President Obama and Cass Sunstein to take Hard Look at Proposed Rules

In one of his first official actions, President Obama (through Rahm Emanuel) has ordered that new federal rulemaking cease until the White house Office of Information and Regulatory Affairs (OIRA) can review the rules.  At this point, it is unclear how this will impact any of the already-finalized rules (Continuations, Claims, Appeals). It will further delay finalization of the expected forthcoming rules on IDS limitations and Markush claim limitations.

As a side-note, the new director of the OIRA is expected to be University of Chicago Law Professor Cass Sunstein.  Sunstein is one of the most well known law professors in the country.  While the OIRA position is normally quite obscure, I suspect that it will not be obscure for long.  Sunstein written extensively on using regulations to shape behavior

Notes:

36 thoughts on “President Obama and Cass Sunstein to take Hard Look at Proposed Rules

  1. 35

    Crumbs, you really don’t have to “accept” my postings you know. And I would suggest accepting the wheat and discarding the chaff (rather than the other way around). As Smash points out, we should all give postings the weight that we individually think they warrant. You make a good point though: is Mooney as offensive as the worst of the other posters, but I just don’t see it because I (usually) agree with his views. I’ll watching that, from now on, because even I think he’s wrong on some things, like using the 101 filter when the unpatentability in the claim is that it lacks novelty.

  2. 34

    Yes, I have an objection to CAFC and SCOTUS joining the gutter ranks. Those ranks are indeed quite full.

    And while I share your distaste of the vituperative language and would prefer not to see it, to be disappointed that posters use that tone in response to other posters that you applaud (Mooney) is a bit disingenuous. I really don’t care all that much that Smash was offering a back-handed apology to Mooney. Perhaps the back of the hand is what is needed for a poster whose poorly founded views are relentlessly posted with the very type of gutter language you decry.

    I would rather see more creative methods of addressing the topics at hand, but this a free country and I must accept the wheat with the chaff. I even accept your postings MaxDrei, no matter how disappointing they may be.

  3. 33

    Bread, sorry you’re disappointed that I’m so easily disappointed. Let’s have some more fun, shall we? If every poster, without any exceptions, has an “agenda” then saying “I’m Smash and I have an Agenda” doesn’t really add much to this thread, does it? Can you explain to me please how Smash can legitimate his vituperative language by saying (in effect) “Hey, leave me alone. Don’t you know I’m merely pursuing my agenda here”. Come to think of it, Bread, if I have an agenda, can I use offensive language too? Why not let’s all of us get down there in the gutter. Any objection if CAFC and SCOTUS judges join in?

  4. 32

    …and MaxDrei,

    EVERYONE has an agenda. Even you.

    Agenda is a dirty word only based on the context, of which we all choose to participate, some by merely reading, some by proselytizing.

    It’s disappointing that you are so easily disappointed.

  5. 31

    Smash, you’ve lost me. If you say that a “sneering, arrogant attitude” is “his” that’s a personal attack on “him” whichever way you look at it, isn’t it? And what’s all this about you controlling the way I think. How does somebody come to the idea of writing that, for goodness’ sake? As to “agendas”, you ask “So what”. That too is disappointing. There’s a good reason why “Agenda” is a dirty word, no?

  6. 30

    Max-
    I disagree. Consider the difference between (1) Don’t sneer at me; and (2) You’re a sneering, arrogant b–st–d! I think (2) is much more clearly a personal attack. So I’m not trying to weasel, and if you construe my comments that way, well I can’t control what you think.

    I also think that most people on this board have personal and professional agendas–so what. That goes to the weight, not the admissibility . . .

  7. 29

    Somebody writes of MM that his attitude is “sneering arrogant” then apologizes. So far, fine and good. But now I’m told to perceive the posting as an apology, only to the extent that I construe “sneering arrogant” as an attack that’s “personal”. You know, Smash, I’m stumped how any sentient human being could perceive “sneering arrogant” as anything other than 100% unadulterated pure “personal”, and mystified how any thinking person who aspires to become an attorney at law could write this “to the extent that” nonsense. I regret the existence of attorneys who write goddledygook. Mind you, I regret infinitely more the existence of attorneys who advise the President that breaking the law is not breaking the law. At least you won’t be doing that, any time soon. Just because some qualified patent attorneys here, with a serious vested interest problem, are sneering and arrogant in their attitude to Mooney, doesn’t mean you have to tag along too. Just because others use boilerplate weasel joke words like “to the extent that” doesn’t mean you have to go in for that stuff too. It doesn’t do you any good, you know.

  8. 28

    Last night I said (to MM, by inference):
    “But you’re right that his comment typifies his sneering, arrogant attitude.”

    To the extent this could be construed as a personal attack, I retract and apologize. But obviously I disagree deeply with your political views and attitudes.

  9. 27

    Nightwriter 8:27,

    We have a 112 definiteness problem on “The difference between Mooney and a chimp is his ability to carry out mere mental processes.”

    Which one is the antecedent basis for “his”?

