Judge Michel: USPTO Should Receive $1 Billion Infusion of Cash

PatentLawPic987Chief Judge Paul Michel recently spoke to USPTO patent examiners on the topic of “American economic security” and the threat posed by “the outflow of jobs, talent, technology and production.”  Judge Michel argued that private investment in US R&D is the only politically feasible solution and that goal will be supported by a well operating patent system: “The answer is faster, sounder and clearer patents, plus faster, stronger enforcement.”

If more R&D is done here, [technologically talented individuals] will come here and stay. If not, foreign talent studying at our universities will all return home. Our own leading technologists will also go elsewhere, just as is now happening in firms such as Intel and Applied Materials, both of whom will soon open large new labs in China headed by their top American researchers.

What is wrong with the current patent system:

First, and foremost: delay. In some technologies it now takes 4-6 years even to get a patent. . . . That is because for two decades the patent office has been underfunded and losing ground. It operates entirely on user fees set by Congress long ago at levels that can no longer finance necessary operations. It lacks both enough examiners, especially experienced examiners, and modern computer systems. Imagine, the government’s own technology agency is using 30 year old computer technology! These are the reasons delays are so long. Even worse, because most applications must by law be published at 18 months, others, including foreign competitors, can pirate inventions for years before the patents issue, for until then patent owners have no rights.

The patent system is failing primarily because the patent office is failing. In a word, it is dysfunctional. Over 700,000 applications sit unread in a warehouse in Alexandria, Virginia, often for years. Although 400,000 are under examination, their progress is far too slow. And every year almost 400,000 more are filed. 

Using money to fix the problem:

. . . Although the PTO should remain financed by user fees, it I needs a transfusion of public money to overcome its dysfunction. It needs thousand of additional examiners, salary increases to retain experienced examiners, new computer systems and space to house an expanded work force. (At present, many employees, although lacking extensive experience, work at home where adequate supervision is more difficult and applicant interviews are problematic.) Thus, even if Congress raised fees, which it should, resolving the current crisis requires a large infusion of public money. And it is needed soon. Deferral will have corrosive consequences that cannot be undone. Therefore, I suggest an immediate capital investment of one billion dollars. It could be spent over the next several fiscal years, but it must be appropriated immediately. . . . Is my suggestion unrealistic? Maybe, but not if our nation followed proper priorities.

Would such a transfusion as a capital investment fix the patent office? Mostly. . . .

Read the text of Judge Michel’s Speech at the JPTOS Website.

90 thoughts on “Judge Michel: USPTO Should Receive $1 Billion Infusion of Cash

  1. “I don’t think applicant’s representatives even know I work at home when conducting interviews, whether by phone or in person. ”

    It becomes pretty obvious when the Examiner has to interrupt the phone interview to change her baby’s diaper.

    But do you really do in person interviews at home? I thought you had to drive to the office for those.

    Posted by: TINLA IANYL | May 13, 2010 at 10:51 AM

    re changing diapers: not me! single male here. if you hear about it in the media, it’s probably sensational journalism.

    when hotelling, i conduct phone interviews at home. for in-person interviews, there’re small conference rooms or hotelling rooms that examiners (hotelling or not) may use. most examiners (eg all GS-12 and below) have to share an office. in-person interviews must be conducted on campus in Alexandria. i’ve never refused a request for in-person interviews.

  2. “I meant have a credible plan instead of these ridiculous and poorly planned attempts to fix the problem now that it is turning into a disaster.”

    Like what? Mulitple stage blowout preventers? Mandatory equipment tests on site? Wait, they had those.

    You seem to know so much about deep water drilling. I mean, you know that they had no prevention plan, no containment plan, and that all of the solutions proposed so far are “ridiculous and poorly planned.” So, what’s the reasonable solution? Let’s get a non-use agreement, and you can tell them. You’ll be an instant millionaire instead of an armchair quarterback. Or do you have no idea what you’re talking about and no potential solution whatsoever?

  3. What was this thread about? Please forgive me for forgetting. While I have had a bad track record of supporting good science in the past (or was it in the past in the future?), I do agree with disillusioned scientist’s post of May 14, 2010 at 02:04 PM.

  4. Delay in the USPTO certainly isn’t one of the more positive features of our system. However, I don’t see the clear connection between patent pendancy and choice of location for R&D efforts.

  5. shhh Gena,

    No one wants to talk about better enforcement (cause “better” is not aggreed – for some “better” means none)

  6. you’re not competent to have an opinion on any of this.

    Since when is such level of knowledge necessary for a competent opinion?

    Since never – and soitenly not here.

  7. “What’s your definition of “long term”? How long does it take to get a drilling permit, drill, and begin extracting oil? How much does this cost, and how long does it take to make back the costs? Further, what percentage of drilling turns up no oil? You don’t know the answer to any of those questions which means you’re not competent to have an opinion on any of this.”

    So what is the number?? If you don’t know then by that logic, you can’t have any opinion either.

    Also I know credible and smart regulators.

    “Pure comedy. They’re spending 6mil a day on cleanup plus any damages, but they haven’t contacted every engineer in the world for ideas for quick fixes? Your logic is impeccable.”

    Your logic isn’t great either. I didn’t say contact every engineer in the world. I meant have a credible plan instead of these ridiculous and poorly planned attempts to fix the problem now that it is turning into a disaster. Lack of foresight is the problem and an unwarranted sense of invincibility. The fact that they have to pour money at the problem now doesn’t make them not culpable for not having foresight to have their act together in the event of this circumstance. I know nothing is perfect, but watching this unfold is like watching the three stooges.

    $6 million/day (a drop in the bucket in terms of their profits) could have been spent earlier to have some sort of credible attempt to find a solution instead of the nonsense they are throwing out there which is on par with a mediocre high school science fair project.

  8. Judge Michel’s right on the money, in that better patents plus better patent enforcement = a better American economy. There’s also no question that the USPTO needs much more cash. But from what I understand, underfunding wasn’t the only culprit; mismanagement also played a big role. Is Kappos making headway in correcting this problem?

  9. Michael R. Thomas: “Until these injustices are removed the real potential of innovation cannot occur.”

    You say that, and yet nearly half a million of “your” inventions are still filed at the PTO every year. Why should we change the system if you’re not tired of inventing yet?

  10. “Even if they didn’t find a solution and were simply there to pose in BP commercials saying we care about the environment, at least BP could have some coherent scientists and engineers to brainstorm and attempt to fix what is going on.”

    Pure comedy. They’re spending 6mil a day on cleanup plus any damages, but they haven’t contacted every engineer in the world for ideas for quick fixes? Your logic is impeccable.

    “These regulations are actually pro-industry. Stop seeing the regulators as the enemy.”

    So you’re a university science lab rat, and you’ve never actually SEEN a regulator, inspector, or inspection in anything other than a news article.

    “BP just got arrogant and wasn’t willing to face up to the real risks and went for the short term profits at the cost of long term viability.”

