Patent Reform News Update

10 thoughts on “Patent Reform News Update

  1. Hey look at it this way . . . at least we are not military personnell who satisfied their commitment yet only to find themselves fighting for an oil company’s profit margin against their will as a product of the stop-loss program.

  2. ROFL – in other words, the PTO wanted to make a buck so they pulled the plug on the use of free search engines that provided non-trivial full text searching? why am I not surprised.

  3. Since there is really no better place to post this, does anyone if you can still use Google (or another search engine) to full text search BPAI opinions? You used to be able to do it by putting something like this in your Google search box: ~site:link to uspto.gov “examiner is reversed” hindsight~ (minus the ~s).

    Recently, the PTO put up its own “full text” search page for BPAI decisions at link to des.uspto.gov. Problem is, you can only text search for single words or single phrases (in quotes). In other words, you could search for “examiner is reversed” OR hindsight – you cannot search for decisions containing both. It appears that he Google method noted above still works, BUT only for non-precedential/non-informative opinions (i.e., 99.9% of BPAI decisions) dated prior to 1/18/2007.

    Am I missing something here? And if you can no longer full text search BPAI decisions using Google (or another search engine that provides for useful full text searching), why not? Ironically, the BPAI search page noted above claims you can search using a “commerical database engine”, but it gives no information as to how one might do that.

  4. Geez, how can CBO say the cost impact is zero – what about the loss in treasury revenue from patent damage awards? What about the loss of jobs overseas? Not much of a ‘study.”

  5. Patent fairness my butt!

    Google argues that damages should be calculated based on the “fair share” of the patent’s contribution to the value of a product, and not on the value of a whole product that has many components. The example Google gives is that a windshield wiper found to an infringe a patent should not spur a damage award based on the value of the entire car.

    No one in a rainy/snowy/dusty environment would buy a car without a windshield wipers if alternatives with windshield wipers are around. If a car does not sell, the car is effectively worthless!

    All a car maker has to do to avoid infringement is to avoid using the windshield wiper or to license the patent. Any analysis of the value of the wiper patent in isolation without considering the market value of the entire car is mere “mental masturbation” reminiscent of communist theory purporting to strive for “fairness.”

  6. That InfoWorld article cited by Dennis is startingly devoid of details. If anyone knows where to find it, I would love it if someone could please point me to a copy of the letter the 5 “consumer” organizations sent to congressional leaders. Either that or send it to Dennis so that he could post it.

  7. In the past some have noted that AIPLA has not worked actively on patent issues.

    Here is the beginning of yesterday’s AIPLA e-mail to its membership:

    Please contact your Representative in the House of Representatives and ask that they oppose H.R. 1908 as reported by the Judiciary Committee and urge that it not be considered until the deficiencies outlined below have been corrected.

    Amendments may be offered on the House floor as early as this Friday to address these deficiencies, but the content of these amendments, if any, will not be known until Thursday evening. While AIPLA supports and wants sound patent reform, HR 1908 as reported does not provide it, and the schedule requires that we express our views on the basis of what we do know.

  8. PTO management did themselves in. I feel sorry for the bright young examiners who believed they had landed a career in government (guys with close to 20 years will survive eventual cuts and safely retire as we move closer to quasi-registration).

    However, having spent many years there, I do not subscribe to the “they are under production pressures that preclude them from spending appropriate amounts of time on each case” mantra. I heard these same things when I was examining there years ago, and I found a way to budget the time needed to produce good searches and office actions.

    PTO management screwed this up starting with their de-emphasis of classification over a decade ago. Dudas compounded the problems with the second and third pairs of eyes programs. The new unofficial rule was to not allow anything and extend prosecution piecemeal examination, which resulted in a great deal of the RCE’s filed and, of course, bad office actions.

  9. (1) While there are certainly some better Examiners out there, I usually find that “the examination process being an inherently governmental function performed by examiners who are free from [sufficient] interest” causes much more of a hassle than should be necessary. I get a rejection where the Examiner has clearly not read our disclosure OR the cited art, but matched a few keywords in the claims, and either ignored portions of or wholesale rewrote the claims so that he/she could reject them more easily. The first amendment is then spent explaining all of the documents to the Examiner anyway. Not infrequently, the Examiner will copy & paste the first (poor) rejection and go final. Note that I don’t necessarily blame the Examiner; I understand they are under production pressures that preclude them from spending appropriate amounts of time on each case. But I fail to see the benefit of keeping the Examination process as a poorly-run, competition-free government operation.

    (2) Not having done any research regarding the POPA, I’m suspicious of the motives any organization that represents a class of workers when they argue that said workers are indispensable. Is the concern that patent quality will suffer, or that the huge and inefficient Patent Office will shrink?

    (3) In case there was any confusion, I’m against this bill in general, and against the applicant submissions. But, with regard to the applicant submissions, it’s because of possible estoppal / inequitable conduct problems; definitely *not* because I think examination is best left to the government.

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