On February 26, 2010 (Friday), I will be speaking as part of the Stanford Technology Law Review annual Symposium. This year's focus is USPTO Reform.
Topics include:
- Quality and Pendency: Drilling Down to Backlog, Deferred Examination, Patent Worksharing and Other Integers to Achieve Primary Goals led by Hal Wegner
- The Role of Applicant Incentives in Patent Office Reform led by Dennis Crouch
- Patent Examination Policy and the Social Costs of Examiner Allowance and Rejection Errors led by Ron Katznelson
- Examiner Characteristics and the Patent Grant Rate led by Mark Lemley & Bhaven Sampat
Other participants include Professors Colleen Chien (SCU), John Duffy (GWU), Jeff Lefstin (Hastings), Roberta Morris (Stanford), Arti Rai (Duke & USPTO), and Brenda Simon (Stanford) as well as Jon Dudas (Foley & Lardner), Leonard Heyman (VMWare), Ed Reines (Weil Gotschal), Robert Sachs (Fenwick & West), Lee Van Pelt (Van Pelt), Janet Xiao (Morrison Foerster), and Mallun Yen (Cisco).
* * * * *
Introduction to My Talk
Applicant Incentives: Although I have been dilatory in providing my materials for the talk (sorry!), my general themes focus on the role of patent applicant and patentee incentives in patent office reform. The incentives conversation is comfortable for intellectual property scholars and practitioners alike. The explicit Constitutional justification for patent and copyright regimes is that an offer of exclusive rights provides an incentive to "promote the progress" in the respective fields. This big-picture incentive award has already been created by the drafters of the Constitution and detailed by Congress and the Courts. Here, l take a narrow approach and consider how applicant incentives should be utilized to achieve the goals of PTO reform. Specific questions include:
- To what extent should PTO reforms focus on modifying patent applicant behavior?
- Should reforms focused on applicant-behavior lean on rules and requirements or rather employ a softer incentive approach? These "softer incentives" could be in the form of Sunsteinian Nudges or more onerous or strongly beneficial incentives.
- Fees: To what extent are patent applicants sensitive to PTO fees? To what extent can (or should) the PTO use its fee structure to modify applicant behavior?
A Dynamic Feedback System: My mental starting point for the topic is Newton's third law of motion: For every action there is an equal and opposite reaction. In the simple case of billiard balls colliding on a table, those reactions are (relatively) easy to predict. In the complex patent system reactions to reforms are less predictable – especially for any particular case. It is also important to recognize that the system is dynamic. Changes in PTO operations lead to changes in patent applicant behavior. These PTO changes may take the form of rules, fees, appeal processes, personnel availability, training, etc.
Provisional patent applications have become increasingly popular since their introduction in 1995. Offering the right to file a provisional application was the first arguably most important step in shifting applicant behavior. However, the low fee, lack of formality, and ease of process in claiming priority all contribute to popularity of the form. While the government has no direct control over applicant behavior, the popularity of provisional applications was likely ensured by these positive incentives. There are many examples of applicant behavior altered by PTO practices. Increasing application fees decreases application filings; offering "free" claims increases claim filings; longer applicant deadlines result in longer waits for applicant responses; etc.
There are two observations that I want to highlight from this discussion thus far – both of which were likely already obvious to most patent folks. (1) The patent office rules & procedures impact patent applicant behavior and therefore have the potential for serving as policy levers. (2) The exerted policy lever need not create a hard-rule to be effective. Rather, non-rights-based policy choices involving fees, procedures, and default rules can also effectively shift applicant behavior. The hard-rule / soft-rule distinction is not always clear. In some situations strong incentives can have the same coercive impact as an absolute rule. (The PTO's recent attempt to limit claim and continuation filings has been described as such.)
Cause of the Problems?: It is typically difficult to pin-down the root cause of problems in dynamic system with multiple independent actors. Take the current PTO backlog problem as an example. One popular explanation accuses the PTO of being too slow and issuing unnecessary rejections. On the flip-side, applicants can be blamed for filing so many applications that are difficult to examine. Both accusations have merit, but neither tells the whole story. (There was no backlog until the first application was filed…) Even while sidestepping the blame-game, this discussion leads to two additional observations. (3) Applicant behavior impacts PTO problems — thus creating the possibility that (4) shifting applicant behavior can help to resolve those problems. In other words, many goals of PTO reform could potentially be met by pushing on applicant incentives.