    What’s your definition of “long term”? How long does it take to get a drilling permit, drill, and begin extracting oil? How much does this cost, and how long does it take to make back the costs? Further, what percentage of drilling turns up no oil? You don’t know the answer to any of those questions which means you’re not competent to have an opinion on any of this.

  11. Bad joke ahead . . . fyi – I do not get my news from the Huffington Post.

    Your points reinforce what I am saying. . . In many corporations, short term profits trump reason and long term thinking. Just like what we have seen on Wall Street in the past couple of years. I am all for companies that make money. I am all for technology. I am a realist when it comes to our oil dependence, and I am not thrilled about offshore drilling but we are oil addicts. I also agree that nothing is completely safe and accidents happen.

    BP I am sure regrets its decisions to not have a viable and well-rehearsed back up plan. Instead, they have tons of damages and look incredibly juvenile in their attempts to fix the problem.

    ALSO DO YOU REALLY THINK THAT THESE “SAFETY PLANS” WERE THOUGHT OUT?? As for your high school kids comments, I do think they are employing high school kids. Their clean-up/plug the hole plans do look like a bunch of high school science fair projects — I should know since I frequently judge them. Hair in polyester sacs to soak up the oil, tires and golf balls to be thrown in the hole, and a big canister to drop onto the hole a mile down in the water.

    Yes, BP lost billions and should. My issue with them is their total incompetence at fixing the problem which if they were under decent regulatory supervision they might have actually had a plan. They have deep pockets so the fact they throw money at the problem doesn’t mean a whole lot to me. It is sort of like a billionaire recklessly running over your kid and saying they are really sorry and throwing you $10 M.

    They had to know there were risks associated with drilling under water. They seem totally unprepared for any disaster. How much out of their budget could an R&D department looking at methods to soak up oil or plug up a hole cost? My guess is a lot less than they are going to pay out. I bet the potential solutions they would come up with wouldn’t have been llama hair. Even if they didn’t find a solution and were simply there to pose in BP commercials saying we care about the environment, at least BP could have some coherent scientists and engineers to brainstorm and attempt to fix what is going on.

    What I am saying is that blaming US regulations which could have helped foreseen/prevented these issues as being anti-industry is ridiculous. These regulations are actually pro-industry. Stop seeing the regulators as the enemy. An ounce of prevention is worth a pound of cure. BP would have been aware of potential failings (instead of sitting there and pointing fingers at Halliburton and Transocean) and been at least somewhat capable at handling the fallout. They could have saved billions and saved their image. Their behavior has slammed their entire industry. By appearing so incompetent, I believe it has opened up the door for more lawsuits and will pour more money into solar and wind technologies (which might not be so terrible).

    BP just got arrogant and wasn’t willing to face up to the real risks and went for the short term profits at the cost of long term viability.
    At the end of the day it bit BP in the tail. Unfortunately, their behavior had fatal consequences for the people on that vessel and will be devastating to the economies of the Gulf region and the marine life.

  12. Bad joke ahead . . . fyi – I do not get my news from the Huffington Post.

    Your points reinforce what I am saying. . . In many corporations, short term profits trump reason and long term thinking. Just like what we have seen on Wall Street in the past couple of years. I am all for companies that make money. I am all for technology. I am a realist when it comes to our oil dependence, and I am not thrilled about offshore drilling but we are oil addicts. I also agree that nothing is completely safe and accidents happen.

    BP I am sure regrets its decisions to not have a viable and well-rehearsed back up plan. Instead, they have tons of damages and look incredibly juvenile in their attempts to fix the problem.

    ALSO DO YOU REALLY THINK THAT THESE “SAFETY PLANS” WERE THOUGHT OUT?? As for your high school kids comments, I do think they are employing high school kids. Their clean-up/plug the hole plans do look like a bunch of high school science fair projects — I should know since I frequently judge them. Hair in polyester sacs to soak up the oil, tires and golf balls to be thrown in the hole, and a big canister to drop onto the hole a mile down in the water.

    Yes, BP lost billions and should. My issue with them is their total incompetence at fixing the problem which if they were under decent regulatory supervision they might have actually had a plan. They have deep pockets so the fact they throw money at the problem doesn’t mean a whole lot to me. It is sort of like a billionaire recklessly running over your kid and saying they are really sorry and throwing you $10 M.

    They had to know there were risks associated with drilling under water. They seem totally unprepared for any disaster. How much out of their budget could an R&D department looking at methods to soak up oil or plug up a hole cost? My guess is a lot less than they are going to pay out. I bet the potential solutions they would come up with wouldn’t have been llama hair. Even if they didn’t find a solution and were simply there to pose in BP commercials saying we care about the environment, at least BP could have some coherent scientists and engineers to brainstorm and attempt to fix what is going on.

    What I am saying is that blaming US regulations which could have helped foreseen/prevented these issues as being anti-industry is ridiculous. These regulations are actually pro-industry. Stop seeing the regulators as the enemy. An ounce of prevention is worth a pound of cure. BP would have been aware of potential failings (instead of sitting there and pointing fingers at Halliburton and Transocean) and been at least somewhat capable at handling the fallout. They could have saved billions and saved their image. Their behavior has slammed their entire industry. By appearing so incompetent, I believe it has opened up the door for more lawsuits and will pour more money into solar and wind technologies (which might not be so terrible).

    BP just got arrogant and wasn’t willing to face up to the real risks and went for the short term profits at the cost of long term viability.
    At the end of the day it bit BP in the tail. Unfortunately, their behavior had fatal consequences for the people on that vessel and will be devastating to the economies of the Gulf region and the marine life.

  13. Why should it tolerate them by others

    My guess would be something called jurisdiction and national soveriegnty.

  14. Ping, the US government prohibits some “choices” by Americans. Why should it tolerate them by others, particularly when doing so hurts Americans?

    And air pollution in the Far East (including beaucoups of carbon dioxide, for those who consider it a pollutant) is still atmospheric pollution that comes the the USA.

  15. requirement that importers certify that the goods they bring into the US were made in factories that would comply with US environmental laws if made here

    yeah, but we have cleaner water here now and what work we do have even sets a minimum wage. As to exporting the (lawless) jobs and pollution, I think that less a factor of us and more a factor of that part of the world (its government) saying “we don’t mind”. Here, we (through our government) have said “we do mind”.

    choices, choices, choices…

  16. Disillusioned scientist, I think we all agree that we don’t want pollution in this country.

    The strange thing, though, is that the environmental laws here contribute to making US production uncompetitive with foreign production where pollution is tolerated. The end result is underemployed Americans who have to go to Wal-Mart to buy cheap stuff made in the far east with concomitant pollution production in the far east. In other words, we import goods and export jobs and pollution.

    I think we should add a requirement that importers certify that the goods they bring into the US were made in factories that would comply with US environmental laws if made here, and expressly authorize inspections of their factories by EPA agents.

    Same goes for compliance with other US regulatory burdens on production like OSHA, wage and hour laws, etc. Free trade between two countries is great, but it is not free trade if one country saddles its productive sector with costly government-imposed burdens and the other country’s government does not similarly interfere in the marketplace.

