Patentlyo Bits and Bytes by Anthony McCain

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108 thoughts on “Patentlyo Bits and Bytes by Anthony McCain

  1. In PRC v. Corning, No. 2015-1361, Moore said,

    Examinations and reexaminations are not adjudicatory.
    Instead, the patent examiner and the applicant
    work together to determine the scope of the claimed
    invention.

    What utter garb*ge. This only goes to show how mind-numbed this court is, and how in the bag to the PTO and infringer lobby it has become.

    As anyone who is actually been involved in re-examination will tell you, the struggle is against broadest reasonable interpretation. It is not a cooperative effort between the applicant and the patent examiner to clarify the scope of the claims. The effort by the applicant is to preserve the validity of the claims without amendment. It is a struggle because if any amendment is introduced in the claims there is a big risk that the amendment will invoke intervening rights in perhaps millions in damages will be lost.

    The fact that the Federal Circuit does not acknowledge this and continues with this mindnumbing garb*ge that it produces is offensive. I have had it up to here with this court and its utter stup!dity. We need better.

  2. PPC BROADBAND, INC. v. CORNING OPTICAL COMMUNICATIONS

    Interesting decision today involving a claim construction dispute in the IPR context. Judge Moore tries really hard to make an argument that the patentee’s proposed contruction of a term under BRI is “reasonable” but it isn’t the “correct” construction under Phillips. The problem is that Judge Moore’s attempt to construe the claim term differently “under Phillips” is rather desperate and doesn’t make a whole lot of sense, and the opinion is silent as to why it would make any difference as to the ultimate result (obviousness of the claim).

    The claim in question (“claim 1 of the ‘320 patent”) is directed towards a novel structure, specifically a “coaxial cable connector”. The disputed term is

    a continuity member … contacting the post and the nut, so that the continuity member extends electrical grounding continuity through the post and the nut

    The Board construed the term to mean “the continuity member need only make contact with the coupler/nut and the post to establish an electrical connection there”. That construction is not only reasonable, it’s also entirely consistent with the specification. If an infringer taught that a structure with such a contact (in addition to the other limitations), the patentee would go after the infringer without hesitation. Likewise, if the prior art teaches a structure with that contact (and the the other limitations), the patentee has a problem.

    For reasons that are opaque (but we can guess at), the patentee wanted to introduce what Moore refers to as a “temporal” limitation into this language. Specifically, Moore would construe the term to “require consistent or continuous contact with the coupler/nut and the post to establish an electrical connection.” The problem with Moore’s alternative definition is that is that this so-called “temporal” limitation isn’t a “temporal” limitation at all in the absence of any recitation of a minimum time length. For example, one part can be in “consistent” or “continuous” contact with a second part for 1000 years, or it can be in “consistent” or “continuous” contact with that second part for 0.5 microseconds. To be “temporally” limiting in a way that is meaningful in the patent context, the terms “consistent” or “continuous” require additional information.

    1. To be “temporally” limiting in a way that is meaningful in the patent context, the terms “consistent” or “continuous” require additional information.

      Citation?

      Of course,the reason why I ask is that some like to pretend that a “temporal” term such as “non-transient” is – without any additional information – “meaningful in a patent context” when one look up into a clear night sky reveals thousands upon thousands of “transient” things that are of longer duration than anything ever covered by any patent system throughout the entire course of human history.

      1. when one look up into a clear night sky reveals thousands upon thousands of “transient” things that are of longer duration than anything ever covered by any patent system throughout the entire course of human history.

        Exactly how long did the aliens probe you, “anon”?

    2. ? What case are you talking about MM? Claim 10 was the only claim on appeal, not claim 1.

      The issue was the proper construction of “resides around.” Dispute is about “around.”

      PTAB: “near,” the broadest of the dictionary definitions.

      Feds: “surround.”

      The specification’s use of
      the word “around” leaves no doubt about its meaning.
      “Around” occurs seven times in the specification. Every
      one of these occurrences relates to encircling or surrounding.

      The PTAB’s definition is found to be unreasonable. If BRI is not used, but Philips, then “surround” is the only proper construction.

      Given our conclusion, the Supreme Court’s
      grant of certiorari to consider the propriety of the broadest
      reasonable interpretation in IPRs will not affect the
      outcome of this case.