USPTO Fee Structure: The USPTO has always charged some fee-for-service as a way to avoid directly spending taxpayer monies on the examination and issuance of patents. In 1871, the application fee was $15. By 1952, the fee had doubled to $30 with a surcharge of $1 per additional claim over 20. By 1982, the fees had been raised by a factor of ten to $300 for filing and $10 for excess claims. Today, the filing fee (including the required search and examination fee) is $1090 and additional claims cost $52. Since 1952, the increase averages to a not-too-unreasonable annual rate of 6.4%.
Throughout this time, the USPTO has also charged an issue fee that has been roughly equivalent to the filing fee, although the current issue fee is $1510. This historic distribution is not intuitive. The filing and issue fees must all be paid before any patent rights can be asserted, and the actual PTO budget is overwhelmingly directed toward examination costs (primarily examiner salaries). Only a small part of the budget is spent on the ministerial process of issuing the patent. The filing fee / issue fee distribution is a policy lever. A relatively low filing fee encourages applicants to "take a chance" on patenting inventions that are only marginally likely to be financially successful. The prosecution delay prior to payment of the issue fee gives applicant the opportunity to first determine whether a patent is worthwhile. On the other side of the argument, a relatively high filing fee could limit the absolute number of patent applications filed and also operate to encourage patent applicants to file "higher quality" applications. The PTO also charges maintenance fees (previous known as renewal fees). Perhaps more than any other fees, the maintenance fees are "pure profit" because the PTO does not work for that income.
The analysis of fees leads to the following observation: (5) Wittingly or not, the setting of USPTO fees involves policy choices that shift applicant incentives. Still, the agency (with the help of Congress) could attempt to design its fees in a way that most directly cover costs. However, that approach would waste the potential opportunity to use fees to improve the system inputs. At this point it would be a ridiculous approach, but it would not be inconceivable for the PTO to shift its fees for individual applications according to input quality measures with designated "high quality" applications paying a lower fee.
Additional Issues To be Discussed:
- USPTO Deadlines, Late Fees, and Deferring Examination
- USPTO Authority: To what extent should the PTO be given authority to use fees and other mechanismsto intentionally shift applicant behavior.
Interesting topic. The USPTO’s fee schedule unquestionably impacts the patent law system in numerous ways. This is an interesting take on the intersection of IP and economics. Unfortunately, I couldn’t attend the event. I hope, however, that you will post related materials at a later date.
“If the reading comprehension level is at all engaged, I may never have to type WAKE UP again”
This sentence reminds me of applications that are translated from Japanese.
“Anyone reading this document and then desiring to give the Office more power is clearly out of their minds”
… with joy!
I can’t wait to read this conspiracy theory nonsense you’re going to post.
The Student.
You say I can’t remember, yet this thread – like most threads, are multi-subject.
Oh, the transparency of it all…
Noise, you’ve obfuscated so much that you can’t even remember what this discussion is even about. Leave this one to the big dogs of Academia: Crouch, Wegner, Katznelson, Lemley (the pros).
Much as those who would misdirect and obfuscate with the desire to NOT answer questions put forth, there are a few questions/topics from *earlier this week* that may still warrant some discussion by those seriously interested in our nations patent system:
(updated)
Let’s start with WHY should the Office be concerned with attempting to change applicant behavior, when there own house is in such disarray?
A sub topic to this question would naturally impinge on executive order 12866:
Hal Wegner puts out an email style of communication and it contains a MANIFESTO of Office corruption by Richard Belzer. This 49 page, single spaced indictment should be mandatory reading. Those here at the blog who dreamily dispense with actual questions in an “examiner-perfect” never-never land may realize just how pernicious the Office can be.
If the reading comprehension level is at all engaged, I may never have to type WAKE UP again.
The February 25, 2010 Regulatory Checkbook letter to David Kappos clearly and thoroughly details the complete disdain for the Rule of Law that this administrative body has perpetrated over the last several years.
Anyone reading this document and then desiring to give the Office more power is clearly out of their minds.
I don’t have the link now, but will post it when I can.
You definitely have a great post over here! I am starting to understand better using blog works. Thank you so much………..
Criminal Defense Temecula
Sarcasm to you, inanity to the rest of the world.
Malcolm sockpuppet 3,456,234,887.
Such class – not really unexpected.
Just answer the questions, INANE. glib non-answers lead only to your foolishness.
