A Few Problems at the PTAB

By Dennis Crouch

Over the past decade, I have repeatedly written about the serious backlog problem facing the USPTO’s Board of Patent Trials and Appeals (Formerly BPAI, now PTAB). In 2006, there were fewer than 1,000 pending ex parte appeals at any given time. That figure steadily and rapidly ballooned to a seeming high-point of over 25,000 pending ex parte appeals. The PTAB has taken several steps address the backlog. The most important of these is its efforts in hiring a host of new administrative patent judges to decide cases. Although not conclusive, it also appears that the Board has also taken streamlining steps such as discouraging dissents and reducing opinion size. Despite those efforts, the backlog remains over 25,000 with the result that appeals are unduly delayed for years. The chart below comes from the files of 95 recently decided ex parte appeals – the median ex parte appeal now takes more than 3-years to decide.

Bombshell Report: Administration inspectors general have increasingly been embarrassing the Obama administration. The USPTO is no exception to this trend. Todd Zinser, Inspector General of the Department of Commerce has released a new report titled: Waste and Mismanagement at the Patent Trial and Appeal Board. The inspector general report highlights the tremendous rise in the backlog, the PTO’s failure to adjust its workforce to focus on the concern, and, most damning, the “misuse of federal resources totaling more than $5 million.” The Inspector General writes:

Our investigation uncovered waste in the PTAB that persisted for more than four years (2009-13) and resulted in the misuse of federal resources totaling more than $5 million. The bulk of the wasted resources related to PTAB’s paralegals, who had insufficient workloads and considerable idle time during those years. Paralegals told the OIG that they engaged in a variety of personal activities including watching television; surfing the internet; using Facebook and other social media; washing laundry and cleaning dishes; and shopping online while in an official pay status. PTAB managers, including its senior-most personnel, were aware of this problem but took little action to prevent such waste because they believed the problem would disappear once PTAB hired additional judges. We found that, by failing to report the significant waste incurred by the PTAB when Paralegal Specialists were being paid to not work, numerous PTAB employees appear to have violated certain regulations and Department of Commerce policies.

The report states that the abusive-practice began with former Chief Judge Mike Fleming (who left the PTO in 2010), but continued under current Chief Judge James Smith through 2013. Of course, the loose-telework options available to PTO employees also permit this activity to persist.

As an interesting back-story, Professor John Duffy is also a but-for cause of the problem. In particular back in 2008-2009, Chief Judge Fleming had the plan to hire a set of new administrative patent judges and support paralegals to address the growing backlog of cases. The year before, Professor Duffy had written his Patently-O essay outlining how the PTO’s practice of internally hiring Patent Judges was improper and that the U.S. Constitution required them to be appointed by the Secretary of Commerce (or the President). Following that article, the PTO changed its practice to require that the Patent Judges receive their commission from the Secretary of Commerce. The result was that paralegals became much easier to hire than judges and the agency was only able to hire the paralegals before the PTO instituted its hiring freeze. The OIG report states:

When asked why Paralegal Specialists had so much Other Time, Paralegal Specialists and their supervisors stated to the OIG that there was not enough work for the Paralegal Specialists. The evidence showed that, although Chief Judge [Fleming] hired 19 additional Paralegal Specialists in 2009, the PTAB was not able to hire the amount of judges desired before the hiring freeze was instituted that year. . . . Patent Specialists could not create their own work – they relied on others, and judges’ opinions were one main source of work. Paralegal Specialists completed the work that they were given, and then waited for their next assignments.

The practice of approving hours for non-working paralegals (“Other” time) continued after Judge Fleming retired and into the tenure of Chief Judge Smith.

Chief Judge [Smith] originally stated that he recalled having “discussions about other time and paralegal use of it” in 2013. Later in his interview, he stated that he first looked at Other Time when a Senior Manager informed him of some of the individuals’ or teams’ Other Time sometime between mid-2012 and when the OIG sent the PTAB the complaints in early 2013. However, e-mail evidence showed that he learned of the Other Time problem at least as early as September 15, 2011.

The law provides that the USPTO Director, Deputy Director, and Commissioner are all members of the PTAB. 35 U.S.C. § 6. However, the OIG found no evidence that those PTAB “outsiders” had any knowledge of the problem.

The particular issues here have seemingly been dealt with and are unlikely to occur within the PTAB – especially since the paralegals now have judge’s to provide work. However, the incident here is an important reminder of the importance of agency transparency.

= = = =

The Commerce OIG has several additional PTO reports, including:

242 thoughts on “A Few Problems at the PTAB

  1. So, my other post that was pending moderation for 24 hours or so finally just evaporated?

    It’s not as if it contained the forbidden name nniuQ eneG, or any form thereof.

    Reply
    1. Even as it has been noted, the ge + ne filter is one that is easy to be captured by words that start with ge and continue with ne+ – some common examples being:

      neral
      nerate
      nesis

      Reply
  2. Would it help if the Board issued more Precedential Opinions?

    Reply
    1. Fish,

      Why in the world would you think that that would help?

      Reply
      1. It would help to narrow the issues and give applicants and examiners more direction.

        Reply
        1. There is already direction – it is called the law.

          We (the Royal We) just need to be following it.

          What We do NOT need is (yet another) judicial – especially an Article I type – body trying to make “common law.”

          Reply
          1. anon:
            sounds like you haven’t dealt much with the old “Board” or the PTAB. The old Board regularly reversed 103 rejections, unless there was a TSM in the prior art — even after KSR. The PTAB just reversed a 103, less than 3 months after the case was docketed. I much prefer them making patent law (with precedential opinions), to the Art. III judiciary doing it (given the highest tribunals hostility to patents, and the lower tribunal(s) being bound by the hostile decisions AND losing their direction along with their “Radar”).

            Reply
            1. Eric, to some extent, I hear you, especially if the examiner does not show all the elements in the prior art and simple does a medicine man dance a KSR-campfire to eliminate his need to prove a prima facie case.

              Reply
    2. From what I see the PTO, Fed. Cir., and SCOTUS want a ’cause test. They want to say we don’t like you or your patent application so NO. The SCOTUS has completely destroyed patent law. We were on a very good course of using objective tests that could be tightened and tightened by good management at the PTO. Now, everything is wishy washy and everyone wants a ’cause test.

      TSM and machine or transformation were fine. Were either REALLY unconstitutional? Or were they not in conformance with the SCOTUS federal common law that predated the 1952 Patent Act?

      Big picture: 600,000 a year doesn’t work with ’cause. The tests that were being created were custom made for an agency to get their job done. Now we are in the land of ’cause, ’cause, and more ’cause.

      Reply
      1. What are you talking about? The Supreme Court didn’t say TSM and MoT were unconstitutional. The Supreme Court doesn’t just review the constitutionality of laws.

        Although, if I remember con law correctly (and I may not), I think Congress could limit the Supreme Court’s jurisdiction over patent cases to just where an issue of the constitution is at stake. Someone can try to add that in the next reform bill.

        Reply
        1. Although, if I remember con law correctly (and I may not), I think Congress could limit the Supreme Court’s jurisdiction over patent cases to just where an issue of the constitution is at stake. Someone can try to add that in the next reform bill

          Me and some pals have been discussing this very thing!

          Reply
          1. Sharing policial fantasies over a large batch of the new cookies from Colorado? What planet were you all on when Congress passed all the patent legislation of the last 20 years with large bi-partisan majorities? What kind of Congressional support for such fantasies do you think there is? No one interested in reality here is interested.

            Reply
            1. There are reports of exactly the same sentiments having been voiced in the anti-patent 30’s and 40’s.

              Then 1952 happened.

              History repeats (and I would expect a true curmudgeon to know this).

              Reply
              1. There are reports of exactly the same sentiments having been voiced in the anti-patent 30′s and 40′s.

