- Grant Rate: The USPTO’s high patent grant numbers continue. The past two weeks respectively rank Nos. 1 and 2 in terms of the most patents granted in a single week in US history.
- USPTO Application Exchange: The USPTO has announced that it is opening its “application exchange program” to all applicants. Any applicant with at least two pending applications can “receive expedited review of one application in exchange for withdrawing an unexamined application.” For 2010, the program will be limited to 15 applications per entity. Applicants with questions may contact Pinchus Laufer (Office of the Associate Commissioner for Patent Examination Policy) Pinchus.Laufer@uspto.gov.
- PTO/DOJ/FTC Workshop on May 26th at the USPTO. The FTC’s work and report on problems in the patent system has been a driving force behind many of the proposed patent reform initiatives over the past several years. Later this month, the FTC will be joining the PTO and DOJ for a workshop on the role of intellectual property in competitive markets. Particular topics include PTO Reform (quality and timing); Permanent Injunctions and the ITC; and Standard Setting. Webcast available. [Link]
- Ombudsman Program: The PTO has implemented a new ombudsman program intended to help applicants who feel that the ordinary prosecution process has broken-down. [Link] I would like to hear any comments on the value of the program.
— Dennis
Gena,
Have no fear. Only patents that were already filed long ago (before the program started last year) can be expressly abandoned to expedite prosecution of another application. Plus, the application that is advanced out of turn must also have already been filed before the program started last year. Furhter, there has been announced a limit of 15 such expedited exams per applicant this year. So this system is not going to be subject to that kind of abuse.
Gena, no safeguards needed. Please refer back to the discussion of budgets and polititics at big companies.
I preferred the original version of the application exchange program, which limited participation to small and medium-sized companies. I suppose the USPTO didn’t have much choice other than to extend this program to large companies, since the patent application backlog has reached critical mass. But won’t the big corporations be able to game the system by paying for initial BS applications and then withdrawing them, just to speed approval of their “real” patents? Has the USPTO come up with any safeguards to prevent this kind of thing, or is this just one of those things in patent law that we just have to deal with?
“You are sick!”
Say again sarah?
According to PayScale earning just over 47,000 puts you in the top 5% of Zimbabwe households. Not ridiculously implausible for Mooney.
“Not a ridiculously implausible salary for a patent agent/attorney, I would submit.”
How about for a panhandler in the subway system?
What country is that? Zimbabwe?
According to Wikipedia, earning just over 150k a year puts you in the top 5% of US households.
Not a ridiculously implausible salary for a patent agent/attorney, I would submit.
You are sick! The Tea Party seems to be following a flip flop from one party to another. I was wrong about Palin getting out of control. She has absolutely NOTHING to do with the movement ….. she is sort of like the Dow. LOL
azz
“I’m in the top 2-5% of income earners in this country.”
What country is that? Zimbabwe? Impressive.
“I’m going to do everything I can to ensure that self-absorbed libertardian dipshxts remain howling in the political wilderness forever”
If you call Tea Party candidates winning every major race since the Obummer communist takeover began “howling in the political wilderness” then I hope you’re right.
Of course from your mom’s basement, everything looks like the wilderness…
celebrate and bask in your poverty.
As I’ve said before, I’m in the top 2-5% of income earners in this country.
I’m going to try to build a little wealth for me and everyone around me
That’s what BP said.
I’m going to do everything I can to ensure that self-absorbed libertardian dipshxts remain howling in the political wilderness forever.
“viewing the fortunes of the wealthiest as a proxy for his own happiness”
That is a blue collar anthem if I ever heard it. Knock yourself out Mooney, celebrate and bask in your poverty.
In the mean time, I’m going to try to build a little wealth for me and everyone around me.
Mooney celebrates gloom and doom…
Poor RWA has been brainwashed into viewing the fortunes of the wealthiest as a proxy for his own happiness. It’s okay, RWA. It’s not too late to buy some gold coins from Goldline! They are looking out for the interests of people like you. And they are approved by Glenn Beck, so you know they’re honest.
“And you can see what a profound effect this surge in patents is having on the stock market! The teebuggers were right!!!!@!”