“Your writing is excellent, I just can’t get past this reject, reject, reject mentality”
You do realize that NAL is impervious to sarcasm, don’t you?
link to en.wikipedia.org
“The point 6 is that we submit the application and abid by our duty of disclosure and you are supposed to do the rest. ”
I don’t recall seeing any of that nonsense in the law. I believe that these are your personal views to which you have become accustomed. Furthemore, you forget that it is the office who determines what “the rest” is.
Perhaps once we’re out of the econ recession and we get another director with some balls we’ll get the chance to see about this little issue of ours. Until then, all of you guys can enjoy pis sing into the wind.
My writing is clear – INANE has to work at screwing up my questions – that’s what happens when you don’t have answers.
Your writing is excellent, I just can’t get past this reject, reject, reject mentality I have for some reason.
It’s always someone else’s fault.
Malcolm,
My writing is clear – INANE has to work at screwing up my questions – that’s what happens when you don’t have answers.
Why don’t you just learn some new rare/usual/other sockpuppets?
NAL you redirect my actual questions, warping and twisting them to be extreme (for example
Why don’t you just learn how to write clearly, NAL?
Apology accepted – even as offered in its imperfect form.
Once again I have to correct you – it is not that your view is extremist (again, this is not what I said), it is that you redirect my actual questions, warping and twisting them to be extreme (for example – the NPE and only wanting to exclude “defendant” versus exclude “everyone”.
You make a game out of not answering actual questions. Fun for you, no doubt. But as I have “assailed” MaxDrei in the past, the damage to your credibility mars anything useful you may want to say.
Glib non-answers make you a joke. Your choice and your (R/r)ight. Have at it.
I have ALREADY corrected your extremist redirect from “getting a patent” back to “examination”.
I’m sorry I ever implied there was a connection between PTO examination and getting patents. Thank you for correcting my extremist view on that point.
IANAE – are you taking strawman lessens from Malcolm?
I have ALREADY corrected your extremist redirect from “getting a patent” back to “examination”.
For someone who doesn’t like broken records, why do you keep breaking them?
we submit the application […] and you are supposed to do the rest.
Let’s review. It’s our job to prepare and submit the application. It’s the PTO’s job to do “the rest”.
Supposing the application is not entitled to a patent. What do you think “the rest” is going to look like? Personally, I think it’s the PTO’s job to not give you a patent in that situation.
I challenge you, NAL, or anyone else here to draft a patent application that has an invalid claim 1 and yet merits a notice of allowance. In other words, create a situation however contrived in which an examiner has to read any farther than the invalid claim 1 to determine whether the application is patentable.
The point 6 is that we submit the application and abid by our duty of disclosure and you are supposed to do the rest.
The Dudas tactics are an attempt to circumvent the law and hamstring the grant of patents. Get off that road and start doing your job.
“Examination CANNOT stop at claim 1, because the application is not examined for patentability.”
Looks to me like it was, and at that point in time it was not patentable… do you think otherwise? Perhaps you believe that an NOA should have been sent right then? Hmmm, no I don’t believe you think otherwise, you just like to argue that something which you are accustomed to because it is a rule is supposedly in the law itself.
NAL: >>but the Office needs to get down to the real >>business at hand
I agree. If the PTO just moved to say Richmond and focused on the fundamentals, all the problems would be lessened and manageable. Dudas’s attempt to hamstring the applicant are a testament to the dirty tricks and amoral behavior of Bush administration.
Much as those who would misdirect and obfuscate with the desire to NOT answer questions put forth, there are a few questions/topics from Wednesday that may still warrant some discussion by those seriously interested in our nations patent system:
Updated – see post at | Feb 25, 2010 at 09:42 AM
for discussion items.
Those who merely wish to twist and falsely accuse – please feel free to abstain until actual questions are answered, or content of merit can be provided.
Jimmy D: “You must be an examiner.”
Wrong. You know what they say about assumptions, John…
INANE – you decry lawyers, yet persist in pedantic sideshows, avoiding what is asked of you.
“other than a determination of allowability or not.”
Except for the fact that you STILL have not provided your dazzling plain language rendition of “examine” which indicates a partial or arbitrarily selective examination. You disagree with me, but offer nothing more.
Also except for the fact that 132 does NOT indicate that once you find a single example of non-patentability, you stop the examination. Note the reference to multiple claims – there would be no such reference under your proposed plain language reading.
“I just disagree with you that “complete” and “entire” (neither of which appears in 132) means more than “enough to be absolutely sure of what your final decision will be”.
More misdirection and misstatement of my position. I have never said that “complete” and “entire” means MORE THAN “enough to be absolutely sure of what your final decision will be”. I take note (once again) of your tactic of trying to make my argument to be extreme – stop dodging.