  10. 26

    AllSeeingEye
    Actually I think I know what Mooney means. Mooney fancies himself as one of those experts who should rule over mere common folk. But you’re right that his comment typifies his sneering, arrogant attitude.

  11. 25

    ” “Rule by experts is dangerous and evil”

    LOL. A strawman masquering as an embrace of ignorance.”

    I dont really know what this is supposed to mean. Actually, I don’t think its supposed to mean anything. Its supposed to SOUND like it means something.

    Typical Mooney garbage.

  12. 24

    “Therefore all those stuupid people out there need someone smart, like me, to tell them how to make “better” choices, e.g. the ones that benefit me and my friends the most.”

    Meet Pastor Ray Mummert who, when asked his views of the creationism trial in Dover Pennsylvania in 2005, remarked in sudden fit of brutal honesty: “We’ve been attacked by the intelligent, educated segment of the culture.”

    link to kuro5hin.org

  13. 23

    “Rule by experts is dangerous and evil”

    LOL. A strawman masquering as an embrace of ignorance.

    “I think liberty includes the right to make my own decisions about what I eat, what I smoke, what I drink, and where I spend my money.”

    With freedom comes responsibility, Jimmy.

  14. 22

    liberal deconstructionist said:
    “But you can bet that your friendly neighborhood capitalists (e.g., WalMart, Coca-Cola, Anheuser-Busch) are extremely interested in manipulating the behavior of smart and stuupid people alike.”

    True as far as it goes, but don’t you think the government has the same motive? Why do you think they glorify elections where your vote literally means nothing? And it’s impossible to examine big business today without examining how closely it’s intertwined with the government. The dirty little secret is we are pretty much all fascists now. Does anyone really think the bankster bailout was enacted for the benefit of the public?

  15. 21

    6 said:
    “I don’t believe that he is implying that he is the smart one, I believe he is probably implying that most anyone halfway not retarded, yet uninvolved in the situation at hand, could make an objective analysis of it better than the person involved in the situation can. This is a common theme …”

    I disagree with your view of Sunstein’s motives. The point about how arrogant, dangerous, and evil it is for self-anointed, self-appointed experts to micromanage the lives of us serfs in stifling detail is that the people involved will tend to make BETTER decisions than the experts, because the people involved have skin in the game. If I make bad decisions that harm me personally, I have a pretty strong incentive to correct my errors. If the gov’t makes bad decisions that harm me personally, they tend not to give a sh–.

    I think liberty includes the right to make my own decisions about what I eat, what I smoke, what I drink, and where I spend my money. Rule by experts is dangerous and evil, and completely contrary to what most Americans commonly understood was liberty until the last few decades or so.

  16. 20

    “Therefore all those stuupid people out there need someone smart, like me, to tell them how to make ‘better’ choices, e.g. the ones that benefit me and my friends the most.”

    ASE, if you knew anything about behavioral economics you would know that it has little to do with paternalism, and that smart people are subject to problems with bounded rationality to much the same extnet as “stuupid” people. I personally think it’s a fascinating field, and I have very little interest in telling stuupid people how to behave. But you can bet that your friendly neighborhood capitalists (e.g., WalMart, Coca-Cola, Anheuser-Busch) are extremely interested in manipulating the behavior of smart and stuupid people alike.

  17. 19

    “Oh yes, it reminds me of our system today, except instead of only old scientists, now we let young ones like myself help decide.”

    Yes, if you mean “help” in the sense that I used to let my 3-year-old “help” me fix the car. Of course, in both cases the “young one” actually slows things down, and the real work has to be done later. I used to let my 3-year-old “help” because it made him feel good, and occasionally taught him something. I’m not sure why the PTO has implemented this same “helping” approach.

  18. 18

    “Mooney reminds me of a story one of my professors in law school told us of how patents were awarded in the former USSR. The old scientist would get together and review the work and decide whether or not their young colleague’s work was worth a patent.

    Guess how well that worked out.”

    a. pretty good
    b. fairly good
    c. very good
    d. OMFG AWESOME
    e. All of the above

    I should also add that the system they used to use reminds me of something. Oh yes, it reminds me of our system today, except instead of only old scientists, now we let young ones like myself help decide.

  19. 17

    “Therefore all those stuupid people out there need someone smart, like me, to tell them how to make “better” choices, e.g. the ones that benefit me and my friends the most. ”

    I don’t believe that he is implying that he is the smart one, I believe he is probably implying that most anyone halfway not retarded, yet uninvolved in the situation at hand, could make an objective analysis of it better than the person involved in the situation can. This is a common theme …

    I would like to congratulate you on making it through a post without bad mouthing mooney.

  20. 16

    Apparently, professor Sunstein is fond of telling people how to run their lives:

    “People often make poor choices – and look back at them with bafflement! We do this because as human beings, we all are susceptible to a wide array of routine biases that can lead to an equally wide array of embarrassing blunders in education, personal finance, health care, mortgages and credit cards, happiness, and even the planet itself”

    Therefore all those stuupid people out there need someone smart, like me, to tell them how to make “better” choices, e.g. the ones that benefit me and my friends the most.