                Then 1952 happened.

                And then what, Billy?

                Reply
              2. There are reports of exactly the same sentiments having been voiced in the anti-patent 30′s and 40′s.

                LOLOLOLOLOL.

                Seems to me that a lot has changed since then, Billy.

                Reply
            2. curmudgeon: It is highly unlikely that it would happen. But, you know, curmudgeon, had we real judges on the Fed. Cir. rather than Google shills some of them may have been strongly fighting back against the SCOTUS.

              The fact is the SCOTUS is probably not behaving as they should towards the Fed. Cir.

              Reply
              1. The fact is the SCOTUS is probably not behaving as they should towards the Fed. Cir.

                As I have noted, the CAFC is but a proxy for the Congress in the battle of branches of the Government.

                The interesting point here is that it is within Congresses constitutional rights to limit the jurisdiction of the Supreme Court, in certain key respects.

                Reply
        2. Anonymous I didn’t say they were unconstitutional. My point was —I guess I did a poor job of conveying my point—that they are not unconstitutional.

          They were found to be counter to federal common law of the SCOTUS. I think as a matter of statutory construction that both are fine. Both are constitutional. So, the problem is that the SCOTUS asserted their common law on patents.

          My point is that this has been a disaster. That the Fed. Cir. was trying to set up practical tests that would work for 600k applications a year as apposed to the 3 or 4 cases the SCOTUS looks at a year.

          Reply
          1. I think that Alice is another example of an untenable test for 600K applications a year.

            Reply
  3. Clearly we need a statutory deadline for deciding an appeal. I would recommend 1 year from the date the appeal is docketed.

    If the appeal is not decided by that date, the examiner should be deemed reversed and the application remanded with the patentability of the claims on appeal confirmed.

    Obviously, congress in passing such a law should also provide for the PTAB resources necessary to keep up and some time to ramp up.

    Reply
    1. Seems like the other time isn’t so bad. Basically, they knew they were ramping up with more judges and just couldn’t use the paralegals yet. The alternative was to lay off the paralegals and then have to re-hire probably different paralegals in a couple of years. So, not terrible, but perhaps they could have found something else for them to do. Maybe help out the examiners?

      Reply
    2. Ned, the problem with that is it would put a burden on the examiner that isn’t really fair.

      Reply
      1. Night, the deadline is on the PTAB. I don’t see how that places any burden on the examiner.

        As I suggest a phase in, the PTO should be able to ramp up the number of judges deciding cases so that the goal is achievable.

        On that score, the PTO alternatively should allow temporary appointments of senior examiners to serve as judges simply to get the backlog down. This would be akin to having temporary military officers who might not even be officers in the regular army or navy. I believe my dad was like that. He was a Sgt. in the regular army before WWII. After the war started, he was made an officer, eventually commanding a company. At the end of the war, however, his regular army rank was 1st Lieutenant.

        The Sec. Commerce or a Director should be able to make the necessary temporary appointments.

        Reply
        1. Well, the problem with your plan is that it mixing admin law with real law and potentially causing problems that would have to be sorted by dist. courts.

          Moreover, I can see that the examiners would then be in a position of having their rejection over-ruled (by the one year limit) but not being allowed to let the application be issued. So, I can see the SPE saying find more art and reject it again there is no way that is going to be a patent in my art unit.

          Reply
          1. Night, if the claims on appeal are confirmed as patentable, the examiner would have to issue a notice of allowance.

            Reply
            1. Not necessarily Ned – tell me you have never had a re-opening after appeal with all-of-a-sudden, new art found…

              Have you been active on the prosecution side of the house lately?

              Reply
              1. anon, I presume the system I propose would require a statute. That statute could say that by law, the prosecution was closed.

                Reply
        2. Plus Ned are you serious? I mean what about the presumption of validity? That is now going to be based on an appeal taking too long? I would like to read the dist. j’s view on that one.

          Reply
          1. Night, the presumption of validity would still require clear and convincing evidence. However, the applicant will not have the benefit of having the patentability of the claims confirmed over particular prior art forming the basis of the rejections.

            Reply
        3. Plus how is a time running out counting as “examination” as required by the statute?

          Reply
          1. Clearly, Ned’s idea of grant without examination would require a vastly different system than the one we have now – and would require a different statute.

            In some sense, I see in Ned’s “idea” a possible registration only system (which would sure clear up the multi-BILLION dollar inventor-funded currently inadequate examination system) perhaps coupled with a new court level for any validity challenges if such registration-only patents were to be enforced.

            The new court level would be (could be) a hybrid Article I/Article III animal.

            The problem of course is that the downsides to such a system most likely outweigh the upsides.

            In today’s world, completely unexamined applications would likely be worse than the worst dreck of unexamined provisional applications (the “throw the lawn-clippings in a bag and file it” stuff that I abhor). All you would be doing is shifting the actual examination – the new court evaluation – downstream.

            It comes down to basics: do the Fn job (of examination) right the first time. There just is no easy way around it. The Office must do the job. As we both notice though, the current way that the Office is attempting to do the job just is not cutting it.

            BTW, I have previously made suggestions as to how to re-engineer that job for a more efficient performance (something that Malcolm only too conveniently ignores in his usual diatribes). First step is to STOP the widget treatment of applications.

            Reply
            1. Anon, what makes you believe that the patent office cannot staff adequately to provide decisions on appeals from examiners from one year of docketing?

              Reply
          2. Night, the requirement that IPRs take no more than one year imposes limits on the patent office. I see no problems whatsoever and requiring the patent office to provide a decision on appeal within one year of docketing. As I said, there is a current backlog. But then be addressed by adding temporary judges from senior examiners until the backlog is addressed.

            Reply
            1. Ned,

              Your eyes are very much closed.

              What you are not seeing is the moving of deck chairs on the good ship Titanic.

              Seriously dude, read some of the recent reports – like the d@mming RCE report.

              I have only been noting this effect like forever…

              Reply
              1. Anon, all you are saying is that the patent office the seriously understaffed across-the-board. You’re not really making any case that the time for an appeal to be decided should not be limited by statute. Obviously, if Congress were to pass such a statute they would have to to make sure that the patent office had the resources to carry out the statutory mandate.

                Reply
              2. all you are saying is

                Actually Ned, you need to pay attention to what I am saying – “understaffed” is NOT the message that you should be taking away.

                See posts starting at link to patentlyo.com

                You do not fix a systems problem by clogging the system with more – you fix the broken system so as to be able to do more with less (not do less with more).

                Reply
              3. I cannot help but add the musing tease lead-in of one Hal Wegner (in part channeling the CAFC) as it bears directly on the point of Ned’s wrong-looking “just add resources”:

                Eloquent words can mask much mischief. [We are] rearranging the deck chairs on the Titanic – the orchestra is playing as if nothing is amiss, but the ship is still heading for Davey Jones’ locker.” Phillips v. AWH Corp., 415 F.3d 1303, 1334-35 (Fed. Cir. 2005)(en banc)(Mayer, J., joined by Newman, J., dissenting).

                2005 – 2014

                History repeats.

                Reply
      1. …and the 3 month shortened period and the 6 month statutory periods are not arbitrary?

        Reply
        1. Congress is allowed to be arbitrary (to a very large degree) – they are the ones with the authority from the Constitution.

          Reply
      2. 6, well the ITC has a deadline, the PTAB does in IPRs, why not appeals from he examiner?

        The problem I see is that delays caused by the PTAB normally extend patent term. They cost the public and are not in the public interest.

        We need a deadline.

        And we need temporary appointment of senior examiners to tackle the backlog.

        Reply
        1. I’d go with the last part but idk if we “need” a deadline anymore than we “need” a deadline for FOAM. Esp. of a year. Maybe 2 yrs.

