young (no mean patentee himself), I just know the examiner was singing this to himself as he wrote the Notice of Allowance:

You know I lose,
you know I win
You know I call for
the shape I'm in.
It's just a game you
see me play,
Only real in the way
That I feel
from day to day.

Although the answer
is not unknown,
I'm searchin', searchin',
and how I've grown.
It's not all right
to say goodbye,
And a teaball on a string
Doesn't mean a thing.

No, a teaball on a string
Doesn't mean a thing.
It's only real in the way
That I feel from day to day.
No, a teaball on a string
Doesn't mean a thing.

Posted by: Hagbard Celine at August 27, 2010 7:00 AM

“The advantage of tied tea balls is that they are convenient to carry, are a pre-measured amount of tea…”

Just like teabags

“… and a delight to watch as they open into "flowers" of unexpected shapes and colors. Also, since they are not contained within a bag or similar container, the tea leaves are able to fully expand and expose most, if not all, of their surface area to the water.”

Unlike teabags

“… it has always been necessary to use some utensil to remove the tea ball from the water to either stop the tea from further brewing or to use the tea ball to brew a different cup or pot of water.”

Just like teabags that don’t have strings.

Inventor, thinking: “Man, these teaballs are fantastic, so much better than tea bags – such wonderful infusion [“seep” – puh-lease!] and they look soooo pretty! If only if only if only there was a way to get them out of the cup without having to use a spoon or something…think think think…”

Yah, right.

Posted by: Hagbard Celine at August 27, 2010 7:32 AM

Except, Hagbard, your song above has 25 times the number of words the examiner actually used in the statement of notice of allowance.

So I'm curious - with which party should the indignation be aimed at here? The applicant who believes that she has disntiguished a different albeit related art area, or the devil-may-care singing examiner, who could not put this to bed in five attempts and ends up with an allowance notice of "These claims are patentable".

Posted by: Pedantic Pete at August 27, 2010 9:27 AM

Thank you Babel. I could not wish for a clearer demonstration why EPO obviousness objections get so far up the noses of some US patent attorneys. I don't know who Hagbard Celine is, but I suspect he is more in tune with how EPO Examiners think.

Blogging these US patent law blogs is endlessly educational (and enjoyable) for me.

Posted by: MaxDrei at August 27, 2010 9:35 AM

Defector:

First, your reference does not specifically mention tea leaves -- it may but not in my quick glance.

Second, it doesn't mention wrapping generally whole tea leaves. It refers to whole plants, sprigs, and seed heads. Certainly not 102 art.

Is the invention obvious? Probably. Was the claimed invention in public use in china 1500 years ago? Likely.

However, rejections should not be based upon a "gut feel" for what is patentable or not. It should based upon the law and the application of the law to substantial evidence.

The examiner did not have the prior art needed to make a good rejection, so the Examiner allowed it.

If, by chance, the inventor sues the somebody on the patent and they submit a 102 reference in a reexamination request, then the patent system works.

The patent system doesn't work when examiners reject applications based upon gut feels and keep coming up with bad rejections in the hope that their next search will find something better.

Don't expect perfection out of examiners. We don't expect perfection out of applicants -- which is why they are allowed to amend claims. If after the Examiner best (legitimate) shot, the Examiner cannot make a good 102/103 rejection, then allow the application.

Examination in the USPTO is only one part of the patent system. The patent system always enables bad allowances to be fixed. Bad rejections that force applicants to abandon, however, cannot be fixed.

Posted by: Passing through at August 27, 2010 3:07 PM

Sage enough advice Passing through, but this one should have been killed six ways to Sunday on the First Office Action.

Five shots and then an allowance with no explanation.

Is this examiner still with the Office?

Posted by: Pedantic Pete at August 27, 2010 3:50 PM

Haven't read the PTO file wrapper yet but I still say that the inventor and the patent attorney cannot possibly have been ignorant of the conventional Liptons "tea bag on a string".

