January 7, 2009
'Peter Principle' Poster Boy Moves On
USPTO
Director Jon W. Dudas is rumored to be resigning. Since taking office in July
2004, Dudas has displayed unprecedented aptitude for infantile outbursts against
PTO employees and patentees; instilling opacity in agency operations enviable to
Soviet apparatchiks; astonishing duplicity in diminishing patent quality while
paying lip service to it; illegal, albeit futile gestures in changing
examination rules; slave-driving employees with counterproductive production
goals at the expense of decent examination; bodacious benign neglect of patent
pendency, a tacit admission that the PTO is a lousy place to work, and nothing
to be done about that except frenzied hiring; and roiling the patent community
into a state of nonplus. Dudas will be sorely missed by commentators needing
blog fodder.
Continue reading "'Peter Principle' Poster Boy Moves On"
Posted by Patent Hawk at 4:11 PM | The Patent Office | Comments (2)
January 6, 2009
Post-Board Muleage
Examiners consistently rely on baseless rejections, hoping applicants won't realize examiner ignorance, explore examiner incompetence, nor argue against examiner authority. Often, applicants amend or file RCEs, allowing examiners to milk applicants for all the counts they're worth. Rarer is the filing of an appeal brief, which can force examiners to abandon the charade and reopen prosecution. For rejections that actually make it to the board of appeals, and are subsequently overturned by the BPAI, it may be thought that allowance is in store. But Dennis Crouch
shone light on the fact that, about 20% of the time, examiner stubbornness lives on, even after being shot down by the board.
Continue reading "Post-Board Muleage"
Posted by Mr. Platinum at 12:16 PM | The Patent Office | Comments (8)
December 25, 2008
Gin Rummy
The
U.S. Chamber of Commerce shows it knows how to stew analytic gumbo - its
recommendations for the USPTO seamlessly blend fact and fiction.
Posted by Patent Hawk at 3:24 PM | The Patent Office | Comments (1)
December 17, 2008
Tossed
Asokkumar
Pal looked away from the screen and wiped his eyes. He was tired. He'd been with
the agency 25 years. A long haul. Now it had crumbled away, as if he was a wad
of paper, to be used and tossed. It wasn't right. He did the best he could. His
resolve stiffened. He would not go quietly.
Posted by Patent Hawk at 3:06 PM | The Patent Office | Comments (7)
December 14, 2008
Backlog
The
root problem with patent quality has always been with the patent office. The
current USPTO administration has rightly received nothing but criticism for its
high-handed rules changes, poisonous work environment leading to massive
attrition, shoddy examination regime, and blame game on applicants. In testimony
last week before Congress, former PTO heads nattered about backlog.
Posted by Patent Hawk at 12:42 PM | The Patent Office | Comments (10)
December 5, 2008
Dead Man's Hand
Lame
duck USPTO lawyer James Toupin did his best to sew a silk purse from a sow's ear
in oral arguments at the CAFC today, in
USPTO v. Tafas &
GSK. Of course, anyone who will say anything to win arguments is oxymoronic
to having integrity. In this case, the disgraceful USPTO argued that its rules
to limit continuations are piddling, while the reality is the rule changes are
substantial, and the likely impacts considerable.
Continue reading "Dead Man's Hand"
Posted by Patent Hawk at 7:24 PM | The Patent Office | Comments (63)
December 4, 2008
Distinction
The
USPTO rules changes successfully challenged by Dr. Tafas and GlaxoSmithKline
head to oral arguments before the CAFC Friday. The beetles in the patent office
rolling their dung ball up the hill this far practically defines the difference
between determined cunning and intelligence.
Continue reading "Distinction"
Posted by Patent Hawk at 1:14 AM | The Patent Office | Comments (3)
November 27, 2008
Suppression
Hal
"The Snoop" Wegner: "The PTO has systematically suppressed access to its
internal decisions. Anecdotal evidence suggests that access to petitions
decisions would reveal widespread practice violations by Examiners, sometimes
upheld by Technology Center Directors as well. [There is a] PTO burial of key
information amongst tens of thousands of at best difficult to access petitions
decisions, as well as a cover-up of PTO delay in reaching decisions on petitions
in patent (as opposed to trademark) matters."
Continue reading "Suppression"
Posted by Patent Hawk at 11:35 AM | The Patent Office | Comments (10)
November 20, 2008
Perfection
Throw the confetti; break out the champagne; the USPTO has finally achieved perfection. According to the USPTO's FY 2008 Performance and Accountability Report, the PTO has met 100-percent of its performance goals. We can all stop worrying about poor examination quality and dishonest mis-management, because this is perfection baby!
Posted by Mr. Platinum at 9:28 AM | The Patent Office | Comments (2)
November 18, 2008
Musical Chairs
With
USPTO Deputy Director Margaret Peterlin vamoose, John Doll steps in, with Deputy
Commissioner for Patent Operations Margaret ("Peggy") Focarino filling Doll's
erstwhile Commissioner for Patents chair. Effective immediately. Both Doll and Focarino have been with the Office for over 30 years.
Continue reading "Musical Chairs"
Posted by Patent Hawk at 12:55 AM | The Patent Office | Comments (4)
November 17, 2008
Pay to Play
New
37 CFR § 11.8 now requires an annual $118 "practitioner maintenance fee," payable in
advance, for all registered USPTO agents. Penalty for non-payment is suspension.
Pro se prosecutors are still scot free.
Continue reading "Pay to Play"
Posted by Patent Hawk at 5:43 PM | The Patent Office | Comments (0)
November 12, 2008
Discipline
Patent practitioners take note. As of September 15, committing any crime,
including those of immodest moral turpitude, such as being caught for commercial
engagement of prosecution in your pants, can result in revoking your
"privilege" to prosecute before the USPTO. Even a driving violation conviction must
be reported to the PTO.