          If we’re going to put a deadline on the board, may as well put on on FOAMs as well. May I suggest a deadline of a month?

          Reply
        2. I think we might push 50,000 pending appeals with these Alice rejections.

          Reply
  4. Dennis: In 2006, there were fewer than 1,000 pending ex parte appeals at any given time. That figure steadily and rapidly ballooned to a seeming high-point of over 25,000 pending ex parte appeals. The PTAB has taken several steps address the backlog. The most important of these is its efforts in hiring a host of new administrative patent judges to decide cases…

    Of course more examiners and more administrative patent judges are needed. More are needed right now. Everybody would benefit from the hiring of more APJ’s, and the hiring of additional people to oversee those APJ’s and the hiring of paralegals/attorneys to assist those APJ’s. If we assume that this backlog and delay is a real problem, what other solution makes more sense than this?

    We all know what the patent T-bagrs scheme is: object to any efforts to hire more people, create a big mess at the PTO by flooding it with crxp and digging in their heels at every turn, then complain about the big mess and blame “bad examination” of their crxp claims in the hopes that the overwhelmed PTO starts using its rubber stamp out of desperation. Who benefits from that “solution”? Why, the patent T-bagrs, of course, at every else’s expense.

    Note that if the Federal Circuit does the right things and follows the Supreme Court’s lead in putting a bullet through the zombie head of most (or all) of the functionally claimed computer-implemented crxp that’s out there, then a lot of the the worst applicants and their accompanying b. s. will disappear (at least, they won’t be involved in the US patent system — but they’ll definitely find some other way to grift, however, because that’s all they know how to do).

    Dennis — just for grins, how about selecting 10-20 appeals at random so we can all get a better sense of what’s really going on?

    Reply
    1. From the inspector ge neral report: PTAB managers, including its senior-most personnel, were aware of this problem but took little action to prevent such waste because they believed the problem would disappear once PTAB hired additional judges.

      That was a reasonable belief. Was it reasonable to expect that the Republicans would kneecap the government in the middle of the Great Recession?? I suppose it is reasonable once you accept that the modern Republican party is run by l00natics who couldn’t care less about the suffering of ordinary people. That probably wasn’t as clear to some people as it should have been prior to shutdown.

      Reply
      1. Was it reasonable to conflate the sequester of 2013 with the timeframes of the events captured in this investigation?

        Oops.

        Reply
    2. We all know what the patent T-bagrs scheme is: object to

      Except for the material misrepresentation of the fact that those whom he likes to label as patent T-bagrs have no such scheme….

      Intellectual Honesty – give it a try.

      Reply
      1. those whom he likes to label as patent T-bagrs have no such scheme….

        You wish, Billy.

        Reply
      2. Intellectual Honesty

        It’s always funny when Billy pretends he’s in a position to judge other people for their “intellectual honesty.”

        Tell everyone, Billy: if you are a patentee interested in obtaining broad functionally claimed computer-implemented j nk that you can wave around at various deep pocketed companies to extract money from them, do you want a PTO that is deeply staffed with very well-trained and experienced examiners who have the time to tank your claims with well-reasoned arguments like those that regularly win in the courts? Or do you want your patent to be “examined” by a burned out overworked rubber stamper overwhelmed with reams of j nk like yours?

        If you wish, please go right ahead and pretend that their aren’t reams of applicants out there pursuing functionally claimed computer implemented j nk.

        Reply
        1. Or do you want your patent to be “examined” by a burned out overworked rubber stamper overwhelmed with reams of j nk like yours?

          1) you assume
          2) already asked and answered – in the opposite of your assumption
          3) kind of the point of my post at 19.2 – Is the English a little too difficult for you?

          Reply
          1. Billy, the modus operandi of the patent T-bagrs is transparent and has been years.

            Go ahead and advocate strongly here for the hiring of more Examiners and more APJ’s so applications can be examined more rigorously without lengthy delays, and so that everyone who reviews the applications has time to do it right and is compensated very well for it (like the attorneys who are paid to prosecute the same applications).

            Or you can just continue to prove my point and rag, rag, rag about how the rejections of your j nky innundations aren’t being made in the manner that you would like them to be made.

            By the way, can you defend this j nk Billy?

            7. A method of processing [data] comprising:

            receiving [data] from a first source;

            correlating the first [data] with [data] available from a second source; and

            using the [second data] with which the first [data] is correlated to enhance the first [data].

            Just one of thousands of examples of pure unadulterated computer-implemented cr xp that has been flowing out of the PTO for many years. And there’s more being pumped out every week and even more being filed upon.

            That’s what this “appeal backlog” is about. And that’s all it’s about, really.

            Reply
            1. Finally, a way to enhance my first data using correlated second data.!

              Do you know where I can purchase software that implements this claimed method? I have a long held and deep felt need for such data enhancement. Seriously, who holds this patent?

              Reply
            2. MM, as opposed to your claims of using “smelly chemical” to do X which is just so much more difficult and clever than an information processing method performing a function.

              A j unk mind is MM’s.

              Reply
    3. We all know what the patent T-bagrs scheme is: object to any efforts to hire more people, create a big mess at the PTO by flooding it with crxp and digging in their heels at every turn, then complain about the big mess and blame “bad examination” of their crxp claims in the hopes that the overwhelmed PTO starts using its rubber stamp out of desperation. Who benefits from that “solution”? Why, the patent T-bagrs, of course, at every else’s expense.
      Your handlers don’t like you getting off script much — despite those that you allege are “patent T-bagrs” have gone on record supporting increased hiring, increased training, increased time for examination as well as many other initiatives that would improve examination. Never let the facts get in the way of a good rant — the hallmark of a paid, blogging troll.

      in the hopes that the overwhelmed PTO starts using its rubber stamp out of desperation
      I see you are totality out of touch with reality. The PTO is far more concerned with criticism of issuing “bad patents” than criticism of undue delays. For this reason, there are a lot of crxp rejections that are clogging the system in the hope that applicant will run out of money and give up — even some of the very deep pocketed clients I have give up on good applications because of intransigent examiners.

      follows the Supreme Court’s lead
      LOL … I see you haven’t taken the time to read CLS Bank. If you did, you would note the conspicuous absence of the term “software” anywhere in the decision. Given that many amicus begged SCOTUS to shoot that bullet and “software” was the target to which many fingers were pointed, I’m not seeing the “lead” being taking by SCOTUS on that front. I try not to use over-the-top descriptions when referring to people (not my style), but you are truly delusional.

      Reply
  5. From the Inspector General report: PTAB managers, including its senior-most personnel, were aware of this problem but took little action to prevent such waste because they believed the problem would disappear once PTAB hired additional judges.

    That was a reasonable belief. Was it reasonable to expect that the Republicans would shut down the government in the middle of the Great Recession?? I suppose it’s not reasonable if you accept that the modern Republican party is run by lu natics who couldn’t care less about the suffering of ordinary people.

    Dennis: In 2006, there were fewer than 1,000 pending ex parte appeals at any given time. That figure steadily and rapidly ballooned to a seeming high-point of over 25,000 pending ex parte appeals. The PTAB has taken several steps address the backlog. The most important of these is its efforts in hiring a host of new administrative patent judges to decide cases…

    Of course more examiners and more administrative patent judges are needed. More are needed right now. Everybody would benefit from the hiring of more APJ’s, and the hiring of additional people to oversee those APJ’s and the hiring of paralegals/attorneys to assist those APJ’s. If we assume that this backlog and delay is a real problem, what other solution makes more sense than this?

    We all know what the patent t–b-ggers’ scheme is: object to any efforts to hire more people, create a big mess at the PTO by flooding it with j nk and digging in their heels at every turn, then complain about the big mess and blame “bad examination” of their j nk claims in the hopes that the overwhelmed PTO starts using its rubber stamp out of desperation. Who benefits from that “solution”? Why, the patent t–b-ggers, of course, at every else’s expense.