  21. 15

    Why do we need patents for anything? Can’t we just give everything away for free? Obama will save us…

  22. 13

    “It will be harder for these types of companies to exist without patent protection.”

    Why? Why are patents needed to provide video recommendations to people?

  23. 12

    I’m with you Night Writer. Bilsky seems like a very big carve out of inventions that are no longer patentable – are also easy to copy.

  24. 11

    Unfortunately, Sunstein was not a University of Chicago professor at the time of the appointment; Harvard stole him from us at the beginning of this school year.

  25. 10

    Mooney reminds me of a story one of my professors in law school told us of how patents were awarded in the former USSR. The old scientist would get together and review the work and decide whether or not their young colleague’s work was worth a patent.

    Guess how well that worked out.

  26. 9

    Mooney reminds me of a story one of my professors in law school told us of how patents were awarded in the former USSR. The old scientist would get together and review the work and decide whether or not their young colleague’s work was worth a patent.

    Guess how well that worked out.

  27. 7

    One further note:

    I also write patent for EE inventions. As far as I can tell many of the electronic devices are differentiated not by the electronic components, but rather by how the processor is configured.
    You will note how many EE claims are really functional claims that may involve an electronic component, but define what the electronic component is in a functional definition that includes what a processor does to the current or voltage generated by the electronic component.

  28. 6

    By the way, I could easily give at least 100 hundred more examples that probably employ 10,000 high paying jobs. I suspect many of these companies will not exist post Bilski.

    I know in my own practice I have a start-up company that may not go forward because they don’t want to sacrifice their lives for years when what they do cannot be protected and can easily be stolen by others. The biggest stealers by the way are the big companies. They can sit back and wait for the good innovations and they just steal them and put them in thier product. Oh wait, post Bilski, maybe I should say just take and not steal.

    By the way, why did Microsoft recently hire a massive number of researchers? Will companies do this post no patent protection? Well, it is cheaper to take then innovate and as long as the competition doesn’t have a better product, you are fine.

  29. 5

    Recently, Mooney was making fun of claims for something that recommended videos for consumers to watch.

    Here is a whole company that has researchers from MIT that is attempting to improve the ability of companies to recommend products to consumers: ChoiceStream software.
    It is a classic start-up with angel funding and then venture funding. It employs 100 people. It has received something like $40 million dollars. It has MIT professors working on the software to improve the ability of the software to recommend products to consumers.

    How can anyone believe that the product of this company is not worth patent protection?

    The fact that a broad claim can be written, for example recommend a video based on a consumers previous choices, means very little. The point is how it is accomplishing the recommendation. This is a very difficult problem. An information processing problem that has a great deal of value. The claims that have been shot down at the Fed. Cir. are ones that are so broad to be outrageous. They are similar to an apparatus including two axels and a motor for a automobile.

    I for one want really good software that will recommend products for me and I for one want this country to continue to fund and encourage the growth of companies like this. They innovate, they employ people, they encourage science, they do mainly good things.

    It will be harder for these types of companies to exist without patent protection.

    Under the Mooeny, Moore, Dudas, Cheney, Michel sphere we can group all these innovations as mere mental processors or pick your incantation that has no meaning. Mere mental processes is such an outrageous incantation. The difference between Mooney and a chimp is his ability to carry out mere mental processes.

    Dudas is just like Bush reversing the argument. The problem with the PTO and patents is that the PTO wasn’t doing a good job and isn’t doing a good job of applying the right prior art. That simple. There isn’t a patent that has become one of these big cases that I –if I were in the patent office–couldn’t have rejected under 102 or 103.

  30. 4

    To those above, they can pull any regs not already implemented.

    To Mr. Sunstein- Please hire an experienced patent lawyer or three to help guide ou through this minefiled. Patent law is more complex than crim or even con and you need someone with experience to really foresee the long term consequences of action. PLEASE hire real patent lawyers to help guide you, not academics, or this could be as bad or worse than Dudas. A little knowledge is worse than none in patents!!!!!!!!!!!!!

  31. 3

    “Already finalized” in the sense that “final” versions of the rules about claims/cons and appeals were published in the Federal Register. “Final” versions of the other two rules packages (Markush, IDS) haven’t yet been published. Practically, none of the four groups of rules are in force, as the claims/cons rules are on hold pending the CAFC’s ruling on the PTO’s appeal, and PTO itself put the implementation of the appeal rules on hold; but I think DC’s point is that since only the IDS and Markush rules haven’t yet been “finalized”, those are the rules that are subject to Emanuel’s memo. However, I wonder if the appeals rules might also be subject to the memo, since it says that final rules that have been published but not implemented should also be put on hold.

  32. 1

    “Sunstein written extensively on using regulations to shape behavior” So, DENNIS, what does this mean for those of us in the patent prosecution trenches??? Thanks

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