Michelle Lee, Hal Wegner and Professor Scalia

Guest Post by Professor John F. Duffy, University of Virginia School of Law

[PDF of this Post with the Delegation of Authority: Download Michelle Lee2]

This title of this post, which addresses the legality of Michelle Lee’s recent appointment within the PTO, needs a bit of explanation.  The first two names in the title are not surprising because those two are at the center of the ongoing controversy.  On December 11, 2013, Michelle Lee was appointed by the Secretary of Commerce to be Deputy Director of the PTO and Deputy Under Secretary of Commerce for Intellectual Property.  Hal Wegner, the prominent patent commentator, has argued in a series of widely distributed papers that Lee’s appointment was unlawful.

The third name is the surprising one.  What does former Professor, now Justice, Antonin Scalia have to do with the controversy over Michelle Lee’s appointment?  The short answer is that the work of Professor Scalia, when he was a professor, is what convinces me that Hal Wegner is absolutely right to devote significant attention to the issue, but absolutely wrong in concluding that Lee was improperly appointed.  Let me explain.

First off, it is worthwhile to summarize the timeline of relevant events and Hal Wegner’s argument against the legality of Lee’s appointment.  After David Kappos left the position of PTO Director on February 1, 2013, his Deputy Director, Teresa Rea, assumed all the powers of the Director pursuant to 35 U.S.C. § 3(b)(1).  Ms. Rea served as Deputy Director until her departure on November 21, 2013.  Secretary of Commerce Penny Pritzker appointed Lee Deputy Director on December 11.  If Lee is validly appointed, then she like Rea has authority under § 3(b)(1) to exercise the powers of the Director while that office is vacant.    

Wegner begins his argument against the legality of Lee’s appointment by noting that the Secretary of Commerce has statutory authority to appoint a Deputy Director of the PTO only “upon nomination by the Director [of the PTO].”  35 U.S.C. § 3(b)(1).  At the time of Lee’s appointment, the PTO did not have a PTO Director to make such a nomination.  As just mentioned, all functions and powers of the PTO Director devolve by statute (§ 3(b)(1)) to the PTO Deputy Director in the case of a vacancy in the Director’s office, but of course at the time of the appointment of Lee, the Deputy Director’s position was also vacant. Thus, because the PTO lacked both a Director and Deputy Director (so Wegner’s argument goes), no person could properly make a “nomination” of Lee, and because a nomination is a statutory prerequisite for appointment, the appointment is not valid.  Wegner has even gone so far as to say:  “Why would a person of heretofore spotless reputation and noted achievement [i.e., Lee] accept an appointment in violation of the strict statutory wording that the appointment is only ‘upon nomination by the Director,’ 35 USC § 3(b)(1), at a time when there is no Director?” 

In sum, Wegner’s argument about the legality of Lee’s appointment turns on the absence of a proper statutory nomination.  Here’s where the work of Professor Scalia comes in. 

Years ago, when I was leaving law practice to begin a career in teaching, I asked Justice Scalia (my old boss) if he had any advice or suggestions about teaching administrative law—a subject that I intended to teach and that he had taught both here, at the University of Virginia, and at the University of Chicago.  In response, he gave me a real treasure: a copy of a 900+ page, unpublished manuscript of an administrative law casebook that he had coauthored and had used when he was teaching the subject. 

Scalia’s unpublished casebook taught me two things relevant to this current controversy about Michelle Lee’s appointment.  First, the casebook devotes a great deal of attention—about the first fifth of the book—to basic structural issues concerning delegations of power and the appointment and removal of officers.  That was much more attention, and much more prominent attention, than had been afforded to such issues in the administrative law casebook that I had used as a student.  I have come to think, however, that Professor Scalia’s approach is quite wise. 

Administrative law is, at its core, all about the allocation of power.  Thus, a great deal of attention should be devoted to understanding the law governing both proper delegations of power and the proper recipients of those delegations.  For that reason, I applaud Hal Wegner’s attention to the issue of whether Michelle Lee is lawfully appointed to be a proper recipient of the PTO’s important statutory powers. 

The second lesson I learned from Scalia’s administrative law casebook, however, tells me that Hal Wegner is not correct in concluding that Lee was invalidly appointed.  Within the section of his manuscript devoted to delegation and appointment issues, Scalia and his coauthor (the great constitutional law scholar David Currie) devoted an entire chapter to the topic of “Delegation Within the Executive Branch.”  That chapter was the most surprising to me when I first received the book, for it includes a whole set of cases on a topic that is almost unmentioned in modern administrative law courses: the ability of the President and other Executive Branch officers to delegate their powers to subordinates.  And it is that vein of authority on inter-executive delegations that demonstrates the flaw in Wegner’s argument.

The law on inter-executive delegations of authority has an overarching theme, which is that most executive branch officers may delegate their powers to subordinate officers.  Nondelegable executive powers are very much the exception, and the PTO Director’s power to nominate a candidate for appointment as Deputy is not such an exception. 

Wegner’s argument about Lee’s appointment assumes that the statutory power of the PTO Director to nominate a candidate for Deputy Director must be exercised by the PTO Director or someone who is expressly authorized by statute to act as the PTO Director (i.e., the Deputy Director).  In other words, Wegner assumes that the Director's deputy-nomination power is nondelegable.  That assumption is wrong.

The heads of most executive branch agencies have very broad statutory authority to delegate their powers.  The PTO is no exception.  The Patent Act expressly gives the Director the power to “delegate to [other PTO officers] such of the powers vested in the Office as the Director may determine.” 35 U.S.C. 3(b)(3)(B).  Supreme Court precedent establishes that such a general authorization for an executive branch agency head “permit[s] the delegation of any function vested in the [agency head] under the Act unless a specific limitation on that delegation authority appears elsewhere in the statute.”  Touby v. United States, 500 US 160, 169 (1991). 

The Supreme Court’s Touby case is interesting because it involved the delegation of a very substantial power—the Attorney General’s power under the Controlled Substances Act to add new drugs to the list of drugs the possession of which could result in criminal prosecution (e.g., cocaine, heroin, etc.).  In other words, it was the power to create new criminal prohibitions through administrative rulemaking rather than through legislative action.  So substantial was this power that most of the Court’s opinion was devoted to addressing the constitutional limits on congressional power to give that power to any Executive Branch officer.  However, once the Court sustained the constitutionality of the statute giving the Attorney General the power to criminalize new conduct, the Court devoted a mere two paragraphs to upholding the Attorney General’s delegation of the power to the Administrator of the Drug Enforcement Administration (DEA).  See Touby, 500 U.S. at 169 (sustaining the Attorney General’s delegation power in 29 C.F.R. §0.100(b) to the DEA Administrator). 

The Attorney General’s power to delegate under the Controlled Substances Act is highly similar to the PTO Director’s similar power under the Patent Act.  The Attorney General is authorized to delegate “’delegate any of his functions under [the Controlled Substances Act] to any officer or employee of the Department of Justice.’” Id. (quoting 21 U. S. C. § 871(a)).  After articulating the legal standard that such executive delegation power applies “unless a specific limitation on that delegation authority appears elsewhere in the statute,” id., the Court merely looked to see whether the statute imposed any limitation on the Attorney General’s power to delegate to another officer the power to add new drugs to the schedule of controlled substances.  Finding no such limitation, the Court unanimously sustained the Attorney General’s delegation. 

A similar analysis here means that the PTO Director can delegate the deputy-nomination function, for the Director has a general power to delegate, and the statute creating the Director’s deputy-nomination power (35 U.S.C. § 3(b)(1)) also contains no restriction on delegation. 

Touby cited and distinguished an earlier case—United States v. Giordano, 416 US 505 (1974)—which shows an exception that proves the general rule.  There the Government argued that “Congress characteristically assigns newly created duties to the Attorney General rather than to the Department of Justice” and that the Attorney General could delegate any of those functions to other officers in the Department of Justice through his general power to delegate contained in 28 U.S.C. § 510.  The Supreme Court considered that argument to be, “[a]s a general proposition, … unexceptionable.”  Giordano, 416 U.S. at 514.

With respect to the specific power at issue in Giordano, however, the statute vesting the power with the Attorney General expressly addressed the issue of delegation and “specifically limited [the Attorney General] to delegating his authority to “‘any Assistant Attorney General specially designated by the Attorney General.’”  Giordano, 416 U.S. at 514 (quoting 18 U.S.C. § 2516).  The Court also cited another statute that both required a particular function to be exercised by the Attorney General or the Deputy Attorney General and expressly stated that the “‘function … may not be delegated.’” Id. (quoting 18 U. S. C. § 245(a)).   Statutes containing such language do supersede and limit general powers of executive delegation, but again, nothing like that language is contained in the statute authorizing the PTO Director to nominate a Deputy Director.

In sum, the law governing inter-executive delegation is very clear, and the PTO Director’s function of nominating a Deputy Director is fully delegable to any other officer in the PTO.  According to the PTO’s previous public statements, all of the functions of the PTO Director had been delegated to the Commissioner of Patents, Peggy Focarino, and Commissioner Focarino nominated Michelle Lee. See http://www.patentlyo.com/patent/2013/12/michelle-lee-director.html.  In a blog posting and widely distributed email, Hal Wegner described this PTO position to be “[r]emarkable” and “bizarre” because it means that Ms. Lee was nominated by a “Commissioner who has no statutory authority to make such a nomination.”  See http://www.laipla.net/commissioner-focarino-nominated-acting-under-secretary-michelle-lee/.  I, however, have quite the opposite reaction.  With two small caveats discussed below, I view the PTO’s position to be completely un-remarkable and un-bizarre; it is instead merely a reflection of the general rule that executive functions usually can be delegated to other officers within the agency. 

The two caveats are, I think, minor in this particular situation.  First, the Appointments Clause of the Constitution does place limits on inter-executive delegation, for only constitutionally appointed “Officers of the United States” may exercise a power that qualifies as a “significant authority pursuant to the laws of the United States.”  Buckley v. Valeo, 424 U.S. 1, 126 (1976).  Thus, significant powers cannot be delegated to non-officers within the PTO. 