  17. Just a scientist, quit reading the Huffington Post. Seriously. BP has ALREADY spent over 500mil on this. They lost a nearly 2 BILLION dollar deep water rig. And, they’ve promised to indemnify fishermen FAR beyond the 75mil cap.

    If you had ever spent a day in the real world, you’d know what the word “accident” was. 11 men died on that rig while combating natural gas and massive liquid pressures. You think they weren’t doing everything they could to reduce their risk of DEATH? And exactly who do you think BP would put on a 2 BILLION dollar rig? High school kids?

    I want our environmental laws lax enough that businesses can operate here. Face it. ACCIDENTS are going to happen.

    This greed and carelesness line is downright comical. Seriously. Think about it. You’re claiming that BP will do anything necessary to make a buck; yet they’re so reckless that they’ve lost over 2 BILLION dollars this MONTH with billions more to come. You don’t see a problem with that logic? Employ your science skills for a second and think about that statement.

    Quit reading the Huffington post. It apparently destroys your reasoning ability, and you’re going to need all you’ve got to be successful as a scientist in this competitive environment.

  18. On a related note:

    Oh and another comment with regard to our tight environmental laws getting rid of the US’s technical industry. How tight are these rules in this country???

    For example, look at the oil spill . . . I have heard that BP by law only has to pay $75 million even though they claim they will foot other bills (I won’t hold my breath). It doesn’t seem that BP even had a plan of action in case of an oil spill (an event that had a chance well above 0%). The true cost over time (to people’s properties, marine life, the fishing industry, tourism, lost tax revenue etc.) will likely be in the hundreds of billions. Clearly our laws and regulations weren’t so tight that these guys were made to plan ahead and prepare and practice for a worst case scenario. Apparently, now they are trying to fill the hole with shredded tires and golf balls. Absurd!! At the end of the day, in this country, the profits are privatized and the costs are socialized.

    How lax do you want our environmental laws?? We could have averted hundreds of billions of dollars worth of damage with some foresight and god forbid regulation.

  19. China and India combined have nearly 40% of the world’s population. China itself has 5 times more people, and its one-child policy make proportion of men higher (statistics show more men than women prefer engineering).

    So, China or India having more students in engineering reflects nothing more but their larger population. I’d gamble to say that China does not have 5 times the number of Engineering students as US, although they have 5 times the population.

    On another note, if you were a bright young student, why would you study EE, ME or ChE and be forced to compete with someone of equal intelligence in Chindia making 1/10 of your salary when you could study Math/Business, go to Wall Street and put out crappy financial products and make a Billion dollars?

    Posted by: The Numbers Man | May 12, 2010 at 02:25 PM

    Numbers Man you hit the nail on the head. Why would an American go $200k into college debt for a career in science and engineering when people in Asia who pay little to nothing for their education (largely state funded) are directly competing with you for a job?? Unfortunately, for an American, Wall Street is the best option to pay it all back.

    I have come to realize that being an American scientist or engineer is choosing to become a very well-read and indebted factory worker who has to compete with dirt cheap labor abroad.

    The reason why our universities are filled with Asian graduate students and postdocs is that American students are rational and Asian students want to get out of poverty and get some American experience (and at this point go home since back home they are at the top of the food chain whereas in the US scientists and engineers are commodities). American students know that when you have a huge amount of college debt (which you cannot get rid of in bankruptcy) and the jobs you are likely to get have pay scales weighed down by having to directly compete with cheap foreign labor (H1Bs or out of the country) you are unlikely to be able to pay that debt off quickly. Furthermore, people on this list serve seem to think that being a graduate student in the US is difficult. Well, for those of you who aren’t familiar with academic science, it is a large Ponzi scheme in which professors need sweat shop labor to get their grant money and hopefully (although not always) do some decent research in the meantime. I was a graduate student. Trust me — the quality of American and non-American students was very hit or miss.

    Anyway, human nature is human nature. Greed is everywhere. I recently saw a PBS documentary on the Chinese education system. I expected the Chinese students to be all about science and math since that is the propaganda that we are given. Well, when they were asked who they wanted to be when they grew up, the responses were Bill Gates and Warren Buffet and financial investors. I guess we all want quick money with very little effort. At least Microsoft creates something.

    I agree to some extent that it is environmental laws that are getting these companies out of the country. But what sort of engineer or scientist wants to work in a lab that doesn’t really care how it gets rid of its radioactive waste, toxic acid waste, etc.? Look where it got Marie Curie.

    As for taxes, I don’t think it will matter that much if it costs an American $200k to get educated and another $200k for a house. Pfizer got a huge tax break from Bloomberg and they are leaving NYC.

    At the end of the day, the private sector goes where the labor is cheapest. Asia subsidizes their best and brightest’s education so they aren’t straddled with debt. Their cost of living is extremely low. In my opinion, science and engineering jobs will go the way of manufacturing jobs. The only thing that is remotely keeping R&D in the US is actually a strong patent system since the threat of losing your ip or not having it enforced are quite high in some areas.

  20. Quadruple BD expectancy; quintuple the number of examiners. It’ll never happen, but whatever.

  21. “IANAE If I were a Kite, you would be all I needed.”

    I think is the first post of Sarah’s that I’ve actually understood.

  22. IBP,

    Explain why the difference between characterizations and stereotypes matters? Both at their heart have tiny basis in fact but at the end of the day, the person or persons that they aimed at don’t care. Either way, they’ll be unwilling to engage in any productive discussions because they assume that nothing they can say will change that foregone conclusion, oops characterization, you had about them. People generally tend to live up to the expectations that others have for them. It is neither productive nor effective to start any conversation with “Examiners, on the whole, don’t care about society – they feel no civic obligation whatsoever. ” and then ask them to be concerned about the economic ramifications of their job. Trust me, I’ve seen those conversations and they don’t go well.

    As for your challenge, I suggest you go first. You’ve shown precious little reason for me to feel inclined to vet myself to you.

  23. tell me tell me true?
    what curtis bear he do.
    Then I give roses too
    Body punch, that’s you.

  24. Bear–

    First of all, “stereotyping” shouldn’t be confused with “characterization”.

    Second, my “stereotypes” are no worse than, and have no less merit, than the “positive” ones assumed by Judge Michel et al.

    Like I said before: I’ve worked in the public sector. I know exactly what it’s like.

    Would Like to Assist: I never presumed to know WHY you work at the PTO.

    Again, I do not believe examiners to be any worse or better than anybody else as individuals. I believe that, although there is a general paucity of individual integrity and candor in the U.S. population, the main cause of their failure at the PTO is institutional.

    The BEST person could get ground down to dust by working as an examiner in the current environment.

    Would Like to Assist: Why don’t you have some courage and TELL us who you are? No names necessary–let’s just open an honest dialog–what is your background? Your situation? Your schedule? Your total compensation?

    You’ll never do it truthfully, and I know exactly why not.

  25. “WHY DO MOST PEOPLE ON THIS BOARD CONTINUE TO ASSUME THAT EXAMINERS, OR ANY FEDERAL PUBLIC EMPLOYEES, ARE ERSTWHILE, COMMITTED, AND COMPETENT?”