    Of course, if the Federal Circuit does the right things and follows the Supreme Court’s lead in putting a bullet through the zombie head of most (or all) of the functionally claimed computer-implemented j nk that’s out there, then a lot of the the worst applicants and their accompanying b.s. will disappear (at least, they won’t be involved in the US patent system — they’ll definitely find some other way to grift, however, because that’s all they know how to do).

    Dennis — just for grins, how about selecting 10-20 appeals at random so we can get a better sense of what’s really going on.

    Reply
  6. Since it has not been noted in other comments, one important reason for the continuing large backlog of ex parte appeals at the PTAB is that the PTAB is getting more than 1000 IPRs per year to process (plus CBMs and reexamination appeals). These take much more time, have statutory deadline priority over ex parte appeals, and are usually far more important [on patents in actual patent litigation, which only a small percentage of the applications in ex parte appeals will ever be].
    [The Board should also be assigning and processing reissue applications and "submarine" applications pending for decades in high priority order, but I am not at all sure if they are? Arranging that might be a good job for those paralegals?]

    Reply
  7. The backlog is caused by BAD REJECTIONS. No one wastes time and money appealing a good rejection. THAT is the issue. Not that they hired some paralegals in anticipation of Judges that never arrived.

    Reply
    1. Les – a somewhat rare occasion in which I agree with you completely.

      Well, almost.

      I am sure that there is some minuscule fraction (perhaps on the order of .0001%) of applicants who will waste time and money appealing no matter what the quality of a rejection is.

      But the point remains is that the real issue is sure to have dust kicked all over it.

      This has been going on only like forever.

      Reply
        1. Apotu – you are not addressing the same point. losing at the PTAB has nothing to do with those who would press on no matter what.

          Reply
        2. First, add together the Reversed and Reversed in Part numbers.

          Then consider that in the Affirmations the PTAB got it wrong, as it is the same organization checking itself.

          Reply
          1. Then count the number of rejections that are withdrawn following a notice of appeal, and add those to the reversed numbers.

            Reply
            1. Well…to be fair, we are talking about the backlog actually at the PTAB. Though, your comment, and that of Oh no (below), do go to the issue of BAD REJECTIONS.

              Reply
        3. Given that there’s actual data on PTAB affirmance rates, I dare say that the number of pointless appellants is considerably higher than .0001%
          Do those numbers include those appeals that never made it to the Board? I didn’t think so.

          Reply
  8. I blogged about the PTAB backlog a few months ago. See “When will the Board decide my patent appeal?” at link to blog.oppedahl.com . I offered two different measures that might help to predict the answer to that question. On one measure the backlog might be around about 3⅓ years.

    Reply
    1. Interesting thoughts Carl.

      May I suggest though, that the calculus include a heavier emphasis on the “prioritization” effect? You do mention the AIA induced “frenzy” – with a statutory one year turnaround that is sure to be the focal point of any deck-chair re-arranging, but the recent Congressional judiciary Committee meeting with Miss Lee, and the rare pointed question put to her may make that “prioritization” effect even more pronounced. One committee person asked Miss Lee where did she think she obtained the authority to pick and choose which claims where reviewed under the new AIA post-grant review proceedings (with the intimation – at least from that congressman’s view) that the view of Congress was not that the Office has that authority.

      Much like we should expect to see the stats on RCE backlog “shockingly explode” out of control, the stats on the Appeal backlog are also likely to so “explode.” (and woe to anyone that dares point out the deck chair moving… those people just are not “playing nice” and simply must be “grifters”)

      Also guaranteed: calls for limits to placed on those d@mm applicants wanting their applications reviewed and this crazy notion that examiners can be challenged for their read-the-claims-and-keyword-search-cut-and-paste examination efforts. After all, the Office exists for the pleasure of the examiners and other government employees’ benefit, right?

      /off sardonic bemusement

      Reply
      1. calls for limits to placed on those d@mm applicants wanting their applications reviewed

        Some calls have already been placed and granted by the Supreme Court. Did you already forget about what you guys have been whining about constantly for the past couple weeks? The bad ol’ PTO pulling allowed applications that should never have been allowed and shoving them in the t oilet? You forgot about that already?

        Reply
        1. Some calls have already been placed and granted by the Supreme Court.

          LOL – for reviews….?

          Really? Care to share that citation?

          Or are you just diving into the weeds again, not even caring about what I actually wrote, or what the topic of the conversation is?

          Yeah, thought so.

          Reply
  9. The quality of the Alice rejections will be interesting. From what I’ve heard the examiners have been given no training and are expected to just put a few words into a form paragraph.

    So, then are we to expect the same thing from the Board? And, then the Fed. Cir.?

    So, a kangaroo court. We the courts have legislated and now all deem all information processing patent ineligible ’cause. Just remember judicial activist that you do this for one thing (patents) and any of your rights can be on the next agenda.

    Reply
    1. Night –

      Have you seen the IEEE comments on Preliminary Examination Instructions in view of the Supreme Court Decision in Alice Corporation Pty. v. CLS Bank Int’l (June 19, 2014)?

      It is a thing of Beauty.

      Read, giggle and chillax.

      Reply
      1. I think David Boundy is writing the comments for IEEE these days. He knows his stuff.

        Reply
              1. “Are you saying that David Boundy does not know his stuff?

                Really?”

                I’ve seen his papers and his amici filings. Not once have I thought to myself “this guy knows his stuff!11!!!11!!”. I have however thought to myself “this guy is a crank and a riot”! And I’ve also thought that his hairdo was hilariously bad.

                Reply
              2. You cannot be serious – recheck yourself and his work in the Claims Rules takedown and the Appeals Rules takedown.

                Reply
              3. “You cannot be serious – recheck yourself and his work in the Claims Rules takedown and the Appeals Rules takedown.”

                His “work” wasn’t worth the e-paper it was digitized on.

                For the millionth time, the judgement was only made because a wuss all of a sudden joined the organization.

                Reply
      2. I’ll look but frankly I don’t think it matters. Who is there left to listen? I guess we can get some great dissent from O’Malley and Newman.

        Reply
    1. He is paid per post I think. He has to maintain a strong presence to keep his job. I think that is why he hates G ene so much.

      Reply
  10. the incident here is an important reminder of the importance of agency transparency.

    Right. Agency transparency is important.

    Agency transparency is important.

    Agency transparency is important.

    Agency transparency is important.

    You know what else is important? Patent assignee transparency.

    Let’s all focus on the important stuff.

    By the way, how are G il H yatt’s applications doing?

    Reply
    1. You know what else is important? Patent assignee transparency.
      I see you don’t get the private/public distinction.

      Reply
      1. What makes you think that, Slo Mo?

        I tried to make it as clear as possible for a guy like you that I believed in the importantce of agency transparency.

        Reply
          1. lol – coming from the guy who used the maximum hiding options in the Disqus days, the AOOTWMD effect is never ending.

            Reply
            1. What in the heck do Disqus settings have to do with “agency transparency,” Billy?

              Let everyone know.

              Reply
    2. By the way, how are G il H yatt’s applications doing?

      Last I heard, he had filed a law suit in order to make the government move and examine his applications.

      But thanks for asking.

      Reply
      1. he had filed a law suit in order to make the government move and examine his applications.

        Exactly why aren’t his applications being examined?

        It’s not a military secret or anything.

        What’s in those applications and what objections are being made to them?

        Reply
        1. I don’t know – but maybe if the government responds to the suit, or does provide the examination paid for (decades ago), we both shall find out.

          But until then, you might think a little about the nonsense you are posting, especially when it does not support the point that you are attempting to make.