It is an interesting question whether the PTO Director’s deputy-nomination function qualifies as a “significant authority.”  Typically, powers to make mere recommendations are not considered to be “significant authority,” but usually such recommendations are not binding in any way.  (Thus, if a nonofficer recommends option A, the officer receiving the advice can usually reject A and adopt options B, C, D, E, etc.)  The PTO Director’s deputy-nomination function might be a bit more significant because once person A is nominated, the Secretary of Commerce may be constrained either to accept A or to reject A and then await another nomination.  If the deputy-nomination function does constrain the Secretary’s appointment power, then the nomination function may constitute “significant authority” within the meaning of Buckley v. Valeo.  But even if so, the delegation to the Commissioner of Patents presents no problem because the Commissioner of Patents is properly appointed as an “Officer of the United States” (albeit an inferior officer) through the constitutionally acceptable process of appointment by a “head of Department[].”  U.S. Const. art. II, § 2, cl. 2; see also 35 U.S.C. § 3(b)(2)(A) (lodging the appointment of the Commissioner of Patents in the Secretary of Commerce). 

The second caveat is that the deputy-nomination power must have been actually delegated to Commissioner Focarino.  When a PTO Director leaves office (as David Kappos did on February 1, 2013), the Deputy Director assumes all the Director’s powers the automatic operation of 35 U.S.C. § 3(b)(1).  By “automatic operation,” I mean that departing Director does not have to sign any document delegating his powers because § 3(b)(1) immediately vests the Deputy Director with all of the Director’s powers as soon as the vacancy occurs.  When a Deputy Director departs while the Director’s office is vacant (as when Ms. Rea departed on November 21, 2013), no statute automatically authorizes anyone in the PTO to assume the PTO Director’s duties.  Thus, the departing Deputy Director must sign an order delegating the powers before she leaves. 

In this case, however, such a delegation did occur.  On November 15, 2013, soon-to-depart Deputy Director Rea delegated to the Commissioner of Patents Focarino all of the “non-exclusive functions and duties” assigned to the PTO Director or to the Deputy Director, with the delegation to take effect whenever the offices of Director and Deputy Director are both vacant.  See Delegation to Perform Non-Exclusive Functions and Duties (attached at the end of this paper).  That delegation is properly limited to the non-exclusive functions of the Director and Deputy Director—i.e., it does not extend to any non-delegable functions.  I’m not sure whether there are any such non-delegable functions assigned to the Director or Deputy Director, but I am certain that the Director’s deputy-nomination is surely one of the delegable functions. 

Hal Wegner has also cited the Vacancies Act, 5 U.S.C. § 3345 et seq., as providing support for his conclusion about the illegality of Michelle Lee’s appointment, but once again, his analysis of the Vacancies Act suffers from his assumption that the powers of the PTO Director are nondelegable, which is not correct. 

It is true that the Vacancies Act imposes strict limitations on the ability of other officers “to perform the functions and duties of any office of an Executive agency,” 5 U.S.C. § 3347(a), but the Act also expressly defines “function and duty” very narrowly to encompass only a statutory or regulatory function that is required “to be performed by the applicable officer (and only that officer),” id. § 3348(a)(2)(A)(ii) & (B)(ii) (emphasis added).  In short, the Vacancies Act’s restrictions apply only to the nondelegable duties of the vacant office.  As the Department of Justice’s Office of Legal Counsel has noted in its advice about the Vacancies Act, “[m]ost, and in many cases all, the responsibilities performed by a [Senate confirmed] officer will not be exclusive, and the [Vacancies] Act permits non-exclusive responsibilities to be delegated to other appropriate officers and employees in the agency.”  See Office of Legal Counsel, Guidance on Application of Federal Vacancies Reform Act of 1998 (available at http://www.justice.gov/olc/finalqa.htm (question 48)).  As discussed above, the PTO Director’s deputy-nomination function is surely delegable, and thus the Vacancies Act does not bar Commissioner of Patents Focarino from exercising it (as she apparently has in nominating Michelle Lee).

 If I am right in my conclusion that Michelle Lee has been properly nominated, and therefore properly appointed, as the new PTO Deputy Director, then the Vacancies Act does tell us one other important fact.  Ms. Lee may continue to serve as Deputy Director—and to exercise all the powers of the Director pursuant to § 3(b)(1)—without any particular time limit.

Normally, the Vacancies Act imposes a time limit of 210 days on the ability of a “first assistant” to serve in an “acting capacity” in an office requiring Senate confirmation.  5 U.S.C. §§ 3345 & 3346.  Since that 210-day period (roughly 7 months) commences with the vacancy in the relevant office (here the vacancy in PTO Director’s office), the time period would have already expired since David Kappos left office on February 1, much more than 7 months ago.  But the Vacancies Act expressly states that its time limits and other restrictions are inapplicable where “a statutory provision expressly … designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity.”  5 U.S.C. 3347(a)(1).  Because § 3(b)(1) of the Patent Act expressly vests the Deputy Director “with the authority to act in the capacity of the Director in the event of the absence or incapacity of the Director,” the Deputy Director—first Teresa Rea, now Michelle Lee—can continue to act in the capacity of Director without a time limit.  Indeed, this has to be true or else even Teresa Rea’s service as acting Director (which extended for more than nine months) would have been unlawful.

The Deputy Director’s ability to continue exercising the Director’s powers under § 3(b)(1) should not be viewed as an improper circumvention of the Senate’s role in the appointments process.  There is certainly no constitutional problem.  The PTO Director, even though currently subject to appointment by the President with the advice and consent of the Senate, is undoubtedly an “inferior officer” because the position is subordinate to the Secretary of Commerce, and Congress may by law vest the appointment of an inferior officer in the Head of a Department such as the Secretary of Commerce.  (Indeed, if the PTO Director were not an inferior officer, then it might very well be unconstitutional for the Deputy Director to exercise the Director’s powers for any length of time.)  Nor it is troubling as a statutory matter that the Deputy Director can exercise the Director’s powers for a potentially long period of time.  As the Vacancies Act shows, Congress clearly understands how to place time limits on the ability of deputies to act with the powers of a vacant office.  But Congress included no such limit in § 3(b)(1), and the Vacancies Act expressly provides that its strict time limits are inapplicable to such statutes.  

In closing, I would be remiss if I were not to give Hal Wegner some additional words of praise.  I have already complimented Wegner for bringing a proper level of attention to the important issue whether the powers of the PTO are being exercised by a lawfully appointed officer.  While I disagree with Wegner’s legal conclusion—and to be clear, I think there’s no doubt that Michelle Lee is properly appointed as the PTO’s new Deputy Director—I nonetheless do agree with Wegner that there’s something deeply wrong as a matter of policy (though not legality) with the current situation.  

With its appointment of Michelle Lee as Deputy Director, the Obama Administration must have determined that Ms. Lee is fully qualified and capable of exercising all the powers of the Director, because that is precisely what she will be doing as Deputy Director given the vacancy in the Director’s position.  Why then not nominate her to be Director?  Surely, it cannot be that the Administration fears a tie-up in the Senate. Now that the so-called “nuclear option” has been exercised, filibusters of executive nominations are not a threat, so the Administration could expect a relatively swift confirmation.  If the Administration intends to continue seeking another nominee for the position, that seems to be really bad treatment of the new Deputy Director.  Any new Director would surely want to name his or her own Deputy, and so another nominee will bring the possibility of at least a substantial demotion of the current Deputy.  Confidence in an agency’s leadership cannot be conveyed—both inside and outside of the agency—when the agency’s current leader appears to have only the contingent and begrudging support of the Administration. 

It also cannot escape notice of anyone that the USPTO has never had a woman as a permanent head (as opposed to an acting head).  News reports have speculated that “that the administration favours the appointment of the first woman permanent Director of the USPTO.” See “The USPTO Director job has never been more important, so keep a close eye on who gets it,” Intellectual Asset Management (available at http://www.iam-magazine.com/blog/Detail.aspx?g=d05df489-6d03-418d-9bcb-d07b3152cc0b).  If that is so, the Administration is certainly doing a poor job of it, for the Administration appears to be in the process of passing over multiple highly qualified women.  Deputy Director Teresa Rea was highly qualified and served as acting director for more than nine months.  She was not nominated for the permanent position and has now left the agency.  Perhaps passing on one qualified female candidate can be explained by a variety of circumstances, but the Administration now has another highly qualified woman who will in fact be running the agency.  If the Administration balks at nominating her for the top job, the agency will face the prospect of having several qualified women serve as mere “temps” while the job search drags on.  Such a process would, to put it mildly, seem like a suboptimal way to demonstrate the Administration’s enthusiasm for having a woman as the head of this important agency with its jurisdiction over matters of science, technology and innovation.  

171 thoughts on “Michelle Lee, Hal Wegner and Professor Scalia

  1. Professor, is it so radical to say that law professors should disclose their financial interests with regard to their writings? I think the universities would support that position. I am sure that Prof. Duffy in the past has received income from Google.

    1. Down vote because I can find no indication that Prof. Duffy has any relationship whatsoever with Google.If you have a link, or other information, please post it.

      1. Down vote because the burden should be on Professor Duffy to assert his neutrality and/or financial interests related to his writings. And, let’s not forget that John Duffy makes money as an attorney representing high tech companies. The notion that because he is also a teacher at a university makes him impartial is ridiculous in this era. And, I would add as a former student of Prof. Duffy that I think he has an obligation to his students to disclose his financial interests. My guess is that Mr. Duffy’s income from representing high-tech companies exceeds his income from teaching. A presumption that he is a scholar has certainly been negated by the behavior of other teachers such as Lemley.I am afraid to add (because Prof. Crouch deletes my posts that include this statement) that I suspect there is an ethical issue here of having a professor publish a writing in a law journal without disclosing that they are being either directly or indirectly paid to publish the writing. And possibly have a client that would be affected by the writing.link to patentlyo.com

      2. Thank you for the link – but the downvote remains as the brief supplied is not currently reflective of Prof. Duffy’s relationships, and you cannot hold his past work as a lawyer in a law firm to be clashing with his current role as a professor.Note: I agree with you 100% on Lemley exactly because Lemley does in fact violate this ethical provision – while not a written rule, such should be: you should not be in a position of teaching law to new students and advocating a position as an attorney, as this creates the perception of inequity – whether or not the person teaching and advocating is being unethical is not the point.Add: “I find your position incomprehensible given the behavior of other professors.”You find my position incomprehensible because you refuse to see anything beyond which you want to see. My position is entirely reasonable. Duffy’s work while a lawyer in a law firm does not impugn his work as an academic if the two are distinct in time. As far as I know, Mr. Duffy is not a practicing attorney at the same time that he is an academic. If he is, then (as with Lemley or any other dual practicing person), I agree with you that any papers put forth must meet a higher ethical standard than either of the individual roles that the person may have – either as an attorney or as an academic, as the perception of impropriety is what ethical rules are meant to guard against, and Lemley’s ardent advocation (while maintaining his legal practice and his ties to Big Data) clearly crosses that boundary.That being said, I simply do not see a similar situation according to Prof. Duffy. That is why I inquired as to whether you had any knowledge or links of such. You appear not to. I would add my hope that Prof. Duffy would recognize the importance of candor in his role as a professor attempting to shape patent law. I would also hope that he (and others) would realize that if ties are being hidden, well,… the exposure of such ties and the fact (if true) that efforts to conceal such ties should serve to destroy (rightfully) any credibility of both his legal and professorial aspirations.