Mooney celebrates gloom and doom…
For a recent case on what a “non-invention” is, read judge Alsup’s opinion in the Therasense case. There he reminded us that a pencil without an eraser is not an invention. For the same reason he held invalid a claim to a prior art sensor without a membrane. He reminded us that a claim actually has to set forth what it is about the sensor that allows the sensor to operate successfully without a membrane.
The problem in the Therasense case was that Abbott never came up with a theory as to what it was in the claim or in the patent that was different from the prior art in the sense that it permitted the claimed sensor to operate without a membrane. Only during final argument did Abbott propose a theory, which the judge considered even though he did not have to. But when he did consider it, he found it to be in fact not true.
Seems to me the better way to do this is to permit 15 applications a year to be advanced simply by paying double the normal filing fee.
The purpose isn’t to get some applications examined sooner. That’s just the incentive they chose. The purpose is to get people to abandon applications that they would otherwise have wanted examined.
Posted by: IANAE | May 19, 2010 at 11:44 AM
There is an easy way around this: file an application; file a continuation; abandoned the parent and request expedited processing of the continuation.
Seems a lot simpler just to allow one to pay double the filing fee.
The USPTO’s high patent grant numbers continue. The past two weeks respectively rank Nos. 1 and 2 in terms of the most patents granted in a single week in US history.
And you can see what a profound effect this surge in patents is having on the stock market! The teebuggers were right!!!!@!
link to facebook.com
The USPTO’s high patent grant numbers continue. The past two weeks respectively rank Nos. 1 and 2 in terms of the most patents granted in a single week in US history.
Remember the dates.
“art units that have the severe backlog”
It’s a zero-sum (shell) game. Your moving up means someone else has to wait. In the end, you are paying the Office not to do something.
@in-house
I agree that corporations wouldn’t use outside counsel to review unexamined application for possible abandonment. For one thing, the outside counsel is not going to want the client to abandon anything, because it means even less work for them to do down the road. But there are many corporations that do most of their prosecution in house, and only use outside counsel for overflow, if at all. The in-house patent attorneys could review such cases at no additional expense, and if they are biased at all it will be to abandon cases so they have less work to do.
Additionally, I don’t think you are filing applications in the software and business method art units that have the severe backlog. You can file a picture claim in those cases and still wait 5 years for a first office action rejecting your picture claim. It’s that bad. I’ve no doubt that some corporations’ patent departments desperate for money due to slashed budgets have been reviewing applications filed since 2008 in looking for fee refunds. However, fee refunds are not available for many such applications filed before 2008 that have still not received a first office action, and there is no motivation to review these for abandonment. I think the Office is hoping that the program will encourage applicants to look at abandoning applications filed before 2008. However, the carrot in this case will require more expense to both immediately (for the petition fee) and not long into the future (for the inevitable RCE or issue fees). Plus, petitions can take a while to be granted, so it is not an immediate effect.
I think it will be rare for applicants to use this program. Maybe it will happen if the unexamined, but published claims are being infringed, and the applicant wants to litigate, but the Petition to Make Special is not an option becasue the claims do cover a product the applicant is manufacturing. Then they might look through some old cases for something to abandon. I don’t see it happening otherwise.
ping, I’m talking about the computer-generated “First Communication” from the “Examining Division” with its 4 month reply term.
This is not to be confused with the opinion on patentability, written some months earlier by the same individual EPO Examiner-on-the-Merits, and annexed to the EPO search report that had issued to Applicant from the “Search Division”. Sorry it is all so confusing. it works a treat though.
Perhaps 7 can explain it to you in a way you will find easier to understand. Meanwhile, I did enjoy your take on “zero”.
Max,
I never write means+function claims, so thats not an issue. Moreover, I rarely get clarity objections anymore, as I now draft claims knowing they will be examined before the EPO as well.
With respect to BRI at the EPO, I think they’re actually somewhat fair, unlike the USPTO, where the “R” portion has long since been forgotten.
“Examiner input into the FAOM, zero.”
Maxie, what are you talking about? In the states, FAOM means First Action on the Merits, with Merits being the operative word – and one which does involve the Examiner (much more so than “zero” at least).
Thanks 7. It would be patronising, I can see, to mention BRI and that in Europe “separating means” means anything under the sun that has any capacity whatsoever to separate. It is true that EPO Examiners steadfastly refuse to construe a claim in accordance with the lexicography buried in the specification. Often an objection is easily overcome by inserting into the claim, in explicit terms, what the specification declares to be what the claim means anyway.