      1. Ned, there there were two decisions published today listing the same parties. I’m referring to one section of the appeal labeled 2015-1361 on the CAFC webpage.

        For the record, if you want to a limit a part of a device to a structure that surrounds another part or encircles another part, then maybe — just maybe — try to use those terms. The term “resides around” is not only a silly substitute that only a patent attorney would reach for but, as everyone can now see, it’s also an expensive substitute. Live and learn, folks.

        1. MM, thanks. I am now looking at the list. Yes, two, not one, but two precedential decisions today. Both on the same patent. Two different IPR petitions by the same company.

          I am reading the other now.

      2. Ned: The PTAB’s definition is found to be unreasonable. If BRI is not used

        What do you mean “if”? BRI was, in fact, not used correctly in this case.

        1. The Feds decide that the construction was unreasonable under BRI. If Cuozzo is overruled by the Supremes and Philips applies, the result here is unaffected because the construction of the term is the same regardless of whether BRI is used or the Phillips construction is used.

    3. MM, IMHO, the confusion is cause here by the use of functionally claiming novel structure. This is an apparatus claim. Structure is being claimed. At the end of the day, one can read this case and not know what that structure is. We can only know what the structure does.

      Something is very wrong here and everybody knows what that is.

      1. Your whining about what Congress actually did in 1952 by opening up the use of terms sounding in action when used in true combination claims (regardless of your canard attempt of Point of Novelty)….

        Time once again for me to remind you to reread Federico.

        1. Anon, is assuming that one can claim the invention functionally, that any functionally defined claim must be subject to the construction clause.

          That being the case, the PTAB and the Federal Circuit here should have told us what the corresponding structure was because that was the subject matter being claimed.

          1. You are no doubt confusing the optional part of 112 with what Congress did in 1952, which allows the use of terms sounding in function OUTSIDE OF just that part of 112.

            This has been explained in great detail on prior occasion, using the words of Congress, Federico and other sources (including case law)

            Your Merry Go Round starts up again as you attempt to play the same old si11y games.

            We are NOT talking about means plus claim option here, Ned.

            We are NOT talking about claims TOTALLY written functionally.

            As Prof. Crouch coined the term, there is a Vast Middle Ground that IS what we should be talking about with this point.

  3. MDT Without that other data, getting excited or upset about 92% is rather pointless.

    Depends on what you’re trying to achieve. PB didn’t get to his excitable state all by his little self, after all. He’s been drinking a steady diet of “OMG-every-patent-is-invalid!” kool-aid for quite a while.

    1. …and tell me Malcolm, what are you trying to achieve with your short script of anti-patent rhetoric and endless ad hominem against anyone who shows an inkling of wanting patents for things that you feel should not be allowed to be protected under patent law, all the while you ig nore basic fundamentals of that particular art field?

      No wait, let me rephrase that:

      Tell me why you endlessly avoid talking about those fundamental counterpoints presented for dialogue and instead merely retreat to your endless ad honimems**, and explain why you think (if you really do think) why your efforts are somehow not so painfully transparent.

      Here, you (again) engage in AccuseOthersOfThatWhichMalcolmDoes with the script of “kool-aid,” just as you down yet another pitcher of kool-aid yourself of “there is no attack on the patent system- there is “nothing” wrong with the Court’s limitless sword of ‘Gist/Abstract’ ” by attempting to overplay PatentBob’s concern with the (very real) lack of limits to the “Gist/Abstract” sword created by the Supreme Court.

      **your style of empty ad hominems and not posting any meaningful points for discussion is quite differentiated from posting an ad hominem AND posting meaningful points for discussion. When was the last time you actually engaged in a meaningful discussion, took in another’s comment for what that comment meant – and not some silly spin and mischaracterization that merely reflected your feelings?

          1. Check out his linked in page. He lists his experience at that page as a job, and has been there for 3.25 years. Do you think that’s volunteer work for a self described witer/actor?

          2. Freelance writers who regularly contribute front page articles to blogs usually don’t pay themselves. Hence Bob’s comment.

            I’ll leave it as a challenge to readers — and a super difficult challenge for you, especially, AAAJJ — to figure out who’s paying for Steve’s articles at everyone’s favorite echo chamber.

            Oh, and don’t forget to check out his fine acting work on youtube.