Posted by Patent Hawk at 2:36 PM | The Patent Office | Comments (2)
October 27, 2008
Down The Road Kill
The
USPTO proposed rules on information disclosure statements (IDS) and on
applications with Markush claims will not be published as final rules by the
current Administration, PTO Deputy Commissioner for Patent Operations Margaret
Focarino announced last Friday.
Continue reading "Down The Road Kill"
Posted by Patent Hawk at 12:15 PM | The Patent Office | Comments (1)
October 18, 2008
Term Limits
One might
naively imagine that the patent office would encourage patenting, and seek to offer its clientele, namely inventors and patent prosecutors, every advantage. Today's USPTO is quite the opposite. In this episode, the patent office is caught stealing patent term, unlawfully limiting
the duration of patent grants.
Continue reading "Term Limits"
Posted by Patent Hawk at 11:46 AM | The Patent Office | Comments (0)
October 16, 2008
Let's Do It Our Way
The USPTO has filed
a reply brief in appeal for its righteous battle to enact its Final Solution, changes
limiting extravagance on claims and continuations. According to the
brief, a rehash of earlier cogent and compelling arguments, the rules are consistent with the Patent
Act, and are within the Office's rulemaking authority. If there is a difference between "substance" and "procedure," which the PTO
does not perceive, the rules are merely procedural.
Continue reading "Let's Do It Our Way"
Posted by Patent Hawk at 2:21 PM | The Patent Office | Comments (4)
October 12, 2008
Bad Apples
Straight from the horse's mouth: "here at the USPTO, we got nothing but bad apples". Reflecting on end-of-year examiner performance ratings, USPTO upper management sputtered "that it wasn't possible that the agency had that many outstanding employees".
Posted by Mr. Platinum at 5:27 AM | The Patent Office | Comments (7)
September 28, 2008
Flashback Foresight
World War II was coming to an end, Bing Crosby was playing on the radio, and Patent Office Commissioner Casper W. Ooms was professing:
It has been brought to my attention that the practice prevails [in] the Patent Office of measuring the "amount of work accomplished" by Assistant Examiners during particular periods of time by assigning quotas of production.... This practice necessarily emphasizes quantity rather than quality of work.
Continue reading "Flashback Foresight"
Posted by Mr. Platinum at 12:13 AM | The Patent Office | Comments (0)
September 2, 2008
Fire Eater
Patents
become a public nuisance when worth a pretty penny. Hal Wegner thinks the price
tag of infringement should have flamed the NTP patent reexaminations.
"With a $600 million plus settlement in one litigation coupled with ongoing
litigations against other alleged infringers, BlackBerryGate represents a
billion dollar... patent tax on the public. Yet, the reexamination drags on... and
on... and on." Having granted patents, found valid through the fire of litigation,
the PTO ought to burn the midnight oil to staunch further enforcement. "A
fiasco," Wegner laments.
Posted by Patent Hawk at 8:58 PM | The Patent Office | Comments (4)
August 24, 2008
The Power of Arsy
Patent examiners have been
getting a bad rap in the patent blogosphere. Insults attacking their competence, work ethic, intelligence, moral character, and English skills are flung.
In moments of weakness, this author has occasionally chimed in. But examiner incompetence should not be
so easily disparaged. It should instead be respected and appreciated as better than the alternative.
Continue reading "The Power of Arsy"
Posted by Mr. Platinum at 6:28 AM | The Patent Office | Comments (10)
August 19, 2008
Unoriginal
In
a shocking, unprecedented ruling, one branch of government stands up for
another. Cooper Technologies had a continuation patent subjected to inter partes
reexamination. Cooper carped that wasn't kosher, as the original (first)
application was filed in 1993, and the law stated that "the inter partes
reexamination procedure is available for "any patent that issues from an
original application filed in the United States on or after" November 29,
1999." Apparently paid by the word, the CAFC reminded Cooper that "original" was
just a word, subject to interpretation, and government agencies, such as the
USPTO, have interpretation presumption on their side.
Posted by Patent Hawk at 11:13 AM | The Patent Office | Comments (2)
August 18, 2008
Vacuum Suction
Hal
Wegner cited "an informed source" that John Doll is likely to be the Acting
Director of the USPTO in 2009, upon the expected departure of political hack and
pathetic sack Jon Dudas. "A nonstatutory arrangement between Commerce and the
PTO makes the Commissioner for Patents the Acting Director in the absence of a
superior political appointee."
Continue reading "Vacuum Suction"
Posted by Patent Hawk at 9:05 PM | The Patent Office | Comments (2)
August 14, 2008
Patent Agent
The
USPTO has promulgated its
final
rule for CFR changes of authorized activities and sanctions for patent and
trademark agents. The comments warn that being a patent agent does not cover
activities, not necessary to prosecution, which would constitute practicing law.
Continue reading "Patent Agent"
Posted by Patent Hawk at 9:20 PM | The Patent Office | Comments (0)
August 13, 2008
Remedy
With
breathtaking alacrity for legislative enactment, President Bush signed into law
revision of 35 U.S.C., the patent law, and the Trademark Act (of 1946),
transferring authority of appointing administrative patent and trademark judges
to the Secretary of Commerce. An unconstitutional 1999 law had let the USPTO
director appoint the judges. Further, the Commerce secretary may retroactively
repair the breach by waving a wand of approval over the current crew of
judges.
Posted by Patent Hawk at 5:53 PM | The Patent Office | Comments (0)
August 11, 2008
Business as Usual
The
hoary adage "where there's smoke, there's fire" seems to apply.
Law.com
reported on USPTO favoritism for RIM and against NTP during their lawsuit, with
apparent continuing punishment of NTP by malign neglect.
