Patent Attorney Work Week

I built a dataset of all original patent applications that have been published January – August 2009. Using that dataset, I created the chart below showing the patent applications grouped by the day of the week that the application was filed (based on filing date listed in publication). As is apparent, Friday filings are the most prevalent while only 2% of applications were filed on the weekends. As shown in the second and third charts, the Friday filed applications on average (1) include more claims and (2) include more words in the detailed description as compared to applications filed on other days of the week. Applications filed on the weekend are significantly shorter – a phenomenon likely explained by the larger proportion of independent inventor filings on the weekend.

40 thoughts on “Patent Attorney Work Week

  1. “Or perhaps he was someone more insidious and knew that if he let it go that might result in the fiasco before us. One can only hope.”

    As if we needed any more evidence to support my “6 is not a professional” post in the “Rethinking the Examiner Count System” thread.

  2. “Is it possible that the examiner made a mistake by not rejecting claim 7 and 8 under 112 for lack of antecedent basis? ”

    Ya think?

    Or perhaps he was someone more insidious and knew that if he let it go that might result in the fiasco before us.

    One can only hope.

  3. I wonder what the graph would look like if DC plotted the ratio of the amount of time 6 actually spends examining cases versus the amount of time he wastes reading blogs as a function of the days of the week. My guess is that it would be a flat line along the x-axis for all days of the week. If, however, we plot his pay as a function of the number of hours he actually examines, it would be off the charts…

  4. “There are some truly Re: Tarded suggestions.”

    So true.

    At least it’s moderated and posters cannot be anonymous.

  5. OMG, if Kappos ever really does make his PTO blog public, you guys will totally crap claim in your pants when you read the comments. There are some truly Re: Tarded suggestions.

  6. For a few nasty moments I thought I might have written this application myself. However, it seems I wrote some later related applications for a company spun off from the original assignee, not this application. The dates are wrong, and I never did any work for the law firm that is listed on the face of the patent.

    There but for the grace of God …

  7. “The namestealer is back. Wonderful.”

    The funny part is nobody could tell the difference between the “real” Malcolm Mooney and the “namestealer” Malcolm Mooney.

    But does it really matter if anybody could? The namestealer’s idi0tic posts are indistinguishable from the real thing.

  8. “The namestealer is back. Wonderful.”

    The funny part is that the Dilberts are hanging on every syllable of the namestealer’s posts, too.

  9. “but I think that if you compare claims 1 and 3 you’ll see that the patent attorney “intended” to claim a transmitter section for transmitting the trellis encoded frames, just as he did in claim 1.”

    So what you’re saying is that it was too hard for him to copy/paste the last limitation over?

    Perhaps you believe him to have been working on a typewriter at the time, leading thus to the harshness of copying words from one portion of a document to another?

    Somehow I’m not convinced that a trained draftsman being paid large sums of money to write sentences would have screwed this up to the extent that he did completely “unintentionally”. And even if he did, he did so in precisely such a way which I have little sympathy for him since this mirrors too many of his colleague’s “mistakes”.

    In any event, this shows the importance of having a detailed checklist of things to check before proceeding to pay an issue fee.

    1. Make sure you wrote a claim.
    2. Make sure you wrote the claim so that it is directed to one satutory category.
    3. ???
    4. Profit.

    That is provided free of charge. And I don’t claim any copyright on it, you have my permission to reproduce it.

    “Incidentally, the trellis encoding modems discussed in the patent’s background all transmitted trellis encoded frames, so it’s also quite clear that the attorney was not “trying to make the claim impossible (or nearly impossible) over traditional structure reciting prior art due to a method limitation not being shown,” ”

    Is that so? Did you check the prosecution for a reference (as opposed to his background) that had all limitations except for that last one?

    What’s that? You didn’t? Hmmm.

    That is beside the point however, I never claimed that was the issue in this particular case. In this particular case, judging strictly from his number of other errors in the claims, it appears he is simply a “I don’t give a f and I’ll claim what I wanna” kind of prosecutor. They’re a species of b. above.

    Who knows? Maybe he was under a time crunch from the applicant not wanting to pay much and they ended up paying for it big time in the end. I’m not saying such things couldn’t happen. But the sheer number of times I’ve seen this sort of thing lately leads me to believe that it isn’t simply a mistake in a good portion of them.

  10. “Ignorance has never kept me from posting…”

    Thanks for the mea culpa “Mooney” yes your ignorance has never kept you from posting.

    “especially when you Dilberts…”

    trolling for clicks with a heaping helping of snark I see, must be slow (only a few hits on this thread compared to >100 yesterday). And don’t flatter yourself, no one is hanging on your words – if we could filter you out, we would.

    The snark is not gonna work today – we had our fill yesterday. This should convince any non-believers about the real scoop here at PuppetlyO

  11. Ignorance has never kept me from posting my opinion. Especially when you Dilberts hang on every syllable of my posts.

