Bits and Bytes No. 113: PTO Director

  • Nothing to report on the quest for a new PTO director. Although the Obama administration's "fast start" has been reported by the media, he is now slower than President Clinton who nominated Bruce Lehman in April of his first year in office. President Bush nominated Jim Rogan in May of his first year in office. President Obama has two more days to match that benchmark. (My prediction of a May 8 nomination has come and gone...)
  • Albritton v. Cisco: The Patent Troll Tracker case continues. Trial in the defamation case is set for September 14 in Tyler Texas. Defendants include Cisco, Richard Frenkel (the Patent Troll Tracker) Mallun Yen, and John Noh.
  • Ward v. Cisco: Johnny Ward Jr. (son of Judge Ward) has a parallel case running against Cisco in Texarkana (Arkansas). Ward voluntarily dismissed Frenkel from the lawsuit after Cisco "admitted agency." Discovery is ongoing and the parties have asked for trial to begin December 30, 2009.
  • Speaking of EDTX: Last week, the Canadian company i4i won a $200 million verdict for willful patent infringement against Microsoft. Apparently i4i's xml editing software was completely undercut when Microsoft included xml editing software in MSWord. The patent is here. Joe Mullin has more.
  • Voting continues for the "best patent blog." (I don't like this survey, but it is still nice to make a good showing.)
  • Singulair Patent Reexamination: Earlier this year, ArticleOne asked for prior art on Merck's Singlair patent and two of its "community members" offered seemingly important references. ArticleOne then filed for reexamination of the patent, which was granted on May 20. Today ArticleOne issued press releases related to the reexamination. Peter Ludwig (Darby & Darby) is representing ArticleOne before the PTO. Singulair garnered $4 billion+ in sales last year.
  • Information Query: The Singulair patent's reexamination number is 90/009,432. If you were an investor, how would you go about closely following the prosecution history in that case?
  • Patent Jobs:

46 thoughts on “Bits and Bytes No. 113: PTO Director

  1. “Why is it that as an “Actual Inventor” I find the PTO employees nothing but pleasant and helpful, only to come to this blog and see “Actual Patent Attorneys” saying the exact opposite?

    Posted by: Actual Inventor | May 29, 2009 at 06:56 PM ”

    Maybe because you don’t realize that their “helpful” suggestions have left you with worthless claims. Trying getting something of value and then come back and tell us what you think.

    Reply
  2. Just an aside for Just An Ordinary,

    Cisco is doing what monopolies are known to do with the spoils (economic surplus) associated with their accomplishments, that is, they are practicing what is known as erecting barriers to entry through the use of lobbying and the like.

    Reply
  3. Let me direct that specifically to JAOI…

    Reply
  4. I’m fairly certain means that they admitted that an agency relationship existed. If that is too complex for you, it probably means that they admitted that the Troll of Trolls was acting within the scope of his employment.

    Reply
  5. Dear Leo,

    Again re:
    “Yes, but weren’t Goliath’s (Cisco’s) nefarious activities anonymous, or at least pseudonymous? Doesn’t that neutralize the Goliath factor? Besides, your comments appear on the Goliath of patent-related blogs…”

    Please check out this link:
    link to cnbc.com

    It appears that Cisco Systems, Inc. has assumed this extreme stature of, General Motors!

    How can I, Jaoi™, compete with that level of stature, even with my trademarks and my (ordinary) white rabbit’s help?, [especially considering that I try to consume as much booze as I can consume and still stay true to my pro-American patent system agenda (©¿®)™ (just kidding)].

    Reply
  6. Dear Mr. Morgan,

    In regard to the cases against Cisco, you wrote this:
    “Law suits like this can further inhibit free speech in general [not just the people you disagree with] by demonstrating that even what you may think are safely annoymous bloggings or postings can be penetrated to sue you and other authors for alleged personal or professional defamation.”

    Please see my comment above to Mr. Six — specifically the example of the close patent case and a jury trial where the jurors were able to read Cisco’s Troll Tracker blog in the evenings in their hotel rooms while the independent inventor’s patent issues were being tried during the day.

    It is my opinion that Cisco was not entitled to publish Troll Tracker under the fraudulent circumstances it did. There are limits to free speech. One of those limits is “jury tampering.”

    What Cisco did by fraudulently publishing Troll Tracker defamed untold numbers of inventors, including myself. If I can show damages attributable in part to Cisco’s fraudulent publishings, do you think I may have a case?

