Guest Post By Bernard Chao, Assistant Professor, Sturm College of Law University of Denver
Patent law seeks to provide the public with notice of a patentee’s property rights by requiring that a patent’s claims “distinctly point out what the inventor . . . regards as the invention.” 35 U.S.C. § 112 (b). However, both the Federal Trade Commission and the White House have noted that far too many patents contain claims that fail to provide adequate notice of what they cover. The Patent Office has recently adopted two initiatives to address these complaints. One program seeks to curb functional claims, a type of claim that is accused of often having uncertain boundaries. A second program encourages patent attorneys to include a glossary in their applications that will define the terms used in the claims. Help may also be coming from the Supreme Court which is reviewing § 112’s “insolubly ambiguous” standard in Nautilus v. Biosig. To varying degrees, these solutions all show some promise. But they are unlikely to solve the problem of unclear claims by themselves. More is needed. This post proposes another approach that should
help clarify claims.
The patent office should bring transparency to patent examiner interviews by recording them. Current patent office rules allow applicants to have face to face interviews with patent examiners. Although these rules also require that the examiner and the applicant summarize the substance of the interview, typically these summaries only identify the prior art discussed, parrot the claim language and provide the most skeletal description of the interview. This problem is well known. I recently attended a patent conference at Stanford Law School where two prominent professors separately complained about how opaque the interview process was. Indeed, patent prosecutors are clearly aware of the minimal record made after patent examiner interviews and view this as an advantage of the procedure.
But concealing the examiner/applicant dialog leads to unclear claims in two ways. First, claim interpretation is more uncertain. Courts rely on the prosecution history as one of the primary sources of evidence to interpret claims. Statements that distinguish an application’s claims from the prior art can play a key role in claim interpretation. By explaining how the prior art is different, such statements necessarily say what the claim does not cover. However, when these statements are made verbally during interviews, they do not appear in the prosecution history. Consequently, courts must interpret claims without the benefit of statements that should delineate the boundaries of the claim. Absent this evidence, claim interpretation will inevitably be less accurate and less predictable.
Second, the failure to know what was said during patent examiner interviews renders any doctrine of equivalents analysis less predictable. Under Festo v. Shoketsu,
535 U.S. 722 (2002), a narrowing amendment estops a patentee from asserting infringement under the doctrine of equivalents unless the patentee can establish that the amendment was made for one of three reasons. One of the reasons is that the rationale underlying the amendment bears no more than a tangential relation to the equivalent in question. The examiner interview is the most likely place to discuss the reason for an amendment. Without a record of the interview, anyone is free to speculate about why an amendment might have been made. A good example of this phenomenon can be seen in a case I teach in my patent law class, Unique Concepts v. Brown, 939 F.2d 1558 (Fed. Cir 1991). In Unique Concepts, different Federal Circuit judges could not agree about the reason for amendment because “the record contain[ed] no indication of what transpired in the interview.” Making audio recordings of patent examiner interviews would prevent this kind of dispute and clarify what claims cover.
Some patent prosecutors may worry that recording patent examiner interviews will have a chilling effect on the interview process. Patent attorneys may be reluctant to have a frank discussion about what their claims cover. Alternatively, because interviews happen in real time, without time to reflect and choose words, attorneys might refrain from having interviews. All that may be true. But if a patent attorney is unwilling to make a statement on the record, why should the patent office allow the claims? The public is entitled to know why a claim should be allowed before the applicant receives the monopoly rights that come with an issued patent.
The idea of recording patent examiner interviews is hardly revolutionary. In an era, where people post their most trivial thoughts, pictures and videos on Twitter, Instagram and Facebook, it’s clearly time for the Patent Office to record some of patent law’s most important conversations, examiner interviews.
[…] summaries. In a recent post, Professor Chao discussed the common practice of examiner interviews where the patent attorney […]
37 CFR 1.2 Business to be transacted in writing.
All business with the Patent and Trademark Office should be transacted in writing. The personal attendance of applicants or their attorneys or agents at the Patent and Trademark Office is unnecessary. The action of the Patent and Trademark Office will be based exclusively on the written record in the Office. No attention will be paid to any alleged oral promise, stipulation, or understanding in relation to which there is disagreement or doubt.
Very good! That’s one of the rules that will need to be tweaked when the recorded Interviews are put into the prosecution record. Thanks for highlighting that. Also note this:
No attention will be paid to any alleged oral promise, stipulation, or understanding in relation to which there is disagreement or doubt.