            1. Freelance writers who regularly contribute front page articles to blogs usually don’t pay themselves. Hence Bob’s comment.

              How about “freelance writers who regularly contribute mounds and mounds of the same short script propaganda” (read that as Malcolm)….?

              😉

                1. Except I’m not a freelance writer.

                  Yes, but you might well be classified as a freelance propagandist.

                  LOL – what was that about truth leaking out….?

                  😉

                2. you might well be classified as a freelance propagandist

                  Except (again) nobody is paying me to comment here or anywhere else.

                  Note I didn’t previously address the mindless swill in the rest of your comment only because it was unnecessary to do so. We already know that you are the One & Only Purely Objective & Unbiased Commenter in the patent blogosphere. That’s why we painted your rocking horse white and put sparkles on mane.

                3. More of that lovely AccuseOthersOfThatWhichMalcolmDoes…

                  As for being the propagandist that you are, that you may take the “free” in “freelance” to heart does not change the fact that you spew propaganda relentlessly.

      1. The proprietor of that website of course.

        Take a look at Brachmann’s LinkedIn profile (link to linkedin.com). He lists his position at the linked page (mentioned by name) as ‘Freelance Columnist’.

        In your experience, do people work at freelance anything for more than three years without renumeration?

        1. “The proprietor of that website of course.”

          I know Ge ne. I doubt he’s paying Mr. Brachmann much. Not sure who Mr. Brachmann is supposedly shilling for, but I don’t think it matters. He writes some nice stuff about my company, but we don’t pay him for it.

          Not sure why a link to Mr. Brachmann on this site is so upsetting to you when this site is polluted daily with the rantings of the paid shills here.

          1. LOL – but “Bob” agrees with those messages, so the “ec(h)osystem” effects of that type of blight do not bother him at all.

            (do you note the AccuseOthers aspect of the echo chamber effects…?)

  4. From what I’ve seen, the IPR drafting has been getting sloppy and the PTAB has not been kind to sloppiness (i.e., Claim 1: an apparatus comprising a circle and a square; Alleged §102 art: a publication describing a hexagon and an obtuse trapezoid). Also a lot of discretionary denials of serial IPRs has been taking place.

  5. Here’s some interesting bits and bytes from POPA at their annual meeting. Worth a read. It’s mainly regarding quality initiatives, the recent rash of “clear error” allegations, and time stuff.

    But it also touches on the highlights of things that POPA did during the past during the outgoing president’s time here.

    “Joined agency during the introduction of compact prosecution with the emphasis on second action finals. Previously Management counted actions: an action a day keeps the SPE away. Under compact prosecution performance was measured with hours per disposal which didn’t represent the actual performance of an employee. POPA convinced management to adopt a balanced counting system.”

    According to that, the birth of the unholy count system was a result of the implementations or attempted implementation of the the compact prosecution system.

    Also:

    “Benefits of production system
    o The system was objective.
    o You know when you made it and when you could stop working on your goals.
    o Fairer than relying on subjective opinions of supervisors.
    o Full signatory authority was granted to examiners.”

    So apparently signatory authority was only granted to mere examiners below spes with the introduction of the count system. That’s very interesting.

    And of course the “objectivity” of the system doesn’t really take into account variations in quality produced in the actions, or the variability of cases but meh, I see what he’s saying.

    “Management used system to put pressure on examiners to produce more, set goals higher than what examiners previously produce. This was overriding determinate of employee overriding dissatisfaction concern which is still POPA’s overriding concern.”

    Mhmmm, so as soon as the system was put in place it was practically immediately coopted to the opposite of its purpose.

    Huge surprise.

    Jesus christ I can barely imagine how easy it would be to write an action a day on old school applications from the 60’s.

    “In 1976, we achieved a major first step in the taming of the goals when we reached an agreement that gave the corps as a whole more time.”

    That’s interesting, as they appear to have been set at “high” at all times.

    “Robert convinced David Kappos of the need for another corps-wide increase in time.”

    Interesting to know who did that.

