By Dennis Crouch
The Patent Trial and Appeal Board (PTAB) is burdened with a statutory mandate to quickly reach final determination in its post-issuance review trials. To meet that requirement, the PTAB has put tremendous resources into its trial teams to ensure sufficient bandwidth to handle the hundreds of inter partes trials. At the same time, a 25,000 case backlog of pending ex parte appeals persists at the Patent Trial and Appeal Board. Those cases do not have as clear of a statutory-mandate for rapid processing and, as a result, have clearly languished as the Board developed its post-issuance review trial program with most cases now waiting more than three years for a decision from the Board. (Notice-of-Appeal to Board Decision). Rather than dealing with its poor statistics, the PTAB appears to have simply stopped publishing them.
For many patent applicants (though certainly not all), the appeal delay is costly because it extends a period of ambiguity and it delays issuance of the patent rights. Certainly, the vast majority of long-pendency patent applications (those that issue more than 7 years after filing) spent considerable time in the appeal queue awaiting a reversal of an examiner rejection. Those late-issued patents have the potentially of being disruptive to marketplaces that have developed and grown in the absence of an issued patent.
A few months ago, I conducted what I called a “10-second”survey on Patently-O regarding the potential market for accelerated PTAB decisions in ex parte cases. I asked:
Would you pay an extra $5,000 for accelerated PTAB decisions in ex parte cases that issue[] within nine months rather than waiting the standard 2 1/2 years?
I should note that the 2 ½ year figure had increased. The results are instructive and somewhat fit the model seen with the $4,000 fee for prioritized “track one” examination, although the market for accelerated appeals seems somewhat greater. The vast majority of the 614 responses indicated that they would use the fast track in at least some cases – with most indicating that the fast track would be used in >5% of cases.
Although not any final word on the market for accelerated appeals, the chart is indicative of a demand for accelerated appeals. And, although not a solution to the docket problem, acceleration of a subset of appeals offers the potential of alieviating the most some of the more pointed needs.
I should note here that a subset of accelerated examination cases (“made special”) are also accelerated when pending before the PTAB. However, those do not include prioritized examination cases under the pay-for-speed program. I do not have any statistics on how that acceleration impacts the timing of appeals.
Dennis,
I must agree that your position about the PTAB no longer updating its statistics is sad on many levels. The only statistic that still appears regarding the PTAB is in the Pendency from Application Filing to Board Decision which may be found in the USPTO Dashboard. Currently it shows that this particular period has almost made the 7 1/2 year mark.
Didn’t Obama run on a platform of “transparency?”
Maybe he meant only for others…
OT, in the “our attorneys are so st oopit that it burns” department:
link to arstechnica.com
US District Judge Lucy Koh has now ruled that Samsung won’t get a last-minute Alice reprieve. In a short five-page order (PDF), Koh found that Samsung didn’t raise any defenses from the area of patent law that Alice relates to, Section 101, and it can’t do so now.
“Samsung enumerated 31 disputed legal issues—including defenses under 35 U.S.C. §§ 102, 103, and 112—but did not identify any § 101 defenses against any Apple patents, nor incorporate Samsung’s earlier invalidity contentions,” explains Koh. “Critically, Samsung did not raise § 101 at trial or in any pre-verdict or post-verdict motions… Samsung’s untimely attempt to invalidate two asserted patent claims months after the close of trial would unfairly prejudice Apple.”
It was always a baffling mystery why Samsung never raised a 101 to challenge to Apple’s j nk. The only imaginable reason for this failure was that Samsung was afraid of how a successful challenge might affect their own portfolio of computer-implemented j nk. Of course, now their admissions before the court regarding 101 are on the record but they’ll see zero reward for it in this case. Well played … not.
Malcolm, I agree on the bad lawyer part. But I am not sanguine about whether there is a viable 101 challenge to the slide to unlock patents.
“challenge to the slide to unlock patents.”
The fact that you and thousands of others refer to them as the “slide to unlock patents” is dam ing enough.