There won’t be any disagreement or doubt about the content of those Interviews when they are recorded. That’s the point.
That is not the point.
The point is that the current rules already govern.
The point is that the current rules already govern.
That’s a really thoughtful response to a proposal to change the current rules.
Deep, deep stuff.
It is deep stuff.
Sort of like making sure that no untoward side effects may occur when far less intrusive techniques may be better applied.
You really svck at this legal thinking stuff Malcolm.
Kids, do you know why this will never happen? I guess not, since not a single one of you has mentioned it:
The Examiner’s Union. Just try getting their buy-in to recording their members and making it part of the public record.
That’s too funny. This must be one of the most naive proposals I’ve ever heard.
Another very astute observation, Tourbillion.
The Examiner’s Union. Just try getting their buy-in to recording their members and making it part of the public record.
Examiners are already required to summarize the Interviews so they don’t have any credible objection to this change. The fact is that Interviews long ago evolved into a farce, along with the Summaries. That’s particularly true where the Interviews are lengthy and complicated and impractical for an Examiner to summarize adequately.
The current state of affairs, like much of our patent system, is just a giant joke, all for the benefit of the super-wealthy and the entitled grifting bottom-feeders who troll those wealthy entities, all at the public’s expense.
More changes to come, folks. Don’t act surprised.
“Examiners are already required to summarize the Interviews so they don’t have any credible objection to this change.”
The point here is that the job is not being done well enough.
Do the Fn job.
(why the H would a lengthy and complicated interview be “impractical” to summarize? – there exists NO valid reason for this)
The rest of the ad hominem can be suitably dismissed as typical Malcolm vapidness.
Anon, here’s the thing with demanding, as a solution, that examiners simply do their effin job: that is an excellent expression of integrity with which I agree, but which I think is no more grounded in reality than me doing my effin job as a weekend hacker and making the cut for the U.S. Open. It is simply beyond my abilities.
You are demanding that examiners do a job that, if properly and rigorously executed, is beyond the temporal, cognitive, and in many cases linguistic limitations under which these government employees operate. Your exhortations are commendable and idealistic – but not realistic.
You can castigate this as surrender. I see it as admitting reality so that we might then move on to considering more feasible remedies.
LOL
I think that you are correct Tourbillion. I do not castigate – but given the other ‘solutions’ being offered, this one by far is the one that is most on point and is the one our fearless leaders in Washington should be focused on.
Maybe we could get some academics to write about this…. ;-)
If we allow off-the-record interviews with the patent applicant, shouldn’t we also allow off-the-record sessions with third parties who think the invention is unpatentable? Thoughts?
I think that there is a clear attempt to make a distinction that changes your question.
The thought is to make the interviews not off-the-record.
There is a clear jump from the two parties interacting to what is in essence opening up the entire prosecution process to anybody that wants to be involved.
There is a clear jump
It’s called “argument by analogy.” I think Dennis is pointing out that the folks who so strongly resist this extremely modest proposal would go absolutely bonkers if ex parte challenges to patents were afforded the same black box treatment.
It would be quite wonderful, wouldn’t it, if any third party could call an Examiner up, present some art and an argument that would tank the case, and then the Examiner just writes the applicant and says “Sorry, the claims are no longer allowed. I just received a phone call that changed everything. Don’t bother refiling and please don’t contact the Office again. Have a nice day.”
We essentially have the opposite situation today. A very typical Interview summary simply states what statute was considered (almost always 103 in the computer-implemented context) and a form summation stating that the claims are non-obvious because the prior art doesn’t teach [insert claim here].
It’s simply not sufficient. Given that the technology has existed for many years to simply record the Interviews, it’s time to move forward with that.
Of course a certain segment of the patnet bar is going to complain. They complain about everything that might remotely affect their ability to obtain and enforce the broad patents they believe they are entitled to, regardless of how reasonable the proposal is.
“who so strongly resist this extremely modest proposal would go absolutely bonkers if ex parte challenges to patents were afforded the same black box treatment.”
I do not see that at all in what Prof. Crouch asks. Maybe you need to read what I have actually posted here – even if that is inconvenient for your little diatribes.