You must really love to argue with me, as it appears from your fine parsing here that you actually do agree that examination means at least “enough to be… sure of what your FINAL decision will be”. (emphasis added) – How do you get to FINAL, without examining everything? You cannot, as by sheer plain meaning, if you do not examine something, that something may be patentable – but you just don’t know yet. In your scenario, all applications can be arbitrarily examined by title and rejected for obviousness because the title is obvious. Reduction ad absurdum.
To develop the dependent claim scenario a bit more, let’s take a hypothetical case wherein independent claim 1 may not be patentable over prior art, but dependent claim 2 is. Examination CANNOT stop at claim 1, because the application is not examined for patentability.
Further, you purposely conflate “get a patent” with examine for patentability. In the immediate hypo, the examination result, properly done, will be a rejection of claim 1 and an OBJECTION of claim 2 – note that claim 2 MUST still be examined – it is NO favor of the Office to do so – it is mandated.
“Ever see a notice of allowance with…” – more misdirection. Ever see an examination (hold up as final and complete) that states we looked at your first claim and stopped there (or we looked at the title of your application and stopped there)? In order to support your position, you would need that.
Not going to happen as a matter of law (it MAY happen as a matter of fact if the applicant does not challenge an errant Office Action – but, oh wait, in your world there are no such things as errant Office Actions – WAKE UP).
if IANAE were correct, section 132 would not be written as it is. It would be written as but finding a single item not patentable – game over.
It is written that way, you’re just refusing to read it that way.
Section 132 clearly says that the PTO has to examine the application and grant a patent if the application is so entitled. It doesn’t say anything else about what the examination should entail, other than a determination of allowability or not.
How many invalid claims does the PTO usually have to find before it knows you are not so entitled? In my experience, just one. Ever see a notice of allowance with “claims allowed: 2-78, claims rejected: 1”?
If I (because we all know I’m an examiner) look at an application and see that claim 2 depends from claim 2, I already know I’m not giving that guy his patent. My examination is done. Complete. My final determination as to its allowability is indisputably correct. No matter what else there is in the entire application, this guy is not entitled to his patent. Sure, I could do him a favor and search the rest of the claims, but he still won’t get his patent before he fixes claim 2.
I completely agree with you that an examination has to be much more thorough before a case is allowed, because you have to check the entire spec and all the claims for formal defects, and you have to search long enough to know that you won’t find prior art. I just disagree with you that “complete” and “entire” (neither of which appears in 132) means more than “enough to be absolutely sure of what your final decision will be”.
Much as those who would misdirect and obfuscate with the desire to NOT answer questions put forth, there are a few questions/topics from yesterday that may still warrant some discussion by those seriously interested in our nations patent system:
Let’s start with WHY should the Office be concerned with attempting to change applicant behavior, when there own house is in such disarray?
A sub topic to this question would naturally impinge on executive order 12866:
CAN the Office attempt to pursue such a path legally?
Here, it is almost a pre-conceived notion that the Office even has a right to try to alter applicant behavior, and that the lessons of the ill-begotten claims and continuation rules fiasco are being ignored by actually proposing to give the Office authority to do what it could not legally do. This of course begs another sub question – why does it appear that certain segments are eager to increase the power of an agency that has legal difficulties using the power it currently has?
Another topic here is the definition of quality. The Office has already (as can be shown with historical fact) butchered the defining of “quality” in the name of its power grabbing agenda (sorry IANAE – it is time to once again wake up from the ideal examiner world and face reality). As I set the baseline yesterday, the Office should focus on the quality that it rightly CAN control – that of examination quality. To echo NWPA, examiners should have a grounding in law, since they are judging patentability by legal standards. Perhaps a team approach to examination would work better, that team comprising a technical expert and a legal expert.
Another intertwined topic here would be the acceptance of the actual mission of the Office in regards to promotion, with the realization that promotion by definition indicates that “more and more” is desired (the Office should plan to accommodate growth in filings and such growth in filings should be looked upon, not in derision of more work to do, but rather, that the Office is succeeding in its goal). It is time to eliminate the Duellist philosophy.