OT, but some fun things from the world of science to ponder:
link to blogs.scientificamerican.com
FERRING B.V. v. WATSON LABORATORIES, 16 INC. – FLORIDA
link to cafc.uscourts.gov
Watson submitted an ANDA that did not specify what it intended to sell in terms of the limitations in the relevant patent. The district court found infringement based on the act of submitting the ANDA. The Federal Circuit reversed because the district court finding was an error of law and further because the patent owner had not proven that commercial product infringed – which the Feds said was required when the ANDA is silent on the details of the product it intended to sell vs. the claims. (The ANDA was apparently based on invalidity.)
MFORMATION TECHNOLOGIES, INC. v. RESEARCH IN MOTION
LTD.
link to cafc.uscourts.gov
District Court clarified its claims construction and entered a JMOL of noninfringement. The Federal Circuit held that the clarification was not a modification but was inherent in the original claim construction and jury instruction. Had the construction represented a change, not only would JMOL have been improper, but there would have been a need to retry the case.
In the case at bar the claims as construed required transmitting the contents of a mailbox after connection was established. The accused blackberry system did not transmit the contents of a mailbox after an establishment of connection was complete. The patent owner contended that the requirement that the establishment be complete before the contents of mailbox are transmitted was a post verdict modification to the claim construction. The Federal Circuit ruled that the requirement was inherent in Judge Ware’s jury instructions that required that the “establishing a connection’ sub-step must be completed before the ‘transmitting the contents of the mailbox’ substep can commence.””
I have been waiting 3 years to hear back from what is now called PTAB. And you’re suggesting the deep-pocket appellants all move to the head of the queue and all of the small/micro guys like me get the screw. The first response that comes to my mind is rather earthy, just two words, one of which is “you.”
Next you will be suggesting that the deep-pockets pay a fee for accelerated treatment by the CAFC, and for an extra $100,000 we can get you a writ of certiorari to the USSCt, should you need it — the Miranda, Gideon, and Section 1983 cases can wait.
But the USG, being what it is, would likely smile on this nonsense. Those flying 1st class don’t have to go through the TSA frustrations and indignities that we proles do. And, of course, there is accelerated examination, which is flying 1st class in the PTO. The proles, by definition, are the ones who don’t get the perks. Why, in America, should that definition be any different w/ respect to governmental services? Rhetorical question, mind you.
The current problems w/ PTAB backlogs go back to the Dudas clusterf. Put that bar graph up again w/ time on the x-axis and exponentially growing appeals on the y-axis. Now you’re saying the remedy for that mess is to A) penalize those who can’t afford the fast lane and B) reward the PTO with a windfall fee. I don’t think so.
The term extension is a partial remedy. Also, if the appl is published, retroactive enforcement of the eventual patent is another. But the remedy is not to reward the PTO for its negligence and incompetence.
Bribery is the payment of something of value to a government official or body in exchange for preferential treatment. How does this idea deviate from that definition? Your whole idea is anti-proletarian poppycock, IMO. It’s as bad as the accelerated examination crp, and probably as unconstitutional. Please flush it and move on. You’ve got more intelligent ideas to discuss here.
Bribery is the payment of something of value to a government official or body in exchange for preferential treatment. How does this idea deviate from that definition?
For that matter, how does the patent system deviate from that definition?
Or the whole “pay your income taxes as assessed, and you get to not go to jail” thing?
IANAE says…
Oh boy, the examiners are going to come out of the woodwork to defend the PTO.
IANAE read what he wrote and respond to it rather than your typical crxp response that ignores what the person wrote and then responds with some half truth that is half on point.
Now IANAE is an example of someone that was effectively shamed. I remember awhile back when he delighted in derailing nearly every conversation.
Then he made a few posts that showed his true colors for Infringers’ Rights and was deeply shamed for such anti-patent views.
He has been largely a non-factor ever since – dazed and confused by his addiction to Calvinball face spikes.
🙂
Tell us more about your fantasies, Billy. They’re really interesting.
Fantasies…?
You have not yet checked out link to en.wikipedia.org have you?
“You have not yet checked out link to en.wikipedia.org have you?”
Is that your latest fantasy anon?