Maybe you need to read what I have actually posted here
LOL. Like this: Prof. Chao will not likely achieve what he thinks he would achieve by forcing a more gestapo regime
Because the first thing that comes to a normal person’s mind when they hear about an effort to increase transparency in the patent system is the N@zi secret police.
Keep the hits coming, “anon.” It’s easy to slip up, I suppose, when your psychotic garbage is so fondly embraced elsewhere on the Internets.
Try reading all of what I wrote Malcolm, and not glom onto the first perceived negative reference.
Try reading all of what I wrote Malcolm
Since when? 2005?
Seriously: if people are often having difficulty understanding you, it’s probably not their fault. And if you find it that difficult to make your point coherently, perhaps just accept the fact that your point is incoherent and not worth making.
On this thread – including the rather inconvenient notion for you that I do not find this recording to be all that big a deal – the gestapo effects has more to do with the fact (that you seem quite oblivious to – even though many other shave also noted this) that making the recordings of record will defeat the purpose of having them in the first place.
But let’s also explore your rather perverse and over the top reaction to the complimentary notion of recording what can be aptly called start-chamber quality review meetings that are completely off the record.
the gestapo effects has more to do with the fact … that making the recordings of record will defeat the purpose of having them in the first place.
You said nothing about ‘gestapo effects’ (whatever in heck that’s supposed to mean).
You compared the proposed recording of Examiner Interviews to the institution of a “gestapo regime.” Elsewhere you’ve compared the “second pair of eyes” quality review at the USPTO to “the Gestapo.”
I do not find this recording to be all that big a deal
Was the Gestapo also “not that big of a deal”?
Maybe stop and think a bit before digging a deeper hole. Unless of course you believe that you can’t dig any deeper (not an unreasonable belief at this point).
You’ve developed quite the ability to seem not able to understand that which you don’t want to understand.
Try again – this time with a little intellectual honesty.
Try again
Nah, I don’t think so.
It’s your move, Dennis, if you think there’s anything more to add.
See slide 15
link to oakton.edu
1) Interviews are not “off the record.”
a) Applicant initiated interviews must be preceded by the submission of a proposed agenda. If one hopes that the examiner will be prepared to have a productive discussion, one must provide a fairly detailed agenda with argument summaries etc. Else the examiner wont be prepared to make a decision.
b) Both the applicant and the Examiner have a duty to submit a summary of the interview for the record after the fact. That summary is expected to include:
at least the following applicable items:
(A) a brief description of the nature of any exhibit shown or any demonstration conducted;
(B) identification of the claims discussed;
(C) identification of specific prior art discussed;
(D) identification of the principal proposed amendments of a substantive nature discussed, unless these are already described on the Interview Summary form completed by the examiner;
(E) the general thrust of the principal arguments of the applicant and the examiner should also be identified, even where the interview is initiated by the examiner. The identification of arguments need not be lengthy or elaborate. A verbatim or highly detailed description of the arguments is not required. The identification of the arguments is sufficient if the general nature or thrust of the principal arguments can be understood in the context of the application file. Of course, the applicant may desire to emphasize and fully describe those arguments which he or she feels were or might be persuasive to the examiner;
(F) a general indication of any other pertinent matters discussed;
(G) if appropriate, the general results or outcome of the interview; and
(H) ) in the case of an interview via electronic mail a paper copy of the contents exchanged over the internet MUST be made and placed in the patent application file as required by the Federal Records Act in the same manner as an Examiner Interview Summary Form, PTOL-413, is entered.
see, for example: MPEP: 713.04 Substance of Interview Must Be Made of Record
So, if the “off the record interview” you propose is only that far off the record, I have no problem with it….as long as the third parties pay for the Examiner’s time, as the applicants have.
That is but one fallacy that concerns any “argument by analogy” (see 28.1.1) that wrecks that view (see 28.1.1.2). Yet another wrecking ball is the fact that the public simply does not have the right to be involved in the examination process.
Not one but two major relevant dissimilarities are (or should be) readily apparent.
the public simply does not have the right to be involved in the examination process.
ROTFLMAO
What a terrible idea! Bad idea. Recording interviews will mean the end of interviews. The possibility that every uttered word may become file wrapper estoppel is scary and utterly contrary to the purpose of the interview, which is to facilitate understanding and have a frank two-way dialogue between practitioner and examiner with the goal of advancing prosecution of the case. Otherwise, I may simply continue to file written amendments whose every word becomes immutable estoppel. Why do the same with interviews? The Prof. probably has never had a patent to prosecute or a client whose business depends on patent protection.