        1. Anon, the burden should be on Duffy to so state. He has in the past represented high-tech companies and I seem to remember one was Google, although I can’t find evidence of that.The question is what are we reading? A paid for advocacy piece (either directly paid for or a long term indirectly paid for relationship builder with clients.) Or, are we reading scholarship. I think it is –given the outrageous behavior of other law professors–the burden of the professor to tell us what we are reading. The idea that I should have to research what Duffy’s current relationships are is absurd. It may not even be public. He may be under a retainer by Google for all we know, and he may be consulting with them on burning the patent system down. We don’t know. And, more importantly, it may be impossible for us to find out. The fact is that relationship that you say is old is one he had when he was a professor.I find your position incomprehensible given the behavior of other professors.

  2. Stop with the minutiae! Michelle Lee is a corporate lackey who has no intention of improving the intellectual property law system of the U.S. Who do you think she is loyal to – the company that has paid her millions in salary and stock options or the U.S. government who will spit her out in two to three years?Google is a multi-billion dollar company that has wiped away data privacy. Google was fined in Spain for violating data privacy laws. Google is also facing enforcement actions and fines in the U.K., the Netherlands, and France. The U.S. does not care about data privacy, so it will continue to erode. (Also, is Google using the Obama administration to spy on Spain?)Google defeats authors in U.S. book-scanning lawsuit; settles in France. Judge Chin (NY) stated that Google’s digitization was “transformative,” meaning it gave the books a new purpose or character, How is cutting and pasting passages good for the creators or useful works? Who did this help besides Google’s bottom line?Michelle Lee is part of the Google machine. She will push their agenda. It is doubtful that she will relocate to D.C. permanently . Google is anti-competitve and violates privacy laws. It is their business model to to invade our privacy without our permission or knowledge and then secretly store the data until they can figure out how to profit from it in the future. Google is only a few years away from ruining what’s left of our IPR system. With Michelle Lee as Google’s pawn, IP laws and procedures will be redrafted and ignored.

    1. “The U.S. does not care about data privacy”Why would you say that? I mean, of course, besides the machinations of the NSA, or, Lemley’s Big Data connections, or any such objective indicators like those…;-)

    2. Lee certainly looks like a tool of anti IP rights. Obama and Clinton are such light weight intellects. Bought off. Clinton did to financial regulation and import protection what Obama is doing to IP rights. The result from Clinton was the 2008 crash and the end of the middle class as NAFTA and allowing the Chinese into the WTO have made the average US worker compete with peasants around the world. Removal of IP rights is just another step to serfdom. Just remember all you programmers that with no IP you are going to be locked down with employment agreements where you are not going to be able to disclose anything that you do at the company. Without the disclosure of patents companies are going to lock down their technology and your brain with it.And, your points about Google are good, but they leave off a lot of the anti-competitive behavior of Google. Well, as I said below, I bet that Lee burns it down and then goes back to Google with $50 million in stock options. I’d imagine that Duffy is looking to cash in from Google. I know that Duffy has written articles that were pro Google in the past so Duffy has the smell of another bought off professor. Please, Prof. Duffy, say it ain’t so. That from a former student of yours.I guess I am dumbfounded that professors have put their scholarly work up for sale to the highest bidder and no one seems to care. People continue to regard a writing by a professor as if it is presumed to be scholarship. Please disclose to us Prof. Duffy how much money you have taken from Google over the last 5 years.And, Prof. Crounch, don’t you think it is time to ask that posters put down their interests with their posts similar to the way people must for financial analysis? Let’s ask ourselves what the effect is of professors being paid to generate articles like the one above. The problem is that the other side is not represented. The pro Lee side obviously has big money behind it so they get articles written that are pro the appointment. The other side has to rely on scholars to print a more balanced view. That is one effect. The other effect is that writings that are paid for and thus should be regarded with great scrutiny are being read as if they are scholarly works. I thin Lemley’s outrageously ridiculous paid writing on functional claiming is another example. That was shameful. I think Prof. Crouch that you should consider this. For example, if a writing like Duffy’s is provided maybe only provide it if there is a good counter writing that is written and if Duffy discloses his financial interest in producing his writing. What I think is that it rises to a level of being unethical for a professor to present a writing as if it is scholarship when the professor is being paid either directly or indirectly to take a particularly position.

  3. Stop with the minutiae! Michelle Lee is a corporate lackey who has no intention of improving the intellectual property law system of the U.S. Who do you think she is loyal to – the company that has paid her millions in salary and stock options or the U.S. government who will spit her out in two to three years?Google is a multi-billion dollar company that has wiped away data privacy. Google was fined in Spain for violating data privacy laws. Google is also facing enforcement actions and fines in the U.K., the Netherlands, and France. The U.S. does not care about data privacy, so it will continue to erode. (Also, is Google using the Obama administration to spy on Spain?)Google defeats authors in U.S. book-scanning lawsuit; settles in France. Judge Chin (NY) stated that Google’s digitization was “transformative,” meaning it gave the books a new purpose or character, How is cutting and pasting passages good for the creators or useful works? Who did this help besides Google’s bottom line?Michelle Lee is part of the Google machine. She will push their agenda. It is doubtful that she will relocate to D.C. permanently . Google is anti-competitve and violates privacy laws. It is their business model to to invade our privacy without our permission or knowledge and then secretly store the data until they can figure out how to profit from it in the future. Google is only a few years away from ruining what’s left of our IPR system. With Michelle Lee as Google’s pawn, IP laws and procedures will be redrafted and ignored.

  4. Stop with the minutiae! Michelle Lee is a corporate lackey who has no intention of improving the intellectual property law system of the U.S. Who do you think she is loyal to – the company that has paid her millions in salary and stock options or the U.S. government who will spit her out in two to three years?Google is a multi-billion dollar company that has wiped away data privacy. Google was fined in Spain for violating data privacy laws. Google is also facing enforcement actions and fines in the U.K., the Netherlands, and France. The U.S. does not care about data privacy, so it will continue to erode. (Also, is Google using the Obama administration to spy on Spain?)Google defeats authors in U.S. book-scanning lawsuit; settles in France. Judge Chin (NY) stated that Google’s digitization was “transformative,” meaning it gave the books a new purpose or character, How is cutting and pasting passages good for the creators or useful works? Who did this help besides Google’s bottom line?Michelle Lee is part of the Google machine. She will push their agenda. It is doubtful that she will relocate to D.C. permanently . Google is anti-competitve and violates privacy laws. It is their business model to to invade our privacy without our permission or knowledge and then secretly store the data until they can figure out how to profit from it in the future. Google is only a few years away from ruining what’s left of our IPR system. With Michelle Lee as Google’s pawn, IP laws and procedures will be redrafted and ignored.

  5. Dortmund Menyerah Dari Hertha Berlin Berita terkenal dari Agen Bola online terpercaya indo11.com, Borussia Dortmund harus menyerah 1-2 dari Hertha Berlin dalam lanjutan Bundesliga di Stadion Signal Iduna Park, Dortmund, Sabtu (21/12/2013). Itu menjadi kekalahan ketiga secara beruntun di kandang sendiri di pentas liga lokal.Sebelum laga melawan Hertha, Dortmund pernah dua kali dipukul Bayern Muenchen dan Bayer Leverkusen di Signal Iduna Park. Laga melawan Hertha awalnya hendak dijadikan pemompa semangat untuk kembali tampil meyakinkan di kandang sendiri.Berita yang ada dalam Agen Judi terkenal indo11.com, Pada akhirnya, gol penentu kemenangan Hertha hadir jelang babak pertama usai. Kesalahan pemain muda, Marian Sarr, yang terlalu lama menguasai bola di daerah pertahanan sendiri, berhasil dimanfaatkan Allagui. Allagui lantas mengecoh Weidenfeller sebelum melepaskan tendangan ke gawang yang sudah kosong.Kekalahan ini membuat posisi Dortmund di urutan ketiga terancam oleh Borussia Moenchengladbach. Kedua tim sama-sama memiliki 32 poin. Namun, Gladbach masih mempunyai sisa tabungan satu laga pada Minggu (22/12/2013).Sumber : link to indo11.com

  6. Costa Menyumbangkan Gol Kemenangan untuk Timnya Berita sepak bola terheboh dari Agen Judi terkenal indo11.com, Bomber Atletico Madrid, Diego Costa, mencetak dua gol yang membuat timnya menang 3-2 atas Barcelona dalam lanjutan Liga BBVA di Stadion Vicente Calderon, Sabtu (21/12/2013). Dengan hasil ini, Atletico menggusur Barcelona dari puncak klasemen. Tim polesan Diego Simeone tersebut unggul tiga angka dari Barcelona yang mengoleksi 43 poin. El Barca berpeluang kembali ke puncak klasemen seandainya Neymar dan kawan-kawan mampu mengalahkan Getafe, Minggu (22/12/2013). Berita yang diungkapkan dari judi bola online terbaik indo11.com, Di depan publiknya sendiri, Atletico sempat dikejutkan oleh gol cepat Andreas Ivanschitz saat laga baru berjalan semenit. Ivanschitz yang menusuk ke dalam kotak penalti Atletico berhasil melepaskan tembakan bola terobosan dari Nikos Karabelas. Bola meluncur deras ke sisi kanan gawang Atletico yang dikawal Thibaut Courtois. Perubahan yang dilakukan Simoene membuahkan hasil setelah Diego Costa mencetak gol penalti pada menit ke-77. Tim tuan rumah mendapatkan hadiah penalti menyusul dilanggarnya Fransisco Juanfran oleh Ruben Garcia. Gol ini sekaligus memastikan kemenangan Atletico dengan skor 3-1. Pada waktu yang tersisa, Atletico tak mampu menciptakan gol tambahan meskipun memiliki beberapa peluang emas dan unggul jumlah pemain menyusul dikartumerahkannya Juanfran Garcia. Sumber : link to indo11.com

