Hyatt v. USPTO: Three generations of poor examination are enough.

By Dennis Crouch

Gilbert Hyatt v. USPTO (D. Nevada 2014)  (Download Hyatt v USPTO Complaint)

Inventor Gilbert Hyatt recently filed a lawsuit against the USPTO in his home state of Nevada asking that the USPTO be ordered to go ahead and examine his applications already. The complaint focuses primarily on two applications that have been pending "since the early 1970s – over 40 years." Hyatt's patents cover early microchip technology and have proven extremely valuable because of the ongoing explosion in that marketplace. Because these applications were filed prior June of 1995, they will have a patent term of 17 years from the issue date (assuming they eventually issue and their term not disclaimed). Hyatt keeps his pending applications secret and so we do not know which applications are at stake here, or the actual content of the file histories.

In the lawsuit, Hyatt alleges that these two applications have been pending before the USPTO Board of Appeals for a very long time (one more than twenty years):

In these two appealed patent applications – referred to herein as patent application Docket Nos. 104 and 112 – the PTO's patent examiners issued rejections of Mr. Hyatt's patent applications, which Mr. Hyatt timely appealed to the PTO's Board of Patent Appeals and Interferences, now known as the Patent Trial and Appeal Board ("Appeal Board"). In both cases, the PTO failed to file any response. Rather than decide the appeals, the PTO has left them undecided for more than 20 years (in the case of patent application Docket No. 104) and for more than five years (in the case of patent application Docket No. 112). Each of these two patent applications has been pending before the PTO for more than forty years. . . .

Mr. Hyatt filed his patent applications and has prosecuted them in good faith and in accordance with PTO rules. Whether out of animus toward Mr. Hyatt or for other reasons, the PTO has demonstrated its determination not to allow Mr. Hyatt to obtain patents for his inventions. This Court's intervention is required to ensure that the PTO complies with the law.

Hyatt then asks the court to place strict deadlines on the PTO to decide his cases.

Hyatt makes the almost believable allegation that: "Several years ago, the PTO apparently determined that it would refuse to grant Mr. Hyatt any further patents, irrespective of the merits of his patent applications."

The complaint also highlights several other Hyatt applications where the PTO has "suspended examination" for very long periods of time:

At some point, rather than subject its decisions to review, the PTO apparently embraced a strategy of denying Mr. Hyatt any reviewable adjudication of his patent applications. Mr. Hyatt consequently has a large number of patent applications that have languished for years in various states of procedural limbo without an action on the merits or a decision on appeal.

In many cases, the PTO has simply ceased examination of Mr. Hyatt's patent applications on the merits. In many other cases, the PTO has refused to allow Mr. Hyatt's patent appeals to go to the Appeal Board for decisions.

For example, in seven cases that Mr. Hyatt filed in 1995, the patent examiners issued first office actions in 1995 or 1996, and Mr. Hyatt responded, yet the PTO has not issued an action on the merits in more than 17 years. Instead, the PTO repeatedly suspended action on these patent applications. Mr. Hyatt filed numerous "Petition[s] For An Action On The Merits" in these patent applications, but the PTO summarily dismissed those petitions.

For another set of applications, Hyatt walks through the PTO churning that involves repeated withdrawal of final rejections following appeal-brief filings by Hyatt.

= = = = =

For the past 40+ years, the PTO has seen Hyatt as something of a pesky thorn in its side. The "problem" is that Hyatt takes full advantage of the law, hires excellent lawyers, and does not give-up. It turns out that it is the PTO's job to deal with Hyatt and to issue him the patents that he deserves.

149 thoughts on “Hyatt v. USPTO: Three generations of poor examination are enough.

  1. This matter should be taken very seriously by any of you with real clients, as well as the PTO if it cares about the public interest issues. . PTO examiners are too often discouraged from rejecting claims under 112 for lack of adequate specification support, yet.are unlikely to find 40 or 50 year old prior art for the thousands of new claims in several pending very old Hyatt applications [noted by the Fed. Cir. in his prior suit against the PTO.to enter new evidence in a Section 145 D.C.D.C.review.] These Hyatt applications now are highly likely to be relatively quickly forced to issue by this APA suit and thus present a real danger for patent litigation firms for numerous client companies that may well be at risk! Mr. Hyatt did not spend all that money filing, arguing and PTO-litigating all of those new claims in all those long-maintained applications without carefully draftingthem to cover modern commercial products of real companies, just as Mr. Lemelson did. This is a tactic possible only because the U.S. has failed to provide any effective “late claiming” doctrine that would prevent vastly modified new claims from being filed indefinitely as long as an application can be kept pending, as long as no one else has published or issued actually “interfering” claims more than a year before per 35 USC 135(b). .

  2. Someone wrote that “why not bring an action way before 20 years?”Well, you may not recall the HUGE litigation with the State of California over (1) residency and right to tax his income, and (2) the ridiculous vignette where FTB/BOE agents broke a leg in his back yard going through his trash to bolster California’s jurisdictional rights over him — the whole affair with FTB/BOE agents being the most egregious invasion of privacy ever on record. He is a hero to those fighting FTB/BOE excesses

  3. I wondered if anyone got your reference…http://www.genomicslawreport.c…I got to meet Hyatt one time, and Lemelson as well before he passed away. They were both quirky characters. Lemelson was fond of doing things like inventing a sewing machine, but then later arguing that the patterns made by the machine meant that it was really a dot matrix printer. So he usually had very detailed specs that he tried to morph into something else. Hyatt is a different matter; he was fond of disclosing things like “an image processor that has 4m active pixels and is the size of a postage stamp” (details undisclosed) that “…runs on a miniature nuclear reactor” (details undisclosed). For both characters I thought the better rejection by the PTO was not prior art (because the claims constantly shifted), but just… overbreadth or written description.