The Prof. probably has never had a patent to prosecute or a client whose business depends on patent protection.
I’ve been supporting this change for many years, having represented both patentees and defendants. One’s experience with patent prosecution per se has little do with how one views this proposal. Rather, it’s the extent to which one relies on chicanery and deception to obtain patents which would obviously color one’s view of the proposal. If you have nothing to hide, then you have no reason to object to recording the Interview which results in an Allowance.
the purpose of the interview, which is to facilitate understanding and have a frank two-way dialogue between practitioner and examiner
If it’s a “frank two way dialogue” then why in the world are you worried about estoppel? You’ll get the patent you deserve with the scope you deserve. And it’ll be far easier for everyone else in the country (remember them?) to understand what you obtained and why. The public interest in understanding the patent rights being granted is “paramount,” as everyone already knows and understands. And there is no doubt that statements made during Interviews can (and should) impact claim scope.
Just record them and make them public. It’s long past time that this was done.
If it’s a “frank two way dialogue” then why in the world are you worried about estoppel?
Words put in an amendment are first considered, then perhaps considered again, then put down on paper, then reviewed (one or more times), and then sent to the Examiner.
Words uttered to an examiner may be misspoken or incorrectly transcribed or based upon a mishearing of what the Examiner said — no one is going to want to conduct an interview under those conditions. If they want it in the written record, then I’ll do my business before the USPTO by the written record alone. By choice, it is my preferred practice. I see no benefit in potentially cutting my own throat (and/or that of my client’s) over some ill-chosen, spoken words.
They can record interviews all they want — however, don’t expect me to be participating in them.
it’ll be far easier for everyone else in the country (remember them?) to understand what you obtained and why
Hardly — it just means that some litigator has another source from which to kick up dust and cloud the patent.
there is no doubt that statements made during Interviews can (and should) impact claim scope
Really? The claim language should stand on its own — which is why I don’t have a problem recommending to my clients to avoid applicant-initiated interviews.
If they want it in the written record, then I’ll do my business before the USPTO by the written record alone. By choice, it is my preferred practice. I see no benefit in potentially cutting my own throat (and/or that of my client’s) over some ill-chosen, spoken words.
Just for the record, people actually pay serious money for articulate attorneys who can get the job done, if possible, without “cutting the client’s throat.”
That occasionally results in unfortunate moments like the first half of the oral arguments we discussed last week (where the patentee’s attorney was forced to pretend that the “device profiles” were something other than data). But that’s how the game is played. Even in public. At least when it’s played out in public we don’t have to pretend that some attorneys aren’t being a lot of money to make fools out of themselves.
Just for the record, people actually pay serious money for articulate attorneys who can get the job done, if possible, without “cutting the client’s throat.”
They are called first-chair litigators at big firms — and they make huge $$$$$$. Of course, there is no current need for patent prosecutors to watch every word they state, so I presume you weren’t talking about patent prosecutors.
where the patentee’s attorney was forced to pretend that the “device profiles” were something other than data
That wasn’t the fault of the attorney at the Federal Circuit — those claims were doomed by Warmerdam before they even issued. The person who doomed those claims was the one who asserted them.
there is no current need for patent prosecutors to watch every word they state
Is that what you tell the patent prosecutors you hire to prosecute your junk? Or is that what you tell your clients when you take their money to prosecute their junk?
They are called first-chair litigators at big firms
No, they’re called “competent attorneys.”
That wasn’t the fault of the attorney at the Federal Circuit
LOL. Did someone put a gun to his head and force him to make those arguments? Nope. He took the money and made the arguments.
those claims were doomed by Warmerdam before they even issued
Fascinating. Should the inventor or the prosecutor be disbarred or punished by the USPTO? Definitely some Rule 11 violations by the attorney, though, right, for wasting the court’s time with those “doomed” claims? The defendant will be getting their fees paid, right?
Is that what you tell the patent prosecutors you hire to prosecute your junk? Or is that what you tell your clients when you take their money to prosecute their junk?
Reading comprehension get you down again? I said “every word they state.” Prosecutors currently don’t have to watch any words they state. All business at the USPTO has to be done in writing.
You are all geared up act the total a s s h o l e and you overlook this point — so MM-ish.