For the Office to focus on application quality is but (yet another) attempt to offload its admittedly difficult task of examination. It really is no head scratcher to see that the Office NEEDS to open wide the front gates as part of its mission to promote. The Office should realize that a certain lack of application quality will ALWAYS be present and simply adjust its capabilities to handle the natural incoming stream, rather than fight that stream. We have seen from yesterday’s discussion that internal workings should be the focus – items exist within the immediate Office’s internal workings that cause fear amongst the Office’s own workers to do the right thing. It is no accident that exactly such is the mandate from executive orders that have been routinely ignored – BEFORE new laws are to be promulgated, the inner workings should be examined. Disrespect for the Law is so rampant, that I find it downright audacious to consider adding to the Office power.
Sure, such a focus from an operational viewpoint is far less sexy than the academic and paternalistic viewpoints of changing the Law, but the Office needs to get down to the real business at hand, rather than pursuing glitzy ways to off load its responsibilities at the same time it power grabs. Anything less than putting the focus squarely where it needs to be runs the very real risk of not only ignoring the problem, but provides too much of a chance for those who wish to evade the difficult work to deflect that work. This is easily evidenced by the quick deflection of the topic on these boards – and that’s from people who don’t even work at the office ;-p – just think of those that do, those entrenched with anti-patent, anti-work mindsets.
I will echo that it wasn’t me – and add my apology as I did challenge Malcolm to come up with new slimy tricks and suspect that this is his answer.
“What ‘nonsense’ would that be, NAL(JD)? You mean nonsense like my opinion about a case or policy matter? Or ‘nonsense’ about how you and NAL and NWPA and AI are all the same person because you all sort of agree about some stuff?”
Both.
“So the only question is: which do you prefer, NAL? A ton of sockpuppets in your JD/NAL/NWPA/AI face all every day, even when you’re not posting comments, accusing you of being someone’s sockpuppet? Or some other way?
It’s really up to you, JD(NAL). How do you want to play?”
LOL.
Is it really up to me, Malcolm? Is there really any answer I could give you that’s going to influence your behavior? I doubt it.
BTW, I agree 1,000,000% with NAL’s 9:27 PM post!
BWWWAAAAAHHHHHHAAAAAAHHHHHAAAAAAAHHHHHHAAAAAAAAA
Wasn’t me!
I did not write the 8:07 AM comment. Someone else used my name. That is low.
That’s right, oook oook. Now, will applicants who have been ripped off for many years receive refunds? Let’s top the talk of increasing fees and turn to refunds!
Baboon.
Baboon?
Baaaaaaabbbbbbooooooonnnnnnnn.
Ba-ba-boon.
Baboon!
Baboon.
Baboons?
Baboon.
Turn mean…
MM face it. You are a beaten baboon. NAL has worn you down and shamed you in front of the community. You once invisioned yourself as a silver back, but now you are nothing but a broken down prostrate old baboon. Change your ways.
6: I worry about your mental stability. And, you paranoid statements. Also, you have lost as well as MM. NAL has humiliated you. Now you turn to trying to trying to attack us personally rather than our arguments as presented here on the this board. Sad really.
The two prostrate beaten baboons.
responsible worldwide maximum term peter features
“6: I am not that person”
Sure you’re not NWPA 🙂 Your secret is safe with us.
6: I am not that person. And your post is very disturbing.
Leave it to 6 to try to use the examining term of Broadest Reasonable Intepretation in an analysis of Law. Quick 6 – tell me why this fails the “Logic Game”.
6, your recitation of section 132 is so like you: rope. This time you bring it for IANAE, as if IANAE were correct, section 132 would not be written as it is. It would be written as but finding a single item not patentable – game over.
IANAE, after you get around to the dazzling plain language rendition of how examine means partially or arbitrarily selectively examine (like that’ll ever happen), let’s see you give a plain language rendition of section 132.
Frankly, MM, I think you need a vacation.
Malcolm,
I am not JD. He may like to yank your chain by suggesting that there is but one of us that recognize the crap you post under rare/usual/whatever pseudonyms, but you can “ask Dennis” if you want to, we are not the same person. (ask Dennis – ah, that was one of your less stale attempts).
More to the point, and as bluntly as I may, any taste or playing with you is repulsive. Put simply, the boards would be better off without your lame, stale tricks. For a fool provecatuer, you have lost the provecatuer part a long, long time ago.
You want to play? I cannot stop you. Your choice. Does it matter how foolish you look? Evidently not.
Give it a go as you will undoubtedly do anyway.
JD(NAL) Are you really posting the nonsense you post here in the hopes of persuading anybody to come around to your way of “thinking”?
What “nonsense” would that be, NAL(JD)? You mean nonsense like my opinion about a case or policy matter? Or “nonsense” about how you and NAL and NWPA and AI are all the same person because you all sort of agree about some stuff?