    Reply
  7. Dear Mr. 6,

    In regard to the anonymity of Cisco’s “Troll Tracker,” you said this:
    “”If however, they present their position as being “objective”, i.e., “ ‘just’ a lawyer,” and only present their corporate agenda, i.e., their one side of the argument, then, by any rational man’s definition, that is deceitful, deception, dishonest, in other words, a fraud upon its readership.”
    One would have to be a fool to believe that he wasn’t a lawyer representing a big firm. Agreed? Are you thus calling all his readership, including notably yourself, a fool?”

    Please see this article and the excerpt below from the article:
    link to businessweek.com
    “Cisco General Counsel Mark Chandler even cited the blog as a good independent source of information while in Washington lobbying for changes to patent law that would rein in trolls, unaware he was plugging the work of a Cisco employee.”

    Was Mr. Chandler lying?, or was he a fool?
    Given your statements, it can only be one or the other.

    I remarked:
    “Regarding unlawful, it depends on how you interpret the 1995 Lobbying Act.”

    And you replied thusly:
    “No it depends on how the courts interpret it. And they’ll interpret it the same way under either admin, and he was most certainly not engaging in a lobbying activity as used in the statute. Not by even your most far fetched stretch thereof.”

    I disagree — judges like Supreme Court nominee, Her Honor Sonia Sotomayor, sometimes let personal experience and or emotion color their rulings.

    Let’s face it, most patent cases that go to trial are not black and white — most patent cases can go either way –

    If it’s a bench trial, the judge will go thumbs-up or thumbs down depending on his own personal views.

    If it’s a jury trial, each juror will go thumbs-up was on was down depending on his own personal views. In this latter example, if an independent inventor is suing a global software company, and jurors have been following Cisco’s Troll Tracker on their laptops in their hotel rooms they will have been influenced to go thumbs down because they thought they were reading “independent” news stories about independent inventor trolls.

    Even the judge in the bench trial may have been influenced by Cisco’s Troll Tracker!

    Regarding the jury trial in this example, do you think Cisco, having admitted agency, can be charged with jury tampering?

    Reply
  8. “If anybody wants me as a witness of any sort v the dirty basstard defendants, please post something and I’ll follow up.”

    [gets on knees and prays for JAOI to show up at the trial in his Just An Ordinary White Rabbit Suit]

    Reply
  9. Kevin – thanks for that info. It beats all the other “comments” here.

    Reply
  10. “If however, they present their position as being “objective”, i.e., “ ‘just’ a lawyer,” and only present their corporate agenda, i.e., their one side of the argument, then, by any rational man’s definition, that is deceitful, deception, dishonest, in other words, a fraud upon its readership.”

    One would have to be a fool to believe that he wasn’t a lawyer representing a big firm. Agreed? Are you thus calling all his readership, including notably yourself, a fool?

    “Regarding unlawful, it depends on how you interpret the 1995 Lobbying Act.”

    No it depends on how the courts interpret it. And they’ll interpret it the same way under either admin, and he was most certainly not engaging in a lobbying activity as used in the statute. Not by even your most far fetched stretch thereof.

    The man did little wrong (see small factual misreport above) besides get Nero to offer a reward I was too keen to extort.

    Reply
  11. And on another note, Hal Wegner is reporting a story from the National Journal’s Congressional beat that Rep. Hondo of Florida is backing Palm associate general counsel Doug Luftman as the new PTO Director.

    Reply
  12. Dear Max & Mr. Morgan,

    Re: MaxDrei’s comment:
    “I’m skeptical that “Examiner X” (11.58am) is a PTO employee. I hope he isn’t.”

    Max, I’m confident you are quite right to be skeptical. I am confident an examiner with X’s “treasonous” attitude, when he is found out, would be thrown out of the PTO on his ahss and, one would hope, brought up on civil and or criminal charges.

    Mr. Morgan,
    Re: your comment above about Cisco, and yesterday’s comment to Examiner X:
    “Dear Examiner X, re your Number 3, what? [its not my sugestion, as written, and certainly not appropriate for examiners].
    But your comment here certainly demonstrates why I have always counseled against ever making any personal criticisms of any examiners about any application processing, not even indirectly.”