  7. Benitez: Menilai Buruk Hasil 1-1 Lawan Napoli Berita terkini dari Agen Judi terkenal indo11.com, Pelatih Napoli Rafael Benitez menilai buruk hasil 1-1 yang diraih timnya saat melakoni laga Serie-A melawan Napoli, di San’Elia, Sabtu (21/12/2013).Pada laga itu, Napoli tertinggal lebih dulu akibat gol Nene pada menit kesembilan. Napoli bisa mencuri satu angka berkat gol Gonzalo Higuain pada menit ke-19. Sepanjang pertandingan, menurut Lega Serie-A, Napoli menguasai bola sebanyak 53 persen dan melepaskan tiga tembakan titis dari delapan usaha, sementara Cagliari menciptakan empat peluang emas dari sepuluh percobaan.Dengan hasil tersebut, Napoli dududk di peringkat ketiga klasemen sementara Serie-A dengan nilai 36 dari 17 Berita yang ada dalam Agen Judi terkenal indo11.compertandingan. Mereka kalah tujuh angka dari penguasa sementara, Juventus, yang baru melakoni 16 pertandingan. Sumber : link to indo11.com

  8. Bayern Muenchen Menjuarai Piala Dunia Antarklub 2013 Berita terkini dari Agen Judi terkenal indo11.com, Bayern Muenchen menjuarai Piala Dunia Antarklub 2013 setelah mengalahkan Raja Casablanca dengan skor 2-0 pada laga final yang digelar di Stade de Marrakech, Marrakesh, Sabtu (21/12/2013). Gelar ini melengkapi gelar yang diraih Bayern sebelumnya yakni Bundesliga 1, Liga Champions, DFB Pokal, dan Piala Super Eropa. Gol pembuka Bayern diciptakan Dante saat laga baru berjalan tujuh menit. Pemain asal Brasil tersebut berhasil menjarigkan bola setelah menerima si kulit bulat dari Jerome Boateng. Berita yang ada dalam Agen Judi terkenal indo11.com, Alcantara langsung menyongsong bola dengan sepakan keras yang membuat si kulit bulat bersarang ke sisi kanan gawang Raja Casblanca. Setelah itu, Bayern terlihat kesulitan mencetak gol meskipun menguasai permainan dan memiliki sejumlah peluang. Pelatih Bayern, Josep Guardiola, berusaha mengatasi kebuntuan timnya dengan memasukkan Javi Martinez dan Mario Mandzukic pada pertengahan babak kedua. Namun, hadirnya kedua pemain tersebut tak memberikan dampak. Tak memedulikan ancaman tersebut, Bayern terus melancarkan serangan. Sayang, usaha mereka tetap tak membuahkan hasil. Alhasil, Bayern terpaksa menutup laga ini dengan skor kemenangan 2-0. Sumber : link to indo11.com

  9. Anak Aush Pellegrini Grogi Berita terbaru dari Agen Bola terbaik indo11.com, Pelatih Manchester City, Manuel Pellegrini, menilai anak asuhya sempat grogi saat Fulham menyamakan kedudukan, sebelum City akhirnya memastikan kemenangan 4-2 dalam laga lanjutan yang digelar di Stadion Craven Cottage, London, Sabtu (21/12/2013).Di hadapan publik tuan rumah, The Citizens mampu unggul terlebih dulu berkat gol Yaya Toure (23) dan Vincent Kompany (43). Selepas jeda, Fulham mampun menyamakan kedudukan 2-2 berkat gol Kieran Richardsson (50) dan gol bunuh diri Kompany (69). Namun, City bangkit. Akhirnya, Joe Hart dan kawan-kawan meraih kemenangan berkat dua gol yang diciptakan Jeses Navas (78) dan James Milner (83). Berita yang disampaikan di Agen Bola online terpercaya indo11.com, “Pertandingan Premier League selalu ketat, terutama ketika tim-tim kandang berada dalam posisi buruk di klasemen sehingga mereka mencoba meraih poin-poin di kandang. Kami tahu laga ini akan berjalan sulit,” jelas Pellegrini. Sumber : link to indo11.com

  10. Wenger mengaku Arsenal sedang tertekan Berita terbaru dan terkini Bola Soccer dari Agen Bola Indo11 – Arsenal siap menjawab keraguan saat menghadapi Chelsea di Emirates, Selasa (24/12/2013) dinihari WIB. Menjelang pertandingan Arsene Wenger tidak menyangkal bahwa Arsenal merasakan tekanan.Agen Bola Indo11 Terpercaya – The Gunners saat ini ada di posisi ketiga di bawah Manchester City setelah puncak klasemen direbut Liverpool yang pada akhir pekan lalu mengalahkan Cardiff City 3-1.Dengan jarak satu angka saja, Arsenal bisa kembali merebut posisinya dengan kemenangan atas The Blues. Laga itu juga menjadi ajang bagi Mikel Arteta dkk. untuk kembali ke jalur kemenangan usai dihantam City 3-6.”Saat ini semua orang meragukan kami. Kami memang sudah lama tidak memenanginya (Premier League) itulah mengapa mereka mempertanyakan kami. Itu kemungkinan turun ke posisi keempat memberikan tekanan tapi Anda tidak bisa bermain di Premier League tanpa tekanan. Ada beberapa periode di mana tekanannya sedikit lebih tinggi dan jarak antar pertandingan lebih pendek. Anda harus menghadapi itu dan mencoba menahan stres yang demikian,” imbuh Wenger.Sumber http://indo11.com

  11. Ultras Bakal Dukung Inter Saat Derby della Madonnina Berita terkini dari Agen Judi terkenal indo11.com, Inter Milan diberitakan bakal mendapatkan dukungan dari ultras saat melakoni Derby della Madonnina melawan AC Milan di Giuseppe Meazza, Minggu (22/12/2013). Awalnya, Lega Serie-A melarang ultras Inter datang ke stadion. Keputusan tersebut merupakan hukuman atas tindakan suporter garis keras Inter melantunkan nyanyian bernada diskriminasi saat laga kontra Napoli di Stadion San Paolo, Naples, Senin (16/12/2013) dini hari WIB. Berita yang terangkum dalam Agen Bola ternama indo11.com, Namun, Inter mengajukan banding dan keinginan mereka dikabulkan. Dengan demikian, ultras Inter diperbolehkan hadir dalam pertandingan nanti. Selain Inter, Roma juga menerima kabar baik. Serigala Roma dipastikan akan mendapatkan dukungan dari ultras saat melawan Catania, setelah bandingnya dikabulkan.Sumber : link to indo11.com

  12. Tampilan Yang Memukau Suarez Berita terbaru dari Agen Bola terbaik indo11.com, Pelatih Liverpool, Brendan Rodgers, menilai Luis Suarez tampil luar biasa pada pertandingan Premier League melawan Cardiff City, di Anfield, Sabtu (21/12/2013), yang berakhir 3-1 untuk Liverpool. Suarez mencetak dua gol pada laga itu, yaitu pada menit ke-25 dan ke-45. Satu gol Liverpool lainnnya dicetak Raheem Sterling pada menit ke-42. Adapun gol Cardiff diciptakan Jordon Mutch pada menit ke-58.Berita yang disampaikan di Agen Bola online terpercaya indo11.com, “Luis sangat bahagia pada saat ini dan penampilannya luar biasa. Dia luar biasa sebagai pemain dan pria,” lanjutnya. Kemenangan ini membuat Liverpool naik ke puncak klasemen dengan mengoleksi 36 poin, atau unggul satu poin dari pesaing terdekatnya Manchester City. Sumber : link to indo11.com

  13. Sudirman Bandingkan SEA Games 2013 dengan SEA Games 1991 Berita olahraga terdepan dari Agen Judi terbaik indo11.com, Mantan penggawa tim nasional Indonesia, Sudirman, membandingkan laga final cabang sepak bola SEA Games 2013 di Myanmar, dengan final saat SEA Games 1991 di Manila. Dua laga final itu sama-sama mempertemukan Indonesia melawan Thailand.Sudirman merupakan salah satu pemain yang turut mengantarkan Indonesia meraih medali emas sepak bola SEA Games 1991 setelah mengalahkan Thailand lewat drama adu penalti. Itu menjadi medali emas terakhir Indonesia di cabang sepak bola antarnegara Asia Tenggara.Berita yang terangkum dalam Agen Bola ternama indo11.com, “Pada babak penyisihan grup lalu, Indonesia bermain terlalu terbuka. Makanya, Thailand bisa leluasa. Namun, pelatih Rahmad Darmawan sudah pasti mengetahui hal itu. Pelatih sudah punya resep mengantisipasi permainan Thailand. Semoga resep itu manjur,” tandasnya.Sudirman juga berharap lini belakang Indonesia tampil apik pada partai final nanti. Sebab, barisan depan Indonesia dinilai kurang produktif yang hanya mencetak empat gol dalam lima pertandingan di SEA Games 2013.Sumber : link to indo11.com

  14. See “The USPTO Director job has never been more important, so keep a close eye on who gets it,” Intellectual Asset ManagementGee, I wonder why “Intellectual Asset Management” thinks that the USPTO Director job has “never been more important” than right now.Just so we have some sense of perspective about what “right now” means for most people who aren’t “managers” of “intellectual assets”:http://www.lawyersgunsmoneyblo…24.2% of Americans who worked for income earned less than $10,000 in 2012.39.6% of Americans who worked for income earned less than $20,000 in 2012.63.5% of adult Americans either didn’t earn income or earned less than $20,000 in 2012.40% of people with jobs are working for poverty-level wages.95.5% of adult Americans earned less than $100,000 in 2012Clearly the answer is “more patents”. Especially more computer-implemented junk.

  15. The more I think of this, I think the administration does not intend to nominate a new director precisely because that requires a presidential nomination and senate confirmation. People correctly observe that any new director would want his own deputy, putting Lee in an awkward situation. Add to this the current battles with the senate over confirmations, and it all adds up. Moreover, the administration may be trying to reduce the number of presidentially appointed positions, allowing department heads like the Sec. of Commerce to appoint their own undersecretaries and the like. The senate might object, but why? Do they really spend a lot of time on minor officials? I don’t think so. For example, it is my understanding they simply rubber-stamp military appointments below general.

    1. This Senate has gutted the power of the filibuster as a means of blocking executive appointments, but that said, Lee’s nomination would not be without at least some controversy. She’s no doubt qualified for the post, and I think she’d in the end make it through the Senate confirmation process. But her tenure at Google has shaped her views on certain topics (like NPEs), about which she had been very vocal for a number of years. It also goes without saying that appointing someone to the PTO who comes from a company that saw patents as a constant impediment to innovation would raise eyebrows. I suspect the administration is worried that Lee would face some challenging questions from Senators whose constituents rely more heavily on patents for their business (e.g. pharma, med devices, agribusiness) than companies in Silicon Valley. She will no doubt come to the Office with more of a reformer’s mindset. I actually think that’s a good thing, but I do appreciate the Constitutional debate over the legality of her appointment.