    “Examiners, on the whole, don’t care about society–they feel no civic obligation whatsoever.”

    “Many of those “engineers”, Max, spend their days finding quicker ways to deliver porn to 13-year-old computer users.”

    “Many engineers are no more than just that.”

    Stereotypes are a real timesaver, amirite?

  26. Inviting Body Punches banging my head against the wall, you don’t know me or my colleagues so don’t presume to know who we are and why we work at the PTO.

    WHY DO MOST PEOPLE ON THIS BOARD CONTINUE TO ASSUME THAT PROSECUTORS OR ANY PATENT ATTORNEY ARE ERSTWHILE, COMMITTED AND COMPETENT?

    It goes both ways. Examiners have been tried, found guilty and hung in the court of practitioner’s opinions.

  27. sarah,

    Unfortunately the time lag between an examiner working a case and when that case may be later judged (and may is a big may, since in reality only a very small number of patents are litigated) is too large to provide meaningful feedback to determine whether that particular examiner is any good. Heck, as you can see on other threads, multiple examiners look at a single app and make completely arbitrarily different decisions on such basics as “what is the invention”, and ignore other examiners previous work that the system itself is a joke.

    Seriously, on the other thread, there was a four and a quarter year extension given to an application that had been fully searched the first time around. It’s not like the second application was radically changed. This was an extension which means the Office blew it by four and a quarter years beyond the guaranteed normal processing. That’s f’n criminal.

  28. “I don’t think applicant’s representatives even know I work at home when conducting interviews, whether by phone or in person. ”

    It becomes pretty obvious when the Examiner has to interrupt the phone interview to change her baby’s diaper.

    But do you really do in person interviews at home? I thought you had to drive to the office for those.

  29. Well if the Examiners by mere definition are just out to screw the system. Then it is high time for the rules to change. If a Teacher can now be judged as they teach. And removed if they fail, because after all they are teaching the children that will turn that wheel. Then so should the Examiners because they are supposed to be judging, and allowing that same taught intellect, that will also move the wheel.

  30. Has nobody learned anything from the experiences in Greece and elsewhere?

    I’m forced to conclude that people will only change in the event of extreme crisis–and sometimes not even then.

  31. Did he offer to explain how he arrived at the $1B figure? Of course not.

    After all, it’s nice and round.

    Max: “I don’t know about you, readers, but I’m quite impressed by the sheer numbers of engineers of Indian and Chinese nationality currently studying at top universities.”

    What is the impression you receive? What do you think it means? That’s why India and China are so great, right? Have you been there?

    WHY DO MOST PEOPLE ON THIS BOARD CONTINUE TO ASSUME THAT EXAMINERS, OR ANY FEDERAL PUBLIC EMPLOYEES, ARE ERSTWHILE, COMMITTED, AND COMPETENT?

    It’s not a necessary assumption. They are individuals, looking out for their individual needs, negotiating via a collective model, but acting in their individual capacities. They do what they need to do to thrive and survive. If they leave the public service “voluntarily”, they were either forced out, or found what they consider to be a better deal elsewhere. It’s as simple as that.

    And once again, “attrition” is not synonymous with examiners quitting to go to a private-sector job. They move within the federal government, go on disability, and retire as well. Why are people such knee-jerk irrational simpletons?

    And the assumption that more money will equal lower pendency–bull-bleep. Like I said, they can always drive their productivity to zero, with no penalty.

    The assumption, without proof, that the PTO is inadequately funded–same bull-bleep. I totally agree that current examination and searching is inadequate, but I DON’T agree that more money will make it better, or that less would make it worse.

    You people are all tinkering around the edges of a fundamentally broken system. We need to be able to fire people for inadequate performance, and reward people for excellence. Examiners, on the whole, don’t care about society–they feel no civic obligation whatsoever. They’re out to maximize the amount of money they take home every month, while minimizing the amount of work they have to do to achieve it. THAT is reality.

    Many of those “engineers”, Max, spend their days finding quicker ways to deliver porn to 13-year-old computer users. What a glorious avocation.

    Societies can be “post-engineering”, you know. You sound like a typical engineering type, completely oblivious to, and ignorant of, the humanities and the arts. THAT is where the decisions are made, THAT is where the highest secular dialectic lies.

    “Engineering-type” solutions do have their place, but they should not be elevated to a position of moral or intellectual supremacy. Those who do elevate them are small-minded and fetishistic. Models are affected by data, system boundaries, randomness, etc.. The low-hanging fruit of technical enterprise certainly has proved extremely valuable, but the higher-hanging fruit is of more questionable value and applicability.

    And I am an engineer! And yet I am more, as are many of us on this board. Many engineers are no more than just that.

    And there are only 5 real engineers in the world anyway–the rest of engineers amount to nothing more than catalog-shoppers, specifying things based on the work of others, selecting numerical values and physical properties from tables, nomograms, and MSDS’s.

    Yes, I believe I DO know more than Judge Michel about the functioning of the PTO. My word carries some weight, but not nearly so much as Judge Michel’s–hence he has a heightened burden to speak responsibly, which he has abdicated.

    Did he offer to explain how he arrived at the $1B figure? Of course not.

    After all, it’s nice and round.

    Sandbox.

  32. At present, many employees, although lacking extensive experience, work at home where adequate supervision is more difficult and applicant interviews are problematic.

    Working at home requires having been at the Office for at least two years, having met production requirements (eg Fully Successful ratings), having passed the MPEP certification exam, being at least GS-12 level, etc. By the time they’re qualified, most no longer regularly interact with their superiors. If the inadequate supervision is the issue, it’s applied to all examiners, not just the hotelling ones. Eg do non-hotelling examiners receive adequate supervision, even if the come in to work at the office everyday?

    I don’t think applicant’s representatives even know I work at home when conducting interviews, whether by phone or in person. Not sure where the data came from–that applicant interviews are problematic.

  33. “Interesting about the SIPO Office Actions. I have more experience with the JPO. I got a FAOM from the JPO the other day, 8 months after the EPO put out its FAOM on the sister app.

    Guess what. The JPO’s art references D1 and D2 turned out to be the JP family members of the EPO’s D1 and D2 WO docs. And the novelty and obviousness objections were a re-hash of the EPO line in its FAOM that issued 8 months earlier.

    Of course the JPO obviousness objection was the standard “The PHOSITA could easily have combined D1 and D2″. A more frustrating thing to argue against I cannot imagine. There’s just no reasoning to attack.”

    I have experience with both the JPO and SIPO. The JPO is flat out awful. The examiners will combine any numbers of references in any fashion, willy nilly, and never give anything but conclusory reasons. 6-way rejection including references directed to a vehicle anti-theft system, a fax machine, a cordless telephone, a pcmcia modem, a television antenna, and a wireless router? Why, it’s perfectly obvious to combine features of each!

    I’d imagine the experience is quite different if you’re representing a Japanese company. You probably get a 1st action allowance hand delivered with a box of sushi.