          Reply
  11. the grant rate plunge from the historic 70% or so down to the 40-30% range

    Care to take a good look at the sort of sh xt that was being filed for during that time period?

    Let everyone know, Billy.

    Reply
    1. Care to take a good look at the sort of sh xt that was being filed for during that time period?
      The same stuff before and after — another Malcolm Mooney logic fail.

      Reply
      1. Not technically true. Some of the more egregious AU’s have apparently dried up and blown away completely.

        Reply
        1. Some of the more egregious AU’s have apparently dried up and blown away completely.
          What AUs? What do you mean by egregious?

          Reply
          1. “What AUs? What do you mean by egregious?”

            Ask around for which AU’s simply have nothing coming in the door lately, it’s no secrit.

            “What do you mean by egregious?”

            The standard definition of the word. outstandingly bad; shocking.

            Reply
      2. Pretty sure that Dudas was responding to the initial wave of Internet-implemented j nk claims among other computer-related j nk.

        Like many others in the grown-up arts, I practiced through the so-called “Reject Reject Reject” era without noticing any significant changes.

        Reply
        1. Yes, because worthless picture claims have never left your limited range of “prosecution.”

          btw – the “cliff” effect was not limited to the arts of which you so lovingly call j nk. In case you wanted to – you know – actually use real facts.

          Reply
          1. btw – the “cliff” effect was not limited to the arts of which you so lovingly call j nk. In case you wanted to – you know – actually use real facts.
            logic-fail and fact-fail … MM’s favorite tools

            Reply
  12. The results of “reject everything no matter how valid” were predictable.

    ROTFLMAO

    Time to dredge the pond and get rid of the bottom-feeding s k um who are unable to predict anything.

    What sort of computer-implemented j nk will you be expecting to enforce in five years? Serious question. Or maybe it’s the President after that who will be the most Hxtler-esque (or Stxlin-esque) … from the patent tx bxgger perspective anyway.

    Reply
  13. And now with the PTO going post-CLS Section 101 reject crazy, the backlog at the Board is going to get even worse

    Reply
  14. This is one of those “Republicans screw up government, complain how bad government is” things right?

    Reply
    1. You think republicans have any control over the executive branch, senate, or judicial branch at this point? Wow, this country is in worse shape than previously suspected.

      Reply
      1. You think republicans have any control over the executive branch, senate, or judicial branch at this point?

        LOLOLOLOL

        Your beloved Repukkkes threatened to put a bullet through the country’s head just a very short time ago. How soon you forget. But we all knew you’d forget. After all, that’s your game: kick the government in the nxts, then complain about the government.

        Nobody could have predicted that you’d blame everything on Obama.

        Try to remember this one basic fact (I know it’s really hard): he didn’t spend hundreds of billions of dollars and thousands of lives killing people for to tal bx llsh xt reasons. Try to remember the next time you pull the lev er for another Rep ukkke.

        Good luck.

        Reply
        1. I see your grasp of the reality of politics is no better than your grasp of the reality of innovation.

          Reply
        2. FYI, I’m not a Republican. I just happen to know who’s in office right now.

          Reply
          1. It does not matter who is in office right now – this is not a particular party thing – this is a political party thing.

            BOTH parties are to blame. Both democrats and republicans are politicians first (as are liberals and even socialists, much less communists).

            Taking the bait and drinking the koolaid of blaming one party – or the other – only permits those wanting to kick dust to keep on kicking dust, as opposed to focusing on the issues at hand.

            The fact of the matter is – and Malcolm knows this because I have told him so more than once – that I am not a Republican.

            (much less a denigrated (and deeply, if not thinly veiled racist mongering offensive “Repukkke” Seriously? triple k? From the guy that defended 6 and the use of the “N” word?)

            Reply
              1. Just tell everyone what you are, Billy. You proudly disclaimed being a Republican. Who’d you vote for in the last two elections?

                Reply
              2. I myself voted for mittens almost entirely because obama couldn’t be bothered to live up to his original campaign promises re occupying foreign lands. And of course the $$$/lives which that necessarily implicates.

                Reply
              3. B-b-b-but 6, your fearless leader Malcolm just got done saying this about Obama:

                Try to remember this one basic fact (I know it’s really hard): he didn’t spend hundreds of billions of dollars and thousands of lives killing people for to tal bx llsh xt reasons. Try to remember the next time you pull the lev er for another Rep ukkke.

                Which is it?

                ;-)

                Reply
              4. Well it wasn’t really so much a vote “for” mittens as it was a vote to air my beef with obama. Only reason (well biggest reason anyway) I voted for that dude in the first place was he was promising to more swiftly end the wars. On a fairly strict timetable.

                Reply
              5. That does not answer my question.

                Please be explicit: is Malcolm wrong or are you wrong – you have to choose one. ;-)

                Reply
              6. Is MM “wrong”? Or am I “wrong”?

                Wrong about wut mr. right/wrong OCPDer?

                I said I voted for mitt for x reason. You stated that MM just stated something and asked me “which is it”? Between two imaginary things which I’m not privy to because you’ve yet to be explicit what the choices are. Then I tell you that my vote wasn’t so much a vote for mitt at all, so much as a vote against obama. You then ask who is “wrong”?

                Again, wrong about wut mr. right/wrong OCPDer?

                I have not said anything directly against what MM stated. In fact I’ll join him in saying that obama didn’t spend billions and thousands of lives for total bs reasons. That’s what is known as “a fact” that is supported by a mountain of evidence. He only finished up the war as responsibly as he could (though not as quickly as he promised and as I’d wanted and voted him in to do). George Dubbaya got us into all that spending for bs reasons. And yes, I remembered that as I voted against Obama by voting for mitt.

                But that’s just how I personally voted don’t take that as my endorsement of either candidate because I surely do not endorse either.

                In any event I’m through discussing this with you. I’m already getting close to jadeing with your OCPD as.

                Reply
              7. Oh come now 6 – I gave you the quote from Malcolm that flies in the face of what you are saying – plain and simple – and absolutely nothing at all to do with me, but you both cannot be right.

                So which is it? You or him?

                Reply
            1. 6, I voted for neither: Obama because I disagree with O-care even though I largely favor his foreign policy and his bench appointments. Mitt because he did not give us any reason to vote for him.

              We need a solidly libertarian candidate IMHO. The problem is, getting such a candidate nominated. Social libertarians are an anathema to many republicans. Small government types are an anathema to most democrats.

              Ugh.

              Reply
              1. “6, I voted for neither: Obama because I disagree with O-care even though I largely favor his foreign policy and his bench appointments. Mitt because he did not give us any reason to vote for him.”

                Yeah I also disagree with abstaining though I certainly hear you on not being for either.

                I will tell you one thing else though, I ended up benefiting from o care. Turns out my insurance did not spend enough money on healthcare costs to make up 85% of their budget (in other words more than 15% were going towards profit/administration). So they had to refund some. The PTO will be spreading it out as a discount over the coming year.

                They’ve probably been fleecing us for decades. Good to have the 85/15 rule in place.

                “We need a solidly libertarian candidate IMHO.”

                Yep. The republican and dems have a stranglehold on elections.

                Reply
        3. You see Ned here is MM insinuating that all Republicans are members of the KKK. This is the person that you defend and believe that if only people would be nicer to MM that he would be more civil.

          Reply
          1. And, Ned–in reality–since you vigorously support MM you are guilty of calling all Republicans members of the KKK.

            Reply
              1. Ned seems to have a little bit of a conscious or at least pretends to as opposed to MM who is the epitome of the depraved heart.

                Reply
            1. …plus you are missing the irony of Malcolm being one of only two people to have had posts expunged for use of the “N” word.

              The other person was 6 (albeit, Malcolm’s use was in defending 6’s use, so the notion of transferred intent is indeed applicable).