  4. Suppose Hyatt gets some patents out of this, and tries to sue the pants off of everyone using his claimed technology. Is there some way the defendants can implead the PTO as a co-defendant, for being negligent in (or even deliberately derelict in) its examination duties? Seems to me that the defendants could argue that had the USPTO had timely examined the applications and timely issued the patents, the defendant would have invested their resources differently or developed other ways of doing what they’re doing.

    1. It would be interesting if some personal malfeasance were to be found, what liability might be generated by such.Here I think a possible Bivens action might be possible for those defendants seeking a monetary compensation for the actions of officials acting (or mis-acting) under color of their Federal authority.

  5. Assuming this business with Hyatt’s applications comes to a head i and there is some resolution in Hyatt’s favor in short order, the timing of that would be very interesting. Specifically, the media attention on Hyatt (and his history) in relation to the timing of MPHJ’s trolling activities … and the Alice case. It might just be the perfect storm. Perhaps a couple of other events could be thrown into the mix to focus the public’s attention even more on our steadily unraveling patent system (and who’s profiting from it).

  6. That’s unbelievable. What small people we have working at the USPTO.Mr. Hyatt should ask the court to issue an injunction requiring the PTO to issue the patents, not just to start examining them.

  7. The complaint suggests that the delays were NOT due to the Board, but rather due to examiners failing to file examiners answers in response to appeal briefs [which of course deprives the Board of jurisdiction]. That lack of adequate examiner supervision or control [by which examiners can avoid working on messy old cases with hundreds of added new claims in order to get more credits for easier newer cases] is what the PTO should have been addressing.by assigning these old cases to better examiners who would get proper credit for properly disposing of them. .

  8. ‘The complaint focuses primarily on two applications that have been pending “since the early 1970s – over 40 years’Hyatt is not alone. The PTO has been using similar strategies against other inventors. These and other PTO practices make a sham of the system. Many inventors now have to fight years just to get their patents. Many cannot afford to and finally give up. Likely, that’s the PTO’s plan. The problem is not the patents the PTO is issuing, but the ones it is not. That is the true drain on America’s economy despite the dissembling of large multinational infringers. Add to that changes in the courts and laws over the last several years where inventors must now face multiple trials over the same invention and an inability to obtain an injunction against large infringers, altogether where one can they are now better off protecting their invention by trade secret, or where not feasible taking it with them to their grave.Property rights and jobs in America are now hanging from a frayed thread. Congress and the White House continue to follow the lead of their multinational campaign donors like lambs…pulling America along to the slaughter.Just because they call it patent “reform” doesn’t mean it is.All this patent ‘reform’ talk is mere dissembling by China, huge multinational thieves and their paid puppets -some in Congress, the White House and elsewhere in the federal government, and some masquerading as reporters. They have already damaged the American patent system so that property rights are teetering on lawlessness. Simply put, their intent is to legalize theft -to twist and weaken the patent system so it can only be used by them and no one else. Then they can steal at will and destroy their small competitors AND WITH THEM THE JOBS THEY WOULD HAVE CREATED. Meanwhile, the huge multinationals ship more and more American jobs to China and elsewhere overseas.Do you know how to make a Stradivarius violin? Neither does anyone else. Why? There was no protection for creations in his day so he like everyone else protected their creations by keeping them secret. Civilization has lost countless creations and discoveries over the ages for the same reason. Think we should get rid of or weaken patent rights? Think again.Most important for America is what the patent system does for America’s economy. Our founders: Jefferson, Franklin, Madison and others felt so strongly about the rights of inventors that they included inventors rights to their creations and discoveries in the Constitution. They understood the trade off. Inventors are given a limited monopoly and in turn society gets the benefits of their inventions (telephone, computer, airplane, automobile, lighting, etc) into perpetuity and the jobs the commercialization of those inventions bring. For 200 years the patent system has not only fueled the American economy, but the world’s. If we weaken the patent system, we force inventors underground like Stradivarius and in turn weaken our economy and job creation. For a robust economy America depends on a strong patent system accessible to all -large and small, not the watered down weak system the large multinationals and China are foisting on America.For the truth, please see http://www.truereform.piausa.olink to piausa.wordpress.com link to hoover.orglink to cpip.gmu.edu

    1. Do you know how to make a Stradivarius violin? Neither does anyone else.Oh noes! That must be why people stopped playing the violin after he stopped making them. And that of course led to Vietnam and the Great Recession.Seriously, you can’t even parody this stuff. The PTO isn’t granting enough patents and that’s a “drain on the economy.” Want proof? Just look at downtown Omaha. See any giant Egyptian Pyramids there? Of course not. The ancient Egyptians didn’t tell anybody how to make them because the Chinese patent system stinks. Also, let’s not forget the Founding Fathers! Because they Founded us. And they were dudes. With wigs.

    2. This also explains why nobody has invented a commercially successful bubble gum with delicious morsels of roasted peanuts and popcorn.

  9. Dennis, I love the Buck v. Bell (1927, U.S. Supreme Court) reference. >It turns out that it is the PTO’s job to deal with Hyatt and to issue>him the patents that he deservesIf it turns out that the delay is on the PTO, and not him, then you’re right. But if he has himself been doing things to stall the case, the PTO could invoke In re Borgese on its own and refuse to grant them for prosecution laches. If the delay’s on the PTO, however, they need to either grant or deny the applications on the merits and let the chips fall where they may.