Up above, I got abused by somebody who loudly says there is no witholding of the relevant prior art because the specification acknowledges the prior art tea bag. Agreed, it does. But where does it acknowledge the prior art tea bag on a string?

Or was my interlocutor perhaps optimistically supposing that all tea bags have a string, so mentioning the string is superfluous?

Suppose the attorney or the inventor, or both, did know about the Lipton tea bag on a string but chose not to inform the PTO Examiner. Is that equitable conduct?

Posted by: MaxDrei at August 27, 2010 11:05 PM

The disclosure is tightly written, the claims succinct. The image suffices. Barely. A hat tip to prosecutor Michael Brucker for pursuing his client's interests.

Failing to find a sufficiently close reference, the examiner allowed the claims. However one may wish to abuse the examiner's intelligence (or not), the integrity of the examination process was preserved without recourse to the BPAI. That is no small measure nowadays.

Whether the hanging herbs reference (from Defector) renders the tea ball obvious, as a matter of law, is a damn good question. As CAFC Judge Newman observed, obviousness is a matter of foresight, not hindsight.

In enforcement, however it might steep at the CAFC, the one thing you could lay odds on is that Judge Newman would dissent. At least there is one constant in the American courts, for however long it lasts. ;-)

Posted by: Patent Hawk at August 28, 2010 12:27 AM

MaxDrei,

Perhaps you should come out and state your argument for IC in more clear terms to prevent the appearance that you are abusively trolling the IC issue.

Having read the wrapper, I cannot see what is driving your loud obsession here.

Posted by: Pedantic Pete at August 28, 2010 3:40 AM

"the integrity of the examination process was preserved"

There is no way that this can be said in this case. None. This is a casebook example of the lack of integrity.

The Examiner blew it repeatedly and the examiner's supervisor, who had to sign off on the trainwreck of examinations also blew it. That this did not go the appeal route is no victory for the system. As I said, this should have been taken care of in the first Office Action.

Clearly, the "Quality Control" of the Office was not concerned with any level of quality of rejections and must have used some type of simple count logic to gauge the quality of a four word allowance statement (I imagine the quality control person going down their checklist - hmm, rejected at least twice under 102 - check, rejected at least twice under 103 - check, rejected at least twice under 112 - check, RCE gravy train ticket present - check).

Integrity - really? This is appalling.

Posted by: Pedantic Pete at August 28, 2010 3:57 AM

Pete, I now realise I must attempt to access and read the PTO file wrapper, before I comment further.

Posted by: MaxDrei at August 28, 2010 5:15 AM

I've now accessed the file wrapper and was astonished to find that the winning argument was that tea balls without a suspension string are ancient, and so too are tea bags with a string, yet nobody in all those years thought to put an ancient suspension string on an ancient tea ball.

Astonished because, when I wrote the first comment in this thread, exactly this argument was my snap attempt at sarcasm, without first having read the File Wrapper.

This thread has set me thinking about obviousness, and the different way it is viewed in FtF and FtI jurisdictions.

In FtF, the validity of the claim is judged on the filing date, having regard to events prior to that filing. In particular, one takes account of what Applicant says her invention is, and what technical information had by that date already earlier been made available to the public.

I do not understand obviousness in FtI jurisdiction. Presumably one must assess obviousness as of the moment of conception, taking into account nothing that happened after that (like, writing the patent application). No wonder that the same "TSM" test works out differently, in the USA and at the EPO, and I suspect this is why many Americans cry "hindsight" at the EPO approach to obviousness.

Now back to the duty of candor. Applicant disclosed to the PTO the concept of a "tea bag" as such, but not of a conventional "tea bag on a string to get it out of the cup". Why that then? Was it because the conventional tea bag on a string was simply not material, or because the drafter was simply unaware that tea bags have strings, or because there is no need to announce what is conventional if one has done no prior art pre-filing search?