  12. Incidentally, the trellis encoding modems discussed in the patent’s background all transmitted trellis encoded frames, so it’s also quite clear that the attorney was not “trying to make the claim impossible (or nearly impossible) over traditional structure reciting prior art due to a method limitation not being shown,” whatever exactly that means. But don’t let ignorance of the technology get in the way of your opinions either.

  13. “They’re either a. intentionally trying to make the claim impossible (or nearly impossible) to invalidate over traditonal structure reciting prior art due to a method limitation not being shown (they might be doing this without realizing what they’re intentionally doing amounts to) or b. being intentionally careless about the manner in which they draft their claims (See PDS for a good example of this type of drafter, they simply believe that there is no such restrictions on how they can claim their invention).”

    Your insights into the mens rea of patent drafting and homicide are fascinating, but I think that if you compare claims 1 and 3 you’ll see that the patent attorney “intended” to claim a transmitter section for transmitting the trellis encoded frames, just as he did in claim 1. This is a trivial aspect of the claim, so it’s a shame he screwed it up. But he did.

    My guess is that it’s a little easier to peer into the mind of a claim drafter after you’ve actually drafted one. But don’t let little obstacles like that stop you.

  14. noticeably absent is a bar indicating the number of independent inventor filings for the weekend…the very core of Prof. Crouch’s assertion.

    given Prof. Crouch’s usually more substantial inclusion of both useful and esoteric data, accompanied by a significantly more grounded in fact thesis, hypothesis or at the very least, factoidal assertion…this effort strikes as sadly sophomoric…high school really…

    maybe a bar correlating the inclement weather with the day of the week and number of applications is next in the offing?

    geesh

  15. link to google.com

    Actually, claims 7 and 8 further lend credence to the presumption that this document was drafted by a r tard. Where is a “transmitter section” in claim 3? BTW, claims 7 and 8 don’t mention a “said transmitting means” that I can see.

    Don’t be mistaken guys, I’m not trying to say that someone is intentionally trying to “make a mistake”. What they intentionally did is a mistake, but that doesn’t mean they set out to make a mistake.

    They’re either a. intentionally trying to make the claim impossible (or nearly impossible) to invalidate over traditonal structure reciting prior art due to a method limitation not being shown (they might be doing this without realizing what they’re intentionally doing amounts to) or b. being intentionally careless about the manner in which they draft their claims (See PDS for a good example of this type of drafter, they simply believe that there is no such restrictions on how they can claim their invention).

    It’s like when someone makes the decision to intentionally stab someone, but they don’t intend to kill them, but the “victim” (read wuss) dies anyway. They didn’t mean to kill someone, or “make a mistake”. But the person still intended to stab the person which then turned out to be an action that was a mistake. Here, they intended to include a method step, but that leads inexoriably to a “mistake” happening.

    My money is evenly split on a or b or a combination of the two in any given case. It is really hard to tell which is at play.

    But then, what do you expect with “functional” claiming all around? People need to realize that functional claiming is not a joke way to get method step limitations into your structure claim.

    The funniest thing about these kinds of claims is that you can call up the attorneys in charge and direct their attention to the limitation and ask “does anything seem wrong to you about that limitation?”. They’ll reply “no, I don’t see anything” after reading it. Then you’ll point out the issue and of course then it’s plain as day that there was a problem!

    Oh hah hah hah, blatant on its face error! How could that have ever slipped through? Hah hah hah. That’s the kind of nonsense I get to deal with around here. But if I sent them an OA, they’d argue until they were blue in the face that the method step wasn’t shown in the ref I sent them if it wasn’t.

    These blatant, on their face errors pop up more and more lately and I ha te dealing with them all. Just draft a claim, stop trying to be fancy.

  16. Yeah, I think you’re right. It’s really the limiting case of broadening. Especially given the whole point of the broadening reissue rule. Thanks for the insight.

  17. “Good thing there’s a reissue statute. Although given the nature of the error, it’d be hard to tell if it’s a forbidden broadening reissue or not.”

    Hmmm… Given that a district court has ruled that claim 3 covers nothing, it’d be hard to imagine how correcting that error through reissue would be anything BUT a forbidden broadening of the claim scope.

  18. Re Statistical Significance:
    Ordinarily statistical significance is used when you take a sample of the population. Here, I used the entire population of original published thus far in 2009. I excluded applications claiming priority to another document the follow-on filing typically involves far less work.

    That said, any standard statistical test would show a high level of significance since (1) this is based on a large n (tens of thousands of patent applications) and (2) the differences in the calculated means is not tiny.

  19. It doesn’t seem intentional. Dependent claims 7 and 8 both refer to “said transmitting means” in claim 3.

    Good thing there’s a reissue statute. Although given the nature of the error, it’d be hard to tell if it’s a forbidden broadening reissue or not.

  20. “Yeah, kudos to the district court for requiring a level of professionalism at least above the malpractice level. Give me a break.”