Should the inventor or the prosecutor be disbarred or punished by the USPTO? Definitely some Rule 11 violations by the attorney, though, right, for wasting the court’s time with those “doomed” claims?
Not good with the lawyering thing, are you? If the claims issued, they have a presumption of validity. Moreover, if you have a reasonable explanation as to why certain case law doesn’t apply to your claims, it isn’t Rule 11 worthy. There is a difference between taking a losing case to the Federal Circuit and taking on a frivolous case. From everything I have read from you, I assume you don’t know the difference.
there is no doubt that statements made during Interviews can (and should) impact claim scope. Really?
Really. It’s been that way for a long time. It’s not going to change, either.
The claim language should stand on its own
And it always does “stand”, if you ask the patentee who is asserting the claim. For whatever reason, the patentee very very rarely believes that its claims do not “stand on their own.”
But when the applicant proposes a definition for a term with range of possible scope and which differs from the definition suggested by the Examiner, whose responsibility is it to make sure that the correct definition ends up expressly in the claim? Or is that not necessary for the claims to “stand on their own”?
For whatever reason, the patentee very very rarely believes that its claims do not “stand on their own.”
Oh please, arguments over what a term means occur anytime a legal document is questioned whether that legal document is a will, a sale’s contract, a non-compete agreement, a law, a patent, whatever …
Its the JOB of the attorneys on both sides to take positions that are most advantageous to their clients. However, you seem shocked and aghast that this occurs — it says a lot about your makeup.
However, you seem shocked and aghast that this occurs — it says a lot about your makeup.
It says a lot about “your makeup” that you apparently wish to excuse the worst behavior by the worst attoneys on the basis that “arguments will always occur over terms.”
That’s how we end up with legal teams like the ones that George W. Bush had, testifying that the President could order the crushing of a U.S. baby’s testicles if the child’s father had information about a terrorist plot. But hey: somebody had to make the argument, right? Freedum!
The irony of Malcolm complaining about other attorney ethics when he believes that advocacy on a social media vehicle such as a blog does not need to be intellectually honest.
It says a lot about “your makeup” that you apparently wish to excuse the worst behavior by the worst attoneys on the basis that “arguments will always occur over terms.”
Cry me a river … let me see those tears flow.
George W. Bush had, testifying that the President could order the crushing of a U.S. baby’s testicles if the child’s father had information about a terrorist plot
Wow … did someone just erect a giant strawman? You are one-of-a-kind … we should all thank our makers for that.
I think Professor Chao must have missed the part of Festo that indicates that any narrowing amendment is presumed to have been made for the purpose of patentability. The Unique Concepts court did not have Festo at their disposal. If I make a narrowing amendment as a result of an examiner interview and it is not for purposes of pateability, you’d better believe that I will assure that my reason is in the record!
If I make a narrowing amendment as a result of an examiner interview and it is not for purposes of pateability, you’d better believe that I will assure that my reason is in the record!
That’s nice.
It doesn’t change the fact that the the Interview should be recorded so that everyone can see that the reason for the amendment tht you put “in the record” (for your own benefit) is identical to the reason that you provided in the Interview.
It’s easy to record the Interviews and make them available to the public. So let’s do it. It’s long past time we did so for the benefit of the 99.99999% of people who aren’t playing the patent game but who are at the mercy of patent owners.
“ 99.99999% of people who aren’t playing the patent game but who are at the mercy of patent owners”
LOL – what a bizarre way to look at innovation and invention.
what a bizarre way to look at innovation and invention.
Almost all of us invent and innovate stuff every day, mostly directed to our specific needs. It’s part of what makes us human.
The patent system isn’t necessary to promote innovation and invention. It might help in certain circumstances. But in other circumstances it just ends up being a cesspool for lawyers and bottom-feeders to muck around in, at everyone else’s expense.
If you can’t acknowledge this, you’re either an idi0t or a pathetic lying shill for your own self-interests. Go hump a “founder”, loser.
LOL – the “isn’t necessary” corollary to Malcolm’s vapid “but for” rationale.
Recording Examiner Interviews will turn them into basically a re-reading of the carefully-worded response. Prosecution will drag on as each side won’t know what the other is REALLY saying from the written record. Interviews are often a time for negotiation and exploration of ‘what if’s’. It would be like putting plea deal negotiations or settlement negotiations on the record and would have detrimental effect on case resolution.