Continue reading "Business as Usual"
Posted by Patent Hawk at 10:38 PM | The Patent Office | Comments (1)
August 7, 2008
Just the Fax
The
USPTO "is proposing to revise the rules of practice to limit the types of
correspondence that may be submitted to the Office by facsimile." The successful
1988 trial program is now deemed not so successful. The office recommends its
web-based EFS (Electronic
Filing System). [from the
Federal
Register]
Posted by Patent Hawk at 9:06 AM | The Patent Office | Comments (7)
August 6, 2008
Junket
Considering that USPTO management spawns from Congressional aides, payback in
the form of a junket to Copenhagen, Denmark should raise eyebrows only for its
destination, not its blatant toadying. The
Washington Post:
"The purpose of the trip," Jefferson D. Taylor, chief of the USPTO office of congressional relations, says in his invite, sent to aides on the Senate and House Judiciary subcommittees on intellectual property, "is for discussions on issues related to intellectual property rights" and such and to "meet with local patent and trademark office representatives, members of industry" and American businessmen in Denmark, and -- our favorite -- to "visit with students and staff of the Copenhagen Business School, University of Denmark."
Posted by Patent Hawk at 5:55 PM | The Patent Office | Comments (1)
August 4, 2008
Hubris
The
USPTO has unveiled a new electronic "portrait gallery" "highlighting past
and present individuals who have made a contribution to America's intellectual
property (IP) system." Included are "digital electronic portraits of United
States Presidents Thomas Jefferson and James Madison; famous inventor Thomas
Edison; National Inventors Hall of Fame Inductees Helen Free, who developed home
testing for diabetes, and Steve Wozniak, the inventor and co-founder of Apple
Computer; and Under Secretary of Commerce for Intellectual Property and Director
of the USPTO Jon Dudas."
Posted by Patent Hawk at 11:46 AM | The Patent Office | Comments (4)
July 29, 2008
Nincompooped
USPTO Deputy Director Margaret J.A. Peterlin is throwing in the towel, not a day too soon. From the PTO announcement:
In addition to enhancing operational efficiencies, Deputy Under Secretary Peterlin strategically positioned the USPTO as a leader in such important policy debates as patent modernization legislation, in which the USPTO played a lead role in forming and communicating the Administration's position.
Continue reading "Nincompooped"
Posted by Patent Hawk at 6:52 PM | The Patent Office | Comments (9)
July 18, 2008
Hiding Peas
A
recently published UPSTO Federal Register Notice regarding paperwork burdens for the proposed
appeals rule change is oddly missing from all PTO lists of Federal Register Notices.
The wafting scent is that this is something more than oversight, instead, a
continuation of a two-year trend of failing to give sufficient notice of opportunity for public comment.
Continue reading "Hiding Peas"
Posted by Mr. Platinum at 2:45 PM | The Patent Office | Comments (0)
July 16, 2008
Fattening Peer
The
USPTO is extending and expanding its Peer Review pilot program. While the
original pilot was limited to "computer-related arts," the program is porking to
eat business method applications too. 400 possible published applications will
sweat it out under public grilling, up from the original 250. The pilot is
extended for another year; now scheduled to end June 15, 2009.
Continue reading "Fattening Peer"
Posted by Patent Hawk at 2:02 PM | The Patent Office | Comments (0)
July 7, 2008
Peer-to-Petering Out
Peer-to-Patent declared itself a success in its First Anniversary Report. Self flattery had patent blogger praise piled on. The hoopla is not entirely unmerited. What a great concept: the patent community contributing back to the patent system, examination quality improving with an influx of peer-cited art, and pendency decreasing without the PTO lifting a finger. Sounds like a win-win-win. Too bad we don't all live in Tuvalu, where scalability would not be an issue.
Continue reading "Peer-to-Petering Out"
Posted by Mr. Platinum at 10:47 PM | The Patent Office | Comments (1)
June 24, 2008
Tele-Cost
In their June newsletter/sobfest, POPA reiterates concerns over proposed changes to the PTO telework program. The proposed changes would eliminate the one-hour-per-week in office requirement for examiners, but would require examiners to cover all costs when traveling to the PTO headquarters on an "as needed" basis. POPA's concern: malicious supervisors interpreting "as needed" as "as wanted".
Posted by Mr. Platinum at 7:11 AM | The Patent Office | Comments (21)
June 16, 2008
One Forward, Two Back
The US patent system is unraveling as the USPTO desperately clings to the telework thread as a last hope for reducing pendency. POPA reports that "management has proposed legislation which would allow the agency to permit employees to telework from anywhere in the United States". Yet POPA laments that this latest effort "would not require the agency to pay for employees' travel when the agency requires them to report to USPTO headquarters" and that "management also wants to pay telework employees according to the locality in which the employees actually live and work".
Continue reading "One Forward, Two Back"
Posted by Mr. Platinum at 12:57 PM | The Patent Office | Comments (11)
Impropriety
Praise be to Kevin E. Noonan at Patent Docs for follow-through on the low-down of the apparent improprieties by the dastardly Dudas and the USPTO in the NTP v. RIM litigation and reexamination.
Posted by Patent Hawk at 10:43 AM | The Patent Office | Comments (0)
June 15, 2008
Answers, Of A Sort
House
Judiciary Subcommittee Chair Rep. Berman posed
questions
to the Jon Dudas patent cabal last month. Dudas
dutifully replied.
Continue reading "Answers, Of A Sort"
Posted by Patent Hawk at 8:11 PM | The Patent Office | Comments (1)
The Snake
Criticism
of the USPTO has reached comical proportions, and the joke is on us: inventors
and prosecutors. When there is a universal howl from the U.S. patent bar about
the agency, while the PTO itself crows about a lurch down in allowance rate,
and a federal court rules that the PTO acting illegally, you may think something afoot.