              Reply
          2. Night, if people say something st u pid or bigoted, they only undermine their own credibility. Partisan attacks typically have no place in IP law.

            But, I must admit that I was surprised by the split in Bilski between the liberals (Kennedy) and the conservatives (Stevens) in Bilski. That we identify these Supreme Court groups the other way around on most issues does not change the fact that in IP law, the so-called liberal are really conservative.

            Reply
            1. Funny then Ned, as you seem to draw amnesia to the site’s single largest partisan attacker Malcolm.

              Do you mistake that as “swagger?”

              Reply
              1. Not amnesia, anon.

                I would only politely suggest to MM that he undermines his own credibility with hyper-partisanship.

                Reply
            2. Yeah Ned I know. And it is MM AGAIN behaving this way. And, it fits the pattern I have told you he follows. If he doesn’t like your substance, he is vicious.

              Not sure why you are surprised by the Bilski split. It has always been that way since in the past the conservatives were for business and patents were seen as protecting business. Now that big business wants no more patents (except for the smelly arts), the other arts have no friends.

              You favorite poster on here says it all the time: attacks from the left and the right.

              Reply
        4. Ned and 6 – you guys are both missing the point that it is Malcolm merely kicking up dust by even introducing the politics into the situation.

          As I have long stated: BOTH republicans and democrats are to blame because BOTH are still – at their core – politicians.

          Each of you show signs that you are finally getting what I have long posted. Yet at the same time, each of you enjoy inhaling Malcolm’s dust a bit too much to understand that his short script politic-injection meme just is not helpful to the conversation.

          See http://news.yahoo.com/us-aimed-wrong-way-most-want-leaders-183543213–election.html

          Reply
        1. I am beginning to think that Dudas was as much a puppet then as Lee is now.

          Notwithstanding some examiner’s posted view that “no one is to blame,” I think that some one is very much to blame – and that some one remains hidden in the shadows.

          Reply
          1. When the shadow director puts in her mission statement that there are other incentives besides patents (in other words it is fine to burn the system down), you know you patents are in big trouble.

            Normally, in private industry a person like Lee would be shown the door a second after saying that there are other incentives besides patents. The reason: that’s not her job. She is not focusing on her job but telling us that as a policy reason it is fine to burn her job down.

            But, I am sure it won’t matter to her $10 million in stock options.

            Reply
            1. The “It’s-OK-to-burn-down-the-system-with-the-inclusion-(even-promotion)-of-NON-patent-protections” is not new.

              Of course, the Big-Corp capture of certain legislative components provides ample evidence of this.

              To wit: the inclusion in the AIA of Prior User Rights.

              It is not at all surprising that Ned long ago sought to infuse this mechanism into patent law.

              It is also not at all surprising that Ned does not grasp why this mechanism is detrimental to patent rights, and in fact, is contrary to the mission of having a patent system in the first place.

              But this is also not the first time that the conflation of non-patent and patent methodologies has occurred – and even some great legal minds have been tripped up with this conflation (by this, I reference of past great minds being tripped up in calculating the time under patent protection of non-patent law trade secret protection).

              Inclusion of such things as trade secrets and prior user rights does indeed muddy the focus of the patent office.

              But in a pragmatic view, the desire of certain factions to muddy the focus of the patent office should surprise no one.

              Inclusion
              Conflation
              Obfuscation

              Rinse repeat.

              Reply
    2. This arose because they hired one half of a group and then a hiring freeze prevented the hiring of the other half.

      I assure you it wasn’t the democrats complaining about the debt and demanding a federal government hiring freeze. Pretty sure the whole point of the stimulus was the exact opposite.

      Reply
      1. You are missing more than just a few things here if you really think that the hiring freeze allows the government to go ahead and keep people on payroll doing nothing.

        Then again, you are an examiner…

        Reply
        1. the hiring freeze

          Tell everyone exactly why we had a government firing freeze in the middle of the Great Recession, Billy.

          Reply
  15. Ned do you remember when I told you years ago that if you had a good idea to take it to the market?

    Apparently you don’t even need a good idea anymore!

    link to kickstarter.com

    Reply
    1. Well, 6, Ponzi schemes are another good idea. Think Social Security.

      Reply
      1. Lots of great ideas out there (hey, if you cannot be handled being called a “grifter” you wouldn’t be “grifting” in the first place, would you?)

        Reply
  16. “The bulk of the wasted resources related to PTAB’s paralegals, who had insufficient workloads and considerable idle time during those years. Paralegals told the OIG that they engaged in a variety of personal activities including watching television; surfing the internet; using Facebook and other social media; washing laundry and cleaning dishes; and shopping online while in an official pay status. ”

    That sounds about right actually. Then again, just w t f do they do at the PTAB anyway?

    “PTAB managers, including its senior-most personnel, were aware of this problem but took little action to prevent such waste because they believed the problem would disappear once PTAB hired additional judges. We found that, by failing to report the significant waste incurred by the PTAB when Paralegal Specialists were being paid to not work, numerous PTAB employees appear to have violated certain regulations and Department of Commerce policies.”

    Oh my lawd! Lulz. Them beautiful lulz.

    Reply
    1. “As an interesting back-story, Professor John Duffy is also a but-for cause of the problem.”

      Omg, the legal lulz just keep coming!

      Reply
      1. “However, the incident here is an important reminder of the importance of agency transparency.”

        Seems like an important reminder that legal tomfoolery created by articles from profs throws monkey wrenches in the works that are entirely uncalled for. They should have just steamrolled right over that article’s “findings” and saved 5 million.

        Reply
        1. You’re made for the government.

          The rest of us with actual jobs and businesses to run recognize that the problem isn’t that they fixed a previously unknown issue, but that the strict artificial hiring freeze was counterproductive to the mission of the organization, especially when the organization was self funded.

          Reply
          1. The hiring freeze was due to the budget fights between Dems and Repubs in Congress. Remember that the PTO is still needs congressional approval to appropriate the money it takes in.

            Reply
            1. True, but it was still bs, and hanging on to the paralegals was probably the best short term move. Although, one does wonder at what point is ceases to be short term.

              Reply
              1. And now I have to wonder if Slo Mo is really this st00 pit.

                The AOOTWMD is really nonstop.

                Reply
          2. “The rest of us with actual jobs and businesses to run recognize that the problem isn’t that they fixed a previously unknown issue, but that the strict artificial hiring freeze was counterproductive to the mission of the organization, especially when the organization was self funded.”

            Little of column a. Little of column b.

            According to D but for the set back made by the article and the timing it threw off then this would not have happened.

            That’s called a monkey wrench. And it leads to things like this.

            Reply
            1. Most people are able to react to things called “monkey wrenches” instead of giving bonuses to people for doing their laundry and surfing the net.

              Reply
            2. but for the set back made by the article and the timing

              Did you catch the part in the Lee-Congressional Judiciary Committee lovefest about the concern over Office union powers? At least one congressman is under the impression that Agency management is controlled by union interests (Malcolm’s misstep of “firing freeze” echoes).

              The notion of “but for” is – sorry for being blunt – simply asinine. That Prof. Duffy’s little note may have made people actually pay attention to rules already in place – and be construed as some type of “blame” for messenger is itself the wrong message to be sending. Such only feeds the “Ivory Tower”-tow-the-academic-code fall-in-line that seems evident to everyone outside of academia (and sorry if pointing this out comes across as “harsh criticism” too).

              Reply
            3. “At least one congressman is under the impression that Agency management is controlled by union interests ”

              I wouldn’t exactly say that. It certainly isn’t “entirely” controlled by union interests. But it is very odd how management can still be members and officers of POPA. That always worried me as well as the good congresscritter though for different reasons.