    With all due respect, I suggest Max is exactly right on this issue and I am surprised, to say the least, that any American IP professional would be taken in by a phony’s (Examiner X’s) absurd attempt to characterize as he did any Examiner employed in the USPTO.

    Re: Your (Paul F. Morgan’s) comment:
    “Especially suits reportedly based on only one alleged partial mistake of fact that de facto suppressed an entire widely-read blog that had been providing many useful case-tracking and concealed-patent-ownership facts – the former “troll tracker” blog.”

    With regard to this remark you made, I am aghast! Please read my comments above, especially yesterday’s at 12:56 PM, and then if you still feel this way, please explain yourself and provide specific argument against my views. Surely one of us is sorely out of focus.

    Reply
  13. Dear No. Six,

    Re: “…posting opinions and publicly available information online is fraud. N also unlawful.”

    Perhaps I’m just inarticulate at making my argument — after all, I’m just an ordinary inventor and my agenda has been perfectly upfront and clear from the get-go, as has your agenda.

    I have nothing against anybody publicly making available information online under the following circumstances:
    (A.) they do so objectively, that is, they present both sides of the of the argument,
    (B.) if they have an agenda, that they say so, and then they can present any freak’in argument they want.

    If however, they present their position as being “objective”, i.e., “ ‘just’ a lawyer,” and only present their corporate agenda, i.e., their one side of the argument, then, by any rational man’s definition, that is deceitful, deception, dishonest, in other words, a fraud upon its readership.

    Regarding unlawful, it depends on how you interpret the 1995 Lobbying Act. Under the Republican administration you might have one interpretation, but, under a Democratic regime, that and interpretation you may very well be quite different.

    Reply
  14. Dear Leo,

    Re:
    “Yes, but weren’t Goliath’s (Cisco’s) nefarious acttivities anonymous, or at least pseudonymous? Doesn’t that neutralize the Goliath facotr? Besides, your comments appear on the Goliath of patent-related blogs…”

    Again you are too kind. One can only hope; to God’s ear as they say in Brooklyn.

    However, powerful industrial giants like Cisco Systems, Inc’s. General Counsel Mark Chandler and who knows how many other powerful global industry leaders and their well-connected lobbyists out of the 125 members of the “Coalition (i.e., cartel) for Patent Fairness” et al., spending untold millions of dollars since the turn-of-the-century, fanning the watch out for the “Patent Trolls” fires, aimed squarely against self-employed independent inventors, and infesting all three branches of government, as well as infesting all forms of media so as to infest IP professionals, IP lay-people and We the American people in general.

    My ability to provide “fair and balanced” views does not begin to compare. I need all the help I can get to provide fair and balanced views to restore and protect the strong American patent system We the people once enjoyed.

    Reply
  15. Re “Just an ordinary inventor,” et al, before drawing erronious legal conclusions about why Cisco did not dispute agency in the subject case, please note that even if an employer was totally clueless as to their employees personal conduct and activities, and never authorized it [e.g., a drunken company truck driving employee smashes into your car] the employer can still be held liable for their employees conduct in many cases [and, of course, will have much deeper pockets for plaintiffs to dip into].
    This is one reason why you will not find very many candid comments under real names on blog sites or elsewhere from anyone not retired.
    Law suits like this can further inhibit free speech in general [not just the people you disagree with] by demonstrating that even what you may think are safely annoymous bloggings or postings can be penetrated to sue you and other authors for alleged personal or professional defamation.

    Reply
  16. “But your comment here certainly demonstrates why I have always counseled against ever making any personal criticisms of any examiners about any application processing, not even indirectly.”

    This is the worst advice I’ve ever heard. I see this crapola posted all the time: “You don’t want to make the examiner mad.”

    Really? The examiner’s giving you the royal screw job in hopes of extorting a couple RCE’s, but you don’t want to make the examiner mad?

    Take your advice somewhere else, old man.

    Reply
  17. “So, no more about unpleasantness please.”

    Things are about to get so much more unpleasant, Examiner X.

    I hope you’re ready.

    Reply
  18. “Moreover, I submit that the purpose behind Troll Tracker, from its beginning, was to fraudulently, and allegedly unlawfully, advance Cisco’s agenda to change the American patent system in order to enhance Cisco’s competitive international position and improve its bottom line — greed!”

    Hey guys, posting opinions and publicly available information online is fraud. N also unlawful.