Interesting, a ge net ic cross between a parrot and a lemming…
You have not yet checked out link to en.wikipedia.org have you
Why would I bother, Billy?
(hint: you just might learn something – that is, if you care to learn something)
You should check out link to rationalwiki.org , anon. Your tactics are pretty transparent.
Dan, I checked that page, and looked at the Clarke page linked to.
I found this:
“Its simple and catchy wording has been often parodied with variations such as “any sufficiently advanced incompetence is indistinguishable from malice”.”
It really does help explain why so many people think there is so much malice in patent prosecution, on both sides.
It really does help explain why so many people think there is so much malice in patent prosecution, on both sides.
link to en.wikipedia.org
Yes dan but I like this other formulation better since it illuminates the situation so much more clearly.
DanH/Leopold….
Provoke the establishment…?
LOL – since when is the little circle here “the establishment?”
You have a way overblown self image there friend.
You have a way overblown self image there friend.
Yes, Galileo, I’m the one with the overblown self image.
Yes Leopold – you are.
Hre (again) you have a smarmy reply shot down.
Did you just google the name and see a denigration that you thought fit?
Clearly, the link you provided does not fit the situation here.
Your aim is – as usual – off. The red cape of “anon said” stirs you to make a f001 out of yourself again.
Did you just google the name and see a denigration that you thought fit?
You’re not making any sense. You’re the one who cast yourself in the role of Galileo, not me. Come on Billy, what are you trying to say?
(yawn)
The “billy-what are you trying to say” meme does not work for Malcolm. Why do you think it will work for you?
Clearly the link you provided does not reflect my use of the Galileo principle. There is no “establishment” that I am bucking, and most definitely my detractors do not use any semblance of scientific method to which I am ignoring. You pulled the link merely on a “key word” search type of hit, and you do not understand what you think that you are saying.
Much like past times we have locked horns and you have come up far, far, far short.
Which reminds me, you still owe me reference materials related to our ladders of abstraction discussion. Or is that (too) a conversation that you have conveniently forgotten about?
Clearly the link you provided does not reflect my use of the Galileo principle.
We’re not talking about the link I provided, Galileo. We’re talking about the link you provided, on several occasions, i.e., the link to link to en.wikipedia.org . It’s abundantly clear who’s playing the role of Galileo in your fantasies. And yet I’m the one with the overblown self-image.
Looks like your comments are yet another example of AOOTWAD…
“We’re not talking about the link I provided,”
Is it nice on that planet you are on? Here, on Earth, it is swell.
And we are talking about the link you provided because it is a bogus link, much like most everything else you attempt to throw at me (and – as usual – FAIL).
Try to keep up.
Unconstitutional? Really?
What’s the argument?
My guess is that the argument is a misapplied “equal protection” argument. That seems to be the usual one.
Nit DanH meet pick MM.
LOL – I was thinking the same thing: focus on the one possibly errant tree and miss the entire forest of what Babel’s post is about.
It is alarming to see just how often DanH/Leopold acts as a cheerleader to Malcolm’s lead – and how extremely infrequently DanH/Leopold speaks up when Malcolm spouts his usual short script banalities.
The merry-go-round continues.
what Babel’s post is about
What is Babel’s post about? He’s whining about some patent that he thinks he deserves yesterday.
Let’s see the claims and prosecution history and then we’ll know if this terrible injustice is actually occurring. Otherwise, BB’s ranting can be presumed to be that of another well-heeled whiner complaining about the bad ol’ government on the Internets. Dude didn’t even try to give any detail. “I’ve been waiting 3 years.” So what? Who cares?
Obviously you do not care and miss the point that such waiting itself is the problem (and this does NOT depend on the particular details that you always seem to want to wallow in, mr. brier rabbit)
Open your eyes and get a clue.
“What is Babel’s post about? ”
I would very much like to know as well. It was too long and ranty in most parts for me to suffer through reading.
If someone could sum up the “point” in a sentence that’d be amazing.
Anon says below that the “point” is that “waiting itself” is the “problem”. Whose problem anon? Babel’s?