I’m a tad confused by your distinguishing the EESR from the FAOM. The FAOM these days is a computer-generated form letter that gets issued the moment Applicant inputs the exam fee. Examiner input into the FAOM, zero.
It used to be the habit of EPO Examiners to tell US attorneys (in their quaint English-as-a-foreign-language) that their claims were “not clear”. Then they learned that this sets off an outraged reaction. So, they had a little think what to do, and hit upon the scheme of using B “R” I. That allowed them to express their problem with the claim as a novelty attack. They have found from experience that this is much more effective way to get a reasonable, considered reaction out of the Applicant, and from there, on to a Notice of Allowance.
“Thanks for that insight, 7. I myself haven’t noticed any fall off in quality of EPO patentability opinions. What I have noticed is that they are increasingly written on the basis that the reader will be somebody who has passed the examination to qualify as a European Patent Attorney. So they are “in code”. No boilerplate. Assumption that the reader knows EPO-PSA and the Guidelines inside out and backwards. I can well imagine that, to a US patent attorney, they are not much better than gobbledygook.
But you are not the intended reader. The days are gone, when EPO Examiners had the thankless and tedious task of arguing in PCT Ch II with a US attorney working from the USPTO MPEP.”
I am perhaps not your usual US attorney who just plays with EPO cases from time to time. I have several large clients who file everything in the USPTO as well, and I direct prosecution of those cases as well. So, I’m prosecuting almost as many EPO cases as I am US cases. I don’t need boilerplate or hand holding. I’m up on EPO practice.
The type of thing I’m talking about is a blanket statement of: D1 discloses XYZ cut and pasted from the claims in paragraphs 23-71. Meanwhile, that portion absolutely positively does not disclose either Y or Z, not even close.
Once we enter actual examination, the examiner does not try to take such a ridiculous position, and then becomes fair.
This has happened in a lot of recent cases.
I did, however, recently receive an EESR indicating that all claims were directed to allowable subject matter, so perhaps ya’ll aren’t all bad 😉
@ TINLA IANYL “The only reason I can think of that they would do that is to try and get the search and exam fees back. Giving up on those fees, plus paying more money to expedite expenses in another application? I just don’t see it happening. I think they would much rather get their money back.” The USPTO fees would be a wash in this case. What is not a wash is that this is a new program, so any outside counsel doing the work will not be at their most optimum efficiency. You would end up paying more in outside counsel fees to make this happen. There is not cost benefit for this.
@ James Daily “That’s the calculus for most companies, true, but a few companies may find it worth the opportunity cost of the lost fee refund in order to expedite examination of a more worthy application. I suspect this will be most common in industries where inventions can fail early, like pharma.” My experience is if I want an app to issue quickly, I need to file a picture claim on the product. There would be no need to expedite the examination at this time.
What this program doesn’t say is what is the special dispatch. I go back to the chart that shows time to first office actions and what I need is an app to be picked up in less than 3 months from filing. This program will not accomplish this.
As for identifying apps to abandon, this usually happens only after numerous rounds of OAs and RCEs – which takes the app out of the program requirements. I think it would be a hard sell to a business development group to abandon an app that was just filed with no office action. Business development people always like to have patents “just in case the project gets renewed interest.”
Incidentally, I took a look at a random sample of about 40 patent applications filed between 2001 and 2003 and of those, 10 where ultimately abandoned and 30 were ultimately allowed. That gives an ultimate allowance rate of 75% (i.e. total allowed/(total allowed + total finally abandoned)).
I then looked at about 66 applications filed between 2004 and 2008. 13 have been abandoned, 35 have been allowed and 18 are still being examined. That gives an allowance rate so far of 73%, but there is still a large fraction that haven’t been resolved yet.
Applications filed after 2008, by and large, have not been examined yet.
Now this is an admitedly small sample, but it doesn’t indicate to me that there has been a dramatic drop in ultimate allowance rate.