Because I generally don’t post the latter “nonsense” (today was a trial to give you a little taste).
As for people “coming around” to my opinion on various topics, I’m not terribly concerned about that. The Federal Circuit and the Supremes will continue to “come around” on their own, given time. The contraction of patent rights at this point in time is only natural.
So the only question is: which do you prefer, NAL? A ton of sockpuppets in your JD/NAL/NWPA/AI face all every day, even when you’re not posting comments, accusing you of being someone’s sockpuppet? Or some other way?
It’s really up to you, JD(NAL). How do you want to play?
“But I can turn it up, of course, maybe five times the volume and under three or four different pseudonyms, in addition to random attacks on all three of you.”
If you could actually do that, I’d be impressed.
“Right now I’m just accusing you and/or NAL and/or NWPA and/or AI of being the same person because you sort of agree with each other about some stuff. You know, the same type of crxp that gets tossed around all the time by … you and NAL and NWPA and AI etc.”
So four different people agree that you’re ridiculous, or one person using four different screen names thinks you’re ridiculous. So what?
Does it matter? Are you really posting the nonsense you post here in the hopes of persuading anybody to come around to your way of “thinking”? If you are, you’re even more ridiculous than the four, or one, of us think(s) you are.
“I must have missed that, 6. Show me again. Otherwise, I’ll just assume it’s JD. Ooops, I mean, NAL.”
Here, for the second time, is NWPA:
link to en.sap.info
The thread where he all but outted himself:
link to patentlyo.com
He wrote that lame article for D to post after I told him D would post any gar bage. That of course was after he compained about D posting an article by a different guest poster tra shing software patents.
NWPA, like I told you before, you should take some pride in who you are. You’ve been sca mming people for DECADES and doing it successfully. Heck, you were sca mming people since BEFORE I WAS BORN and you’re still probably getting away with it.
I have to admit though, I don’t like to look at the article because I don’t like think of myself as making fun of an old dude just because he’s done some bad things in his day. It’s like making fun of my grandfather for his being confused on something that was beyond his firm understanding and that he took a notion to before I was born. It just isn’t fair. It isn’t fair to his world-view. If he accepts what I say, then he would feel horrible, and he doesn’t really have long to make up for what he’s done. There is, therefor, no real opportunity for him to truly consider what I say. For him, what I say must be untrue else nearly his whole life was lived in err. Thus to make fun of him is no more than ridiculing him for not accepting his whole life was pretty much a lie. That’s kind of mean.
“Perhaps you could help INANE with the dazzling plain language rendition of how examine means partially or arbitrarily selectively examine – as opposed to examine (in entirity). ”
BRI NAL, BRIlol. That’s a subject you’re intimately acquainted with aren’t you?
The fact of the matter is that the Director gets to direct the examination. Not you, not the courts, not me, nobody but him. Just him. The examination doesn’t have to be anything in particular, it doesn’t have to be “in entirety”, it doesn’t have to be arbitrary, or even selective. It just has to be an examination as caused by the director.
Furthermore, even if you were right about that interpretation (which you aren’t) you’d still have to contend with the “notice of rejection” 132 section.
link to uspto.gov
Notice that 132 doesn’t require notices of rejection to include rejections for every claim. It says “whenever, on examination, any claim for a patent is rejected…”. If any of your claims fail, you get notified. There is no requirement that all those rejections be made at any given time. Prosecution for 50 claims could take an avg of 25 years if the director should so decide that should be the procedure.
Frankly, I’m rather suprised myself that the office didn’t do something about this back right before they implemented a “production system”.
JD(NAL) Seems to me you’re already doing it anyway. So why ask our opinion?
What is it you think I’m “already doing”, JD?
Right now I’m just accusing you and/or NAL and/or NWPA and/or AI of being the same person because you sort of agree with each other about some stuff. You know, the same type of crxp that gets tossed around all the time by … you and NAL and NWPA and AI etc.
But I can turn it up, of course, maybe five times the volume and under three or four different pseudonyms, in addition to random attacks on all three of you.
Would that be preferred? I mean, you never seem to complain it about, you silly baboon. It’s part of the trainwreck, right?
Or I can simply just be my usual sardonic self. What do you prefer?
“Wasn’t me who wrote this. But it would be easy enough for me to do so under a similar name and multiply the volume and frequency by five fold. Is that what JD(NAL) would prefer? Happy to go there if it’s what NAL/NWPA thinks is the right way to behave, which appears to be the case.”