    1. ” But if he has himself been doing things to stall the case, the PTO could invoke In re Borgese on its own and refuse to grant them for prosecution laches.”Lulz. Good luck to the PTO on that.

    2. Lode, put yourself in the shoes of an examiner who is ripped a new one by the applicant in a very personal and humiliating way. We have seen examples of that kind on behavior here where attorneys are utterly abusive and degrading to the examiners in their remarks.Must an examiner actually file a response to such a paper?

            1. Anon, good point there. But I think they still must notify Hyatt. If they haven’t done so, I don’t think they can claim abandonment.

              1. I don’t think that you are correct (the non-response would still make the application abandoned; Hyatt may have grounds for reinstating the abandoned application if the Office withheld such notice as you now suggest) – and you are assuming facts not in evidence – and that assumption then also feeds right back into the Office not following its own rules in an effort to deny Hyatt his patents

              2. Well, anon, all we know from the complaint is that the examiner never responded and Hyatt “only recently” found out about that.On its face, it seems incredible that Hyatt did not know that the examiner never responded. It would be nice to see some status inquiries through the years.

              3. I’m sorry, anon, what are you trying to say?We know that Hyatt filed an appeal brief and the examiner did not responded — assuming the allegations in the complaint are accurate.Hyatt alleges he just found out about all this. My question: really/

              4. No Ned, that is your new question.The point I was responding to (before you moved the goalposts) was that you claimed Hyatt must have sent in his response in a “very personal and humiliating way.”Pure unfounded conjecture on your part – then you kept digging…(add: looking over the posts here, lots of NIMBYism from the usual suspects, all geared towards an anti-view. Why is that not surprising? Why is it not surprising that unchecked [and unabashedly illegal] governmental power seems ‘ok’ when that power is in use denying a patent? The main conversation thread has so much dust-kicking with a(n attempted) switch of focus to the person [who may be disreputable] and away from a government action [that IS on its face disreputable]. Clearly, the ‘mindset’ of the these ends justifying these means is in play, and an objective view of the government actions – in and of themselves – is not desired by certain individuals.)

          1. But the applicant has to be notified. So that the applicant can file a response that does comply with Rule 3. The PTO can’t just not enter the response and let the case sit there for 20 years.

      1. “We have seen examples of that kind on behavior here”The most notorious person doing this is Malcolm – and yet Ned admires Malcolm and says “just enjoy his swagger.”Ned – check yourself.

  10. Hyatt makes the almost believable allegation that: “Several years ago, the PTO apparently determined that it would refuse to grant Mr. Hyatt any further patents, irrespective of the merits of his patent applications.”This isn’t a new allegation, is it?I’m curious why there have been no serious efforts to get to the bottom of this for so many years. Academics don’t seem to have been paying much attention to it, unless I’ve missed something. Is it just that nobody really cares because the status quo — a world without Hyatt’s patents — is just fine with everyone (except for Hyatt and his little fanclub)? That would be my guess.Dennis says Hyatt’s allegation is “almost believable,” seeming to suggest that it remains “not believable.” What would make the allegation “believable”?We know that the patent teabagger types love a conspiracy theory. Does Hyatt have a theory as to why the USPTO (allegedly) chose to target him in particular? Does anyone have such a theory that they would be willing to share?

    1. MM, recall the laugh we had last year about the patent attorney who personally attacked every examiner? The patent owner didn’t get his patent until he replaced his attorneys with attorneys who behaved with more respect.I conjecture that something of this nature may have happened here. The examiner never filed an answer. I bet one of the reasons why may have to do with the disrespect shown the examiner and the entire examining corps in Hyatt’s appeal brief.

      1. “The examiner never filed an answer. I bet one of the reasons why may have to do with the disrespect shown the examiner and the entire examining corps in Hyatt’s appeal brief.”That’s not a valid reason for not issuing an examiner’s answer. Not even close.These cases cannot be kept pending by the examiner simply refusing to issue an answer to Hyatt’s brief. The SPE, the TC Director, and even the various Deputy Dawg Associate Commissioners for Patent Examination Policy, Operations, Administration, and Holiday Party Planning know these cases are pending. I have no doubt that the Commissioner is aware these applications are pending. They clearly have some reason for not insisting that the prosecution of these applications be brought to a conclusion. What those reasons are we can’t know for sure. Maybe Mr. Hyatt will get some discovery on that issue.

        1. Maybe Mr. Hyatt will get some discovery on that issue.Maybe the public will get some discovery on Mr. Hyatt’s issues. He loves complaining about the PTO but unless he opens up his prosecution history files and shows everyone what he’s talking about, he might as well be just making stuff up.These cases cannot be kept pending by the examiner simply refusing to issue an answer to Hyatt’s brief.If you believe Hyatt, then the facts show that you are very much mistaken about what examiners can and cannot do.

        2. “These cases cannot be kept pending by the examiner simply refusing to issue an answer to Hyatt’s brief.”I thought they went on up to the board?

              1. Could be an innocent mistake by the PTO. But I suspect the examiner “tossed” the appeal brief, but may have failed for some reason to notify Hyatt. It would be interesting to have this case proceed for a while just to find out what really happened and why.