Joff Wild of IAM
Magazine, sitting comfortably across the pond in merry old England, wonders.
Posted by Patent Hawk at 12:55 PM | The Patent Office | Comments (6)
June 9, 2008
Numptys
Hal
Wegner:Broadside criticism of individual examiners doing their daily tasks should be out of bound (sic) and, a fortiori, spineless, anonymous criticism of individual examiners by a practitioner either crosses an ethical or disciplinary line - or such a line should be sharply drawn to deal with such reprehensible conduct.
Posted by Patent Hawk at 8:08 PM | The Patent Office | Comments (13)
May 12, 2008
In The Weeds
Rep.
Howard Berman, Chairman of the House subcommittee overseeing the USPTO, does his
job in an
April
29 letter to PTO Director Jon Dudas, demanding answers: did you sully the
agency's reputation by consorting with RIM when it was under the gun from NTP,
and you had NTP patents under reexamination?; why haven't you considered
deferred examination?; explain inconsistencies in patent application projection
for the future; document methodology in meeting application demand; why so
pig-headedly clueless about examiner attrition?; justify managerial lurching in
its various incarnations. One surmises from such inquiries that, under Dudas'
direction, the PTO hasn't exactly been on the path of probity.
Continue reading "In The Weeds"
Posted by Patent Hawk at 4:32 PM | The Patent Office | Comments (3)
May 8, 2008
Squealing
It's
official.
Elvis Costello to the contrary, clown time is not over. The USPTO is
appealing dénouement of illegality accorded its proposed examination rule
changes.
Posted by Patent Hawk at 1:04 PM | The Patent Office | Comments (0)
May 6, 2008
An Inconvenient Truth
The
New York
Times gives pesky perfectionist professor John F. Duffy his 15 minutes of
fame. Duffy had the temerity to finger the criminal gang commonly known as
Congress for passing a law in 1999 letting the USPTO director appoint appeal board judges. Only one thing wrong with that: it's unconstitutional.
Continue reading "An Inconvenient Truth"
Posted by Patent Hawk at 12:58 PM | The Patent Office | Comments (2)
April 30, 2008
Garbage In
Jon
W. Dudas, USPTO numero uno: "We are getting more and more unpatentable
ideas, worse and worse quality applications." Craven worm lying through his
teeth, or imbecile trying to impress the rubes? You be the judge.
Posted by Patent Hawk at 4:28 PM | The Patent Office | Comments (14)
April 28, 2008
Nothing Doing
CAFC
Judge Linn
wondered out loud last week about the quality of BPAI, the patent appeals
board. Small wonder. Last year,
John Duffy
opined that a
35 U.S.C. §6, enacted in 1999, is unconstitutional under
Article 2.
The 1999 Act allowed the PTO Director to appoint BPAI judges, but Article 2
requires that such "inferior" officials be appointed, at the least, by a
department head, which the PTO honcho is not. Translogic took up the
cudgel,
petitioning the Supreme Court after the CAFC demurred. It's an easy bet that
SCOTUS won't weigh in.
Continue reading "Nothing Doing"
Posted by Patent Hawk at 7:21 PM | The Patent Office | Comments (0)
April 20, 2008
Avoiding Consistency Traps
"A foolish consistency is the hobgoblin of little minds." -Ralph Waldo Emerson
At Patent Prospector, we're not shy about speaking out when we see academics, business people, or government officials doing silly things. Because of that, it's really a pleasure to be able to give kudos to the same people when praise is deserved. I believe that the new pilot program designed to promote Examiner interviews before first Office Actions is an excellent idea, which PTO Director Dudas and his team deserve praise for trying out.
Continue reading "Avoiding Consistency Traps"
Posted by Michael Martin at 1:03 PM | The Patent Office | Comments (0)
April 17, 2008
Lazy Man Insults His Customers
The USPTO is storing up trouble.
PTO honcho Jon Dudas said Wednesday that patent
applications are "skyrocketing," but quality is suffering "as corporations and
individuals increasingly seek to turn intellectual property into a legal asset
rather than a means to technology innovation."
Continue reading "Lazy Man Insults His Customers"
Posted by Patent Hawk at 5:41 PM | The Patent Office | Comments (5)
April 15, 2008
Ravenous Hordes
The
USPTO is hosting a webcast on Wednesday, April 30, 2008, at 3:00 p.m. ET "to
discuss recent disruptions in the availability of Public PAIR" owing to "service
disruptions caused by bulk downloading of data by the public, commonly referred
to as 'data mining.'"
Details.
Continue reading "Ravenous Hordes"
Posted by Patent Hawk at 8:41 PM | The Patent Office | Comments (2)
April 14, 2008
i-©®eaTM
The
above title reads like junk email in a foreign language that your computer can't
decipher. How appropriate, because that's the name of the
USPTO's new
curriculum to teach rug rats about intellectual property. i-©®eaTM educates
educators to educate "tweens" (ages 8-11) "to be creative and invent." Like they
don't get into enough trouble as is. To launch the program, the agency has radio
and TV commercials with the message, "Anything's possible. Keep thinking." Hey
PTO, how about something crazily creative, like "examination on the merits"?!
Posted by Patent Hawk at 2:44 PM | The Patent Office | Comments (4)
April 10, 2008
Is There An Echo In Here?
David
Boundy, IP VP at Cantor Fitzgerald, burned
the midnight oil to
rail against USPTO rule changes, using the proposed Markush rule
revision as a springboard. "The Markush Rule violates the Patent Act." Boundy
thereupon listed further PTO legal transgressions for all its recent rule
changes, insisting the PTO must start again from scratch. "Further action by the
PTO is illegal until it has made some good faith attempt to comply with the
law."