“It was too long and ranty in most parts for me to suffer through reading.”
/face palm
>Let’s see the claims and prosecution history and then we’ll >know if this terrible injustice is actually occurring.
So, you want to see the claims before deciding whether or not there was a procedural injustice. That is another indication you are not an attorney as you want to negate –equal under the law. You have sunk to new lows. Every evi1 uses that mechanism to get their way in law. The racist, Naz1s, etc.
Mor0n Milly (MM) now you stand with the Naz1s and racist to negate the rule of law to get your way. Heil Mor0n Milly (MM). Sieg Heil Mor0n Milly!!!
And, no I am not overreacting. Milly, re-think negating the rule of law.
Night it is a wonder that a decent blog tolerates a vicious, puerile, nincompoop like you.
MM is and has always been the most logical and coherent poster here, even if you do not like what he has to say. In contrast, almost all your posts about any topic consist almost exclusively of personal attacks, slander and libel.
Pure CRP:
“MM is and has always been the most logical and coherent poster here”
Tell me Ned – is that why Malcolm has had more posts expunged for being vile and improper – more than everyone else combined?
All this is, is more Ned CRP “6-agrees-with-me-so-he-must-be-a-genius”
Way to bury your credibility even lower Ned.
Ned you are so full of it. MM consistently advocates breaking the rule of law. Do you know what that it is ?
Do you understand the implications of breaking the rule of law? Do you understand why it is so wrong to say let’s see the claims (your race or religion) before we decide whether or not a law was broken. Do you get that? Man you so deep into your judicial activism that you don’t even understand the MOST fundamental principle in law. The MOST important principle!!!! Equal under the law. Repeat it Ned at least 1000 times before thinking of typing another word.
Why don’t you stick to your tortured interpretations of cases from the early 1900’s to support you proposition that information processing should not be eligible for patentability.
And if you think MM’s post are the most logical then obviously you have a serious mental problem.
And Ned you are a man of no integrity. I have highlighted posts from MM where he is vulgar and rude to people on this board only on the basis of the content of the posts.
He consistently is abusive to anyone that doesn’t agree with him. So, your credibility has gone to zero Ned. You are obviously a paid blogger fighting for your life. And not doing so well against me, are you?
You have no chance against me in legal reasoning. You just don’t get it. You can spend your endless hours blathering on and on, but you don’t understand the law.
6, I will assume that you question is sincere. What MM is doing 6 is saying let me see what your claims are before I decide whether the law should be administer to you. Whether or not you have rights under the law based on your claims. This is the same way that the Naz1s and racist used the law. You don’t break equal under the law. It is an inherent evi1. It is wrong.
MM repeatedly and consistently advocates breaking the rule of law. It is reprehensible.
Night, I do not agree with MM politics on the whole as he is an ardent democrat and I am not.
Neither do MM and I agree on a lot of patent law. But our discussions have always been respectfully. We state our positions and make argument. I think at times I persuade MM because the next time I see him argue a point, he sees it from my point of view.
I listen to him, because he is most often right. He has excellent instincts and asks the hard questions.
So the bottom line, MM does not badger me and never has despite that we often disagree. What I see is that he recognizes a troll when he sees one, one who argues using strawman and illogic, false premises and every other trick in the book. Long ago he identified anon as a troll.
We disagree on 101. But that is no reason to call me names. But you do.
Ned, you call me names. Your bizarre characterization of MM is out of this world. I have specifically pointed out interactions between MM and outside posters where he was rude and vulgar towards the poster based solely on the content of the post. The poster was polite. You ignore this.
In fact Ned what I see from you in arguments with you and regarding MM is that you simply ignore facts that you don’t like. Bizarre that you think that an educated person would fall for this tactic. Ned some of us notice that you just don’t respond to the key points and don’t acknowledge things like MM abusing a new user because MM doesn’t like their view point.
But, Ned, you can ignore and just claim a different reality all you want. That doesn’t make it real Ned.
Fact is that you call me names all the time. You ignore arguments. You ignore MM’s behavior. In this exchange, for example, did you opinion on the importance of the rule of law? Gee, why not? Maybe because MM continually advocates not following the rule of law which is abhorrent to any ethical attorney.