        3. AAA JJ, I beg to differ. An applicant does not have a right to a patent. He has a right to an examination. But he must do so through counsel and counsel and/or the inventor must act with a certain level of decorum.I doubt whether the reason that the PTO is holding up Hyatt has to do with substance. If they had a substantive reason, they could allow the case to be finally decided by the Board so that Hyatt could appeal to the courts.No, it really must have to do with they way he is treating the examiners. We have seen it before here. When one shows disrespect, one does not get his case allowed regardless.

          1. “An applicant does not have a right to a patent.”I beg to differ. Applicant(s) is (are) entitled to a patent unless the PTO can establish by a preponderance of the evidence that they are not.”But he must do so through counsel…”Not true. Applicants can be pro se.”…and/or the inventor must act with a certain level of decorum.”Agreed. But if the PTO thinks counsel and/or applicant has violated Rule 3, then they are required to notify counsel and/or applicant. They can’t simply do nothing. See MPEP 714.25.”No, it really must have to do with they way he is treating the examiners.”I seriously doubt that. And if that were the reason, that would reflect even worse on the PTO.

            1. “No, it really must have to do with they way he is treating the examiners.”I seriously doubt that. And if that were the reason, that would reflect even worse on the PTO.I think most people would find the opposite to be true, i.e., if Hyatt or his reps filed some unhinged “response” (not unprecedented, as you know) then most people’s sympathy would be with the PTO.You gotta remember: a lot of Hyatt’s money came from licensing an invalid patent. 99.99999% of people aren’t that lucky, nor are they especially prone to feeling pity for someone who was when that lucky, particularly when that person turns out to be litigious, obnoxious, or otherwise slimy.

            2. “I beg to differ.”Yeah I kind of do too, this here’s an entitlement program. Which I really feel like if people would acknowledge such then that would change the culture. “has violated Rule 3, then they are required to notify counsel and/or applicant. They can’t simply do nothing. See MPEP 714.25.”Well maybe they’re getting around to it. Maybe a little late, but meh, they got things to do.

            3. On disrespectfully papers, it actually says the paper will not be entered and that fact will be notified. The examiner does not have to reply.

            4. AAA JJ, come on now. The PTO is going out of its way to play games with Hyatt. It must have something to do with the WAY he as been prosecuting his cases, as opposed to a genuine substantive dispute. If the latter, they would simply reject the claims, uphold the rejection at the Board, and allow him to escape to the courts if he wanted to continue.

      2. Contrast Ned’s own (baseless) conjecture of “I conjecture that something of this nature may have happened here. with what Prof. Crouch posted above: “The “problem” is that Hyatt takes full advantage of the law, hires excellent lawyers, and does not give-up” (emphasis added)Not sure how to equate the Professor’s view of excellent lawyers with Ned’s view (especially given Ned’s continued liking of one of the most loathsome posters on these boards).

  11. In the credit-where-credit-is-due department, you have to give Hyatt some credit for filing his applications when he did. He understood that the old patent regime was supremely fertile ground for exploitation and shenanigans. And he beat the deadline.That said, even under the current much-improved regime, if you’ve got the money and the time and the requisite personality type, it remains a fairly trivial task to lodge a hornets nest at the USPTO and create a mini “scandal” about how things aren’t happening fast enough or (god forbid) somebody “made a mistake” while trying to pull the hornet stingers out of their eyeball. I suppose it will always be the case as long as those personality types still enjoy playing the game. At least now the public has the “luxury” of watching the disasters unfold in real time. It’s nearly impossible to believe that we ever put a system in made place which made Lemelson and Hyatt possible. In the next few decades we’ll likely look back and say the same thing about most of the computer-implemented junk that’s flowing out of the PTO.

    1. MM, at some point, Hyatt really pissed off the PTO. This is personal, and to me, it is clear that the PTO is abusing it power. But Hyatt cannot win even if he wins in court. Recall, the case of the Cherokees and Andrew Jackson. The government can ignore the courts if it wants to and the only remedy is impeachment.

      1. I kind of agree with Ned on that one if there is a conspiracy going to the top the only way for him to get his patent is to appeal to the district court because the admin can always just stay the course since the only remedy is not going to happen.

        1. if there is a conspiracy going to the top the only way for him to get his patent is to appeal to the district courtOr get Congress and the DOJ involved. What’s been noted here before (going on for many years now) is that Hyatt really seems to be the one who’s dragging his feet. He’s got the money and his lawyers have the time. What is/was holding him back?

    2. “… it remains a fairly trivial task to lodge a hornets nest at the USPTO…”So filing applications is lodging a hornets’ nest at the PTO?What’s the PTO’s problem? If the applications don’t describe and/or enable what he’s claiming, make the rejection and let him appeal and decide the appeal. If there is a prior art that anticipates or renders the claims obvious, make the rejection and let him appeal and decide the appeal.If the applications and the claims are “junk” or a “hornets’ nest” all the PTO has to do is reject them, persuade the Board/USDC/Fed. Cir. that the rejections are proper, and Hyatt’s applications are sunk. So what’s the problem?

  12. Over dinner, I was told by counsel inside at a big company that had had the government go after it for antitrust violations that the government could overwhelm any company, no matter how big, if it chose to do so. The way I see this playing out, the only way Hyatt is every going to get these patents issued is if a court “deems” them granted and orders the Director to sign. There is nothing he can do, really.Congress could help Hyatt by giving him the right to appeal directly to the courts rather than going to the Board. Indeed, Congress might give all of us that right if the appeal is not decided within a fixed period of time, let us say, 5 years.

    1. “Congress could help Hyatt by giving him the right to appeal directly to the courts rather than going to the Board.”Wait, for these old apps you couldn’t go to the DC?