In Europe, your best chance of getting a patent is to set the claimed subject matter in the context of the closest art, in the application as filed. I am surprised that, in the USA, the Duty of Candor apparently encourages Applicants to go for a somewhat different and more economical and compact drafting practice. This is the opposite of what the courts of equity intended, isn't it?

Posted by: MaxDrei at August 29, 2010 5:09 AM

"This is the opposite of what the courts of equity intended, isn't it? "

Anyone with any "common sense" would see that this is precisely what would happen given the actions of the courts of equity.

Still having trouble seeing why you want to make a fuss over IC, MaxDrei. What compels you to keep throwing that on the table?

Posted by: Pedantic Pete at August 29, 2010 5:47 AM

Pete, I regret to inform you that I have reached the end of my imagination, how to explain my "candor" point to you any more clearly.

So, I guess we will have to leave it at that. Shame.

Posted by: MaxDrei at August 29, 2010 9:38 AM

MaxDrei,

If you have already reached the end of your imagination before you can even begin to make a colorable argument for your position that the applicant engaged in IC, then there is no shame in you stopping now. Clearly, you have merely asked "Isn't this IC?", without any support for your "point".

By all means - rest now. There is no dishonor in recognizing your limitations (and I would assume that you are not a litigator, nor probably even an attorney) - nothing wrong with that either!

Posted by: Pedantic Pete at August 29, 2010 1:00 PM

I agree that the integrity of the process was maintained. Bear in mind, however, that just because the integrity of the process was maintained -- i.e., once the Examiner couldn't make a better, winning argument, the Examiner allowed the case, doesn't mean that the Examiner failed to show any imagination in rejecting the claims.

I don't think it would take more than a smidgen of imagination to reject the claims. However, unlike many of the Examiners I deal with -- who have enough imagination to be world-class science fiction writers, this Examiner really didn't think very hard. Had this application gone to somebody who drank tea -- and was serious about it, this patent would have never issued. However, that is the crapshoot known as the USPTO for you.

Often-times, the Examiner you get is almost as important as your invention in determining whether or not you get a patent.

In the end, either nobody will get sued on this patent or this patent will be invalidated -- no harm, no foul.

The unfortunate thing, however, will be that this is another patent that will be held up as proving how "easy" it is to get a patent out of the USPTO and how the USPTO is issuing junk patents.

Not much to do but shrug your shoulders and move on.

Posted by: Passing through at August 29, 2010 2:46 PM

Pete, correct, I'm not a US patent practioner, and not an attorney at law, and not competent to opine on what is or is not IC. But I think I know what the ordinary English word "candour" means, and I need to know what constitutes a lack of candor when writing patent applications and then prosecuting them at the USPTO.

That you, an American patent lawyer and a litigator, have carefully read the wrapper and what I have written above, and still can see no lack of candor, leaves me perplexed. But now I reflect on it, it was of course naive, foolish and unreasonable of me to suppose that I might get from any careful US patent lawyer on a public blog thread a candid and worthwhile answer to any question that is perceived to be "Is this IC".

So, perplexed I must remain. I see that now. Like the poster above, we shrug and move on.

Posted by: MaxDrei at August 29, 2010 10:48 PM

If you think that I have provided anything less than a candid and worthwhile answer, you are indeed perplexed, MaxDrei.

But not on account of my answer.

It was you that sought the question "But what about IC?" It was I that merely asked "Why are you asking this question?"

In your failure to clearly state your ground (really, any grounds), it appears that you think it enough to ask the question. It is not the understanding of the single word "candour" that you need to understand, it is the context that word lies in, the doctrine of IC that you need to understand.

You don't.

And that's fine.

Just don't pretend that you aren't getting straight answers (or full and complete ones) when it is you that did not come out and state your argument for IC in more clear terms to prevent the appearance that you are abusively trolling the IC issue.

Posted by: Pedantic Pete at August 30, 2010 2:15 AM

One last go Pete. I freely admit I don't understand the "Doctrine" of IC, and I freely admit that "candor" in the context of IC has nothing to do with "candour" in everyday life.