Continue reading "Is There An Echo In Here?"
Posted by Patent Hawk at 1:21 AM | The Patent Office | Comments (4)
April 9, 2008
Budens On The Real Deal
Back in February, USPTO Director Jon Dudas testified before Congress as to the "progress" of the agency. The PTO press release offered up a mirage banquet of statistical successes. The
April newsletter of
POPA, the patent office union, dishes out the testimony of POPA president Robert Budens, who slices through Dudas's claimed "success." Ah, finally, some unbiased declarations.
Continue reading "Budens On The Real Deal"
Posted by Mr. Platinum at 8:28 AM | The Patent Office | Comments (6)
April 7, 2008
Another Day, Another Pilot
A recently announced USPTO pilot program will allow students, from several hand-picked law schools, to gain real-world experience by practicing before the agency. It is difficult to imagine this endeavor continuing beyond the initial two-year pilot. The value of such a pilot therefore appears minimal, acting more as a diversion from bad publicity than as an earnest effort.
Continue reading "Another Day, Another Pilot"
Posted by Mr. Platinum at 7:45 PM | The Patent Office | Comments (2)
Figure of Speech
USPTO
Director Jon Dudas pulled a number: $4200, as the cost of examining a patent,
contrasting it to the "basic filing fees" of under $1,000. So how, with such a
seemingly losing formula, does the PTO make over $2 billion a year? Issuance and
maintenance fees. The issue fee for a granted patent is $1,440. Maintenance: every patent, at 3.5 years, chips in
$930, $2,360 at 7.5 years, and $3,910 at 11.5 years. Not to mention fees for
continued examination (RCE, $810) and appeal ($1,020). Citing just the basic
filing fee disingenuously sets up a false comparison. Consider it a statement of character.
Continue reading "Figure of Speech"
Posted by Patent Hawk at 7:09 PM | The Patent Office | Comments (6)
April 4, 2008
If I Were the Dude...
Complaints abound when discussing the patent system and current PTO mismanagement, with top gun Jon "the Dude" Dudas serving as the rear-end to
many swift kicks. But being Director of the USPTO during such a volatile period cannot be easy. So let's follow Peterlin's lead, and help a brother out. No MBA required.
Continue reading "If I Were the Dude..."
Posted by Mr. Platinum at 2:02 PM | The Patent Office | Comments (8)
April 1, 2008
Thwarted
Judge
James C. Cacheris in the Eastern District of Virginia, on killing the
examination
limits railroaded into existence by the USPTO:
Because the USPTO's rulemaking authority under 35 U.S.C. § 2(b)(2) does not extend to substantive rules, and because the Final Rules are substantive in nature, the Court finds that the Final Rules are void as "otherwise not in accordance with law" and "in excess of statutory jurisdiction [and] authority." 5 U.S.C. § 706(2).
Posted by Patent Hawk at 9:09 AM | The Patent Office | Comments (2)
March 30, 2008
Commissioner Cack
In
an interview with
C/Net
News, USPTO Commissioner Jon Dudas:
What's, in lots of ways, more disturbing is in over half the cases where we say this isn't patentable, people just file again and get back in line. We want to make certain that people can't apply with a very broad patent application, which they know will get rejected. And then they get back in line, and meanwhile, they're looking out and seeing what's happening in the market. Sometimes they see that if they focused that broad claim, it could cover an existing technology... Then, (going by) the date of first filing, they can then say, 'I own that technology'... That's a very real concern. That gets more in line with concerns of troll behavior--someone who is literally watching the technology...so they can rise up out of the bridge and sue people.
Continue reading "Commissioner Cack"
Posted by Patent Hawk at 5:02 PM | The Patent Office | Comments (4)
March 28, 2008
Greenhorn Parade
Every
competent manager knows, if you have a morale problem with the troops, step one
is simple: ask the troops. Instead, Margaret Peterlin, Deputy Doodah for the
USPTO, is
tickled pink
to ask the kids in a local bidness skool what they think.
Continue reading "Greenhorn Parade"
Posted by Patent Hawk at 9:28 PM | The Patent Office | Comments (4)
March 23, 2008
Amateur Hour
WikiPatents
and the USPTO-condoned Peer to Patent
projects are attempts at solutions looking for a problem. The implicit
conjecture is that patent examiners are limited in their search capabilities,
and a helping hand is just what they need. Nothing could be further from the
truth. By fostering the impression that examiners need such help, a fake
Band-Aid is applied in the wrong place. The wound is PTO management.
Continue reading "Amateur Hour"
Posted by Patent Hawk at 1:50 AM | The Patent Office | Comments (0)
March 22, 2008
Praise the Dudas
Joff
Wild of IAM Magazine praises Jon Dudas for bringing home the bacon: "What
the
Patent Prospector and other Dudas critics fail to acknowledge is that fee
diversion has ended on his watch." Wrong attribution.
Continue reading "Praise the Dudas"
Posted by Patent Hawk at 12:38 AM | The Patent Office | Comments (3)
March 20, 2008
Don't Feel So Restricted
From MPEP 802.02: Restriction practice is designed to require applicants to "elect a single claimed invention (e.g., a combination or subcombination invention, a product or process invention, a species within a genus) for examination when two or more independent inventions and/or two or more distinct inventions are claimed in an application."
Continue reading "Don't Feel So Restricted"
Posted by Mr. Platinum at 6:15 AM | Prosecution | Comments (10)
March 19, 2008
Fully Funded Again
The
Senate last week, by unanimous approval, slipped into its 2009 budget an
amendment to condemn diverting funds from the USPTO. The Senate version of the
budget is sliced and diced in April, but PTO funds won't be on the plate. That
means the USPTO 2009 budget will exceed two billion dollars.