      1. Or must you wait on the board opinion regardless of whether it is to the CAFC or the DC? My bad I totally forgot.

        1. The Hyatt cases, at least at back about 15 years ago, were a team effort at the USPTO. I do not know what the story was, except it seems that were numerous concurrent patent application (jumbos each with large numbers of claims), all with apparently non-enabling disclosures for many/most/all? of the claims. I think Hyatt is/was a patent attorney/inventor seemingly still in a war with the USPTO.

  13. The Wikipedia entry on the Great Inventor Gil Hyatt is pretty funny. Which is to say there is no such entry. But in the “microcontroller” entry you can find this:Gilbert Hyatt was awarded a patent claiming an invention pre-dating both TI and Intel, describing a “microcontroller”. The patent was later invalidated, but not before substantial royalties were paid outKind of like a footnote. LOL.

  14. And Dennis, you should know that the title of your post has not gone unnoticed. I’m just not quite sure how to take it. :)

  15. The “problem” is that Hyatt takes full advantage of the law, hires excellent lawyers, and does not give-up.The “problem” is that Hyatt is an incredibly wealthy, greedy clown who apparently decided to stick it to the USPTO long ago.I’ve seen plenty of work by Hyatt’s “excellent” lawyers. I wasn’t impressed. I also seem to recall Dennis being threatened by them because somebody’s fee-fees were offended when aspects of the file history were criticized. That’s about as lame as an applicant can be.It turns out that it is the PTO’s job to deal with Hyatt and to issue him the patents that he deserves.Again, the “problem” is that nobody on earth “deserves” the patent protection that Hyatt will obtain if the rumors we’ve heard are to be believed. The patent system was not set up for this kind of event.Maybe someone at the USPTO screwed up (with plenty of help from Hyatt — don’t pretend that he didn’t have a hand in creating this mess). Exactly when that happened is unclear but it seems to have occurred in the long distant past. Gil Hyatt has had money flying out of his butt for a long, long time. He’s known plenty of Congressman and could always have pulled levers. In short, he could have dealt with this a long time ago. He could also have published his applications as a show of good faith (and why not? are there “trade secrets” in there? LOL!). But he chose not to do that.The only people who want to see Hyatt “win” this ridiculous showdown are the same people who always want the PTO to lose (for their own selfish reasons).That’s why I’ve said before that the PTO should just give Hyatt’s his patents. Give him the claims pending right now. And then let’s call our representatives in Congress and ask them to wipe every one of those claims out, tomorrow. Hyatt doesn’t stand a chance.

      1. You surely understand that even if the USPTO right now rejected all of Hyatt’s claims tomorrow (and how many hundreds or thousands of claims do you think are pending?), he’ll keep the applications alive and moving through the court system for decades.Because he can afford to do that and that’s “how he rolls.”

      2. If he doesn’t deserve the claims, shouldn’t a post grant procedure be able to handle that case?Even if every pending claim were finally rejected tomorrow, that would only start the process of moving the applications through the court system which will take at least another decade.

    1. “That’s why I’ve said before that the PTO should just give Hyatt’s his patents. Give him the claims pending right now.”This is the correct solution. The PTO clearly has not idea what to do with the applications, and can’t make a case of unpatentability that they think stands a chance of affirmance by the Board or the USDC for DC or the Fed. Cir. Issue the patents and let third parties challenge them.

    2. “I’ve seen plenty of work by Hyatt’s ‘excellent’ lawyers. I wasn’t impressed.”If this complaint is supposed to be the work of excellent lawyers, I must agree with you. This complaint is beyond terrible. Rambling, unfocused, and generally just a mess.And clearly not written by somebody who knows what they are talking about. Paragraph 25 alleges that “The examination is conducted by a patent examiner, an employee of the PTO who is skilled in the field (or ‘art’) of the invention.”Wrong. Examiners are not persons of ordinary skill in the art. The role is one of fact finder, to provide evidence of and establish the level of the hypothetical person of ordinary skill in the art.Paragraph 39 is completely irrelevant to the cause of action laid out in the complaint. What relevance do previous applications that were prosecuted, appealed and decided by the Board, and even the Fed. Cir., have to do with his applications that he alleges are being deliberately buried by the PTO?Paragraph 43 alleges that in “many cases” Mr. Hyatt has filed appeal briefs, and in “most of these patent appeals” the examiners have not filed an answer, and then complains, “yet the Appeal Board failed to rule.” Uhm, the Board doesn’t take jurisdiction until the examiner answers, and maybe not until the applicant files a reply brief, so how could the Board “rule” in “most of” those appeals?He also alleges in paragraph 43 that he has filed “many hundreds” of petitions for answers in appealed cases, to no avail. I hope that allegation is true, because if it’s not then that’s a whopping lie in the complaint. This complaint is a piece of garbage. But I suspect that Mr. Hyatt’s real intent is to shine a light and get the cockroaches at the PTO scurrying around. I’m sure they’ll be some scurrying, but I doubt it’s gonna produce any results for him.

      1. “Wrong. Examiners are not persons of ordinary skill in the art. “It didn’t say they were, it said they were skilled in the field. That doesn’t mean that examiners are imaginary persons. Though I’m sure you’re quite right about the low quality legal work, there’s no way it could not be if they haven’t procured action in 20 years. “Uhm, the Board doesn’t take jurisdiction until the examiner answers”There could be a procedural screw up going on too.

        1. It didn’t say they were, it said they were skilled in the field.Indeed. For reasons that are not clear to me, a “technical degree” is required to opine on complex matters such as whether “troubleshooting” or “available real estate” were known prior to 1999.