Quite frankly you ain't doing much to help me understand the IC "Doctrine". Of course, it is complex, and of course you are free to ignore my solicitations, but you will forgive me if I have suspicions that you don't actually fancy explaining the "Doctrine" in a way that makes it logical to me.

But I wonder, do you not ever have to explain it to lay inventors? How do you explain the "Doctrine" to them then?

On this occasion, the art included tea bags. They were duly acknowledged by the Applicant to the USPTO as prior art.

But for every prior art tea bag without a suspension string, there are 100 with a string, and those the Applicant did not report to the PTO. This (I say) is disingenuous when the invention, for which a patent is solicited, is to put just such a known suspension string on a known tea ball. You will gather that this issue is nothing to do with any thought that Applicant might have a duty, before filing, to do a patentability search.

I fail to see how anybody can assert with a straight face that a notoriously well-known prior art tea bag, with a string on it for exactly the same purpose as the inventor puts a string on a known tea ball, was not material to patentability. Indeed, there is a consensus that the "invention" is egregiously obvious.

Yet Applicant deliberately refrained from mentioning to the PTO the notoriously well-known prior art tea bag on a string.

I have said this over and over. In reply, you say (over and over) that there is no suggestion (yet) of IC. OK, I hear you. Whether or not you can understand my perplexity, it remains.

Posted by: MaxDrei at August 30, 2010 2:48 AM

"Quite frankly you ain't doing much to help me understand the IC "Doctrine"."

Quite frankly, you didn't ask me to teach you.

I am not certain that you would be able to learn, given your limited reach of imagination (your words). If you do not understand enough to put forth an argument of IC, yet feel compelled to make the charge, and don't get the problem with your own behavior, why would I be inclined to teach when you haven't asked to be taught?

Most people trolling on an issue have no real interest in being educated. I am not going to assume that you are any different.

Posted by: Pedantic Pete at August 30, 2010 3:19 AM

One learns something every day. Even from Pete. Like, assumptions are dangerous. From today, I know better than to engage in dialogue with somebody who calls himself a pedant. Until now I had been mistakenly assuming that his name was meant to be ironic.

Posted by: MaxDrei at August 30, 2010 3:45 AM

Passing through - you do not pass on the concept of integrity.

"doesn't mean that the Examiner failed to show any imagination in rejecting the claims."

Integrity has nothing to do with imagination. The minutes examiners must result in imagination rather than simply applying law is when the integrity breaks down.


My God - this was a primary who failed twice at trying to apply 102 because he simply did not apply the reference to all claim elements. This is a primary who failed to notice that the MPEP has at least three case law examples that could be used to 103 this claim.

This is an easy application to dispatch!

Rather than show how "easyeasily the Office turns a blind eye to examination quality when the Examiner's result is a rejection. Integrity encompasses more than Type I errors.


You almost get the lack of integrity when you start talking about the Office issuing junk - that is precisely the integrity that I am talking about. Or rather, the lack of integrity. The Office has a responsibility to live up to. When it does not, we should not pillory the applicant.

Posted by: Pedantic Pete at August 30, 2010 3:53 AM

"Even from Pete. Like, assumptions are dangerous

Since I stated that I wasn't going to assume - about your intentions on trolling the IC topic, I also will not assume your intention of your latest post was anything but snark.

Evidently poor snark at that.

Don't give up your day job Mr. MaxDrei.

Posted by: Pedantic Pete at August 30, 2010 3:58 AM

Pedantry and/or snark aside, the question re IC, I think, is this:

The spec mentions teabags. It points out differences between basic teabags and teaballs, in terms of quality of infusion and aesthetics. The patent claims the use of a string on a teaball as being a non-obvious solution for utensil-free recovery of teaballs from vessels of hot liquid. IF the inventor and/or her attorney knew of prior art teabags with suspension strings – same problem, same solution, just bags instead of balls – is there or is there not a prima facie IC issue to answer?