Continue reading "Fully Funded Again"
Posted by Patent Hawk at 4:52 PM | The Patent Office | Comments (1)
February 27, 2008
Fish Tank
Myth
tells us that fish grow to the size of their tank. Reason suggests, related to a USPTO examiner, this myth may prove out.
Posted by Mr. Platinum at 12:44 PM | The Patent Office | Comments (3)
February 22, 2008
SPEcial Powers
With USPTO allowance rates at an all time low, there has been frequent analysis and speculation regarding cause and implication.
There is a player in the shadows: the supervisory examiner.
Continue reading "SPEcial Powers"
Posted by Mr. Platinum at 3:19 PM | The Patent Office | Comments (2)
February 8, 2008
Thwarting
In
the Eastern District of Virginia today, savvy Judge James Cacheris heard oral
arguments on whether the USPTO may implement its proposed examination rules
changes. The crucial issue is whether the changes are substantive, which they
are. Textbook interpretation is that the patent office is proscribed by law from
promulgating substantive changes, and from applying them retroactively, as in
this instance. The sanctimonious PTO argued that the changes were not
substantive, but if even they were, the agency had authority. Judge Cacheris
swore to render decision ASAP, but "there is a lot of paper to consider."
Posted by Patent Hawk at 7:27 PM | The Patent Office | Comments (4)
February 7, 2008
Cover-Up
The
organized crime syndicate known as the USPTO tried to thwart
input in its fight to implement its illegal rule changes to examination
practice. The attack is answered.
Despite representing to this Court several times that the administrative record was complete, the PTO itself demonstrated otherwise when it recently and belatedly supplemented the administrative record, not once but twice. These submissions establish a pattern of "deliberately or negligently" omitting adverse documents from the record.
Posted by Patent Hawk at 2:02 AM | The Patent Office | Comments (4)
February 5, 2008
Patent Office on Patent Reform
USPTO management posted on its internal agency website a position statement concerning changes in
pending patent law. The patent office strongly opposes damages apportionment,
while supporting the new post-grant opposition regime.
Continue reading "Patent Office on Patent Reform"
Posted by Patent Hawk at 8:14 PM | The Patent System | Comments (2)
January 28, 2008
Fighting Criminal Action
Last
week, Triantafyllos Tafas filed an
opposition brief to the USPTO's summary judgment motion in the matter of
stopping implementation of the agency's proposed rules limiting patent filings
and examination. Tafas backed with evidence alleged lies and cover-up by PTO
management in its totalitarian approach to rulemaking.
Continue reading "Fighting Criminal Action"
Posted by Patent Hawk at 12:13 AM | The Patent Office | Comments (3)
January 14, 2008
The Perils of Prosecution
With
proclivity to despotic rule-making, USPTO management has issued edict to trash examination to the lowest common denominator.
Playing the numbers to demonstrate its toughness, top management determination was to sink
the allowance rate. Many moons ago, anticipating outcry at examination
injustice, the agency geared up for a ramp in appeals. Outrageous incompetence
is in full flower at the PTO. The governmental agency representing the
sanctity of invention has been so corrupted as to soil itself in disgrace; in doing so, pointing out the woeful
neglect of its overseers.
Continue reading "The Perils of Prosecution"
Posted by Patent Hawk at 1:50 PM | Prosecution | Comments (25)
Suspicious Procedures
An
amici curiae brief filed late last month by Polestar Capital Associates and
The Norseman Group in the
Tafas v. Dudas USPTO rules imbroglio tears the agency a new one:
The PTO failed its procedural rulemaking obligations. The PTO asserted that certain documents did not exist; yet now they have suddenly appeared in the administrative record. The PTO’s procedures are “suspicious” at best, and suggest that the “administrative record” is not an accurate or representative record of open-minded and reasoned decision making, but rather an ex post collection of documents cherry picked for this litigation.
Continue reading "Suspicious Procedures"
Posted by Patent Hawk at 1:12 AM | The Patent Office | Comments (3)
December 27, 2007
Hoot
A
patent embodies a simple concept of private property, that of invention. Those
opposed to the concept rage against it in vicarious ways, to weaken its power,
as the concept itself endures. Ironically, current USPTO management tries to
shuck its core responsibility of patent examination, by contriving elaborate
rules and justifications to render its sloth less odious. The patent office's
self-destruction has cheering supporters.
Posted by Patent Hawk at 3:20 PM | The Patent Office | Comments (5)
December 14, 2007
Compact Prosecution
Unable
to staff its way out of its pendency hole, USPTO management seeks to address the
problem by limiting continuations and RCEs. Seeking to gratify a grotesque bias,
Ayal Sharon & Yifan Liu set out to statistically validate that conclusion.
Instead, they proved what many prosecutors already knew: examiners' refusal to
grant deserved patents. The root of the problem is a culture now steeped in
political fear of being considered slack by granting junk patents, inspired by a
short-sighted and incompetent management responding to pressure from well-funded
propagandists.
Continue reading "Compact Prosecution"
Posted by Patent Hawk at 12:08 AM | The Patent Office | Comments (12)
December 12, 2007
What's the big IDeaS?
The
Office of Management and Budget has approved the
proposed Information Disclosure Statement (IDS) rule changes (full proposed rule).