I don’t know about NAL or NWPA, but I don’t care. Seems to me you’re already doing it anyway. So why ask our opinion?
“Yeah, I can’t imagine why anyone would associate that kind of grade-school namecalling with John Darling.”
I’m a little disappointed you didn’t credit me with at least junior high school name calling.
You must be an examiner.
LOL
Restriction is, by definition, NOT substantive examination on the merits. Everyone knows that.
“I think the baboon comments have cut deep into MM. He is very sensitive. He hurts.”
You guys are getting to my little baboon… Ooook ooook… can’t you just see him self destructing?
6: Anyone care to hear something interesting about NAL’s background that will add flavor and context to her hatred o the USPTO and her belief that most examiners are the horrible?
[Raises hand]
NWPA is not NAL btw mooney.
B-b-but why hasn’t NWPA come out and denied it then?!?!?!?
I can’t imagine why anyone would associate that kind of grade-school namecalling with John Darling.
Wasn’t me who wrote this. But it would be easy enough for me to do so under a similar name and multiply the volume and frequency by five fold. Is that what JD(NAL) would prefer? Let me know. Happy to go there if it’s what NAL/NWPA thinks is the right way to behave, which appears to be the case.
6,
Perhaps you could help INANE with the dazzling plain language rendition of how examine means partially or arbitrarily selectively examine – as opposed to examine (in entirity). IANAE seems to have lost his way (must have been the partial or arbitrarily selective directions on how to apply “plain language” that he learned at his partially or arbitrarily selective law school.
ENTIRE is inherent since you are only done examining when you have examined the ENTIRE application. Didn’t your SPE tell you this last time you challenged me about what portion of an application you had to examine (hint: you said you only had to examine the claims, and, once again, you were proven wrong).
Malcolm – sorry to disappoint you.
“once again, IANAE, you fail to actually read my post – the Office must examine the ENTIRE application – not merely stopping at the first hint of non-patentability (oh, and 6 – this is not discretion – this is “35 USC, shall” law). ”
Except for the fact that you inserted “ENTIRE” where the word doesn’t exist irl 🙁 Nice try NAL, but no cigar.
“6: what are you talking about? You claim to id’ed me and have a link with a picture of me?”
Yeah after you wrote that article for D to post, I posted a link to an article about you that had your pic up. I said something like: “everyone say hello to NWPA: link”
NWPA is not NAL btw mooney. Two different, yet equally almost equally disgraceful, individuals.
I have not revealed NAL’s supar secrat identity quite yet. Anyone care to hear something interesting about NAL’s background that will add flavor and context to her hatred o the USPTO and her belief that most examiners are the horrible?
Johnny D: “I’m a little disappointed you would think that somebody who resorts to “…and your momma” would be me.”
Yeah, I can’t imagine why anyone would associate that kind of grade-school namecalling with John Darling.
NWPA (NAL) 6: what are you talking about? You claim to id’ed me and have a link with a picture of me?
I think everyone already knows who are, NAL.
Enjoying this, by the way? If you like, I can post under different names, double the volume, and start cheerleading my own comments and attacking you under different names.
Let me know if you would prefer that.
What a friendly way to be spending your time.
6: what are you talking about? You claim to id’ed me and have a link with a picture of me?
IANAE: “This is as basic as logic gets.”
Logic? My god, the man’s talking about logic. We’re talking about universal armageddon!
We try to keep the invention to one application. We write claims of differing scope to cover all patentable aspect. Usually, but not always, these can reasonably searched in one class. The pto insists on restricting the case, regardless that all claims have been paid for, thus causing one or more divisionals to be filed. The pto then complains about too many applications.
Unless you really do have a dazzling plain language rendition that somehow captures a partial and/or arbitrary slection of examination as ‘examination”.
How about this: you don’t need to eat the entire turd to know it’s not a crab cake.
On the question of “does it appear that the applicant is entitled to a patent under the law?” – the stated criterion of 35 USC 131 – a “yes” requires thorough and extensive examination. A “no” requires a single counterexample. This is as basic as logic gets.
Then don’t.
Unless you really do have a dazzling plain language rendition that somehow captures a partial and/or arbitrary slection of examination as ‘examination”.
I can wait for it…
“Oops – NAL said it – I am COMPELLED to argue it” – INANE
NAL: NAL wins
Well, there you go. Can’t argue with that.
“You don’t.”
Was that your dazzling plain language rendition?