              Reply
              1. “Which different reasons are those?”

                That they’d be looking out for management’s interests rather than those of examiners. Or at least be somewhat skewed towards those interests moreso than an officer that wasn’t management themselves would be.

                Reply
              2. Also not intended as snark: what would those differences be? pay-related? through-put related? some unpublished “quality” score (ok, the “quality” score question had a little snark – but not directed to you)

                Reply
              3. “what would those differences be?”

                I didn’t say anything about any “differences” in my most recent comment.

                But the “differences” between what I perceive their positions may well be compared to a non-management person’s would be are things like what you mentioned, along with things like the extra-statutory pre-appeals conferences super-examination pilot that is ongoing, qpids, internal handling of various matters, quotas etc. etc. there’s a million things and for the most part the union is more than happy to roll right over for management unless it is one of the key things they like to fight for. Don’t get me wrong, that may well not be bad. It just looks bad for that to be happening with a bunch of management in popa itself.

                I mean, you can’t have management essentially negotiating with/fighting itself and call that a “union” or “union negotiations”. But from what I understand they are usually not members of management that are usually doing the negotiating so at least that’s good.

                Reply
              4. What I find interesting about your position 6 (if true), is that if indeed “management” has infiltrated POPA, then any “union” concerns are pure CRP.

                Just curious – what is the power structure of POPA? Who’s the guy with the real power?

                Reply
              5. “What I find interesting about your position 6 (if true), is that if indeed “management” has infiltrated POPA, then any “union” concerns are pure CRP.”

                I’m not sure if I’d go so far as to say that. There are a lot of non-mgmt people in there too. So not “all” “union” concerns are “pure crp”. Most of their major concerns they fight for are in fact major concerns of ordinary people. That much cannot be doubted.

                And to be honest I hope I’m not right about any of this conspiracy theoryish stuff, but the perception is hard to shake.

                To be clear, I don’t think it is mgmt “infiltrating” popa. It’s just that people get promoted to mgmt and were members of popa and are never asked to step down from popa or positions in popa when they become mgmt. Of course many years of this go by …

                “Just curious – what is the power structure of POPA? Who’s the guy with the real power?”

                That’s a great question anon. I’m not on the inside well enough to answer. I would presume that the big shots headed by Budens are the guys/girls with “real power”. Budens of course being the guy who apparently will literally cry at the drop of a hat (and who weighs nigh 400 lbs I’m going to guess).

                Reply
        2. 6,

          Just curious, how much “other time” do you have? Do you still think that your supervisor’s word is, um, gold?

          (I think the lulz are much closer to home)

          Reply
          1. “Just curious, how much “other time” do you have?”

            This bi-week like 1 hr? Maybe a few more for interviews?

            “Do you still think that your supervisor’s word is, um, gold?”

            I never did think it was “gold”.

            Reply
            1. Never thought it was “gold”? – funny then your answers as to what you are required to read prior to your keyword searches then.

              Reply
              1. If it was “gold” then it would be “necessarily correct/good/valuable” or something like that. Instead its a mere matter of authority.

                Reply
              2. Not sure I am following you 6 – mere matter of authority..? Are you a soldier? Even soldiers cannot blindly follow orders…

                Reply
              3. “mere matter of authority..? Are you a soldier? Even soldiers cannot blindly follow orders”

                Sure they “can”. They’ve been doing that for many hundreds of thousands of years in fact. Whether or not they “may” or not is what you want to harp on. But the fact is the avg person isn’t OCPD (you’re never going to understand that), so they don’t really care so much about abstract “guidelines” set forth in a guide book, they just do what they’re told to do for a pay check.

                And examiners “can” too. Not to mention that the only differences between what you would have me do and various spe’s “word” is a mere matter of interpretation. They’re the ones with the authority, indeed, authority to interpret, so they call that shot. Not you. But you’re probably never going to understand that either.

                Plus, unlike soldiers, there is no international tribunal designed to make sure examiners don’t commit “war crimes” or even an ind internal military po po to make sure there are no everyday no nos. All there is is mngmt. The very people you’re up against. So gl.

                Reply
              4. LOL -so power and control hungry, so lacking in understanding…

                But you make a real fine lemming.

                Reply
  17. Greetings Dennis

    Based on the 5-6 examples I’ve seen in the past month, I’ve figured out how they are handling the backlog. I am getting fact, logic and analysis free decisions like this:

    “Appellant says X. Examiner says Y. We adopt the Examiner’s reasoning.”

    Rinse, repeat for every issue, and there you are. They think this is fooling people I guess, but its just going to result in more backlog because we always file for reconsideration when opinions are devoid of rationale…. furthermore we have had great success with the Solicitor’s office bouncing cases back to PTAB when the former discover (to their horror) that the record looks pretty indefensible and they don’t want to argue lost causes. In the end, again, it may take some time, but I predict they will stop rubberstamping decisions soon when this new experiment fails.

    Reply
    1. That may be okay for dependent claims and additional independent claims, but I don’t see that flying for the argument about the main independent.

      Reply
    2. Thanks for the info and insight JNG.

      Are you saying you’ve run cases by the Solicitor’s office prior to actually filing an appeal with the Fed Cir? If so, how / what has your approach been?

      Have they been willing to bounce cases back to the PTAB without your having to file the appeal … or do they do so only after you’ve filed your brief (or at some other point in the process)?

      Thanks.

      Reply
      1. Steve: yes to both. I’ve found the Solicitors to be a reasonable bunch, and I think that is because they do value their reputations, and can sense BS when they read it. So if there is a clear issue (like the Board made a new argument but refused to call it that) I send them a short note, explain what I think the serious problem is, and let them mull it over. On multiple occasions they agreed to extensions of time and then filed joint motions to remand with me. It makes sense in many instances. In a few instances I filed a brief first when it was not apparent to them. But, as I said, they are fair minded so I encourage you to reach out to them right after you file a NOA if you think there is room to point out a glaring error.

        Reply
        1. Tell everybody about your latest innundations, JNG.

          Oops, I meant “innovations.”

          Because this is really important stuff, right?

          Let everybody know what your latest “innovations” are, JNG.

          We could all use the laughs right about now.

          Reply
        2. Thanks JNG. A recent PTAB decision was so far off base — on multiple clear factual and legal counts — that I thought it just made sense to contact the Solicitor’s Office right after the Board decision was issued. They said they’d take a look at my contentions; though they also recommended that I proceed as I otherwise would. As you say, they’re great folks to work with (even when you respectfully disagree with them).

          Have you ever contacted them before filing the NOA (which I haven’t yet done)? If so, were they willing to consider your request? Doesn’t seem like filing an NOA should be necessary.

          Would be nice to save all parties a lot of unnecessary time, money, and effort.

          Reply
    3. the 5-6 examples I’ve seen in the past month,/i>

      Shall we look at the ga rbage that JNG is prosecuting? Maybe you can post your claims yourself, JNG. After all, you’ve got all the time in the world …

      LOL.

      Reply
  18. Looks like many many more administrative patent judges are needed.

    Reply
    1. Or we could just allow a few patents at the examination level.

      Reply
      1. Yeah cause if there’s one thing the examination level doesn’t do, it’s allow patents. haha.

        Reply
        1. Or give decent, well thought out rejections. That’s a rarity these days. Seems like more just grab some prior art and throw it against the wall.

          Reply
          1. give decent, well thought out rejections.

            Because that’s what bja really wants.

            Please give everybody a break.

            Reply
            1. Please give everybody a break.
              Look into a mirror and say that about a hundred times.

              Reply
              1. The mere look does it – he doesn’t have to say anything.