    SIPO is much much better, although they can be ridiculous at times as well. It often doesn’t matter how many times you’ve shown the examiner that his interpretation of the reference is dead wrong, he doesn’t care, he’s sticking to his guns. You then have to get all the way to the re-examination board to get some claims issued.

    I prefer the USPTO, EPO, KIPO, and Canadian Patent Office to the others I have dealt with.

  34. We do take-downs of infringing products at HK trade shows but it depends on convincing the organizer rather than a court…

    And I hear you on the whole JPO thing (worked for a Japanese firm in Japan for over 6 years). It’s obvious because it IS. Period. Japanese society in a microcosm. Things just ARE because they ARE and you do not question. End of discussion.

  35. Interesting about the SIPO Office Actions. I have more experience with the JPO. I got a FAOM from the JPO the other day, 8 months after the EPO put out its FAOM on the sister app.

    Guess what. The JPO’s art references D1 and D2 turned out to be the JP family members of the EPO’s D1 and D2 WO docs. And the novelty and obviousness objections were a re-hash of the EPO line in its FAOM that issued 8 months earlier.

    Of course the JPO obviousness objection was the standard “The PHOSITA could easily have combined D1 and D2″. A more frustrating thing to argue against I cannot imagine. There’s just no reasoning to attack. Three cheers for the EPO, and its Problem and Solution Approach to obviousness, its TSM test, which forces the Examiner to present full reasoning to justify the assertion that the independent claim embraces obvious subject matter.

    And three cheers for the American Cowboy for pointing out the real reason why Asia has adopted as standard the European model for substantive patent law. First laugh of the day. But Cowboy, do take care. The model ain’t weak. It has sharp teeth. Just three grounds of invalidity and two of them will rarely help you. Whether the courts in Europe are up to using to their full potential the powers they have been given is of course another matter.

    But why not try it. Infringe the portfolio of an active German corporate, in Germany, and see what happens.

    You will find out that, actually, they do know how to fight effectively on their home ground. The reputation that Germany has, as an infringer’s paradise, is one built by disgruntled American firms, who assume the Rules of Play in Germany are no different from the ones at home. Not so.

    Ask yourself: how many Trade Exhibitions in the USA feature a booth, operated by the local court, standing by ready to issue preliminary injunctions there and then, to take down the booths of patent infringers?

  36. Maybe I wasn’t paying enough attention at the time, but I thought the publication at 18 months was all part of the global “harmonization” movement…

    And my personal guess about why junior examiners leave these days more than before relates more to micromanagement as to whether or not a case could be allowed. In the ancient times, when Reagan was still president and I was an Examiner, the primary or SPE you reported to gave you pretty much free reign in deciding to allow or reject a case after a year, at most. As long as you basically showed you were doing a decent job, thoroughly searching in the right areas, etc.

    I enjoyed the independence that I had and quickly learned the difference between a patentable invention and the claims. Often the claims are not in condition for patenting but I found initiaing a chat with the attorney would generally resolve that to everyone’s satisfaction.

    I work in Hong Kong now and I read a lot of translated Office actions from SIPO (China’s Patent Office). They are concise, well-reasoned, do not feature huge chunks of copy-and-paste text, and end with an analysis of the unclaimed features in the specification (suggestions towards patentability). Also they are easy to reach and negotiate with on the phone (this from my Beijing colleagues…I’m working mainly on cases headed to the US).

    Although SIPO is backlogged as well (although not as seriously as the USPTO).

    And I remember when we reached 18-month average pendancy in 1989- known as “18-by-89″ (although it was really more like 19 but we needed a giant block party excuse at the time). Those were the “good old days” when there were way more primaries than junior examiners. Overall I would say we were more laid-back and not anti-patent as it seems the new examiners are being turned out these days. Kind of sad…

    Also, the days of paper searching were not that bad…I met a lot of other people whom I consulted for searches…learned a lot from the old-timers (like you don’t need a reference for every last dependent claim if the dependent claims are just common things- yes, we really did mainly concentrate on the independent claims and produced shorter Office actions with more information in 4 pages than the 15-page actions that I get today with cut-and-paste from the claims and cut-and-paste from the reference but short on analysis.

    OK, sorry for the rant, I just wish I could figure out where it all started going downhill…

  37. I agree, American Cowboy, that non publication virtually guarantees that your competitors will not copy your product in the short term, which, of course is the “real” reason the big boys lobbied for publication.

    There are pretexts. And there are the real reasons. Caesar justified everything he did as a reaction to violation of the rights of Rome, but his overall plan was clear.

    So when IBM or its ex VP IP speaks to us about best practices, hold on to your wallets.

  38. Hoteling means that experienced senior examiners are not readily available for side-by-side mentoring of junior examiners on a frequent basis.

    It also means, as a practical matter, that they are not available for personal interviews by out-of-town applicants.

  39. Why is attrition of junior examiners apparently much higher now than 20 years ago, for example?

    Maybe some of you old time examiners can let me know. Thanks


  40. I also love how he bashes the single unmitigated successful, free market derived idea of a govn’t agency capable of utilizing the idea… hoteling. It allows lower salaries and opens the Examiner corps to people who don’t want to live in Alexandria. As long as the PTO refuses satellite offices in lower cost of living cities, it’s the only cost reduction/salary control measure available.”

    Yeah, pretty much this. The hotelling program is a big draw for us examiners.

  41. “they copied the weak patent law”

    Americans always need their version of everything to be big, strong, shiny, impressive, and expensive.

    Minor details like whether it’s headed in the right direction or what it will destroy on impact can be sorted out later.

  42. I’m prompted, by those who feel an urge to give Max “another dig”, to ask: Can anybody come up with a list of all the features of US patent law that the Asian tigers copied, when they were writing their brand new patent laws on their blank white sheets of paper? I can, with provisions of European patent law. But I’ll refrain, because it would take too long. And I wouldn’t want to embarrass anybody.

  43. He said a lot of these things at the lunch address at the GW IP Law symposium yesterday.

  44. “I’d gamble to say that China does not have 5 times the number of Engineering students as US, although they have 5 times the population.”

    That’s probably not a big gamble. China has a much larger rural population per capita, India even more so, and probably a much smaller segment of their total population even gets basic education.

    I would want to look at how many of their students who enter the formal education system make it through to university-level, and how many of those complete engineering programs. Get on that, Numbers Man.

    Also, look at how many Chinese and Indian students excel in technical programs at Western schools. That can’t be due to the population gap. Chinese people have a cultural desire to succeed at life. That’s the big difference.

    “No one has mentioned the fee diversion problem yet…”

    Of course not. Everybody knows the PTO has always been at war with east… I mean, has always been adequately funded. It’s strictly a management problem.

  45. No one has mentioned the fee diversion problem yet…

    From link to scienceprogress.org

    “Had the USPTO not experienced diversions of $680 million of user-fee revenues during the fiscal year 1990 to 2004 time period, then the time that it takes to examine a patent application would have averaged slightly over 21 months as compared with the 30 months to 40 months that it currently takes to process a patent application.”