INANE – I will take that as your acquiesence.
‘Nuf said – examination means complete examination.
But, IANAE, issuing a restriction and withdrawing claims is not a determination of whether those claims are patentable.
No, but it is a determination of whether the application is entitled to a patent.
how do you not know that the very last claim is determined to be entitled to be a patent or not?
You don’t. How does the patentability of claim 56 affect whether the application is entitled to issue as a patent when claim 1 is anticipated?
One hot thread – filter is having trouble keeping up.
NWPA – he doesn’t hurt enough – he keeps coming back with the same OLD inanities.
NWPA – he doesn’t hurt enough – he keeps coming back with the same OLD inanities.
NAL(JD) C’mon man, I know you can dig deeper for more slime..
C’mon, JD(NAL). There’s nothing “slimy” about pointing out that everyone who agrees with you is obviously one of your sockpuppets. It’s just part of “the trainwreck”, as you always say. So don’t be a baboon! Do you really have a law degree by the way? You sure don’t act like it.
“It’s neither incomplete nor arbitrary.”
“Once they determine it’s not,…
“When the PTO examines your claim 2 (even pursuant to 37 CFR 1.104), it’s doing you a favor.”
Except, INANE, the examination for the stated purpose is not complete, until it is complete (yes, I know that is a stunning statement – but you are denying it).
That means every line of the application – every part of the specification and every claim must be examined – unless you do so, how do you not know that the very last claim is determined to be entitled to be a patent or not?
That better not be your dazzling “plain language” rendition (pursuant to anything you want to provide).
a patentability determination involves application of 101, 112, 102, and/or 103. all appealable.
NAL said about MM: >>C’mon man, I know you can dig deeper for more slime.
I think the baboon comments have cut deep into MM. He is very sensitive. He hurts.
But, IANAE, issuing a restriction and withdrawing claims is not a determination of whether those claims are patentable.
Somehow, law school didn’t teach obfuscation and parsing of “examination” into somehow an incomplete and arbitrary PARTIAL examination.
It’s neither incomplete nor arbitrary. The law requires the PTO to examine the application for the purpose of determining whether that application is entitled to a patent. Once they determine it’s not, their examination is complete. No matter how much more they examine it, it will continue to not be entitled to a patent.
When the PTO examines your claim 2 (even pursuant to 37 CFR 1.104), it’s doing you a favor.
Instead of taking the high road like I do (lol), the pinhead pto monkeys instead bring the level of discussion into the sewer of arbitrary action is okay if no one says I can’t!
“Your almost as bad as NAL now.”
Malcolm, I said NEW tricks – accusing others for what you do is an OLD trick.
C’mon man, I know you can dig deeper for more slime.
fish bones,
on what rational basis could such an assumption be made?
INANE
“…good reason for relying on a part of the law that clearly doesn’t support your point.”
clearly? – still waiting for the dazzling plain language.
Somehow, law school didn’t teach obfuscation and parsing of “examination” into somehow an incomplete and arbitrary PARTIAL examination.
Might explain your law degree if such partial examination was the norm.
“I mean the authority above 37 CFR 1.104”
Ding ding ding! But it’s just a rule. That can be changed by the office in the course of such a policy change, without appearing to conflict with the law. Enough of this discussion, Noise, I find your approach rude and disrespectful.
and there are a lot of bad SPEs. Mr. Kappos, abolish this position!
not if you have a bad SPE
I would assume that over time the number of “challenging” applications (extra long applications, numerous claims and/or hundreds of references) evens out among examiners.
NAL would like a word with you.
“And if they do accept the cash for an application including many claims, the examiner is not credited with more time to examine these extra paid for claims. Scam!”
I would assume that over time the number of “challenging” applications (extra long applications, numerous claims and/or hundreds of references) evens out among examiners.
filter overload –
…and your dazzling plain language rendition, if you don’t mind.
…and your dazzling plain language rendition, if you don’t mind.
I mean the authority above 37 CFR 1.104
First time you’ve mentioned it.
I suppose you had a good reason for relying on a part of the law that clearly doesn’t support your point. My law school never gave credit for that sort of thing.
…and your dazzling plain language rendition, if you don’t mind.
Nice IANAE, you pay respect to David Boundy, and then flount the very concept that he states as a Key problem.
flount?
“To be clear, I am all for complete examination of the application, compact prosecution, well-reasoned rejections, and all that. It’s just not at all founded in 35 USC 131.”
Rabbit or duck I don’t care – just provide justification for your statement.