Thanks for that insight, 7. I myself haven’t noticed any fall off in quality of EPO patentability opinions. What I have noticed is that they are increasingly written on the basis that the reader will be somebody who has passed the examination to qualify as a European Patent Attorney. So they are “in code”. No boilerplate. Assumption that the reader knows EPO-PSA and the Guidelines inside out and backwards. I can well imagine that, to a US patent attorney, they are not much better than gobbledygook.
But you are not the intended reader. The days are gone, when EPO Examiners had the thankless and tedious task of arguing in PCT Ch II with a US attorney working from the USPTO MPEP.
But I do agree with you on the current froth of FAOM from the USPTO.
ping: good to know you are already laughing today. I’m happy for you.
Several years ago, the PTO was publishing a graph showing Allowance rate as a function of the year. It showed the allowance rate plunging from around 70% to around 40% from 2000 to 2008.
You need to be careful about properly interpreting the “allowance rate” published by the USPTO. The USPTO counts each RCE as both an abandonment and a new application. In 2009, RCEs accounted for about 30% of the “new” applications reported by the USPTO. RCEs were not a factor in 2000. So that drop in “allowance rate” may be more a reflection of the growth in RCEs rather than a drop in the ultimate success rate of getting patents to issue from original applications.
(que Ron Katznelson for clarifying comments)
Maxie,
It’s not Europe we be laughing at. But you’re close.
“I realise that you folks laugh at “Europe” but most of you acknowledge the quality of the EPO search. Isn’t that the reason for specifying the EPO as ISA?
In some art units, the EPO is increasingly on top of its workload and so newly able to pump out its top quality opinions on patentability, annexed to its search report, within a few months of the end of the Paris Convention year.
So, I can well imagine an American corporate Applicant’s balloon being burst by that EPO search report and opinion, before getting the FAOM from the USPTO, and early enough to prompt Applicant into taking up this BOGOF-like offer from Mr Kappos.”
Let’s get a few things straight. I absolutely think the EPO pumps out top quality SEARCHES, and very quickly in some art units. However, don’t even try to say the OPINIONS are top quality. They are increasingly bad, and of late so bad that I think they’re worse than the average FOAM from the USPTO.
It truly appears that the EPO examiners spend 99% of their alloted time on the search, .9% of the remaining time drinking a latte, and then the last little .1% actually writing the opinion.
I will keep designating the EPO because of the quality of the search, but don’t let your euro-pride make you blind to what’s actually going on there. Even 6 agrees with me on this point.
I realise that you folks laugh at “Europe” but most of you acknowledge the quality of the EPO search. Isn’t that the reason for specifying the EPO as ISA?
In some art units, the EPO is increasingly on top of its workload and so newly able to pump out its top quality opinions on patentability, annexed to its search report, within a few months of the end of the Paris Convention year.
So, I can well imagine an American corporate Applicant’s balloon being burst by that EPO search report and opinion, before getting the FAOM from the USPTO, and early enough to prompt Applicant into taking up this BOGOF-like offer from Mr Kappos.
PS. I assume readers know what BOGOF means. I take it for granted, that this business method was invented in the USA. I wonder in fact if it was ever patented.
“They could decide to abandon it prior to the first office action because” they came across strong prior art.
So by the time companies realize that they plan to abandon it anyway (because an Office action was received) it will be too late to sacrifice that application in exchange for expedited exam of another unexamined application.
Not necessarily. They could decide to abandon it prior to the first office action because the market conditions weren’t right or the underlying technology wasn’t workable (e.g., a pharmaceutical compound turns out to be toxic).
Giving up on those fees, plus paying more money to expedite expenses in another application? I just don’t see it happening. I think they would much rather get their money back.
That’s the calculus for most companies, true, but a few companies may find it worth the opportunity cost of the lost fee refund in order to expedite examination of a more worthy application. I suspect this will be most common in industries where inventions can fail early, like pharma.
James, the application that is abandoned has to be abandoned before it is taken up for Examination. So by the time companies realize that they plan to abandon it anyway (becasue an Office action was received) it will be too late to sacrifice that application in exchange for expedited exam of another unexamined application. So, for the company to sacrifice that application effectively, its personnel will have to actively take a look at applications that were filed long ago and have not received a first office action. The only reason I can think of that they would do that is to try and get the search and exam fees back. Giving up on those fees, plus paying more money to expedite expenses in another application? I just don’t see it happening. I think they would much rather get their money back.