    Man, examiner x is rofltastic! There’s no need to do any of that over the top mess. All you gotta do is make their case special. Give em an extra 5 hrs search, find that 102 that was just hiding around the corner. Force the abandonment or the narrow as all get out amendment (might as well be abandonment except they pay us money to issue it lol).

    Reply
  19. it’s David against a Global Goliath…

    Yes, but weren’t Goliath’s (Cisco’s) nefarious acttivities anonymous, or at least pseudonymous? Doesn’t that neutralize the Goliath facotr? Besides, your comments appear on the Goliath of patent-related blogs…

    Reply
  20. Leo,

    Re: “Given the extreme effectiveness of 21st Century Internet publishing, haven’t you corrected the situation with your several comments on this topic?”

    You are too kind. I like to think I’ve provided some balance and perspective, but it’s David against a Global Goliath, that, at the height of the .com boom, was worth more than any other company on the planet (as memory serves).

    Reply
  21. @ Examiner x: “Hearing comments about Examiners like being “unpleasant” are exactly what irritates me.”
    The comment said “clerical person.” If you’re that thin-skinned, why in the world would you take a position where you deal with lawyers for a living? As far as making cavalier comments about sabotaging applications, I think you’re making a persuasive case for search-examination outsourcing. The examiners in Europe, China, Australia, and Korea, to name a few, do good work and you will never receive a bureaucratic threat from them like you made.

    Reply
  22. “And in doing so, given the extreme effectiveness of 21st Century Internet publishing, Cisco Systems, Inc. has: …”

    Given the extreme effectiveness of 21st Century Internet publishing, haven’t you corrected the situation wtih your several comments on this topic?

    Reply
  23. Hi Leo,

    Thanks for the info.

    It sounds like a serious admission, that Cisco Systems, Inc. has taken responsibility for operating an anonymous blog trashing a certain class of patent owners, and all the ramifications that may entail. However, my guess is the admission was not “voluntary” — my guess is Cisco was compelled by one means or another to make the admission.

    Carrying it one step further, it means that Cisco has taken the responsibility for KNOWINGLY operating an anonymous blog that, for example, allegedly prejudicially influenced ongoing litigation of its own and others — a poisoned the entire American “jury pool.”

    Further, given Frenkel’s position and the position of others, including Frenkel’s boss, who were well aware of who was publishing Troll Tracker’s subjective and inflammatory views (propaganda) and why it was being published, that Cisco was fully responsible for Troll Tracker whether or not they “admitted agency.”

    Moreover, I submit that the purpose behind Troll Tracker, from its beginning, was to fraudulently, and allegedly unlawfully, advance Cisco’s agenda to change the American patent system in order to enhance Cisco’s competitive international position and improve its bottom line — greed!

    And in doing so, given the extreme effectiveness of 21st Century Internet publishing, Cisco Systems, Inc. has:
    (A) degraded the motive to innovate that has historically driven America’s prosperity and our global leadership position, and
    (B) has smeared the reputation of untold numbers of self-employed independent inventors and undermined their ability to prosper from their creative efforts.

    (Dictated into Dragon Naturally Speaking 10.0.)

    Reply
  24. Dear Examiner X, re your Number 3, what? [its not my sugestion, as written, and certainly not appropriate for examiners].
    But your comment here certainly demonstrates why I have always counseled against ever making any personal criticisms of any examiners about any application processing, not even indirectly.

    Reply
  25. I’m sceptical that “Examiner X” (11.58am) is a PTO employee. I hope he isn’t. I like to think that PTO employees can tell the difference between an Applicant and the attorney on the phone who is representing that Applicant. Real PTO Examiners would know that the punishment should fit the crime. If the “crime” is committed by an arsehole attorney, can it be fair to punish his client, the innocent Applicant?

    Reply
  26. Hearing comments about Examiners like being “unpleasant” are exactly what irritates me. Get ready for more unpleasant-ness from me when you call up because I am calling the Union.

    So, if you have a problem … Complain and we will screw you over more using the plethora of techniques, from

    1. delaying prosecution
    2. being difficult over the phone
    3. leak information about your case such as the novelty itself, to ownership (as Paul F. Morgan suggests)
    4. telling other Examiners working on your other cases to do 1-3 above.
    5. consorting our SPE who is really more on our side than yours, to assist delay in prosecution.

    So, no more about unpleasantness please.