As poet Walt Whitman penned: "Do I contradict myself? Very well then, I
contradict myself. I am large, I contain multitudes." But the USPTO isn't
supposed to be poetic, or self-contradictory; it's supposed to grant valid
patents. Worrying about decreasing pendency sets up an inherent
self-contradiction, especially since the direct path to do so is closed: while
management clings to denial as to cause, the agency admittedly suffers
horrendous examiner turnover. So, the only way left to decrease pendency is to
decrease examination time. Decreasing examination time necessarily increases the
risk of granting patents badly: either erroneously granting junk patents, which
the office used to regularly do, to not granting what should be valid patents,
as the PTO has recently made its regular practice. Burden shifting to applicants
is no substitute for impartial examination, and that's exactly the spirit of the
proposed IDS rules.
Continue reading "What's the big IDeaS?"
Posted by Mr. Platinum at 3:06 PM | The Patent Office | Comments (1)
December 10, 2007
Can't Touch This
Mere
days after Margaret
J.A. Peterlin was appointed Deputy Director of the patent office, before she
even had a chance to prove herself an
incompetent nincompoop, she's attacked in court by a self-righteous goon
squad of do-gooders who don't want to give her the chance to prove herself an
incompetent nincompoop. But the government isn't to be held
accountable, and so a district court judge shucked the matter because the law is "vague."
Continue reading "Can't Touch This"
Posted by Patent Hawk at 12:25 PM | The Patent Office | Comments (3)
November 20, 2007
International Feel
The USPTO has been outsourcing the examination of PCT applications for a little over a year now, yet most applicants remain in the dark. What's the upshot?
Continue reading "International Feel"
Posted by Mr. Platinum at 3:15 PM | The Patent Office | Comments (22)
The Big Charade
The
USPTO released last week its fiscal year 2007 "Performance and Accountability
Report", praising itself for "achieving another record-breaking year in
performance." The numbers: a record number of patents "examined" = 362,227;
quality compliance = 96.5% (what the hell is that?: dotting the 'i's and
crossing the 't's, a triumph of nitpick over substance); BPAI upholding
examiners 69% of the time (an intra-agency highly symbolic number), up from 51%
in 2005, indicating how much better the PTO has stacked the deck against
applicants; and grants
down to 51% from 72% in 2000, as if, nationwide, patent attorneys' heads turned
to mush as they suddenly spewed garbage patent applications left and right.
Yeah, right. All puppet performance, no accountability.
Continue reading "The Big Charade"
Posted by Patent Hawk at 2:59 PM | The Patent Office | Comments (5)
November 19, 2007
The Examiners' Burden
In
March 2005, USPTO management
unilaterally
terminated the collective bargaining agreement it had reached with
POPA, the examiners' union. Thus
began a new round of negotiations, which, in a letter Monday to examiners, is
considered at a mid-point impasse.
As POPA put
it: "The agency has taken a number of positions that are very harsh towards
examiners."
Continue reading "The Examiners' Burden"
Posted by Patent Hawk at 11:26 PM | The Patent Office | Comments (4)
November 16, 2007
Part Of A Winning Team
An
examiner at the USPTO commented about
Margaret J.A. Peterlin, Deputy Director,
"another Hill staffer that has been sent over here to manage the PTO. There has
been some griping by examiners and SPEs about her qualifications and her
abilities." Peterlin is a former lapdog for Illinois Republican Rep. Dennis
Hastert, an erstwhile wrestling coach.
Continue reading "Part Of A Winning Team"
Posted by Patent Hawk at 8:27 PM | The Patent Office | Comments (1)
November 15, 2007
Victory at Sea
The
USPTO announces success in increasing pendency: up to 32 months. Director Jon
Dudas, in a phone interview, crowed: "In the near term, we'll see pendency grow
for a few years." The Congressional Government Accountability Office credited
agency management with unrealistic production goals fostering massive
examiner turnover. Meanwhile, the patent grant percentage is down to 51% from 72% in 2000, as applicants clog the office with their crappy ideas.
Posted by Patent Hawk at 11:55 AM | The Patent Office | Comments (0)
November 8, 2007
Not Appealing
Ruthlessly incompetent USPTO management continues to flummox the patent
community with its illegal and outrageous rule-making. The latest episode is
revising appeal rules.
Public comments have been posted, none complimentary; worthwhile reading. But,
however compelling, you can't clue the
clueless. In other words, don't hold your breath that the patent agency won't
proceed apace in yet another rules-from-fools folly.
Continue reading "Not Appealing"
Posted by Patent Hawk at 11:59 AM | The Patent Office | Comments (1)
November 7, 2007
I Swear Tele-Works
Deputy Director of the USPTO, Margaret J.A. Peterlin,
testified before a House of Representatives committee in a hearing entitled
"Telework: Breaking New Ground."
From the patent office announcement:
The USPTO has long been recognized as a pioneer in the area of telework for its innovative and flexible programs.
Continue reading "I Swear Tele-Works"
Posted by Mr. Platinum at 1:52 PM | The Patent Office | Comments (9)
November 2, 2007
Attrition
Attrition
is atrocious at the USPTO. Why? Having paid my dues to play the blues as an
examiner, a few notes sing out.
Posted by Mr. Platinum at 7:32 AM | The Patent Office | Comments (9)
October 31, 2007
The Empire Strikes Out
Judge
James Cacheris of the Eastern District of Virginia issued a last-minute preliminary
injunction against the USPTO imposing its new rules limiting continuations and
claims examined, finding merit that at least some of the rule changes may be illegal, exceeding
statutory authority.
Continue reading "The Empire Strikes Out"
Posted by Patent Hawk at 7:45 PM | The Patent Office | Comments (0)
October 30, 2007
The Empire Strikes Back
Last
episode, Luke Tafas and Obi Wan GlaxoSmithKline assaulted the examination death
star, backed by legions of patent jedi. Now, Darth Dudas whips out
a sputtering
light saber in reply.
On November 1, 2007, the USPTO expects to implement rules aimed to improve the quality and efficiency of patent application examination, lead to higher quality patents, and reduce a growing backlog of applications that is crippling the Office. The rules are the product of extensive planning and development.