TINLA IANYL: Oh, I didn’t mean to imply that the program would be used very much, just that what little use it got would likely be from companies sacrificing applications that were going to be abandoned anyway. As you point out, the cost-benefit analysis of the program is very dubious, especially in this economy.
Several years ago, the PTO was publishing a graph showing Allowance rate as a function of the year. It showed the allowance rate plunging from around 70% to around 40% from 2000 to 2008. Where is the current verison of that graph? That would be more meaningful than patent grants per week to demonstrate that the Office is changing.
window dressings for the Office.
If you plan on abandoning, why spend the money on express abandoning?
Oh, and the fine print in the accelerated response section says “with special dispatch” – must be per se special dispatch.
IDK, James. An express abandonment costs money, and so does a petition. Plus you give up the opportunity to request refund of the search and exam fees. On top of that, getting your other app accelerated just means you have accelerated response prep expenses or issue and maintenance fee expenses, when you could have just let the application sit and accumulate patent term adjustment. I just don’t think it makes sense in the present economy for most applicants to make much use of this program.
I for one am glad that the sky is not in fact falling.
I suspect a lot of the exchange program’s use will come from in-house counsels sacrificing applications that they were planning to abandon anyway. At the margin perhaps the expedited examination will give the nudge/excuse needed to let some questionable applications go, but I think most of the sacrificed applications will have been headed for the chopping block anyway.
In other words, I don’t think the program will have a significant impact on reducing the backlog except in the very short term.
@lurkingless
That’s how the program started out last year, but now it is being expanded to large entities too. If that doesn;t get the response the Office wants. maybe they will remove the 15 app limit next.
“Under the expanded Project Exchange, which will take effect with the publication of the Federal Register notice in the coming weeks, any applicant with more than one application, filed prior to the inception of the program, currently pending at the USPTO can receive expedited review of one application in exchange for withdrawing an unexamined application”
Filed PRIOR to the inception of the program
If TINLA’s post is correct, condition (1) appears to allow only small entities to take advantage of this program. That might make some sense, IF a significant portion of the backlog is due to small entities filing what would probably end up being worthless patents anyways.
Regarding the acceleration issue: aside from any ethics issues, why would the PTO care if companies filed extra applications and then pulled them before examination? More money with less work.
I can give a positive ombudsman report already. I had an Examiner who refused to hold an interview after final. I really needed it because the inventor and I could not understand the rejections – it wasn’t just to hash over arguments. We were truly perplexed as to where he was seeing the elements in the references. The Examiner’s reason for refusing the interview was as follows: “it’s after final so I don’t have to.”
So I called the ombudsman, who called the Examiner, who granted us an interview. Turned out the Examiner had a really fundamental misunderstanding of the invention. We’ll have to pay the continuation fee so he can learn about the invention for the first time, but that’s nothing new. We know where we are and how to proceed.
OK, Chicken Littles. I checked the Official Notice in the Federal Register for the conditions, and I’m here to tell you that the sky is not falling. Good luck gaming this:
“The USPTO will accord special status for examination under Patent Application Backlog Reduction Stimulus Plan under the following conditions: (1) The application for which special status is sought is a nonprovisional application that has an actual filing date earlier than October 1, 2009, in which the applicant has established small entity status under 37 CFR 1.27; (2) the applicant has another copending nonprovisional application that has an actual filing date earlier than October 1, 2009, and is complete under 37 CFR 1.53 (i.e., the application contains an executed oath or declaration and the filing fee, search fee, examination fee, any applicable application size fee, and any applicable excess claims fee have been paid); (3) the application for which special status is sought and the other copending nonprovisional application either are owned by the same party as of October 1, 2009, or name at least one inventor in common; (4) the applicant files a letter of express abandonment under 37 CFR 1.138(a), signed in compliance with 37 CFR 1.33(b)(1), (b)(3), or (b)(4) (37 CFR 1.138(b)), in the copending nonprovisional application before it has been taken up for examination, and includes with the letter of express abandonment a statement that the applicant has not and will not file an application that claims the benefit of the expressly abandoned application under any provision of title 35, United States Code, and that the applicant agrees not to request a refund of any fees paid in the expressly abandoned application; and (5) the applicant files a petition under 37 CFR 1.102 in the application for which special status is sought.”