Interviews are often a time for negotiation and exploration of ‘what if’s’.
The public has a right to know what’s taking place in these negotations because it’s the public whose rights are potentially (probably 30-50% of the time in certain art units, at least) being improperly removed from the public sphere as a result of these “negotiations.”
It would be like putting plea deal negotiations or settlement negotiations on the record and would have detrimental effect on case resolution.
The public (as represented by the USPTO) has zero interest in the issuance of junk patents to applicants., unless, perhaps, you think that patent examination is like a guy walking into a bar and trying to get laid (actually suggested in this thread) and we need to make applicants “feel good about themselves” until they finally manage to come up with something patent-worthy.
the public’s rights being removed?
that’s just plain silly.
the public’s rights being removed?
that’s just plain silly.
When Myriad was granted a junk patent that put people at risk of a lawsuit when they used old conventional techniques to isolate human DNA, the public’s rights were diminished.
When Prometheus was granted a junk patent that put labs at risk of a lawsuit if they thought about an ineligible fact that Prometheus chose to disclose to the public, the public’s rights were diminished.
There’s nothing “silly” about this. What’s “silly” is that anybody would even bother trying to dispute this. But we all know that nothing is beneath you, “Mr. Higher Ethical Standard.”
What is silly is your abject h@tred of patents and how your despising them is saturates your being.
You really need to get into a line of work in which you can believe in the work product you supposedly create.
What is silly is your abject h@tred of patents
I don’t h@te “patents”. I h@te junk patents. And I h@te the current state of our patent system, a system which has been fairly ruined by bottom-feeders and grifters like you who never saw a junk patent they couldn’t fluff and who react to every attempt to fix the patent system with nutjob screeching about “the Gestapo” and communists hiding under your bed.
Get a fricking life already.
Your h@tred is unbounded. “Junk” is what you decree it to be.
So says Malcolm the RQ/HD
As someone who has conducted hundreds of interviews with examiners, my initial thought upon reading this post was that this is a bad idea. I even typed up a rather lengthy response suggesting that even worse than the chilling effect on applicants might be the chilling effect on examiners, many of whom would be at risk of being exposed for having little to no understanding of a case.
After thinking it through, however, I’ve decided that I am tentatively strangely in favor of this. The process is bad. Examination quality is bad. More transparency might help, even if it might have some unintended consequences.
If nothing else, it will eliminate the ability for applicants to abuse the off-the-record nature of interviews.
My thoughts as well.
I can endorse your view JCD.
I’ve decided that I am tentatively strangely in favor of this. The process is bad. Examination quality is bad. More transparency might help, even if it might have some unintended consequences. If nothing else, it will eliminate the ability for applicants to abuse the off-the-record nature of interviews.
Yep.
Anyone who has ever reviewed a few prosecution histories knows that the Interviews are a black box. I’ve seen file histories where the applicant presented what appeared to be an elaborate road show, complete with a PowerPoint presentation and multiple “experts” present. The slides are in the file history but the comments made in real time about what those slides meant and their relevance: completely absent. It’s a bad joke, and it’s a bad joke on the public, at the public’s expense.
The system is broken. Here’s a chance to do a little something to fix it. Pay attention to who objects the loudest.
“Pay attention to who objects the loudest.”
As well as those who misrepresent and then defend that misrepresentation as some such 1st Amendment ‘freedom’ to be duplicitous.
those who misrepresent
“gestapo regime”, anyone?
LOL!!!!!
I can understand the frustrations in conducting an interview with an examiner who does not speak English well. But in the ten plus years of prosecution, there was only one examiner with whom I had an issue because of her lack of English communication skills. Yes, there were many interviews where the examiner’s spoken English was not great, but I didn’t have a problem in understanding what the examiner was trying to say. Perhaps I was lucky or I am biased because English is not my first language.
As a “1.5 generation” immigrant, I actually empathized with that particular hapless Examiner. In the U.S., there are many people who look down on those who don’t speak English fluently. Like the way the French look down on English speakers, I suppose. Seeing her difficulty in communicating in English (she is from SE Asia and I am not, so English and hand gestures were the only means of communication) I felt that perhaps she had gone through some difficult times with representatives who didn’t take to kindly that her English was bad. Although I’ve never seen representatives not be cordial with an examiner who can’t speak English, I would bet my money that there are some representatives who are not so nice or understanding. Even at the ivory tower, in academic conferences, you see this kind of condescending attitude every now and then toward presenters who don’t speak English well.