Continue reading "The Empire Strikes Back"
Posted by Patent Hawk at 8:07 PM | The Patent Office | Comments (1)
Concerns
Last
Thursday, Senator Chuck Schumer (D-NY)
faxed
a
letter to PTO honcho Jon Dudas, raising concerns about the imminent rules
for limiting continuations and examination of claims: "The proposed rules... may
have the unintended consequences of stifling... innovation, and I urge you to
consider delaying their implementation."
Posted by Patent Hawk at 2:19 PM | The Patent Office | Comments (0)
October 29, 2007
Halloween
Patent
prosecutors will be tricked or treated before
All-hallow-even, as East
Virginia Judge James Chacheris has scheduled a hearing Wednesday to hear
GlaxoSmithKline's motion for an injunction against the USPTO's odious
examination rules changes, the day before the rules are set to go into effect,
establishing a pagan ritual of patent sacrifice, beginning All Hallows Day. The patent community cheers GSK in hopes of securing a
temporary restraining order from Judge Chaceris, whose choice of hearing date
intimates a just complaint.
Posted by Patent Hawk at 10:21 PM | The Patent Office | Comments (4)
October 27, 2007
Crusader
Hal
Wegner
sallies forth with a missive to John Whealan, former USPTO
Solictor, now on the Senate majority staff.
Twenty months ago in your role as the Solicitor for the United States Patent and Trademark Office you addressed the Bar Association of the District of Columbia; you spoke against a statutory elimination of excessive continuations applications because of an Agency "bubble" problem, while asserting that the Congress would clearly support repeal of multiple continuing applications – that your former Agency is now eliminating through rulemaking you helped craft in your former role.
Posted by Patent Hawk at 2:48 PM | The Patent Office | Comments (1)
October 25, 2007
Battle Stations
Reports flow in of siege at the USPTO
fortress over examination limits. Casualties have already occurred: the twin
angels of human relationships, Equity & Comity, appear seriously wounded. The
large caliber catapult known as IBM has rolled into position, lobbing projectiles at the fortress.
Now we hear that a defector is whispering dissent, that the cause may not be just,
aghast at the thought of innocent lives, infant inventions strangled
as they lie in their cradles.
Continue reading "Battle Stations"
Posted by Patent Hawk at 1:28 PM | The Patent Office | Comments (4)
October 22, 2007
Insignificant Billions
Richard
B. Belzer, on behalf of masked men, ran numbers from masked men that led him
to conclude that the USPTO's proposed prior art Information Disclosure Statement
(IDS) rules related to the pending 5-25 examination rules are economically
significant, contrary to patent agency assertion. As in, $7.3 billion a year
significant. As former Senator Scoop Jackson of Washington state once mused: "a
billion here, a billion there; before you know it, you're talking real money."
Continue reading "Insignificant Billions"
Posted by Patent Hawk at 11:01 PM | The Patent Office | Comments (1)
October 19, 2007
Stopping Limiting Continuations Continued
Inventor
Dr. Tafas was first
to the courthouse to sue Jon Dudas for the new examination limits,
specifically, limiting continuations.
GlaxoSmithKline followed suit.
Steven J. Moore
at Kelley Drye & Warren, Tafas
counsel, informs that "the Glaxo case has been consolidated into the Tafas
case." Tafas has filed an
amended complaint. And Hal Wegner analyzes the justifications, and pitfalls,
of late-stage continuation filings.
Continue reading "Stopping Limiting Continuations Continued"
Posted by Patent Hawk at 12:51 PM | Prosecution | Comments (1)
October 18, 2007
Spoiled Child
Susan
Dudley, Administrator of the Office of Information and Regulatory Affairs (OIRA)
for the Office of Management and Budget (OMB), overseer of regulatory
shenanigans by government agencies, is a bad mother to the errant child known as
the patent office; letting it eat far too much cake of its own baking for
everybody's own good. Ms. Dudley was the one who
let the examination limits
rules slide on by without so much as a "boo." Now comes a crowd of
community-minded citizens to complain once more, that Dudas the Menace is
fibbing again; this time over new rules for requiring Information Disclosure
Statements (IDS) for patent submissions: "In the proposed IDS Rule, USPTO has
again misrepresented to OMB the breadth and depth of the effects likely to
result. The proposed IDS Rule is clearly “economically significant.” If
finalized, it will impose billions of dollars of burden on patent
applicants and owners."
Continue reading "Spoiled Child"
Posted by Patent Hawk at 11:53 AM | The Patent Office | Comments (4)
Revenge of the Jedi
It
is virtually impossible to find anyone outside the Patent Office who thinks the
new rules on claims and continuations schedule to take effect on November 1,
2007, make any sense at all. The new rules are simply absurd. Not only do they
limit the number of claims unless you want to file an Examination Support
Document, but they also limit the number of continuations you can file and they
are retroactive. On top of that there has been some evidence to suggest that the
Patent Office
started enforcing the new rules in mid October 2007, although they appear to
have seen the error of their ways and have stopped such enforcement. Who could
possibly think that any of this is fair?
Continue reading "Revenge of the Jedi"
Posted by Gene Quinn at 10:54 AM | The Patent Office | Comments (3)
October 17, 2007
Lax
Feeling
the pressure of pendency no longer, the bowels of the USPTO are tightening for
the 5/25 examination limits, with the patent agency prematurely playing loose
with its own rules. While the limits are stated to be in effect November 1, de
facto implementation is already proceeding, as it appears unexamined patent
applications with more claims than allowed under the new rules are being pulled
from their dockets, effectively pre-retarded.
Posted by Patent Hawk at 1:10 PM | The Patent Office | Comments (2)