Another interesting twist is that entities can only file 15 of these before the end of 2010. So I wonder if that means IBM can only file 15 of these this year, or if the applications just have to have different inventorship. Given condition number 3, above, I would think that the common ownership of the applications by IBM ought to limit them to only 15 total, and not 15 per “inventive entity.”
“If you were close enough I’d spit at you.
That tells me who ever you are….You don’t deserve a license.
You are a creep. Have always been a creep.
And you are more than likely in trouble already.
YOU give Lawyers a bad name!
”
This from a person whom, iirc, files softwhar patents.
“Take out substance, insert form, fool courtlol” is so much better than having a non-lawlyer file in this situation Sarah?
/facepalm
Although, you’re right, I do give lawlyers a bad name. In fact I call some of them bad names to their faces.
“6” So you have a non Lawyer file it? If you were close enough I’d spit at you.
That tells me who ever you are….You don’t deserve a license.
You are a creep. Have always been a creep.
And you are more than likely in trouble already.
YOU give Lawyers a bad name!
You may be right, BJA. That would certainly be an effective way to use it. Of course that also assumes that there are applications you want to accelerate–which may not always be the case.
Metoo, I could more likely see it happening backwards occasionally:
Company cancels a planned product, corp counsel identifies related applications, finds a few to drop in light of the cancellation, then finds one that’s potentially being infringed relating to an existing product and bumps up that prosecution.
IANAE, you think it’s cheaper to prep and file an application than to do an ESD?
If the application is not going to get examined, sure. Anyone can draft an application of suitable quality to be abandoned, and they shouldn’t be billing very much for the pleasure.
The USPTO has announced that it is opening its “application exchange program” to all applicants. Any applicant with at least two pending applications can “receive expedited review of one application in exchange for withdrawing an unexamined application.”
I’m immediately aware of two cases that would be perfect for this. Problem is, I don’t think the client wants the “good” application to be expedited.
The only time corporate counsel is going to use the swap is in the rare instance when they really need a particular patent to issue quickly. They will definitely cull through their pending apps in that scenario and find one to dump. But, as BJA said, that will not happen very often.
IANAE, you think it’s cheaper to prep and file an application than to do an ESD? They’re both expensive, useless, and likely to never be used in any real capacity by any company.
“6, a finding of IC in such a scenario would indeed render the accelerated patent unenforceable. ”
I’m unaware of which doctrine of IC this “invalidate one patent based on actions taken regarding another patent” would fall under. But if you say so, perhaps you’re right.
They can always use my sample claim for their sacrificial app.
In any event, I hope Broje is right, I hope this isn’t meant to go on into the future with intented sac apps that are filed after the program started.
And if not, well, don’t say I didn’t lol.
As for the substance: Expect the accelerated exam procedures to go largely unused. Corporate counsel are not going to review all of the pending apps looking for ones to cull.
As for Ombudsman: It’s too late. Exam quality has improved substantially and examiners talking to me has really helped foster mutual understanding. It takes far less time to talk than type. Examiners are also now apparently allowed to allow applications, so they don’t have to jump through ridiculous hoops to cobble together a nonsense rejection that they don’t believe in. The Ombudsman is to prevent cases from clogging the BPAI, but it’s too late. They already screwed that pooch, and the appeals should abate significantly. Nothing left to do but work through it at this point. Still, it’s probably a good program to have for future reference. It can probably avoid a lot of appeals on dumb issues if the Ombudsman chooses to act as a sort of mediator.
You guys saying “but big companies will just pay” clearly have absolutely no contact whatsoever with the real world.
Oh, I don’t know about that. This way sounds way cheaper than an ESD.
Wow, this post is really bringing out the know nothings.
As Dennis said, companies are forcing smaller prosecution budgets, refusing to pay bills, paying late, and basically doing everything they can to cut costs. You guys saying “but big companies will just pay” clearly have absolutely no contact whatsoever with the real world. They won’t “just pay” for ANYTHING, including protection for many inventions that they SHOULD be filing on. It’s called a budget. If you ever meet a corporate counsel, you should ask them what a budget a is. It’s pretty wild, but they’re paid to have a grip on it and will probably teach you all about it if you just ask.