      1. Then there is the question as to why she left Google months before her appointment as director of the Silicon Valley branch office. Perhaps her pro-patent views clashed with those of the owners?

      2. But her tenure at Google has shaped her views on certain topics (like NPEs), about which she had been very vocal for a number of years.Is there anything “controversial” about those views? I mean, other than the usual suspects who complain about everything they perceive to “weaken patents”(e.g., Quinnbots and various organizations who pretend to represent the interests of “small inventors” but who really represent the interests of lawyers trying to grift off the patent system), does anyone disagree with Ms. Lee’s views about NPEs?

        1. Again with the vapid Quinn attack and the h@tred of attorneys…Get into a field in which you can believe in the work product produced, Malcolm. Your vileness is a blight.Add:”You and Gene”"This whole kerfuffle is a snipe by Hal Wegner on behalf of the patent teabaggers, with whom he sympathizes.”Can you at least try to say something intelligent and on point to the conversation, Malcolm?Something (anything) that has to do with the law, or to the point under discussion?Something that is not a mindless (and baseless) attack on someone else for what you perceive to be their pro-patent tendencies?I have looked at your posts this week and you have said absolutely nothing of any merit whatsoever. Seriously, grow up already.

          1. the vapid Quinn attackGo ahead and continue with your cheerleading. You and Gene have a lot in common. I think he’s actually a little more articulate than you, though.

  16. Hey guys I just came up with an invention, maybe valuable even. I’m dedicating it to the public. I’m sure you guys are all familiar with the new cans of soup on the market with little plastic lids over the metal lid so you can microwave the soup etc. inside. Those little lids still allow for splatter outside the holes in the top. My invention of the day is a little raised piece of plastic above the holes to cover the holes while still letting out steam. A little “raised roof” so to speak, probably a flat circle with little legs going down to the actual lid, instead of A-frame style, but could do either, or even a little dome. It’s sort of reminiscent of a chimney cover. Or else you can indent the area of the lid with the holes and make a little circuilar, or other shape, indention in the lid, put the holes in that indented area, and then put a little top over that with holes in it as well, or around its perimeter. That second embodiment is basically a little catch pocket for the splatter made out of an indention in the lid. And with that one you preserve a flat lid if you want that.

    1. That second embodiment is basically a little catch pocket for the splatter made out of an indention in the lid.That’s pretty nifty. You might want to include a little sliding door that you can move over the pocket. That way you can save the contents of the pocket until later when you’re ready for a snack.

      1. lol I don’t think you want the splatter as a snack and it really isn’t a lot of splatter. Just enough to make a mess on your microwave ceiling. What would be super amazing is if all companies would start using the metal lids that don’t splatter when you open them. Got stuff all over me the other day even trying not to splatter when opening the metal lid.

        1. Got stuff all over me the other day even trying not to splatter when opening the metal lid.Tuna is the worst. One solution is to not open the lid all the way because that’s when the snapping and splattering is most likely to occur. Perhaps a small computer attached to the can could alert you when you are close to completing the opening of the lid.

    2. I see I have a down vote, I guess anon doesn’t support dedicating an invention to the public. O well, hateas gonna hate.

        1. Nope, a yonder piece of plastic is not abstract and I shalln’t attempt to claim it thusly either. But go ahead. Generate me some lulz.

          1. “and I shalln’t attempt to claim it thusly either”Let’s see the claim, 6.Add: LOL 6, you don’t see why you still need a claim – even though you dedicated something to the public…?You do know how these patent thingies work, right?Someone famous once said: the name of the game is the claim.But please, take your little nap before your attempt at writing a claim. Looking forward to 6 attempting to write a valid claim on his “invention.” “But go ahead. Generate me some lulz.”

          2. Write the claim 6. Is your claim to plastic or is it capturing an abstract concept? I think the latter.No way a claim to a circuit can be abstract.

  17. “Any new Director would surely want to name his or her own Deputy, and so another nominee will bring the possibility of at least a substantial demotion of the current Deputy.”Is is possible the administration has a nominee in mind who wants Lee for his deputy but who is not yet available? There could be a reason that it’s embarrassing to announce is public right now for some reason. A commitment to some incompatible duty or side in some controversy could delay such an announcement.We might wonder if there is there anyone involved in arguing Medtronic or Alice that could be appointed. Also some officer of a company constantly involved in disputes before the PTO or CAFC and about to hit a vesting cliff might just want to hold off risking his job until it makes him rich. Neither of those would prevent the administration asking him to suggest a deputy director and then appointing his preference to handle the office while he is not yet available.

    1. Owen, assuming a dark horse, do you think Lee took the job with approval of the unnamed candidate, or did she take it as the best available short-term solution with no guarantees to Lee that she will be retained upon appointment of the new director?If the latter, what’s happening to Lee is truly unfortunate as most commentators who actually know her think she should be director herself. In come the new director and out she goes.

  18. The Sec. of Commerce may appoint a Deputy Director. She has done that on the nomination the Commissioner of Patents, an appointed officer legally acting as Director. So, on its face, there seems to be no legal problem.But, there is a problem. The Director’s position requires a presidential nomination, congressional approval, and a presidential commission. The slight of hand here avoids that and as Ms. Lee could continue indefinitely in her post avoiding that the president ever appoint a Director. Despite the facial legality, there does seem to be something amiss — when legality become unconstitutional.There are legitimate questions here, and one of them is whether the Obama administration is intentionally downgrading the status of the USPTO. Recall, it was not that long ago that there was no Director with a status of Undersecretary, just a Commissioner. Also note, in a recent posting by Hal Wegner, the list of people entitled to act as Sec. of Commerce includes a host of officers and undersecretaries, but not the undersecretary for IP. This omission may be intentional.There may never be another Director.

    1. “whether the Obama administration is intentionally downgrading the status of the USPTO”I don’t think the PTO is a target. The Senate has increasingly resisted allowing presidential appointments to be confirmed since the Bush 41 administration and Obama has reached the point where vast swathes of the government are unable to operate for lack of staffing. Obama has retaliated by making apparently unconstitutional recess appointments in the hopes that public administration won’t collapse entirely.And finally just weeks ago the Senate took the bizarre and fantastic step of weakening its own power to filibuster nominees. It’s hard to overstate just how strange it is to see such a famously venal set of politicians voluntarily creating a new equilibrium where their own whims are less able to harm the nation for petty self-aggrandizement. Turns out, though, that there is some patriotism left in that body.Anyway I conclude that this business isn’t targeted at the PTO but a general ongoing national crisis that has incidentally affected the PTO.

      1. The Senate has increasingly resisted allowing presidential appointments to be confirmed since the Bush 41 administrationRight. That’s exactly what the Republicans promised to do from day one: sabatoge Obama’s presidency and undermine him at every opportunity, regardless of who else suffers. This isn’t a “secret”. They’ve been quite open about it. And the Republican “base” has been quite open about why they demand this of their representatives: Obama isn’t a “real American.” He isn’t what the “Founders” wanted in a President. Try to guess why.

        1. Wake up MM. Obama/Clinton have done the most harm to the middle class. The three biggest destroyers of the middle class have been open trade, financial deregulation, and economic stimulus by the federal reserve (which should be thought of as if you have a $1, we’ll give you another $1 to boost the economy.)

      2. Owen, even if it is the fight with congress that inspires the president to avoid making the nomination of a new director, the fact remains that we might not see a new director actually nominated until there is a new president, and perhaps, not even then if that persons is a democrat.At some point the defacto reorg may become official by eliminating the position of director by statute so that a presidential appointment no longer is necessary.

            1. The average person isn’t equipped to determine if the court is doing a decent job of interpreting statutes and precedent. The approval of the court is if “the court is creating the outcome I want”. Where the other branches are supposed to be responsible to their represented majorities the court is definitively not supposed to be swayed by majority opinion. In fact, the court is the one bulwark for the rights of the minority, which will almost always lead to the ire of the majority.

            2. Looks to me like USSC’s approval rating is like 45% ish. That’s a full 35% above congress iirc. And to be clear, let’s be honest, like 90% of the USSC’s approval rating hinges on Roe, 5% on Citizens united, and then the remainder is other cases.

    2. whether the Obama administration is intentionally downgrading the status of the USPTO.”Downgrading” relative to what?Lee represents an upgrade for the USPTO, whether she’s the “Director” or not. Nothing will ever top the damage done by Kappos, now the head cheerleader for a future where design patents (!!) are the Most Important Thing Ever.This whole kerfuffle is a snipe by Hal Wegner on behalf of the patent teabaggers, with whom he sympathizes. That’s why Hal and his understudies at Foley didn’t “get” Prometheus and it’s why they still have a hard time admitting what it was about.

  19. “Administrative law is, at its core, all about the allocation of power. “”The law on inter-executive delegations of authority has an overarching theme, which is that most executive branch officers may delegate their powers to subordinate officers. Nondelegable executive powers are very much the exception, and the PTO Director’s power to nominate a candidate for appointment as Deputy is not such an exception. “You can try to explain those two things above to people who are not part of the administrative structure until you’re blue in the face. They will not understand because they do not understand power, or hierarchy save at an intellectual level. See for example anon and Hal’s comments. People who live and work within that framework will understand why it is that way and why it must be that way immediately.

      1. I don’t see what updated law you’re talking about. Furthermore I tire of discussing patent birtherism. If you think there is a problem with the patents then I encourage you to try to get a court to go along with you. When you find them unreceptive to your arguments do be sure to tell me so that I may lol.

        1. “When you find them unreceptive to your arguments”Well, you can ask your buddy Malcolm about the Myriad case on that one;-).”I don’t see what updated law you’re talking about. “I rather spell it out plain as day, 6 (maybe your belief structure is getting in the way again)

    1. “The law on inter-executive delegations of authority has an overarching theme, which is that most executive branch officers may delegatetheir powers to subordinate officers. Nondelegable executive powers are very much the exception, and the PTO Director’s power to nominate a candidate for appointment as Deputy is not such an exception. “No kidding.Has someone checked Lee’s birth certificate? The long form certificate, not the short form. That’s really important.

  20. I’m glad to see an additional patent law star weigh in with a thoughtful analysis of the situation. Thanks to John Duffy for writing this and to Dennis Crouch for posting it.