  46. < >

    China and India combined have nearly 40% of the world’s population. China itself has 5 times more people, and its one-child policy make proportion of men higher (statistics show more men than women prefer engineering).

    So, China or India having more students in engineering reflects nothing more but their larger population. I’d gamble to say that China does not have 5 times the number of Engineering students as US, although they have 5 times the population.

    On another note, if you were a bright young student, why would you study EE, ME or ChE and be forced to compete with someone of equal intelligence in Chindia making 1/10 of your salary when you could study Math/Business, go to Wall Street and put out crappy financial products and make a Billion dollars?

  47. “The Remaining 6% “Submarine” Applications: A loophole to permit secrecy until grant was placed in the 1999 law that according to Under Secretary Kappos is used for 6 % of all applications* which undoubtedly includes “submarine” applications which are kept pending for extended periods of time to await development of an industry. (When the industry adopts a standard fitting within the parameters of the secret application, then the “submarine patent” surfaces.)”"

    I often tell clients it is in their best interests not to let the application be published. Why in the world should they??? And this is NOT because we are concocting a Lemelson submarine patent strategy. Lord knows, the 20 years from filing date term killed that strategy.

    No, the reasons for asking for non-publication are that you want to keep the competetion guessing in the short term, long before the industry has developed. By all means, label the product you sell as “patent pending,” but don’t let them see what kind of claims you have or what the examiner is doing to you. Why give them an invitation to start inventing around you 18 months after you file?

    And, it may be you never are allowed a patent. Why should you have been required to give up your trade secret rights by allowing early publication only to find out you won’t get a patent?

    The so-called “provisional rights” from publication together with $5 will buy you a small latte.

  48. “Large US companies moving operations overseas is actually a response to corporation tax policy and various environmental and labor regulations in the US. It has little to do with patent law, because those companies will still want patent protection inside the US, regardless of where their products are designed or manufactured.

    Posted by: A plurality of thresholding units | May 12, 2010 at 10:10 AM”

    This bears repating for any bureaucrats out there who have no understanding of finance, business, or the real world in general.

    Posted by: Bad Joke Ahead | May 12, 2010 at 11:19 AM

    Dittos to the max.

    Taxes. Environmental laws. Labor.

    I would also add, infrastructure (including a viable patent system) and political stability. China has both.

    The above truisms have always been true. But many countries do not have political stability or a viable patent system. Since the fall of the radical left in China circa 1990, China has been friendly to business in all areas.

    I once made a joke that is somewhat true: many businesses today are fleeing to China to escape communism.

  49. Only shallow-thinking, reactionary attorneys and agents prosecute this way.

    Isn’t that a redundant statement?

  50. I personally think you should grandfaher the SPES in. But all the next SPES should be true Patent Lawyers. If an Examiner wants to be a Patent Attorney. He should pay his dues. Why you ask? Elementary my dear Watson. Examiners going through a quick and dirty class without the dues, will still feel they are lawyerly. and that in itself is the crux. They will spend more time practicing their Lawyerly endeavors answering why it should not be allowed. That should be for their boss the SPE. Sure the Examiner should have some understanding of what is is… But, if an education being a Lawyer is that important the USPTO should immediately drop the classes for this. and let the Examiner do it on his own. Just as the rest do.
    After all Inventors come in all shapes and sizes. But Lawyers come in all different personalities, but, with brains. there are some that would rather make a good buck at the USPTO, not unlike a Public Defenders role. just not as driven. But that public Defender paid his dues, just like an educated Lawyer that chose Patent Law.. He the SPE will be either less driven, or geared more to the underpriveledged. But that won’t make him less valuable. On the contrary.They will have a valuable plqace in society. And to give a free pass to an Examiner to me is just not doing the correct thing for anyone. Let him or her, paid well, do it on their own.
    Could I be a Lawyer? No. And could all of those Examiners? NO? Pay them well. and let them choose if they have the drive, incentive, and intelligemce to succeed.
    That is a waste of Ego to those that should be examining,and Money better spent paying them.

  51. His qualifications as an “expert” on the PTO are basically non-existent.

    Except that Judge Michel has been on the Federal Circuit working with patent cases since you were in elementary school.

  52. and for those who are prone to flame for errors in a posting. Tough I’m actually working more than complaining.

  53. Let me repeat that gem from IANAE:

    “Unless you think the beatings should continue until morale improves.”

    because, although I have seen it often enough before, I have never seen it deployed at quite such an apposite moment in a developing thread. Nice touch, IANAE.

  54. Bad Joke Ahead,

    I think if you looked most posts on this site it is overwhelmed with those who think an examiner is inept.

    If those solutions are what you say you want then pipe up. They are currently looking at examining expectancies (i.e. time) What do you want to bet they will decrease the time or only give a marginal increase if not a decrease.

    By the way, the new proposed count system was artfully done. However it will eventually result in worsening workloads and quality. I have heard many who are already complaining about RCE’s ….letting them sit. So file your continuations if you care. Just an example, for every case in the pipeline the new system immediately lost 0.25 count. Every additional RCE will lose 0.25 counts and second subsequents will lose 0.5 counts. With a majority of new examiners at the office they thought the deal was great because they got an adjustment in their time (though it may not carry to additional years and will most likely not be adjusted based on changing dockets). Well most new examiners only received a 2 hour adjustment per two cases. That’s right, 1 hour. Take just 0.25 of a 9 hour per count expectancy.

    I’m guessing you can think who won that negotiation. I’m also guessing you can think who will lose out ultimately.

    P.S. I WAS a governemnt employee. Now I practice. Having friends on the inside is truely indespensible…

  55. Its rulings on inequitable conduct compel practitioners to swamp examiners with everything the practitioner has in his or her file

    Nope. Only shallow-thinking, reactionary attorneys and agents prosecute this way.

  56. The patent office has been adequately funded, but those adequate funds have been WOEFULLY MISMANAGED.

    LOL.

  57. But you’re just a typical govn’t employee, can’t see beyond your own “I am entitled to more.”

    I have never been a government employee, but I am also entitled to more. More time spent and more care taken to write clear and detailed office actions. More examiners to examine more applications that have been lying fallow at the PTO for years.

    Unless you think the beatings should continue until morale improves.

  58. Is more money the only thing that would get more examiners? …

    If you mean “is more money a necessary condition for getting more examiners?” then I would answer with an emphatic “yes”.

    I also love how he bashes the single unmitigated successful, free market derived idea of a govn’t agency capable of utilizing the idea… hoteling.

    I’m not sure that sentence makes sense, but his criticism of hoteling is that the hoteling examiners aren’t being adequately supervised. About 80% of examiners have less than three years of experience. Who is hoteling – the many inexperienced ones or the very few people who would have been qualified to supervise them?

    It … opens the Examiner corps to people who don’t want to live in Alexandria.

    As long as they want to live close enough to Alexandria that they can come in to the office every week or two.

    Judges should stick to interpreting the law.