        2. “It didn’t say they were, it said they were skilled in the field.”Examiners are not “skilled in the field” (whatever that is supposed to mean). Reading patent applications and searching prior patents all day does not make anybody “skilled in the field.”

          1. “Examiners are not “skilled in the field” “You can assert that all you like, but that doesn’t make it so. “Reading patent applications and searching prior patents all day does not make anybody “skilled in the field.””You can assert that all you like, they can feel free to assert the opposite. And frankly when I talk to people in the art, having someone who’s had their nose in the art for the past 5 years on board is not entirely unappealing. If you catch my drift, t ard.

              1. 6,You do realize that your “ta rd” posts are meaningless because of your near constant character suicides, right?

  16. I am pretty sure that I have heard rumors of this case from PTO employees for the last 10 years. Basically that the patent application if granted a patent, would be unbelievably disruptive so they shelved it not knowing how to examine it. I thought it was an urban legend. I would love to see the prosecution history.

  17. Sitting on an appeal for 20 years? I cannot fully express my disgust with the USPTO should that allegation prove true.

    1. Sitting on an appeal for 20 years?And the worst part is that Hyatt only just found out about this delay last week.It can’t possibly be that he feels the implementation level of his invention has more or less peaked, or he’s suddenly decided that he’s aging faster than his patent applications and he wishes his pile of money could be a little bigger.Doesn’t sound like the typical actions of a sympathetic guy who “takes full advantage of the law, hires excellent lawyers, and does not give-up”.

      1. “And the worst part is that Hyatt only just found out about this delay last week.”Lulz. Just skimming the case, it appears that he diligently made phone calls every 10 years in one case.This is why it would be interesting to see the actual file histories.

        1. This is why it would be interesting to see the actual file histories.What are you going to see besides the date that the appeal was docketed? There is NO EXCUSE for sitting on appeal for 20 years.

          1. There’s no need to yell. I agree that there is likely no excuse for sitting on an appeal for 20 years. I’d like to see him get exactly what he asks for, which is an order to get these things resolved by a date certain. At that time, assuming patents are issued, we can argue about whether Mr. Hyatt can enforce them.

            1. My comments have nothing to do about Hyatt, his actions, or his patents. They deal solely with the USPTO’s actions.I agree that the USPTO should do something. For example, if they affirm, and Hyatt appeals to the Federal Circuit, then those claims will be brought to light, and if there is prior art out there, someone will find it and bring it to the USPTO’s attention (one way or another).

              1. My comments have nothing to do about Hyatt, his actionsHyatt is a big part of this. Do you think the USPTO’s actions were arbitrary? Like Hyatt’s name was pulled out of a hat or something?They deal solely with the USPTO’s actions.Oh, sure. No doubt there were some mistakes made along the line. The USPTO makes mistakes all the time. Personally I’d prefer that those mistakes are made in the public interest, rather than against the public interest which seems to be the case 90 times out of a 100. Others, of course, will care only about themselves and their own attempts to grab a piece of the patent pie before the oven blows up.

              2. “Hyatt is a big part of this. Do you think the USPTO’s actions were arbitrary? Like Hyatt’s name was pulled out of a hat or something?”So what are you saying? Are you saying that Mr. Hyatt’s applications were singled out by somebody(ies) at the PTO? And if so, for what reason? Can you tell us who at the PTO might have done that? Can you give us some names?

              3. I think he might have shown a lot of disrespect to the examiner or examiners at some point. They reacted.

              4. hahahahahahaahahahahahahahahahahaNow that I could see having happened. WHOOPSIE your appeal never got docketed.

              5. Now that I could see having happened. WHOOPSIE your appeal never got docketed.You apparently have no idea as to how your comment would make those that believe in the rule of law want to puke.

              6. What man? Administrative problems happen. If that makes you want to puke, then feel free to puke.

              7. Are you saying that Mr. Hyatt’s applications were singled out by somebody(ies) at the PTO?Not me. That’s what Hyatt is saying. Can you tell us who at the PTO might have done that? Can you give us some names?No, I can’t. But if Hyatt was actually “singled out” as he seems to believe he was, then surely there are people who know why. They can’t all have passed away by now (though probably some of them have).All I’m saying is that, if what Hyatt alleges is true, then it’s remarkable that nobody has “named names” or been asked to at this late date. Apparently the USPTO has better internal control and security than the NSA.

              8. At least two SPE’s are named in the complaint. Although it’s clear to anybody who actually knows how the PTO operates that two such lowly bottom feeders could not on their own carry out a conspiracy to deny Hyatt his patents.

              9. it’s clear to anybody who actually knows how the PTO operates that two such lowly bottom feeders could not on their own carry out a conspiracy to deny Hyatt his patents.Please tell us, O Expert, the names of the people who must certainly be involved in this “conspiracy to deny Hyatt his patents.” Recall that (if you believe Hyatt, which you appear to) this has been going on for a long, long time.The Great Kappos must have been involved, at least. I believe he spoke face-to-face with Hyatt at least once and it’s documented on the internet. The Great Kappos appears to believe that Hyatt is a bit of a, um, “loose cannon.”

              10. I didn’t say “this conspiracy” to deny him the patents. Learn to read, dipsh!t.Ned seems to be under the delusion that this can all be explained by the examiners being insulted by Hyatt’s responses and/or briefs and the examiners, deciding unilaterally, that they’re simply not going to answer his briefs. Anybody who knows anything about how the PTO manages its workflow understands that that is a ridiculous notion.