Posted by: Hagbard Celine at August 30, 2010 7:25 AM

"However, unlike many of the Examiners I deal with -- who have enough imagination to be world-class science fiction writers,"

I loled.

Posted by: 6000 at August 30, 2010 8:05 AM

Hagbard, it seems that my powers of comprehension and communication are not completely lacking. You and I see the IC question the same. I intended to be snarky to Pedantic Pete and, as we plainly see, he understood that quickly enough.

But I suspect that, even though you might be an English Chartered Patent Attorney, you are not an American patent attorney. For this reason alone, if for no other, I fear you will wait for ever for an answer to your IC question.

Posted by: MaxDrei at August 30, 2010 8:23 AM

Hagbard,

Perhaps MaxDrei will learn from your actual composition of a question (it remains to be seen just how limited his imagination is).

But, even given your fine dissertation, what pray tell is a "prima facie IC issue"?

Or to lead the question, just a little, if an examiner brings up the issue of a string with a certain function, how does this information, obviously of record, impact IC?

Another thought to keep in mind, or rather a question the answer of which should be kept in mind - When can an IDS can be filed?

Posted by: Pedantic Pete at August 30, 2010 8:25 AM

"I intended to be snarky to Pedantic Pete and, as we plainly see, he understood that quickly enough."

Yes, MaxDrei, I understood the intent quickly enough. As for the snark itself, well, we can see that your lack of imagination is not constrained to one area.

Posted by: Pedantic Pete at August 30, 2010 8:28 AM

Who is your "we" Pete? The Royal "we" would that be, Pete, as in Maggie Thatcher's "We are a grandmother".

So far in this thread, you just speak for yourself, OK?

Posted by: MaxDrei at August 30, 2010 8:58 AM

No MaxDrei,

I will speak in the royal "we", that is until you either show some imagination, or you stop trolling, or as until I choose to.

Now if you are left with only snide comments on my use of "we", I would think that you have better things to do.

Posted by: Pedantic Pete at August 30, 2010 10:46 AM

ok guys - without trying to get in the middle of the Pete/MaxDrei pissing contest - I have a few thoughts on this application, and wondering if anyone noticed when reviewing the file

1. The Examiner that wrote the allowance is not the same Examiner as the one who wrote all of the (terrible) office actions.

2. The Examiner made a plainly incorrect 103 rejection in the 2nd office action (was a final). Applicant provided arguments after-final, and in the advisory, the Examiners response to said arguments was "The arguments are not persuasive." Applicant then filed an RCE (with no new arguments), Examiner basically kept the same rejection. Applicant made arguments again against the rejection, this time apparently persuasive, as the following action was a 2nd NF after RCE. The 2nd NF contained an absurd 102 rejection in view of the prior art tea balls that lack a string (note here, as an Examiner I can now see exactly why it's so frustrating for attorneys, this is by far the most poorly-prosecuted application I've seen, and the Examiner was a primary!!). Again, arguments against the rejection, arguments persuasive, 3rd NF (crappy 103). Again arguments, again persuasive, this time Examiner follows with an absurd quayle action. Arguments against the quayle, then allowance.

3. Wow, my head is spinning after typing that. Isn't that whole serious absolutely absurd? I can't believe the attorney didn't kick and scream after the "The arguments are not persuasive" line from the advisory that had no other support.

4. From what I can tell, the Examiner who prosecuted the application until allowance is no longer with the office, his name does not show up. Someone correct me if I'm wrong on that (or cheer if I'm right).

Posted by: hotelingexaminer at August 30, 2010 4:00 PM

sorry - typo in section 3 - meant "series" instead of "serious"

Posted by: hotelingexaminer at August 30, 2010 4:02 PM

Pete -- you and I have different takes on the terms of "integrity."

Integrity, to me, is not equivalent to competance. To me, an examiner with integrity is going to allow the application, even if he thinks it is too broad, if he cannot come up with a good rejection + good art. In this instance, the integrity of the process is preserved.