    Some courts go out of their to way to preserve validity when basic claim drafting errors are made. This is simply a matter of giving credit where credit is due.

  21. “6, that’s a great decision. Thanks for keeping us updated and thanks to the district court judge in that case for keeping our professional standards high, where they should be.”

    Yeah, kudos to the district court for requiring a level of professionalism at least above the malpractice level. Give me a break. There was no question that the claim, as written, was broken, notwithstanding the recent discovery by some that you can’t have bald method steps in an apparatus claim. The only question was whether the court could fix it in the process of claim construction. The court (correctly) decided no. Remarkably, they did it without any concerns about “high standards of professionalism.”

  22. “And make no mistake, this was no claim drafting mistake. It was intentional. The sheer volume of these kinds of ‘mistakes’ that I personally see makes that clear to me.”

    Right. Because you’re always writing those 101/112,2nd rejections, with that oh so persuasive Ex parte Lyell precedent. And yo’ SPE be havin’ yo’ back and all.

    LOL

  23. “6, that’s a great decision. Thanks for keeping us updated and thanks to the district court judge in that case for keeping our professional standards high, where they should be.”

    You can bookmark Pete Zura’s blog for your ownself, Examiner Mooney. Then you and Examiner 6 can get together in your office and read all the updates.

  24. “why would someone intentionally want to create a mistake?”

    Of course no one would fess up to it, but in order to create more work for themselves and others in their profession down the line for which they get paid?

  25. “My prediction is you are going to see more and more of this exact same type of case until lawyers get it through their thick heads that the broken arse claiming practices that are on display here will not be tolerated.”

    Find 20 of those types of claims (either issued or published), post them, and then will climb on the bandwagon. Otherwise, who f’ing cares that both the attorney and the Examiner screwed up — a fact admitted to by both parties in the litigation.

    “And make no mistake, this was no claim drafting mistake. It was intentional.”
    So … boy genius … why would someone intentionally want to create a mistake?

    There are some decent discussions about changing the count system — why don’t you do somethig constructive and give us your own suggestions instead of babbling on upon non-precedential case law.

  26. Dear Mr. Crouch:
    Your interest in the statistical information concerning patents leads me to believe that you are an avid baseball fan. I see a great many similarities between the analysis.

  27. “http://1550968521683825857-a-1802744773732722657-s-sites.googlegroups.com/site/271patentblog/Home/RembrandtDatavAOL.pdf?attredirects=1&auth=ANoY7coUk9EGpDNsYc5W3DZZOJhhtug2N-l6jXtcEr3MlMd-sovOmg42ZscFUWXDvq3p-G-52wpucz6chMQO-0xmUbGfi8XGzLHo8pHegPcbNoT_qMu9bzCkwiX-_LtlZn-7RY3SwQZcI7OSZXMRxf5hvEiil2m6Uu4LEbLODBXN6CwhI3kwnFLIVMrBC4Z7zvGM1UxwW0FQDbz9p7eyWAc2SxVIhq9ZaQ%3D%3D”

    Canon took a page out of my own writing in its arguments.

    4) that the ’236 patent is invalid for indefiniteness based on a failure to disclose the structures that correspond to various functions set forth in the claim.

    The court, unfortunately, finds this issue to be moot because of other judgements :(

    I like Rembrandt’s opening arguments:

    “There can be no reasonable debate that there is an erro in claim 3, because Claim 3 is an apparatus claim that includes a method step. That is forbidden by patent law, and thus, the method step was an error. Indeed it is because the error is so plain and known by anyone in the field that there can be no question that the claim as written includes an obvious error.”

    A real class act trying to weasel their way out like that.

    My prediction is you are going to see more and more of this exact same type of case until lawyers get it through their thick heads that the broken arse claiming practices that are on display here will not be tolerated.

    And make no mistake, this was no claim drafting mistake. It was intentional. The sheer volume of these kinds of “mistakes” that I personally see makes that clear to me.

    Oh and hey JD, they made a shout out to your buddy’s IPXL case :)

    Man this case appears to have happened right here in Alexandria last month. A pity I didn’t know about it.

    Does anyone know how to see a list of patent cases to be tried in your area?

  28. 6, that’s a great decision. Thanks for keeping us updated and thanks to the district court judge in that case for keeping our professional standards high, where they should be.

  29. I’d bet dollars to donuts that a similar study would show Monday to be by far the most popular day for filing responses to office actions.

  30. Oops, I mean (iii) the USPTO merely processes on Friday those applications NOT filed when mailed (e.g. no express mail or EFS filing)?

  31. So what do people think drives the filing push on Friday? (i) Avoid working during the weekend? (ii) Internal business filing deadlines? (iii) the USPTO merely processes on Friday those applications filed when mailed (e.g. no express mail or EFS filing)?

    The average word count is interesting (never seen it before). Dennis, can you provide a separate chart to show a breakdown of Average Word Count in Each Application by technology (e.g., mechanical, electrical, chemical, etc.)?

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