              11. I didn’t say “this conspiracy” to deny him the patents.Here’s what you wrote: “two such lowly bottom feeders could not on their own carry out a conspiracy to deny Hyatt his patents.”That sounded to me like you were suggesting that others must be involved in “the conspiracy to deny Hyatt his patent”. Now you seem to be denying any such “conspiracy”. So what’s your theory? You seem to acknowledge elsewhere that everyone at the PTO knows about Hyatt’s applications and their pendency, and that’s surely been true for many years. So, if it’s not a “conspiracy”, then what do you want to call it? Learn to read, dipsh!t.Consider taking some anger management classes. Decent law firms usually provide that stuff for free to their employees.

              12. “Apparently the USPTO has better internal control and security than the NSA.” – Oh, I don’t know, they let you spout all kinds of rubbish

              13. Hyatt is a big part of this. Do you think the USPTO’s actions were arbitrary? Like Hyatt’s name was pulled out of a hat or something?This is what actually makes it worse for the USPTO. If it was some random inventor getting shafted, then it could be passed off as random institutional incompetence. However, Hyatt is a well-known thorn in the USPTO’s side, and if the USPTO’s actions are a retaliation for him being a thorn, then that raises serious concerns about abuse of power and due process, among others.Hyatt being an alleged bad actor is NOT a justification for mistreatment by the USPTO.

              14. “then those claims will be brought to light, and if there is prior art out there, someone will find it and bring it to the USPTO’s attention (one way or another).”By the time the claims are brought to light all the people that might know of such prior art will be dead.

              15. By the time the claims are brought to light all the people that might know of such prior art will be deadAnd whose fault would that be?

              1. “but whether or not it constitutes [an unreasonable delay in pursuing a right or claim in a way that prejudices an opposing party] to let the PTO do nothing for 20 years.”Hmmm… It seems to me that that is exactly how the term laches is meant to be used.How do you use it?

              2. whose claim…?which right…? (surely it is not de facto a patent right, is it?)laches is usually a defense, right?

              3. “whose claim…? which right…? (surely it is not de facto a patent right, is it?)”Uh, Hyatt’s claim, which is presumably based on a right to have the PTO act on a patent application in a timely manner. You know, the claim Hyatt is now finally making after 20 years.

              4. How about if you go and read Alun’s comment again.And yes, the question on the table is whether Hyatt would be subject to the equitable defense of laches in the event that he obtained a patent on the subject application and attempted to enforce it, given an argument that it took him 20 years to get around to a serious attempt to get the PTO off its duff. I don’t know what the answer is, but I think Alun’s question is interesting, and I’m quite certain that he used the term “laches” correctly.

              5. How about if you do so?You have now switched the discussion – as Alun’s comment was geared to laches against the Office (but please, keep on trying to dig yourself out of this – so fun to watch)

              6. ” as Alun’s comment was geared to laches against the Office (but please, keep on trying to dig yourself out of this – so fun to watch)””laches against the Office”? I don’t think that that is how the term ‘laches’ is meant to be used…

              7. That’s what he said. How many petitions should it take before the reasonable person concludes that the next one is probably futile?

        2. This is why it would be interesting to see the actual file histories.I’d be even more interested to see if Hyatt can make a credible threat of an injunction post-eBay when the claimed technology is 40 years old, widely implemented, and he’s not selling it.Think he might have overplayed his hand a bit on this one?

          1. if Hyatt can make a credible threat of an injunction post-eBay when the claimed technology is 40 years old, widely implemented, and he’s not selling it,Maybe he’s waiting for eBay and/or Lemelson to be overturned. That would explain a lot.

        3. Just skimming the case, it appears that he diligently made phone calls every 10 years in one case.LOL. Isn’t that the best any of us could do if we were sitting on a goldmine? There’s only so much time in the day.

          1. What’s even more funny MM is that Hyatt himself probably forgot these cases and only thought about them when you brought up his pending apps the other day lol.

      2. the worst part is that HyattMy comment was about the USPTO. Hyatt could be the spawn of the devil for all I know, but that still does not justify the USPTO sitting on his appeal for 20 years.It is pretty f’n clear where your sympathies lie that you’ll ignore blatant and unjustifiable abuse by the USPTO.

        1. It is pretty f’n clear where your sympathies lie that you’ll ignore blatant and unjustifiable abuse by the USPTO.If Hyatt ignored it for 20 years, it’s hardly my place to be offended on his behalf.

          1. If Hyatt ignored it for 20 years, it’s hardly my place to be offended on his behalf.Abuse of power only offends you if someone consistently makes a stink about it? That is really sad.

              1. once it’s been made clear which party has been abusing its powerExplain to me how Hyatt could be at fault for the USPTO sitting on his appeal for 20 years? Feel free to use your imagination to its fullest extent when you come up with an explanation as to how the 20 year delay is Hyatt’s fault.

              2. Explain to me how Hyatt could be at fault for the USPTO sitting on his appeal for 20 years?Pretty sure I just did, but I wasn’t expecting you to agree with me. It’s pretty f’n clear where your sympathies lie.

              3. Pretty sure I just didI’m pretty sure you didn’t. Why don’t you cut and paste your explanation as to how its Hyatt’s fault (or Hyatt’s abuse of power) that the USPTO sat on an appeal for 20 years.