    You think his opinion on what the legislative branch of government should do is outside his professional competence as an interpreter of laws? Because usually when people talk about new laws and new appropriations you don’t need to be a “business wizard” or even a lawyer to voice an opinion.

  59. Think before you write, you should read before you do anything else.

    If you had bothered to read, well, ANY thread like this on patently-O, you’d notice that the prosecutors continually propose more examining time and shortcuts. But you’re just a typical govn’t employee, can’t see beyond your own “I am entitled to more.”

    a collection of various proposals I remember:
    more time credits for interviews
    examining time tied to fees (more time for more claims)
    more summary actions (only need to address independents)
    pay for delayed exam (I know you don’t understand the real world, but small businesses often want to delay expense while trying to get off the ground and a nominal fee for delayed exam would allow that while also allowing the office to claim reduced pendency numbers.)

  60. Yeah, you guys all think your so informed of what the Patent Office faces. Let me just remind you. Most Art Units at the PTO get 7-9 hours to do a case. That’s right! The units that get more only get about twice that for the most complex arts. In an art unit with that amount of time per count, they are pushing almost ten (counts) per 2 week period. So almost ten of your cases are supposed to be completed (although there are some disposals built in) in a two week period. Just a note on the disposals, often people with this workload may have upwards of 5-9 amendments to complete as well. This is just to meet 100% production.

    Just think for a moment. No matter how many claims you file, your examiner may only get one work day to do the complete search (i.e. the best prior art out there) and address all the claims in a spoon fed, limitation by limitation office action (or what the office expects). Less than one work day is what your clients are leveraging their IP portfolio on. So you want better office actions and analysis with better art? Lobby for more examining time, more examiners, or stop complaining about the quality. It is an inverse curve folks….quality goes up then quantity goes down.

    Further, when you are losing examiner’s every week because you have them turning out work like a conveyor belt you’ll never get a good final product. Why do you think there are so many people resigning even in the current economic climate? Trust me it isn’t because they are all lazy. Some actually have pride in the work they do and struggle with the crunch every two weeks. Yeah believe it or not.

    If you want to improve the office actions just double the time they have to do the work. I’m guessing you can guess what will happen to pendancy.

    Of course that will prompt a need for hiring. Maybe tossing some incentives to employees who have continued to stay with the office. I’m not sure. However, I can assure you increasing the workload or encouraging allowance isn’t in your best interest.

    I would fear an improved economy. If you think attrition is bad now…stay tuned.

  61. “Large US companies moving operations overseas is actually a response to corporation tax policy and various environmental and labor regulations in the US. It has little to do with patent law, because those companies will still want patent protection inside the US, regardless of where their products are designed or manufactured.

    Posted by: A plurality of thresholding units | May 12, 2010 at 10:10 AM”

    This bears repating for any bureaucrats out there who have no understanding of finance, business, or the real world in general.

  62. typical bureaucrat completely out of touch with the realities of the real world.

    Does the PTO need some cash to redo their IT system? Absolutely. Do they need an overarching plan first? Absolutely. Do they have an overarching plan? …

    Does the PTO need more examiners? Absolutely. Is more money the only thing that would get more examiners? …

    I also love how he bashes the single unmitigated successful, free market derived idea of a govn’t agency capable of utilizing the idea… hoteling. It allows lower salaries and opens the Examiner corps to people who don’t want to live in Alexandria. As long as the PTO refuses satellite offices in lower cost of living cities, it’s the only cost reduction/salary control measure available.

    Judges should stick to interpreting the law. If they were business wizards, they wouldn’t be judges.

  63. I’m quite impressed by the sheer numbers of engineers of Indian and Chinese nationality currently studying at top universities.

    Their parents are probably still teaching them that ambition and higher education are important.

    Applying to be USPTO Examiners? I doubt it.

    Probably not, if they think ambition is important. The PTO has to make a career in patent examination appeal to young, ambitious, energetic people somehow. College kids probably think that private sector engineers get to spend all day with Kari Byron blowing stuff up. And for better pay than they’d get at the PTO.

  64. It is this kind of cogent and insightful analysis and commentary that I have come to expect from the CAFC.

    Did he offer to explain how he arrived at the $1B figure? Of course not.

    After all, it’s nice and round.

    Sandbox.

  65. Has he worked at the PTO? Has he managed at the PTO? Does he set PTO policy? Is he a policy analyst? Is he a public-sector actuary? Is he in the union? Does he conduct or participate in management-labor negotiations?

    I’ve never done any of those things. I’m sure most of us on this blog are similarly experienced. We criticize the PTO every day, and we all think we know the magic answer to fix the whole system.

    At least Michel’s actual job involves indirect oversight of the PTO. As an appellate judge, he is a policy analyst of sorts. And frankly, most of his observations could have been made, and recognized as serious problems, by any lay person. I hardly think he needs to be a public-sector actuary to validly hold his opinions.

    His qualifications as an “expert” on the PTO are basically non-existent.

    I believe your qualifications as an “expert” on the role of the judiciary are similarly non-existent, if you hold yourself to the same standard.

  66. What a joy this blog is . You learn something new every day. Like this, not many minutes ago, from that frequent and deep-thinking contributer IBP:

    “Engineers are valued very highly in ROW because their numerical life can be conveniently considered as secular, thereby not interfering with the governance of religious states.”

    from which I learn……Actually, now I come to think about it, not a lot.

    I don’t know about you, readers, but I’m quite impressed by the sheer numbers of engineers of Indian and Chinese nationality currently studying at top universities. What’s driving them to do it? what will they be doing, after they graduate? Applying to be USPTO Examiners? I doubt it.

  67. In other words, would the one billion not be better invested in explaining to the denizens of the USA that a bulk flow of top quality crisp new top-qualified and keen young engineers is indispensible to their own future prosperity?

    You mean, after the government spent all those years (eight of them, I think) telling people not to trust anybody with an education?

    This isn’t an R&D problem, it’s a culture problem. Remember when communism failed because it wasn’t economically viable and human nature ended up being at odds with the national welfare? Turns out capitalism takes longer to fail for those reasons, because the system is built on greed, and there’s usually enough greed left over to rebuild.

  68. Judge Michel has a heightened responsibility, given his position of power and influence, to carefully weigh what he says and to deliver the content accordingly in any work-related forum.

    In this instance I believe that he has failed to sufficiently discharge that responsibility.

    His ego should take a back seat for a while.

  69. People like Judge Michel are the problem.

    He should refrain from commenting on situations that he knows little about. His comments are not welcome by me, nor do they meaningfully inform any public discussion and debate.

    Has he worked at the PTO? Has he managed at the PTO? Does he set PTO policy? Is he a policy analyst? Is he a public-sector actuary? Is he in the union? Does he conduct or participate in management-labor negotiations?

    His job, for which he presumably is trained, is that of an appellate judge–something that does NOT qualify him to make specific pronouncements on the PTO’s functioning.

    As a civil servant himself, his pro-civil-service bias naturally undermines his credibility, even if he has an effectively lifetime appointment. After all, what federal civil servant doesn’t?