  21. A few questions:If this nomination power is delegable, why didn’t they ask Terry Rea to provide a nomination of her successor before she left office?Are there legal or ethical considerations to what happened here, i.e., Peggy Focarino essentially choosing her own boss?Was there legislative intent behind this section of giving the PTO Director the opportunity to have a voice in who will sit at his or her right hand?

  22. You know Duffy, you can wiggle all you want, but the fact is the intent of the law was that the director be approved. This one hasn’t. And, it has the smell of not being vetted because of political reasons. I don’t have the time to walk through your arguments, but probably the weakest point is that no time limit included in statute means indefinite is fine.And, guess what? You and your ilk at universities no longer have the respect that you seem to feel you have by your pretentious tone. You make lots of money from your “side business” just like Lemley. Your title should be law entrepreneur. Your teaching gig just gives you some security. A new post modern age has come where the educated see that your views are more likely motivated by your pocket than an ethos. Publishing vanity papers in law “journals” adds zero credibility to your arguments.What this action by Obama smells of is the elitism that has characterized Obama and Clinton. What we got out of Clinton was NAFTA and the repeal of Glass Stegal based on arguments that were wrong and the results that Clinton told us would happen were wrong. Here, we have Obama deciding that patents are bad and now having secret meetings with business leaders and appointing some former Google executive to be the director. I think there is a fair chance that she will burn down the patent system and not follow the rule of law and then get her $50 million dollars in stock options from Google or another corporation with market power. Yeah, yeah, easy to dismiss me isn’t it? Because the mob doesn’t get how this country is run.Have you ever considered Duffy that maybe you are just a tool of the rich? That your great intellect, which you do possess, is being wasted as a pet of the rich? Is your dream to get the $50 million in stock options like Gore, Geithner, Powell, etc. ? But, cheers, I enjoyed taking one of your classes. Duffy: As a former student of yours, I want to ask you a question. Why should I take the time to read or evaluate anything you write? You appear to be going the way of Lemley in that your income is not primarily from teaching. So, I ask you Duffy should anyone consider you a scholar? I noticed the way you tried to attach yourself to a Justice above who appears to have been a scholar, but why do you think you are scholar? You appear to be an legal entrepreneur to me–not a legal scholar. And, if you want to try to claim to be a scholar, can you tell me one great thinker that would support your proposition that you can be scholar when your income is being generated for ideological positions?

    1. “I think there is a fair chance that she will burn down the patent system and not follow the rule of law and then get her $50 million dollars in stock options from Google or another corporation with market power.”Lol wuuuuuuuuuuuuuut? It isn’t going to be burnt down. “But, cheers, I enjoyed taking one of your classes.”ROFLing me up some MAO.

      1. MM you are so obviously a paid blogger. Right, let’s look at the nearest analogy–financial regulation. Clinton repealed Glass Steagal which directly resulted in the 2008 crash. The appointees of Clinton made on average after leaving their government posts over $50 million each.The path to destroying the system is clear. Bring in someone from he industry that wants the system gone. Put them in charge. Burn the system down. The person collects their reward from stock options.And, now we are being sold the same bill of goods that we were sold with NAFTA, letting China into the WTO and the repeal of Glass Steagal. All blue skies once they are gone. Clinton told us that there was nothing but positive effects.Let me make my prediction concrete. Technology workers will have to sign employment contracts that forbid them to disclose anything to do with their work to gain employment. Microsoft, Google, Yahoo, IBM, and every other company will require this in 5 years. In the early 1980′s that is the type of employment contract that programmers were being forced to sign to get a job.But, then a paid blogger like yourself will not address the merits of what I am saying.

    2. You and your ilk at universities no longer have the respect that you seem to feel you have by your pretentious tone. You make lots of money from your “side business”It must be so awesome to be an unemployed patent genius like Hal Wegner, without any biases or conflicts of interest.

  23. Fascinating.The cherry on top is the fact that Hal speaks glowingly of Lee with no malice to her what(so)ever.Add (also see below):Prof. Duffy, I notice several mistakes in your logic, along the lines of you assuming the conclusion to be reached.For example:”As just mentioned, all functions and powers of the PTO Director devolve by statute (§ 3(b)(1)) “This is incorrect. Not all functions and powers, only those that are, to paraphrase, are clerical (i.e. non-exclusive functions). Those functions reserved for the status of the Director are the ones NOT delegable, and I would daresay the power of delegation – as you point out being so critical: “Administrative law is, at its core, all about the allocation of power.” is certainly one of those NOT to be delegated. (also added: Rea’s letter of delegation could not be more glaring in that she was delegating only those non-exclusive functions that she could delegate. If your view was correct, then her letter would not need to so explicitly limit what she delegated).Further, you seem to avoid the major problem here of a double vacancy – Hal does capture the import of this and your counter does not adequately address his points.Also further: I find it very interesting to compare this to your notice of impropriety on the nomination of Article I judges – but this case has a no-retro action clause in effect. The out that Congress took in response to your notice will not work here. So on that note, I think the problem is far worse than what has been acknowledged – and there is a very real problem with any patents signed by Rea after her time limit and any patents signed by Lee before a proper allocation of power is completed (and in nod to Malcolm, this means all such patents and not just the ones that are the focus of philosophical 101 nose of wax twisting). Further add: Re your lesson number two. I am curious just how much of a lesson it is possible to learn from the former Professor Scalia (as he entered his current role as Associate Justice in 1982) in regards to the Federal Vacancies Reform Act of 1998 (some 17 years later).

    1. “Not all functions and powers, only those that are, to paraphrase, are clerical (i.e. non-exclusive functions). Those functions reserved for the status of the Director are the ones NOT delegable, and I would daresay the power of delegation…”Anon, do you have case or statutory support for this?

      1. Did you read any of Hal’s stuff, or the letter that Rea signed, Ned?(Ned, the link I provided on the other thread has been updated to include the Friday changes)Add: the issue is not merely delegation, it is also an issue of what is delegated. You cannot do an end around of the “cannot delegate significant powers” by focusing only on the delegation of a nomination power, when what tags along with that nomination are the “all the powers” aspect. Put bluntly, Focarino cannot transfer what she does not have. And neither can Rea – Rea’s letter is explicit on this, what is transferred (or merely attempted to be transferred) by Rea’s letter is the subset of NON-significant powers. If only such non-significant powers are the subject of the delegation, then THAT type of delegation may be legal per Prof. Duffy’s thoughts, but that is not the type of power under consideration. On the other hand, the power under consideration goes beyond the significant powers limitation and thus makes the delegation improper under law.I would also add that the logic attempted now by Prof. Duffy’s is inconsistent with his past notice of Office transgression (re: the judges). The devolved appointment power would not work then – and then the Congress jumped in with a retroactive move. That same type of retroactive move WILL NOT WORK here – by statute. Hal explains this cogently.

      1. You can downvote me all you want, TB. I’ll never downvote you because I think the voting system blows. You want to see something really funny, though? Check this out:You: 1173 comments; 338 upvotesMe: 852 comments; 859 upvotesKeep up the great work! LOL.

        1. In case no one ever told you, law is not a popularity contest Malcolm.All that stat shows is that you sound in the lemming call, nothing more.

        2. What’s even more funny, while me or Ned or LB etc aren’t constantly upvoting you (super rare for me, maybe 10/859), his little buddies are constantly upvoting him. And they have the bal ls to call us the vocal minority. Which apparently recently shifted to the “lemmings” or something.

          1. The lemming vote is Owen – who has consistently upvoted Malcolm.Pay attention 6.Also, you quite miss the point that I care not for upvotes – the law is not a popularity contest and the upvotes mean very little (just as downvotes mean very little).

            1. “the law is not a popularity contest and the upvotes mean very little (just as downvotes mean very little).”I agree. I’m simply saying that the available evidence does not suggest that we are the vocal minority. Rather, it suggests the opposite. I’m just saying, based on the evidence. Just the evidence.

            2. No 6, you misunderstand what you are looking at – the march of the lemmings means nothing of any significance.

            3. You coming to the oral args of Alice? Come on down, me and you will have a picnic, I’ll trounce ya irl debate in front of a whole sht ton of lawltar ds that will be there as a captive audience standing in line all morning. We can make bets! And then when the oral args make it clear that Alice is going down in flames, I can catch you on my iphone qqin in a corner.

            4. You actually have to show up for a debate on the blog first.You have not yet done that (in any and I do mean any meaningful sense).

            5. the march of the lemmings means nothing of any significance.Uh, right. That’s because this “march” exists only in your pathetic peabrain.

            6. The lemming vote is Owen – who has consistently upvoted Malcolm.And poor DumptyTollboy doesn’t have any “lemmings” of his own apparently. Remember when DumptyTrollboy used to comment here forty times a day with forty different sockpuppets? And he denied doing so until he was finally outed by Dennis? And then he pretended that he “voluntarily” stopped using sockpuppets to attack and insult every commenter he disagreed with?I do. And I’m not the only one who remembers that. Good times.

            7. Just the good times from the guy who QQed incessantly about suckies being the worst thing ever, and was the first one here busted for doing that and then was busted at PatentDocs just this year for doing that.LOL – Malcolm, the ultimate hypocrite.Yes, really good times..”That’s because this “march” exists only in your pathetic peabrain.”LOL – just like the patent system is not under attack, right Malcolm? LOL – last time I quoted some of the PatentDocs guys repeating what I have said on that matter, you answered with a stream of expletives in your (usual) oh so classy way. Good times indeed.

            8. the guy who QQed incessantly about suckies being the worst thing everAs you’ve been informed a thousand times already (including this thread), the problem wasn’t that you changed pseudonyms over time. LOL – just like the patent system is not under*click*Happy Holidays, TB. I think around this time of year the nurses will bring out the special red and green pills for you. Be sure to take them.

            9. the law is not a popularity contestThis from the guy who used an army of sockpuppets to troll this blog so he could pretend to be part of a “majority” combatting a “vocal minority”?Too funny. What an incredible tool.

  24. I think the Sec. of Commerce can lawfully appoint a Deputy Director in absence of a Director, and that her appointment does not automatically end when a new Director is commissioned. The position of deputy director does not require a presidential appointment. It requires the appointment of the director, who is a constitutional officer by statute; but so is the secretary of commerce, the statutory boss of the director. Thus in the absence of a director, I believe the secretary commerce has the power to appoint a deputy director.

  25. An absolutely terrible choice, but, par for the course with the current anti-patent nuts running the government. She comes to the job with an avowed anti-patent agenda, and is in charge of protecting inventors? This like putting Dr. Kevorkian in charge of an ICU unit; they both want pat(i)ents …. dead.