    2. Sitting on an appeal for 20 years? I cannot fully express my disgust with the USPTO should that allegation prove true.Oh, I’m pretty sure you’ll be able to “fully express your disgust” with the USPTO no matter what happens. It’s also pretty funny how defenders of Hyatt’s tiny handful of applications ever manage to express any disgust as the USPTO issues thousands of other computer-implemented junk patents. Go figure.

      1. It’s also pretty funny how defenders of Hyatt’s tiny handful of applications ever manage to express any disgust as the USPTO issues thousands of other computer-implemented junk patents. Go figure.Its also pretty funny how you’ll attempt to hijack any thread and bend it towards your pet-peeve. Go figure.Has it ever occurred to you that perhaps people are tired of you going round and round with anon, NWPA et al., about the same things over and over and over and over and over and over again year after year after year?Here is a novel thought … try to stay on topic.

        1. try to stay on topic.It’s hardly a coincidence that both Hyatt and Lemelson are/were notorious operators in the so-called computer arts. It’s all part of the Bigger Picture.That Bigger Picture also includes exploding patent grants in those arts at the same time the recipients of those grants complain endlessly that their applications aren’t being granted yesterday.

          1. “It’s hardly a coincidence that both Hyatt and Lemelson are/were notorious operators in the so-called computer arts.”The “so-called computer arts”? Neither Lemelson’s nor Hyatt’s applications and patents are to the “so-called computer arts.”Keep svcking though.

            1. Neither Lemelson’s nor Hyatt’s applications and patents are to the “so-called computer arts.”Using a computer to read a bar code isn’t a computer art? What is it, then?What about identifying available real estate? Is that a computer art? How about troubleshooting a computer program? Is that a computer art?Let everyone know. You apparently have thought quite a bit about this stuff so you must have very interesting views about it.

        2. You said it PG,There is a new thread now for Malcolm to run away from the first principles that would be highlighted in answers to questions of law and fact concerning the exceptions to the printed matter doctrine and the Grand Hall experiment. Yet he insists on vomiting on every single thread about the ev1ls of software patenting…(add: PG, you should know that to Malcolm, all roads lead to his agenda, and in his ‘mind,’ he is perfectly justified in vomiting on any thread – that just goes with his notion of ‘legal realism’)

    3. that would look rather bad, but I’m far from convinced from his mere assertion that this is what is taking place and that we’ve heard the full story.

  18. “Hyatt makes the almost believable allegation that: ‘Several years ago, the PTO apparently determined that it would refuse to grant Mr. Hyatt any further patents, irrespective of the merits of his patent applications.’”If it’s true that the PTO has been sitting on an appeal for 20 years, then that’s a very believable allegation.If Mr. Hyatt really wants us to feel sorry for him, however, he should have these applications published and the files open, so we can see both sides of the story.

    1. You are missing the point in the law about prosecutions being conducted in confidentiality.I am pretty sure that Mr. Hyatt does not care one whit about you feeling sorry for him.

      1. No, I’m not missing that point at all, anon, which is why I didn’t suggest that the PTO publish the applications unilaterally. But thanks for your concern.

        1. You now missed the second half of my post – and again, miss the point.You are doing that ‘too quick to charge at the red cape of anon says’ thing again.

          1. “You are doing that ‘too quick to charge at the red cape of anon says’ thing again.”Says the guy who took less than 4 minutes to jump on and criticize my original comment.

      2. Anon, I do think that in this case, Hyatt does have some public-opinion motivation. In particular, the age of Hyatt’s patent applications automatically raise the spectre of Lemelsonian prosecution laches and one purpose of this lawsuit is to explain why the delay is due to PTO tactics rather than his own.

        1. If I recall the facts of the Lemelson case, it was a very different animal than what Hyatt is alleging. In Lemelson, they basically (I) filed the application, (ii) received a non-final office action, (iii) minimally responded without amending, (iv) received a final office action, (v) filed a CPA and (vi) repeated steps (ii)-(v) many, many times. In essence, there was no attempt, on Applicant’s part, to advance prosecution.

            1. For example, in seven cases that Mr. Hyatt filed in 1995, the patent examiners issued first office actions in 1995 or 1996, and Mr. Hyatt responded, yet the PTO has not issued an action on the merits in more than 17 yearsIf you take this allegation on its face to be true, then it is nothing like the Lemelson applications.

              1. If you take this allegation on its face to be true, then it is nothing like the Lemelson applications.That would depend on whether the “responses” were bona fide attempts to “advance prosecution.”If only Hyatt could grow a pair and let everyone see his awesome file histories instead of cowering behind an ill-conceived legal regime that was put in its coffin two decades ago, then we wouldn’t have to wonder so much about whether to suspect that (1) Hyatt is less than forthright or (2) that there is a fairly open conspiracy at the USPTO, lasting several generations, to treat him like dirt or (3) both.

              2. That would depend on whether the “responses” were bona fide attempts to “advance prosecution.”The alleged actions need to be extraordinary.

            1. So much for lady justice being blindfolded…(maybe they don’t teach that anymore)(I’ve said before, just because you can spin something does not mean that you should spin something)

              1. Yes, Leopold, everyone here has seen the signs of such “legal realism.”It’s also called unmitigated blight by Malcolm and Company.C’est La Vie.(add: someone needs a refresher course on the difference between childlike and childish)

      3. Mr. Hyatt does not care one whit about you feeling sorry for him.I’ve no doubt about that. He’s not a very sympathetic figure in any event. But his kind does attract a certain fanbase, as you surely are aware.

    2. If Mr. Hyatt really wants us to feel sorry for him, however, he should have these applications published and the files open, so we can see both sides of the story.He should have done that a long time ago.

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