                (note too that when you, I or others say we really do want high quality examination as what is best for our clients, he ignores the message – that just is not on his short script)

                Reply
              2. note too that when you, I or others say we really do want high quality examination as what is best for our clients, he ignores the message – that just is not on his short script
                He just doesn’t seem to get that some (probably most) professionals are concerned about their profession and want what is best for their profession. We believe in what we do and the patent system as a whole (another thing MM doesn’t get). We want to make the system better — not tear it down.

                Reply
              3. It has long been evident that Malcolm is stuck in a world he despises, and that working with – and supposedly creating intellectual property rights for his clients – is something that creates severe cognitive dissonance that he is unable to deal with.

                He really needs to get into a different line of work.

                Reply
              4. Slo Mo: some (probably most) professionals are concerned about their profession and want what is best for their profession.

                Right. Reason number one to eliminate the Lowest Form of Innovating from the US patent system.

                We believe in what we do

                No doubt you are a True Believer.

                We want to make the system better

                So do I. I’ve provided you with my proposals for doing that. What are your proposals for doing that? Note that I’m not asking you about your “desires”. I am asking you for practical solutions to “make the system better” — for everybody, of course. Not just you and your clients.

                Reply
              5. Note that I’m not asking you about your “desires”. I am asking you for practical solutions

                Malcolm’s “practical solutions” are visibly embraced by the most advanced among the Amish. Even he will tell you that.

                ;-)

                Reply
  19. How long does it take to get a decision from the Federal Circuit?

    Reply
    1. What is the question? Appeal of loss of ex parte appeal at PTAB?

      The CAFC’s stats tables claims appeals having the PTO as its source (which likely are primarily ex parte appeals) have a disposition time of under 12 months year-over-year.

      Reply
  20. “are unduly delayed for years”

    I don’t know about “unduly”. Seems very “duly” to delay appeals because you have a whole sht ton waiting. As in, “the appeals are duly delayed for years due to the backlog”.

    Reply
            1. Invariably, the reason applicants give me for pursuing rces and appeals in the face of rejection is they “just want a patent”.

              Reply
              1. While the client (rightfully) has the final say, I do hope that you advocate – and counsel – better than that, edstirling.

                Reply
              2. That’s interesting to know Ed. Maybe if you’d share that with the examiner pre-final then you could have come to a deal before that time.

                Reply
              3. Invariably, the reason applicants give me for pursuing rces and appeals in the face of rejection is they “just want a patent”.

                Yup.

                Reply
              4. (anon) “While the client (rightfully) has the final say, I do hope that you advocate – and counsel – better than that, edstirling.”

                Not sure what is meant by this. Edstirling listed the two options – RCE and appeal, presumably at final in either case.

                Are there additional options?

                Reply
              5. One clear additional option: abandon.

                This option is listed as a gen eral option – there are a multitude of sub-options, based on the varying reasons for abandonment.

                Reply
              6. Thank you snotbot. Why is it that every time someone catches you with your pants down around your ankles for having said something dumb, the only reply you can think of is “you’re not a lawyer” or “you don’t counsel clients”?

                Go back to what edstirling said – the comments expressed were the rationales provided by his clients.

                In that regard, then, it’s mighty presumptive of you to make patronizing comments about how and to what extent he counsels his clients.

                M’kay Pumpkin?

                Reply
              7. First – the fact that you think that you caught me with my pants down when I have my pants firmly in place indicates that you don’t get why my retort was even offered.

                So sad.

                For you.

                Second, to your reply, my reply was sound advice and calls out the fact that an attorney offers counsel and is NOT simply a scriviner (no matter what the Court likes to think). Your getting upset because you thought that perhaps you caught me with my pants down and that was not so – and then following that up with more stu pi dity – is a reflection on you – not I.

                Third, Edstirling’s post elucidated a lack of an important attorney ability. My reply simply pointed that out. Mighty patronizing? LOL – perhaps – but the defense of “it fits” applies here. So sorry that your “sensibilities” were affected – here’s some free advice for you: grow some.

                Reply
              8. “Edstirling’s post elucidated a lack of an important attorney ability.”

                It did not.

                You imagined and took it upon yourself to presume that it did.

                There’s a big difference, Emperor no-pants.

                Reply
              9. It is only you that is imagining and presuming, Mr. Masher.

                Sorry, but your presumptions are not correct.

                When dealing with clients, one should be aware of – and be able to – advise even those clients who only see further prosecution as desired ends. Believe it or not, sometimes client applications contain NO patentable material, and the ability to advise the client of best course forward in those situations is an important skill to have.

                You seem all wrapped up in wanting to somehow show my post to be wrong.

                My post simply is not wrong.

                See link to en.wikipedia.org

                Reply
              10. If they abandon, they are not applicants.

                No one said abandonment was not a viable option in the appropriate circumstances, nor did the OP under discussion even hint that it was not.

                Try not to strain yourself too hard in your goalpost rearrangements.

                Reply
              11. If they abandon, they are not applicants.

                Again, congrats captain obvious.

                But you STILL miss the point that even though they may not be applicants, they are still clients.

                You seem to have a real hard time grasping the nuance and insisting that somehow I am wrong about this or about what I wrote.

                You are trying way too hard to find fault where there is none.

                Are you related to DanH/Leopold?

                Reply
  21. The PTAB has “process production reports” that go back as far as FY1998. I check on them from time to time to get an idea of the backlog of the PTAB. The FY2014 process production report hasn’t been updated since November of 2013. The reports usually run a little behind, but we should have June, 2014 numbers by now.

    You can finding the pendency number in the patent dashboard, but the information isn’t as granular as that provided by the process production report. I do remember when the reduction in PTAB backlog was trumpeted on this blog sometime back. link to patentlyo.com. Since that article was written, the backlog has barely changed — the backlog has actually increased a little since Nov. of 2013.

    Reply
  22. The results of “reject everything no matter how valid” were predictable.

    This scandal is an agency snafu of the combination of timing of various actions, not a real scandal. There’s no bad actor here, just people trying to do the job despite arcane agency rules and policies.

    Reply
    1. The results of “reject everything no matter how valid” were predictable

      I have point this our previously.

      Take the infamous USPTO-we-are-at-all-time-high-“Quality”-with-Reject-Reject-Reject graph of the grant rate plunge from the historic 70% or so down to the 40-30% range – with no apparent statistical rationale for the change – flip the chart upside down and translate for processing time, then match that chart with each of the pendency charts for each of the decks of the good ship USPTO-Titanic.

      There is an easy to see and objective correlation.

      Maybe an academic should write a paper on this…

      Reply
      1. This is in my view the result of the USPTO policy “2 strikes out”: a first office action (often groundless when not simply a joke), then a final office action (often merely reiterating the first one), without mentionning the 5% (am I wrong ?) limit for examiner to allow an application without issuing an office action no matter the patentability of the inventions, otherwise they are reprimanded… This leaves no choice to applicants apart from going to the PTAB.

        Reply
        1. Luke – I fear that you are more correct than incorrect.

          Wasn’t there an executive directive awhile back that included the thought that an agency should review their own actions as to the contributions to any “problems” under investigation (or maybe that was just some crazy Greek guy named Hippocrates) ?

          Maybe an academic should write a paper on this…

          Reply
          1. I was going to mention this yesterday when I was discussing the process production reports of the PTAB. Some of us have commented before that Dudas was playing tricks with the numbers in order to document his record quality initiatives.

            Anyway, I disclosed this comment buried within the USPTO website: link to uspto.gov

            Please note that the number of appeals received monthly in the approximately one-year time period preceding July 2009 does not accurately reflect the actual number of appeals received at the Board by month. A number of appeals were not timely captured in the Board’s statistics in 2008 and 2009, and the large increase in apparent receipts leading up to July 2009 in part reflects efforts to correct that error by docketing those earlier appeals at the Board.

            And some people don’t think the USPTO plays games with the numbers ….

            Reply

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>