  26. From the Thread’s title: “Acting as Director but not ‘Acting Director’”Maybe we can get a certain ex-President to tell us what the definition of “is” is….

  27. Anyone know who has been signing issued patents for the last several weeks, and who has been the named director in actions involving the PTO? Having a complete vacuum at the top creates the most interesting collateral problems.

  28. So, Huh. No ex parte reexaminations for a while – because only the Director under 35 usc 303 an order ex part reexamination. Not a person acting as director.

      1. ’cause Obama has clearly signaled that he thinks there is a problem with patents and is appointing reformers. I don’t mind reformers in general, but reformers like anti-patent entrepreneur (APE) Lemley are bad for our patent system. So, I am wary of anyone that Obama likes right now. Kappos was obviously marvelous.

        1. Oh, well in that case you need not be so worried NWPA. He doesn’t just think there is a problem. He observed that there is a problem. You know, he saw dat data. But even if what you asserted were so, he hasn’t appointed Lemley (or even et al.) so why are you worried about these reformers?

          1. “He observed that there is a problem. You know, he saw dat data.”Except for the fact that there was no data in the White House propaganda piece. The data that was in the hands of the government (tainted data at that), was the data that went into that other report – the GAO report that dismissed the “Troll” rhetoric.Add: (sigh) 6 wants to FOIA for data that is not there… Maybe the ‘data’ is like the fairy magic dust that enables machine components to magically appear…?

            1. “Except for the fact that there was no data in the White House propaganda piece”Well you can always petition him to show you dat data. Or FOIA him.

            2. There is the whitehouse petition site. Surely other people share your concerns as to his decision making process. And surely you know how to file a FOIA request.

          1. She sounds potentially very scary. A person from Silicon Valley and MIT. Both produce people that are often arrogant with mission visions. And, in general, from where she has sprung up, they are against patents.

      1. I’m quite sure that she is. Who knows, she may have even read the reference that I cite regarding computer processes. I presume she was being edumacated in MIT around the time that reference was in use.

  29. Putting Ms. “we hate people suing on patents” in charge of the PTO is like putting Kevorkian in charge of an ICU; every pat(i)ent is looked upon only as a potential fatality

  30. *There is some trepidation (or enthusiasm, depending upon your perspective) that she will strongly advocate Google’s anti-patent stance. I suspect, however, that the result will be pushing for higher quality examination that better ensures clarity.*DC’s conclusion seems likely.Google executives have told me that the patent team restrains the general opinion of the leadership in a less anti-patent direction. The argument is that Google’s defensive portfolio will be less effective as a deterrent to others if the executive team is openly contemptuous of their own patents. The execs do tend to be embarrassed by their own accumulation of a patent portfolio against the best interests of the industry but defend the practice as the only pragmatic alternative to unilateral disarmament in an imperfect universe. Also Google has an admirable record of not firing the first shot in patent wars. We saw that Sun execs in Oracle v. Google testifying about their portfolio could really weaken its strength when they felt contempt for the patenting policy of the company. Google wants to avoid that. The patent law team would be the leaders in that caution, so I doubt Lee is as opposed to software patents as Google is, or nearly as strongly opposed as she ought to be as a public servant working in the public interest.

    1. the patent team restrains the general opinion of the leadership in a less anti-patent direction. The argument is that Google’s defensive portfolio will be less effective as a deterrent to others if the executive team is openly contemptuous of their own patents.That’s not a bad argument.Of course, they could just focus their time and money on filing and prosecuting and maintaining applications that do not merit contempt (Google’s patents are among the worst of the worst), and then use the money saved (a substantial sum) to (1) lobby the public and congress for a better, non-broken system that doesn’t require software companies to file contempt-worthy “defensive” applications and (2) defend themselves or take licenses when it’s appropriate to do so.

      1. *That’s not a bad argument.*I didn’t think so, but I was disappointed to hear it.I’d say contempt is hard to hide from an educated expert. Google files awful applications because they don’t value the system; they see it as witch doctoring with no technical value. They don’t value the system because the PTO also treats software with contempt. That will be hard to explain to a jury, though.I don’t think Google even cares about the cost of patent prosecution. They paid billions for the largely worthless Motorola portfolio hoping it would deter trolling from Apple and Microsoft. (It didn’t.) Google does defend themselves in court with some effectiveness. I agree that lobbying money could be well invested. I wonder if any effective provisions of the Goodlatte bill will survive the Senate; I’m guessing the Democrats will stop loser-pays dead in its tracks.

    2. Incidentally, Director Lee is well quit of the Silicon Valley office. Trying to hire good software people for $40k to start and $90k mid career is a fool’s game in SV. It costs $3k a month just to rent a cottage in an outlying suburb there.Leading a bureaucracy requires hiring good people and then trusting them to actually make expert decisions. It does not entail paying tech people like fry cooks and then letting applicants nag and continue absurd applications for years and years at a time until they’ve worn down all resistance.

      1. Reminds me of an interesting article:http://www.calculatedriskblog….The public sector grew during Mr. Reagan’s terms (up 1,414,000), during Mr. G.H.W. Bush’s term (up 1,127,000), during Mr. Clinton’s terms (up 1,934,000), and during Mr. G.W. Bush’s terms (up 1,748,000 jobs).However the public sector has declined significantly since Mr. Obama took office (down 726,000 jobs). These job losses have mostly been at the state and local level, but more recently at the Federal level. This has been a significant drag on overall employment.And a drag on the economy in general. It’s still not too late for Dems to propose a substantial increase in hiring at the PTO. There are multiple reasons for doing so (e.g., reduce overall unemployment, help the PTO deal with its historic backlog and filing rate) and the only reason not to do it lacks any “basis in reality” (if I might borrow a phrase).How’s progress on the Detroit branch? Anyone know?

        1. “the public sector has declined significantly since Mr. Obama took office (down 726,000 jobs). These job losses have mostly been at the state and local level, but more recently at the Federal level. This has been a significant drag on overall employment.”You are correct

        2. However the public sector has declined significantly since Mr. Obama took office (down 726,000 jobs).So much for the Republicans’ big promises of communism…

          1. “So much for the Republicans’ big promises of communism…”LOL – so the “Republican-caused shutdown of the government and sequester (which is the cause of the federal level drop of late) foils the Republicans’ big promises of communism…..?Um, no wait..(yet another Calvinball face spike for IANAE)

        3. A friend of mine who is an SPE told me that they were having trouble staffing the Detroit office as they were planning to only hire “IP experienced” applicants (i.e. folks who had at least one year of examining and/or law practice experience) and they did not get anywhere near as many applications as they expected.

      2. “worn down all resistance”LOL – because examiners are ‘worn down’…See – that’s a sure sign that you are merely mouthing the lemming chapter and verse. Examiners are not worn down.(watch Malcolm attempt to come to the rescue here – the same person that tried to rewrite history and deny that the Office had a reject-reject-reject mantra and that the incoming Director said “Quality does not equal reject”)

        1. Examiners are not worn down.You mean no Examiners at the PTO ever get tired of hearing some attorney (who is making hundreds of thousands of dollars more/yr) threatening to “appeal, appeal, appeal” no matter what the Examiner argues, until the desired claims are allowed? No Examiner ever just allows a case so he/she can get on with something more interesting and perhaps deal with a less loathesome personality? If that’s the fact (which you seem to believe it is), then I’m impressed. Seriously, though, in the “real world” people do get “worn down.” Including Examiners. Why would anyone question such a banal proposition anyway?I’ve seen patent attorneys in the Interview context resort to simply insisting that the claims had to be allowed because the claims were “so important to the client.” Not newbies. But partners. People with many years of experience. Why would they do that unless such “methods” had “worked” for them in the past?

        2. Once again we find anon struggling with strawy demons of his own invention. I have no doubt that former Dirrector Kappos said, “Quality does not equal reject.” I do highly doubt that Kappos had or has any clue about what “quality” means or meant in the patent context. After all, this is the same Kappos who immediately began trumpeting design patents (!) as the Greatest Thing Ever the moment after he left the PTO and was settled into his new skyrise office.As for the alleged “mantra” that “the Office” was allegedly reciting, I can think of far worse “mantras”. After all, if patent applicants were deemed to be saints of civic responsibility we wouldn’t need to pay anyone to examine their applications, would we? For similar reasons, most people would prefer that the government workers who evaluate the level of bacteria in, e.g., chicken and cow meat, also approach their subject from a somewhat skeptical coign of vantage.

          1. “I have no doubt that former Dirrector Kappos said, “Quality does not equal reject.”"LOL – I am looking forward to the return of the archives and finding your quote to the contrary..Add; “As for the alleged “mantra” that “the Office” was allegedly reciting”LOL – alleged? Try again. Try looking at historical documents from the Office under Dudas and Doll that trumpeted the precipitous drop in allowance rate well beyond ANY rational basis as an indicator of the Office’s high quality. That same drop in allowance rate graph that – not coincidentally – mirrors the backlog growth on all three decks of the Titanic (apps waiting actions, apps in the RCE queue and apps in the Appeals queue) – when you flip the allowance graph upside down and adjust for processing time.

        3. “Examiners are not worn down.”He said because he himself is bad at at it. Though other people can easily provide empirical evidence of such wearing down and have on occasion. Such evidence never pierces his inconvinclbe hide though.

          1. I am pretty sure 6 that the card man AAA JJ completely wrecks the rather weak ‘evidence’ that you may on occasion attempt to put forth.Add: the term “wearing down” does not apply to perseverance in making an examiner follow the law during his examination and removing bogus flimsy quick searches on claim terms without even bothering to read the application.That’s called making you do your job right. If you did that in the first instance, everyone would be better off. As I have often stated, applicants will choose to fight bad rejections and will relinquish against solid rejections. Do the solid work in the first instance.

            1. The “card man”? You mean the guy that couldn’t spot an entire non-compliant response and brief after at least two tries? I don’t know what “card” he has. And to be clear, I don’t need to put it forth it’s been put forth all across your interbuts already.

            2. I don’t wear down examiners. I give them one chance to get their sh!t straight and if they don’t I appeal. And get the rejections reversed.Never filed a non-compliant brief.

            3. “Never filed a non-compliant brief. “^From AAA’s post that is awaiting moderation. That he knows of. Since the examiners in his area are too ill trained to spot them either apparently.

            4. Lulz.The task of reviewing the brief for compliance with the rules was taken away from the examiners 3+ years ago. And you know why. Because they were pulling all types of shenanigans to prevent cases going to the Board for reversal.I remember back in the day when examiners reviewed the briefs an examiner sent me a notice of non-compliance because in the arguments section of the brief I referred to the inventors as “applicants” instead of “appellants.” That was the sole reason for holding the brief “non-compliant.” I filed a petition literally the next day. Before the petition could get to a one of the useless do nothings who are supposed to decide those petitions, the examiner sent me a notice stating the notice of non-compliance had been withdrawn.