I think that any dissatisfaction with the Examiner’s English skills should not be directed to the Examiner but to the PTO administration or even the SPE. It’s sort of like blaming the attorneys for the litigious nature of our society, when it’s the lawmakers who make the laws. I guess you could even go back to the general lack of interest in STEM education in the U.S. as the root cause.
But I ramble and digress.
As a practitioner, I’m not too excited about recording interviews. In an ideal world where Examiners speak perfect English, everything is transparent, everyone has air conditioning and Pizza Hut, I would be ok with recording. But not everyone is a fobbit. In practice, recorded interviews will be viewed as oral hearings at the PTO and thus require much more preparation for the representatives. The end result is that interviews will be much more expensive and you’ll see less interviews requested by the client. I would even postulate that this may not even help reduce the backlog of applications.
Just my 2 cents’ worth.
I see MM’s spamming has drown out all other arguments.
The “other arguments” are right up there in Prof. Chao’s original post:
Some patent prosecutors may worry that recording patent examiner interviews will have a chilling effect on the interview process. Patent attorneys may be reluctant to have a frank discussion about what their claims cover. Alternatively, because interviews happen in real time, without time to reflect and choose words, attorneys might refrain from having interviews. All that may be true. But if a patent attorney is unwilling to make a statement on the record, why should the patent office allow the claims? The public is entitled to know why a claim should be allowed before the applicant receives the monopoly rights that come with an issued patent.
The hysterical pitch of the protests of the patent teabaggers to the prospect of a bit more light shining on them not surprising, but it certainly is informative. After all, we’ve seen similar responses to proposals requiring patent owners to identify themselves.
The well-heeled elites who are presently deeply invested in the patent system desperately want to keep certain aspects of their doings in the dark, even as they seek an entitlement from the government that will allow them to sue potentially thousands of people and ruin their lives.
It’s fascinating. By itself, that aspect of patent teabagger culture is worth investigating in more detail.
Reminds me: where are the March 2014 numbers on patent litigation cases? Certain blogs made a very big deal out of the “sharp drop” reported in January, then they tried desperately to spin the February numbers (which contradicted the earlier reporting) and then suddenly: silence. What’s going on?
So, basically you admit to spamming us and calling us names?
basically you admit to spamming us
LOL. Uh … no.
As we all know, the patent teabaggers have many blogs solely devoted to spamming everyone with their patent fluffing propaganda. And when another blog (like this one) dares to criticize the system, you and your li’l buddies do whatever you can to “trainwreck” the comments with your self-serving drivel (e.g., “nobody will innovate anymore”, “you h@te patents”; “communists”; “ivory tower syndrome”; “ivy league taint”; blah blah blah).
Get a life, dude. Far, far more patents have been granted in the last few years than in any previous years in history of civilization. And you still go ballistic when someone suggests that maybe things have gotten a tad out of control and we should take some steps to rein things in. You’re self-entitled and greedy. You’re pathetic. Can’t you just enjoy your echo chamber over at IP Watchdog and dozen other blogs with indistinguishable views? Is it somehow not enough for you?
So, basically you admit to spamming us and calling us names and trying to get rid of us?
who has had more offensive posts removed – by far – than anyone else on this blog
I don’t keep score, freak. Why would I bother?
All I know is yout s0ci0pathology is well-documented. I’ve been documenting it for years. Among other things, you are a path0l0gical liar with a myriad of other related issues. And I’m not talking about your extreme views about the patent system and it’s critics — that’s a whole other ball of wax.
But please go ahead and sue me for “slander” as you’ve threatened to recently. I’m 100% certain I’ve got all the evidence I need to defend myself. Cripes, you keep piling it on here every week. And last time I checked, um … you’re identity is anonymous. Should be a really fun case! Please make my day, nutcase.
MM, I don’t think you meant to respond to me. And don’t you think the two of you need to cool it.
Really. Cool. It.
“I don’t keep score, freak. Why would I bother?”
Um, maybe because you can learn a little about norms and what is not acceptable – outside of your own little mind, that is.
I am more than sure that you Malcolm are the biggest trainwreck on this thread, and on any thread on a subject that does not meet your Red Queen/Humpty Dumpty views.
you Malcolm are the biggest trainwreck on this thread
LOL. Keep digging, nutcase.