6, a finding of IC in such a scenario would indeed render the accelerated patent unenforceable. As for having a non-lawyer file it, who’s going to be the person directing such filings? And do you also believe in unmarked black helicopters circling your house leaving criss-crossed contrails?
Sometimes I wonder what world you live in.
Seems to me the better way to do this is to permit 15 applications a year to be advanced simply by paying double the normal filing fee.
The purpose isn’t to get some applications examined sooner. That’s just the incentive they chose. The purpose is to get people to abandon applications that they would otherwise have wanted examined.
Dennis Crouch wrote: “The bigger issue is that it would likely be inequitable conduct to intentionally file an application on a non-invention simply to take advantage of this program.”
But the only way to determine this is to examine the application.
In reality, there is always a drawer full of inventions which have not been approved for filing for a variety of reasons. Take 15 and go for it.
Seems to me the better way to do this is to permit 15 applications a year to be advanced simply by paying double the normal filing fee.
Den
“Huh? what good would that do? do you honestly think that makes any difference at all?”
IC happening to the nonlawlyer in the non-invention case wouldn’t effect the person what so ever. So unless the IC also invalidated the case that was being forwarded, rather than just the case being saced, then there is no blow back on anyone for this heinous deed. If a lawlyer filed it and IC was found, then he might get disbarred right?
“So anyone can get accelerated examination by, in practical terms, paying the filing fees twice and then abandoning one of the two identical applications.”
You could totally do that too. But my proposed filler app was something along the lines of:
A method comprising:
A computer;
performing some functionality with the computer;
performing a transaction with some accounts full of money;
and an FM radio.
Bam, tied to a specific machine or twolol, AND has a transformationlol.
How’s that for a beaut of a claim?
I’m not sure why everyone is jumping the gun and suggesting that applicants will be able to “game” the exchange program. I am fairly certain that the program will include provisions designed to limit such ability.
I think the proposed “filler app” is just the same exact application, and then you abandon it. So anyone can get accelerated examination by, in practical terms, paying the filing fees twice and then abandoning one of the two identical applications. I don’t think there would be anything in place right now to prevent that, but I have not read the notice about the program.
I would think there ought to be a provision that the patent app to be abandoned, and the patent app to be advanced out of turn, must have been filed before the notice was issued. That was the case for advancing applications directed to green technology. The app had to have been filed before that program was announced. I would hope to see that requirement here as well, so that the program is focused on addressing the current backlog, and not being gamed for future filings.
6:So have a non-lawlyer file it?
Huh? what good would that do? do you honestly think that makes any difference at all?
“, large companies would be required to pay the large-entity fee. ”
15 whole thousand dollars to get 15 of their most important inventions patented lickety split? Say it ain’t so! Isn’t that pretty much bigcorps dream come true? I’m pretty sure it is.
“The bigger issue is that it would likely be inequitable conduct to intentionally file an application on a non-invention simply to take advantage of this program. ”
So have a non-lawlyer file it? Or else simply come up with some “inventionlols” like I see a few of everyday for cover?
Come on D, seriously? There is no excuse for them to not exploit this system to their gain. Facts is facts. While they had everyone’s attention on patent reform in congress Davi K slid in the winning proposal for big companies right in the backdoor.
Imagine that. People gaming a system to their own advantage.
What will they come up with next?
“It would likely be inequitable conduct to intentionally file an application on a non-invention”
Not agreeing or disagreeing, but good luck proving that allegation. Incidentally, what is a non-invention?
Does that mean that companies actually file an Application when they know there is no chance of success, as in already a Patent, knowledge of one in already etc? Just to Capatalize on the business end?
Off with their heads!
The PTO has implemented a new ombudsman program intended to help applicants feel that the ordinary prosecution process has broken-down.
Wow. Do they really need an ombudsman to help people feel that way? I think the PTO is doing a fine job of making people feel that way already. 😉
6 – There are a couple of responses to your post. First, large corporations are looking to save cash just like everyone else these days. And, large companies would be required to pay the large-entity fee. The bigger issue is that it would likely be inequitable conduct to intentionally file an application on a non-invention simply to take advantage of this program.
I’m surprised to not hear any QQing about the Application exchange program. It seems to clearly give big companies the chance for speedy examination practically all the time by just filing filler apps to sac.
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