Claims should only be rejected if the Examiner has a good rejection -- not because the Examiner doesn't like the claims but doesn't have a good rejection to make.

The fact that the Examiner could have made a better rejection is a reflection on the competance of the Examiner, not the integrity of the process.

BTW -- I did not "pillory the applicant" -- not even a smidgen.

FYI -- imagination is what makes a good attorney and good examiner -- the ability to think outside the box. Instead of relying upon written prior art, the Examiner should have googled "tea," found a local (or even distance) seller of tea with a good reputation and asked them if they've ever seen something like this. It would definitely take imagination to think outside the box to do that, but it would have likely found some good 102 art.

Also, any 103 rejection necessarily requires some imagination. You have 2 pieces of a puzzle and you have to figure out how to put them together. In most instances, pretty difficult, but not in this instance.

BTW -- I don't care if the USPTO issues "junk" patents because I don't recognize a definition of the word "junk." Find me a 102 reference, and then we've got a (likely) invalid patent. However, the system (i.e., the process) recognizes that invalid patents get through and allows for those patest to be challenged via reexamination and via the courts.

What I care about the most is that the process is followed.

Posted by: Passing through at August 30, 2010 4:03 PM

Pissing through,

We may have "different takes" on the term integrity, but no take, short of absolutely outlandish, can describe the Office prosecution here as preserving integrity. In competence at this level reflects on more than just the primary examiner - it shines a decidedly onerous shadow on the Office.

Sure, I see your angle on competence. I don't see your angle on "imagination", unless you think it imaginative to blow two 102 rejections by not accounting for all elements.

The "pillory the applicant" comment is not geared to you explicitly. It is geared to everyone that looks at this and who wants to blame the applicant, who reaches for IC (without understanding what IC means or entails).


hoteling,

If you don't want to get involved in the match, or more correctly, if you don't want to be urine stained, stay on my side. MaxDrei still has his pants zipped.

Oh wait - I see from the rest of your post you are on my side.

Posted by: Pedantic Pete at August 31, 2010 3:46 AM

Pouty Pete:

You must be having a bad day at the office because you are aching for a fight when we both recognize the same set of facts. I'm just trying to make a point that there is a distinction between the integrity of the process and the competence of the examiner.

Imagination has nothing to do with blowing two 102 rejections -- again that is competence (or lack thereof) by the examiner.

Too many examiners are mechanical in their approach to examining. They take feature A from reference X, take feature B from reference Y, take object of invention from reference Y and state that it would be obvious to combine B with A to obtain object of invention without thinking through what that actually means.

If it didn't take imagination (e.g., the ability to think outside the box), the jobs of both examiners and attorneys could be done by clerks. Imagination is just a different word for problem solving, which is different than "plug and chug."

Posted by: Just visiting at August 31, 2010 6:30 AM

Aside from the name change, what is the perspective that gives "integrity" to how this application was processed?

There comes a point when incompetence left unchecked and uncontrolled speaks to integrity.

Your mixing in of imagination does not help. it can easily be said that competence requires imagination. So what? We are still left with an absolute joke of an examination with no repercussions because, what, the process had integrity?

I just don't see it. That you can maintain that position and be earnest is dumbfounding. It's like saying that it is only the examienr that is to blame and there is nothing wrong with the system. It's like saying a primary can be that incompetent and there is nothing wrong with no checks. It's OK because it did not get to the appeal stage - boy that's a pat on the back and atta boy system - if only the examiner had a better day things would be peachy.

Do you not smell the crap because you have been in it for too long?

Posted by: Pedantic Pete at August 31, 2010 6:47 AM

a serving string having a length with a first end that is attached
to said tea leaves
of said tea ball

If the serving string were attached to the binding string, then that would seem a lot like a serving string attached to a tea bag.

But the claim is limited to the serving string being attached to the tea leaves, and not the binding string.

That doesn't seem all that obvious in view of string having teabag prior art, and it does seem particulartly easy to invent around.

What's the big deal?