            5. AAA JJ will you please learn how to make a post that will show up proper? Jebus. Whatev, about the board. The people in your art apparently can’t see the non-compliant reply in the first place which is when the examiner is supposed to catch it.

            6. I’m signed into disqus. Not sure what else I’m supposed to do to “make a post that will show up proper.”"The people in your art apparently can’t see the non-compliant reply in the first place which is when the examiner is supposed to catch it.”I’m not sure who these “people in your art” are supposed to be. I file briefs in several different TC’s.And the examiners are not “supposed to catch it.” The review of the brief for compliance with the rules was taken away from the examiner, like I said, 3+ years ago because there was an epic level of shenanigans going on. I haven’t had a single brief held non-compliant since the Board took over review of the briefs for compliance. Not one.

            7. “the term “wearing down” does not apply to perseverance in making an examiner follow the law during his examination and removing bogus flimsy quick searches on claim terms without even bothering to read the application.”So then in other words wearing the examiner down is not wearing the examiner down in your book. Gotcha. News for ya though, other people do consider that to be wearing them down. Though I can understand why you don’t want them to and why you don’t and why you may be justified in wishing that. “That’s called making you do your job right. If you did that in the first instance, everyone would be better off. As I have often stated, applicants will choose to fight bad rejections and will relinquish against solid rejections. Do the solid work in the first instance.”You literally have no way to “make an examiner do their job right”. You can have their decision overturned. You can wear on them. Thems your options. You could try to help them do their job correctly, but that is probably beneath you.

            8. LOL – You yet again commit character suicide 6.The only people that consider making the examiner do their legally correct job by correctly applying the law to be “wearing down” the examiner are those who do not want (for whatever philosophical reason) to DO the legally correct job by correctly applying the law. What you have done is twist the words beyond any reasonable meaning. At least you are correct in the justified rationale, but it is that same justified rational that indicates that the reward for such justified perseverance is simply obtaining the justice that should have been forthcoming in the first place had the job been done right in the first place. You have validated every criticism of examiners NOT doing the job right in the first place. Thanks.

            9. “The only people that consider making the examiner do their legally correct job by correctly applying the law to be “wearing down” the examiner are those who do not want (for whatever philosophical reason) to DO the legally correct job by correctly applying the law.”Not necessarily. They may simply believe that the office should have its say, and that it’s say should not be overcome by mere persistence. They may simply believe in the power of the executive more than you do. “What you have done is twist the words beyond any reasonable meaning. At least you are correct in the justified rationale, but it is that same justified rational that indicates that the reward for such justified perseverance is simply obtaining the justice that should have been forthcoming in the first place had the job been done right in the first place. “It isn’t what “I’ve” done, it’s what they’ve done and which I’m holding your ta rd hand through understanding. Personally I’m rather agnostic on the whole question. The only things I personally think on the subject, or that are even near the subject is that I don’t think prosecution should potentially last forever as it does now. But, congress has had its say and allows it. One day that may change. Though I don’t think that they’re twisting the words beyond all reasonable meaning. That’s what they mean by it, and either you can accept what they’re saying is legit or not, you don’t really need to say that they’re merely expressing themselves incorrectly. As to my validating every criticism, nah, you’re just too ta rded to read what I actually wrote in your blind ta rdation. I’m trying to help you understand other people, so that you’ll stop posting about this inane topic in st upid ways. Like I said, my own views are a little different from theirs. I certainly don’t mind someone getting a bit of opportunity to persuade the examiner. Though I don’t think it should be practically infinite. I doubt you’ll stop though even once you understand them. Because you’re just that dum.

            10. That was a whole lot of nothing 6.You have not addressed any of my post in an accurate manner and the points I made stand as correct.

            11. In an “accurate manner”. lol, From your subjective viewpoint. I swear to go d anon, when will you become self-aware enough to understand TO YOURSELF when it is your subjective viewpoint you’re spouting off about? At least your blatantly not being self-aware in this fashion explains much of the pronouncements we see from you.

            12. Ditto the same for you 6 – only much more worse as you have shown time and again the Be@vis school of legal thinking by seeing a single word and ascribing all sorts of out of context meaning to that word.As far as your ‘labeling’ my view as subjective, sorry – but when this so -called ‘subjective’ view is repeatedly dead nuts on, it tends to be more than merely ‘subjective.’ This is like the fallacy that Malcolm engages in by claiming that i think I am right because it is me that is doing the thinking – the same response to him fits to you: I am right because I am right, not because I think that I am right.Sorry you don’t like that , but that is the way it is.

            13. Anon, I’m well aware that it is my subjective opinion on these topics and I try to present it as such. Rather than the gospel truth. I also try to assist folks like yourself to understand the positions of others, besides myself, where your inability to comprehend them prevents you from understanding what they’re saying or why. ” but when this so -called ‘subjective’ view is repeatedly dead nuts on, it tends to be more than merely ‘subjective.’”/facepalm. Maybe one day you’ll understand. Perhaps by the time you’re 80. “I am right because I am right, not because I think that I am right.”All hail patent jebus!

            14. Oh surely not. But 100% of stuff you tell us about that is your opinion is. Which is something that, one day when you’re old, maybe you’ll grasp the full implications of.

            15. “But 100% of stuff you tell us about that is your opinion is.”It is a “you” problem in that you are unable to tell the difference between facts and law I present and any such opinions I present.I do hope you grasp that before you get old.

            16. You do know that you present your opinions here, and other places as fact or in the alternative “truth”? If you don’t believe me, then reread this thread. Clearly, you feel that your opinions are “right because [anon is] right, not because [anon thinks] that [he is] right” How am I, a lowly reader, supposed to tell your opinions from the facts you present if you yourself cannot tell them apart or do not bother to distinguish between them for us due to your thinking that your opinions are necessarily “right”?

            17. What I present as fact or truth are, in fact, fact or truth.Unlike you and Malcolm, I do not believe that spin has any place with fact, truth and law.And clearly you need to read my posts again for they say the opposite of what you just said.The items are NOT right just because I said them – they are right because they are right.Come 6 – you have got to do a better job.add: your spin in reply is as feeble as your spin in the first instance.

            18. “What I present as fact or truth are, in fact, fact or truth.”And thus patent jebus did assure the flocks that those of his opinions he presents as fact or truth are fact or Truth. “Unlike you and Malcolm, I do not believe that spin has any place with fact, truth and law.”Maybe or maybe not, but you sure as sht think your opinion is fact or Truth. “The items are NOT right just because I said them – they are right because they are right.”And thus patent jebus did assure the flocks that his opinions are right because they are right.

  31. Trying to follow all this …Lee was appointed “Director” of the Silicon Valley Office by USPTO Director Kappos back in 2012, according to statute. Regardless of the appropriateness of that title (which I don’t recall anyone complaining about at the time), is there any doubt that she was a properly appointed “deputy director”?I guess I don’t see any “genuine” statutory or Constitutional “problem” here. There is a vacancy in the Director position. For the time being, a Deputy is going to act as the Director until the proper process for appointing a Director is followed. What’s the “problem”?

    1. Hal Wegner has been pretty vocal for nigh a week now about the fact that ‘acting’ Focarino simply lacks the statutory authority. Period. (actually, that due to the complete absence at the top of the USPTO structure meant anyone including Focarino simply lacked real authority).Had the Office moved earlier (when Rea was still around), the legal lapse could have been avoided.Reminds me of the Prof. Duffy incident.Add: Interesting that this received a downvote. What exactly generated that?

      1. Hal Wegner is “pretty vocal” every time he thinks he’s found a nut. It’s baffling why he would choose to smear Lee for no reason except, apparently, to bejewel his plastic crown with the (alleged) discovery of some frightful statutory “problem” that, quite frankly, nobody gives two s—ts about.Maybe Hal is still trying to recover his reputation after he failed so miserably trying to understand the issues in Prometheus v. Mayo, one of the most important and straightforward cases in Supreme Court patent jurisprudence. I wish him luck with that.

        1. You are a real a$$hat, Malcolm.Hal Wagner is not smearing Lee – he is (and has been prior to any transition) pointing out a very real legal issue.Maybe if you realized that instead of being so intent on not seeing any ” ‘genuine’ statutory or Constitutional “problem” here,” your views on legal issues just might ever so slightly rise in credibility.(your denying your a$$hattedness below only doubles down on you being an a$$hat)And I am more than sure that any of the budget mess that BOTH sides engaged in has NOTHING to do with the lack of appointing a head of the agency through normal legal channels.

          1. Hal Wagner is not smearing LeeHere’s what Hal wrote about Lee: “Why would a person of heretofore spotless reputation and noted achievement accept an appointment in violation of the strict statutory wording that the appointment is only ‘upon nomination by the Director’?”What answer did Hal have in mind for his question? I can’t think of a flattering one. He’s basically accusing Lee of knowingly flouting the law by “accepting an appointment”. Is that what happened? Doesn’t look like that to me. If anyone is behaving like an “a$$hat” here, it’s Wegner.

          2. a very real legal issueVery real and also very inconsequential. Unless of course you don’t like Lee for some reason and you want to make a scandal out of an agency’s attempt to function during a time when the Republicans in Congress were holding a gun to the country’s head because they felt “disrespected.”

  32. Googles anti patent stance is only because theyve been granted all they need and dont want competition and they wont pay true concievers for the ones they have. If potential director lee is not an attorney then there is the potential to restore justice to the system although congress wont get back to work on correct reforms only more corruption.

  33. As with nearly every other questionable thing that the administration does, the most important question is, does anybody have standing to sue?(That’s a purely academic question. I, for one, welcome our new MIT-educated overlord.)

    1. I suspect that anyone currently involved with the PTO as a party where Michelle Lee will be named have standing. Perhaps everyone involved in examination as well.But I agree. She appears to be well qualified.

      1. “As members of the Coalition of Patent Fairness…”…that’s sure to throw a little bit of [kerosene] on the Agency Capture angle.

    2. I agree that this is largely an academic question because the President will soon nominate a Director who will be confirmed and, if necessary, Lee can be re-appointed. All that will happen before pleading would be completed on any lawsuit.

      1. Congress could also amend the statute to the make the appointment retroactively ok. They did that when there was a problem with the appointment of administrative patent judges; they did it more recently when they included the “dog ate my homework act” as part of the AIA.

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