    Reply
  27. “What does ‘admitted agency’ mean?, it’s a new one on me, and I thought I’d been around the block once or twice.”

    JAOI, It means that Cisco admitted that Frenkel was acting as Cisco’s agent, and that Cisco is therefore responsible.

    Reply
  28. Regarding Information Query – Singulair reex 90/009,432. Any investor can go to Public PAIR and enter in that Control No. to watch prosecution. Was this a trick question?
    Interesting how they got a ruling so fast (just over three weeks). I’ve had a reex request pending since April 9 and haven’t gotten a ruling yet.

    Reply
  29. Good luck Cisco! Your chances of winning are supposed to be based on the facts, not the venue.

    I have recently heard of Gary Griswold as a name floated for PTO Director. I think Gary would be GGRREEEAAATTT!

    Reply
  30. Let’s apply the objective “fly on the wall” test to all those telephone conversations between callers and PTO employees. Give the fly a button, that it should press, as soon as it can identify one of the parties to the conversation as “difficult and unpleasant”. On the evidence of this blog (for what it’s worth), I think the fly might soon get a sore button finger.

    Reply
  31. Considering all the useless annonymous personal attacks regularly clogging blog comments, it is more than a little hypocritical and short-sighted to be supporting libel suits against the interests of your own blogging freedom of speech.
    Especially suits reportedly based on only one alleged partial mistake of fact that de facto supressed an entire widely-read blog that had been providing many useful case-tracking and concealed-patent-ownership facts – the former “troll tracker” blog.

    Reply
  32. Posted by: fish bones | May 29, 2009 at 04:59 PM “Every time I talk with a clerical person at the PTO it reminds me of how difficult and unpleasant they can be.”

    Why is it that as an “Actual Inventor” I find the PTO employees nothing but pleasant and helpful, only to come to this blog and see “Actual Patent Attorneys” saying the exact opposite?

    Reply
  33. ” I have found them to be pretty pleasant and helpful for the most part.”

    Same here.

    Reply
  34. fish bones – How difficult and unpleasant what can be? The PTO employees? I have found them to be pretty pleasant and helpful for the most part.

    Reply
  35. Every time I talk with a clerical person at the PTO it reminds me of how difficult and unpleasant they can be.

    Reply
  36. “If you were an investor, how would you go about closely following the prosecution history in that case?”

    I’d check Public PAIR daily, at least, check Article One’s website for press releases, check Merck’s website for press releases, and send any updates to my Ph.D. patent attorney for evaluation of the strength of the arguments.

    Reply
  37. And if the Cisco Kid is off the hook, who will sit in the defendant’s chair?, could it be, maybe, General Counsel Mark Chandler?

    Reply
  38. What does “admitted agency” mean?, it’s a new one on me,
    and I thought I’d been around the block once or twice.

    I guess it means Cisco will take all the blame and make good for anything its Cisco Kid did if there is a judgment v the Kid.

    But I couldn’t find a definition for “admitted agency.”

    Reply
  39. Considering the delay in finding a Commerce Secretary, the delay in USPTO Director isn’t too surprising. Nonetheless, the remaining delay in Director nomination suggests two possibilities to me:

    1) The position is being taken more seriously, requiring more time to consider patent policy and search for candidates embracing/having the administrative skill to enact that policy.

    2) The original nominee had something unpalatable uncovered in the vetting process.

    Reply
  40. …the boys are thirsty in Atlanta,and there’s beer in Texarcana and we’ll bring it back no matter what it takes

    East bound and down, loaded up and truckin’
    and we’re gonna do what they say can’t be done
    We’ve got a long way to go and a short time to get there
    I’m east bound just watch ol’Bandit run ……

    Reply
  41. “If anybody wants me as a witness of any sort v the dirty basstard defendants, please post something and I’ll follow up.”

    [gets on knees and prays for JAOI to get called as a witness in this trial]

    Reply
  42. “Let’s hope Cisco and the Cisco Kid get their comupins.”

    Yes, what a grand victory that would be for little guys:

    link to emafirm.com

    Reply
  43. If anybody wants me as a witness of any sort v the dirty basstard defendants, please post something and I’ll follow up. I’d love to have some skin in those games. I too have suffered at as a result of their malfeasance, and I think a jury should know some of the ancillary damages by way of background, the whole truth.

    Reply
  44. Let’s hope Cisco and the Cisco Kid get their comupins.

    Reply

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