Posted by: TINLA IANYL at August 31, 2010 10:09 AM

"But the claim is limited to the serving string being attached to the tea leaves, and not the binding string."

Claim construction failure broje.

The serving string may be attached to the tea leaves via the binding string.

Posted by: 6000 at August 31, 2010 10:25 AM

Well, as if we haven't beaten this dead horse enough already, especially Pederast Pete, let's try a new tack:

Claim 1 is about as definite as an Obama stump speech.

First: ". . .a binding string that encircles and binds tea leaves. . ."

There is nothing that ties these encircled tea leaves to the "generally whole tea leaves" of the prior element. So are we talking generally whole tea leaves in addition to encircled tea leaves? Sounds like it to me. Kaching$$$ . . . if the string encircles the generally whole tea leaves, no infringement.


Second: the final pharse: ". . . by grasping the second end of said serving string and raising or lowering it as desired."

"It" could refer to 1) the serving string; 2) the second end; 3) tea ball. Kaching$$$ . . . infringed but invalid.

6000 is OTL again. This device with the serving string attached not to tea leaves but to the binding string doesn't infringe. What examiner would allow this thing over identical art but for the serving string attached to the binding string? Kaching$$$ . . . bullet-proof work-around.

Winnie, call me next time you get a hot idea.

Posted by: Babel Boy at August 31, 2010 1:17 PM

I for one have immensely enjoyed the comments, tea leaves on a string, dead horse on a tether, and all.

Here's what I think was going on. The patent office gave Ms. Yu her worthless patent in return for an allowance fee. The patent could never successfully be enforced because it is obvious. Junk patent, but no harm, no foul, and the PTO got paid. Every harmless allowance helps the PTO kitty.

If Ms. Yu had filed an unobvious, likely enforceable patent of potentially tremendous commercial value, she would have near-zero chance of getting allowance. But, if she did by accident get an allowance (because the PTO didn't realize its commercial value), putting the patent into reexam would be a snap, irrespective of prior art quality. The evidence for this paragraph's conclusions come from personal experience.
A crooked game? You betcha. The USPTO is looking to butter its bread, and not alienate its most important clientele: large corporations. After all, who now heads the PTO after the disastrous reign of the pure politico clown Dudas? Read those tea leaves and believe.

Posted by: Patent Hawk at August 31, 2010 1:37 PM

I'll drink (tea) to that, PH.

We're just pulling Pederast Pete's string.

Posted by: Babel Boy at August 31, 2010 3:26 PM

Pete:

Very simple concept.

Incompetance and integrity are not one and the same.

You can have integrity without competence or have competence without integrity.

I never said the examiner was competent. I merely agreed with the hawk that "the integrity of the examination process was preserved without recourse to the BPAI." The Examiner didn't have a good rejection to go with so he allowed the application -- this is the way the process works. The fact that he could/should have made a better rejection than what he did does not negate the fact that when the Examiner knew he was beat, he allowed the application.

You are focusing on the "knew he was beat" (and whether or not he was actually beaten) whereas I am focusing on how an issuance should necessarily follow the recognition, by the Examiner, that he was beat.

We are talking about two different points -- once you realize that, you can get back to more fun stuff, like bashing Dr. Dre.

Posted by: Just visiting at August 31, 2010 4:46 PM

I still fail to see how a case like this that had 2 different Primary Examiners work on it made it to allowance. Incompetence abounds. I'm ashamed.

Posted by: hotelingexaminer at August 31, 2010 7:49 PM

JV - I get the concept that there are two concepts.

You seem to not be able to understand that the two concepts can actually be intertwined. Your focus is far too myopic.

A system that allows such incompetence cannot be said to have integrity. That's like saying that it is OK that such incompetence abounds. To even throw in the "that's OK because it didn't go to Appeal" is pure assinine.

Posted by: Pedantic Pete at September 1, 2010 8:17 AM

Hawkie, why still no post on your disaster in the courts?

Posted by: 6000 at September 1, 2010 9:23 AM