    His qualifications as an “expert” on the PTO are basically non-existent.

  70. Even worse, because most applications must by law be published at 18 months, others, including foreign competitors, can pirate inventions for years before the patents issue, for until then patent owners have no rights.

    One of my faves – The tale of the Quid and Quo.

    Quo be gotten – there is no real driver to deliver Quid. In fact, there is a driver to not deliver. Why buy the cow when the milk is free? Human nature people – ya have a system antithetical to the applicant and ya wonder why the system is gamed.

    Even my pal Hal has an email this morning about the Quo. Prof Wegner ties the Quo to that White Paper propaganda piece and current Kappos stumping.

    Some of his thoughts:
    the 20 month average pendency goal will help foster the Constitutional goal of the patent system to “Promote the Progress of … the Useful Arts” through prompt dissemination of information from patents. This makes no sense since there is already publiccation of patent applications at 18 months from the first filing date — two months earlier than this elusive target date (94 % of all patent applications have already been published).

    Judge Rich has explained that the dissemination function is at the very heart of the Constitutional goal.

    Patenting at 20 months is not necessary to meet the dissemination function because the patented invention has already been disclosed to the public through the 18 month publication.

    The Remaining 6 % “Submarine” Applications: A loophole to permit secrecy until grant was placed in the 1999 law that according to Under Secretary Kappos is used for 6 % of all applications* which undoubtedly includes “submarine” applications which are kept pending for extended periods of time to await development of an industry. (When the industry adopts a standard fitting within the parameters of the secret application, then the “submarine patent” surfaces.)

    Two great things here:

    (1) The total disregard for the applicant with the overwhelming focus on the “getting mine” of getting the Quo and publishing while ignoring the repercussion to the applicant who gets no Quid until and if he can wrangle out a patent, even though in 94% of the cases his Quo is taken by law.

    (2) The demonizing of those who can take advantage of the non-publication route by labeling that route as a “loophole”. Join this with the rebirth of the term “submarine”, which is sure to mar those who only want to protect their Quid (rightfully) with images of those who abused the system of when patent rights ensued – which is still forestalled with the tie to priority date.

    Gimmie gimmie gimmie mine first says the Office.

  71. Large US companies moving operations overseas is actually a response to corporation tax policy and various environmental and labor regulations in the US. It has little to do with patent law, because those companies will still want patent protection inside the US, regardless of where their products are designed or manufactured.

  72. Cowboy: “…certainly underfunding is a problem…”

    Evidence for this? Granted, it’s certainly a “problem” from the perspective of the civil servants receiving the funding.

    And Yes, the SCT has also done its fair share of obfuscation and distortion–but that doesn’t absolve the CAFC of its own contributions to the PTO’s woes.

  73. “At present, many employees, although lacking extensive experience, work at home where adequate supervision is more difficult and applicant interviews are problematic.”

    hee hee. He bashed the hoteling program.

  74. Just what we need–fiscal policy advice from a euro.

    It is because the ROW values “engineers” so highly that the ROW is so great, right?

    What a joke. Engineers are valued very highly in ROW because their numerical life can be conveniently considered as secular, thereby not interfering with the governance of religious states.

    As for the non-religious states, there are more than enough “engineers” to go around. What is needed are better systems and structures in which they exist, that would allow them to fluorish.

    Only a euro would suggest that ONE BILLION DOLLARS BE SPENT “EXPLAINING THE VALUE OF ENGINEERS TO THE CITIZENRY”.

  75. Judge Michel is spot on in pointing out the critical and essential value of the patent system. The cure may or not be a big wad of money for the PTO; certainly underfunding is a problem and whether one billion is the right number or not is up for discussion. In our sound bite world, perhaps, that is the right approach. But I don’t think the CBS Evening News covered Judge Michel’s sound bite.

    I agree with IBP that the CAFC has not made the PTO’s job easier. Its rulings on inequitable conduct compel practitioners to swamp examiners with everything the practitioner has in his or her file, burdening the PTO further.

    On CAFC’s behalf, however, the TSM test was correct, predictable and streamlined the PTO’s job. The TSM test’s predictablilty (and addi;ng predictablity to Patent Law was the reason the CAFC was created by Congress) made debates about patentability much more objective; the subjective gobbledygook of the SCT makes anybody and expert in patentability. The current standard for patentability is about like the current standard for obscenity — since nobody agrees, nothing is obscene and nothing is patentable.

  76. Beat me to it, Mr. Drei. If you are not an examiner or a patent lawyer or (perhaps) a big company that is trying to protect a billion dollar investment in some new drug, the PTO is of only marginal importance to the issues at hand.

  77. Can anybody explain to me whether there is any link between the speed that the Chinese Patent Office gets cases to issue and the siting of the Applied Materials R+D in China. Can anybody explain (in steps small enough for me to follow) why reducing pendency at the USPTO will prompt the world’s corporations to move their R+D from ROW to the USA?

    In other words, would the one billion not be better invested in explaining to the denizens of the USA that a bulk flow of top quality crisp new top-qualified and keen young engineers is indispensible to their own future prosperity?

  78. Change is coming, but change cost money.

    Here is some grapevine news I’ve heard: The PTO had a training class for non-new examiners in searching. A specific art unit brought in a chemical searching expert to teach them how to use a specific search engine to properly locate chemical prior art.

    This is a big deal. It was the first time examiners were taught up-to-date search techniques post-academy. Some of these folks haven’t had a class since the paper files were the only system in existence. On the outside, the free market it a great motivator to get better but that does not apply to a government employee.

  79. USPTO should get an ‘attitude’ infusion. It continues to be a paper chase, leading to eleventh-hour grants of negotiated claims, infused with lightly-considered, weakly-researched, office actions. I’m sure there are budget issues, but I don’t see the problem or the solution as merely a matter of money.

  80. “As has been widely reported, U.S. company Applied Materials (AMAT), the world’s biggest manufacturer of equipment used to make solar cells, recently decided to construct the world’s largest, most advanced nongovernment solar energy research and development facility in Xian, China. Applied Materials also relocated its chief technology officer, Mark Pinto, to China—the first such case of a top U.S. technology executive moving there.”

  81. “First, and foremost: delay. In some technologies it now takes 4-6 years even to get a patent. . . . That is because for two decades the patent office has been underfunded and losing ground.”

    No.

    The patent office has NOT been underfunded.

    The patent office has been adequately funded, but those adequate funds have been WOEFULLY MISMANAGED.

    “The patent system is failing primarily because the patent office is failing.”

    The necessary but conveniently omitted next sentence: The patent office is failing in part because the CAFC is failing.

    With all its other problems, the patent office doesn’t need the mangling of patent law that is afforded by the CAFC.

    “Although the PTO should remain financed by user fees, it I needs a transfusion of public money to overcome its dysfunction.”

    Classic “throw money at the problem” solution. It will not work. The solubility constant of money in the public sector is infinite. They can always drive their productivity to zero.

    Of course, it is not unexpected that Judge Michel would present these ideas, given his civil servant audience, and the fact that he is one himself.

Comments are closed.