Man, Ned, you are one head case to think that you can just ignore things and paint your own reality. It is very offensive.
“Equal under the law. ”
All appeals are “equal under the lawl”. They’ve all been rejected (usually 2x if proper lol). And they’re all being reviewed. There is nothing wrong with the DMV opening an express lane for a 20$ charge. In fact, most all DMV’s probably should do just that and everyone would make a killing, the workers, and the people wasting their time there otherwise.
Night, it is you who insults and ignores arguments. You also refused to answer simple questions that if you did answer the questions you will see the fallacy of your own position.
So again, the substance of my complaint is that MM is continually advocating not adhering the rule of law. You ignore this and attack me personally.
Ned’s game of selecting which points he will respond to is ridiculous. It is clear troll behavior. And the more I ID him as a paid blogger and troll, the more vicious he becomes towards me.
In this case the rule of law is central to the anti’s movement. They want to have two PTOs. One for information processing applications and one for everything else. That is pretty clear. Not equal under the law.
Night: “You have no chance against me in legal reasoning. You just don’t get it. You can spend your endless hours blathering on and on, but you don’t understand the law.”
Night, what is said that you, no doubt, actually believe this.
But it does explain why simple concepts evade you.
LOL – Ned – look at what you write in response to NWPA.
Read it.
Then apply it to your yourself (liberally) – the fallacies of your own positions… simple concepts evading you… (how does your personal inability to understand the Nazomi case and your personal inability to understand the distinction between Set B printed matter and Set C printed matter stand out in contrast to how you are addressing NWPA?
How does your own parse and ignore tactics of both case law and what is presented on these boards stand out in contrast to what you accuse NWPA of doing?
How low can you go?
You have reduced this interaction to absurdity Ned. Again, the substance of my post was that MM expressly advocates not following the rule of law.
You have not addressed that issue.
Yeah I agree anon. But, don’t take it too seriously. Ned and MM have an agenda they are following. Intelligent discourse means nothing to either one of them.
“MM is continually advocating not adhering the rule of law.”
When did he advocate for such? Asking to see the claims before coming to his own personal opinion on whether an injustice was underway is not advocating for not adhering to the rule of lawl.
That’s a valid question, eh? You don’t see a constitutional tension between preferential treatment by the government and equal treatment under the law? Am I being overly egalitarian in my view of the Constitution?
Let me try a couple ad absurdum type analogies. Would you see a constitutional problem if:
1. Your local government passed an ordinance that provided for “expedited response” by the fire department to those home owners whose property was valued above some arbitrary threshold (meaning they paid more property tax) or who paid a voluntary 10% “expedited fire-response surcharge”?
2. How about if the public school system offered low-ratio 5:1 student:teacher classes to parents willing to pay a $10,000/semester “accelerated learning surcharge” and the poor kids’ ratio went from 25:1 to 40:1 as a result? Sounds good to me, if I’m rich enough.
3. Or how about a provision in the USC that allows defendants in criminal proceedings in USDC to shift a statute of limitations backwards a few years if they pay a $500,000 “prosecution avoidance surcharge?” There would be no discriminatory intent, of course, because the option would be available to any defendant with $500,000. And as for a reasonable and rational governmental interest . . . well, that would be to reduce the backlog of cases and reduce prison populations. Done deal.
When ya’ get going, the possibilities for the user-pays model of government are limitless — far, far beyond just the National Parks.
But your unspoken point is taken: I’m not aware of any USSCt equal protection cases regarding alleged disparate treatment of individuals by a government entity based on economic status. If you can’t afford to get into Yosemite and enjoy what your taxes are paying for, go back to Detroit, the white people driving Lexises are waiting to get in. If you can’t afford preferential treatment in the PTO, quit whining — file in the EPO, or JPO, or . . . NoKo if all else fails.
I doubt whether the USSCt as constituted now or in the reasonably foreseeable future would apply strict scrutiny analysis to governmental discrimination based on who is willing to pay for expedited (or any) governmental services at the expense of those who can’t. Certainly not the present Court. As that fat lady Roger B. Taney once said: “It ain’t unconstitutional until we say it is.” So maybe you’re right. Hope not.
The funniest thing though Babel, is that you were maligned by none other than Mr. anti-“Grifter” himself Malcom Mooney.
KA-BLOOEY !
Your third example implicates a fundamental right, so is likely to trigger strict scrutiny. Some version or another of #2 goes on in many states already, and no, I don’t think there’s a good argument under the U.S. Constitution. More or less the same is true of #1, although most municipalities are politically savvy enough not to be so blatant about it.
Look, I agree with you that the expedited appeal idea is a bad one. I just think that “unconstitutional” is increasingly thrown around today as a synonym for “I don’t like it.”
(nad yet DanH/Leopold is perfectly happy to sit by silent when so much more flagrant CRP is posted that is nothing more than the anti’s “I don’t like it.”
Yet another hypocrite.
There is a level at which it could be deemed unconstitutional. It should be unconstitutional. Let’s face it. With our system the justices can do just about anything they want. May take them a few years and multiple cases, but they make more law than Congress.
But, DanH, anon’s point is valid. You picked on a minor point of his instead of the broader post. It appears you did this to disrupt the post like the great troll Milly Mor0n (MM).
And unfortunately more and more our country is becoming like Babel boy’s examples. I watched in person a hearing where there were three men accused of murder. Only one man had the money for the GPS tracking so he got bail. The other two were put away for 6 months waiting for trial. And, the one with GPS tracking had a much, much worse record.
I think this type of system is inherently unfair and leads to many more problems than it solves. At the PTO it is clear that they are setting up these little outs for big $$$ that relieve the pressure on them from big corp. Shameful.
Shadow director Lee is ill equipped to understand how to fix the problems at the PTO and her only talent is rhetoric in why we don’t need patents. Shameful.
There is a level at which it could be deemed unconstitutional. It should be unconstitutional.
Is that legal analysis, NWPA?
“Your local government passed an ordinance that provided for “expedited response” by the fire department to those home owners whose property was valued above some arbitrary threshold (meaning they paid more property tax) or who paid a voluntary 10% “expedited fire-response surcharge”?”
Strangely enough they effectively have something worse than this in many areas. You have to pay x amount in fire dept coverage or they won’t even come to your house, there are some stories about this on the web. Mostly people in trailers are having their stuff burnt down.
“The current problems w/ PTAB backlogs go back to the Dudas clusterf”
To be fair, the dudas cluster f was likely the outcome of the state street cluster f. You’ve really got to take things on back a bit.
Simply wrong 6 – as has been shown before, not one particular art unit ge ner a ted the Charlie Foxtrot under Dudas.
Wake up.
Of course not anon, it was simply the flooding of garbage patents under state street that prompted dudas to crack down. Thus everything else spirals.
But anyway, I think D himself posted a graph and explanation that the explosion at the BPAI had little if anything to do with Dudas a year or so ago.
yet again – wrong, 6.
Of course I’m wrong Mr. OCPD.
lOL_ no 6, you are wrong because you are wrong – very much quite independent of me.
Try to grasp that concept.
Babel Boy, talk about clusterf, consider serial reexaminations. They can keep a patent tied up in the PTO until it expires. All that time courts will stay and delay, no one will license, and the so-called constitutionally required grant of a limited term of exclusivity becomes an empty promise. What one gets is not a patent, but a target — for reexaminations.
Reminds me: what’s up with Gil Hyatt’s apps?
Glad you asked.
Near as I can tell, this is the latest: link to anticipatethis.wordpress.com
Yes that is right there is a great demand for the PTO to do their job. What a surprise.
Imagine going to the motor vehicles division and there being a line of a mile. They say you can apply for your license and go to the front of the queue if you have an extra $1,000.
Or, dial 911 and get a voice prompt to enter your credit card number for a “more prompt” response.
That is what this is like. Third world country. The PTO is an agency to serve the public. They are not part of the free market as Examiner Mooney claims below.