    “POPA has prevented the following actions:
    o TheAgency proposed action to exclude employees from Title V
    o Outsource the search function”

    It’s also interesting to find out that POPA itself had to fight against outsourcing the search. I have to say, in my art at least, there would be no surer way to lower quality into the dirt in most cases, than to outsource the search. I’ve seen plenty of cases where the attorney tells me they ran a search, and then some foreign office ran a search, and then I come in and find something that is much closer to both the invention and the claims like it wasn’t even a thing. Even sometimes looking exactly where they should have been looking. Re Title 5, I don’t even know why they would want us to be exempt.

    link to popa.org

    1. which is still POPA’s overriding concern.”

      Funny that – your comments would have me believe the opposite, that POPA is fully in line with the “co-opting” you criticize.

      So my suggestions in the past for you to bring things up with POPA appear to be substantiated (instead of at tacked as you had done).

      Thanks for sharing.

      1. “Funny that – your comments would have me believe the opposite, that POPA is fully in line with the “co-opting” you criticize.”

        Bro that part was written by the ex president Robert. He speaks only for the org as a whole and himself. Many of the actual members irl don’t hew closely to his party line. Robert himself is very much well liked by many because of his strong stances on issues like this.

        It’s like, in a rough analogy, if Obama said his no. 1 goal/priority of his and the democratic party was the economy, but some democratic voter supported Obama but only supported him because of his anti-war stance even though to them the economy was all fine and dandy.

        1. “Bro,” you explicitly miss the point there.

          Your POPA is upfront and accepting of the things and tactics I mentioned – and that you jumped all over. It matters not now the spin you are attempting. These others who “don’t hew closely” are not the ones that matter – it is the organization itself.

          1. “Your POPA is upfront and accepting of the things and tactics I mentioned”

            Things and tactics? Wut are you talking about?

            “These others who “don’t hew closely” are not the ones that matter – it is the organization itself.”

            That’s where you’re wrong. They have outsized influence due to their numbers. When you have someone like Robert leading the charge in negotiations, it is a good thing, but if the people across the negotiating table from him (management) see that half or more of his membership don’t even agree with him and are content with the status quo then they feel less pressure than they would if fully everyone supports him 100%.

            In an analogy it is just like if Obama comes in and gets 100% of the vote/elec college, then obviously the American people support him hugely and thus congress would huge political pressure to do what he says. If he comes in winning 55% of the vote/elec college then they will simply endure him and resist his proposals.

            1. Wut are you talking about?

              The “Different Strokes” version of Malcolm’s Vinnie Barbarino…

              Really not impressive 6.

              At all.

              And clearly, your attempt here to paint a “majority of numbers” is just not in line with the past presentation of it being the leaders of POPA being aligned with “management” of the Office.

              Your Obama analogy F A I Ls not because the analogy itself is “bad,” but because the analogy is not apt to your already established position.

              The level of whining on these boards by examiners clearly is line with the notion that the majority is with the whiners. Your past “defense” was NOT that the majority of whom POPA represents feels otherwise, but it was that the minority “in power” were “content with the status quo.”

              And either way the “problem” that you (the royal you as in examiners) are whining about is STILL an internal employee/employer problem that your union should be your avenue of redress.

              So, even taking for argument’s sake here your changed position that a majority of examiners are “OK” with the time allotments, the whining – by examiners – of “gee, we don’t have enough time to do a valid, full and complete examination – the deal that the Office has made with applicants – is an internal one and one that is not to be shuffled off to the applicants with an examiner doing less than the deal struck.

              It simply is NOT appropriate for you to “fudge” things only to meet the yardstick of your performance on time and NOT meet the actual deal of what your job IS.

              The adage of “the map is not the land” very much applies. And (once again) you seem only too willing to confuse the measure of the job and what the job itself is.

              1. “is just not in line with the past presentation of it being the leaders of POPA being aligned with “management” of the Office.”

                Yes, many of the leaders are. *Robert* obviously is not. That’s why he was a pretty popular guy. Though he is “aligned” with them on some things (which I had to disagree with them about). There are a lot of popa leaders bro, he’s just one.

                This is obviously more complex than you’re understanding from chit chat on the interbuts. There are 9000 examiners. There are a lot of popa leaders among them.

                “Your Obama analogy F A I Ls not because the analogy itself is “bad,” but because the analogy is not apt to your already established position.

                I have several “positions” you jackwa d. I haven’t talked about all of them with you.

                “The level of whining on these boards by examiners clearly is line with the notion that the majority is with the whiners. ”

                Meh, again, there’s 9000 examiners. You don’t see but a handful on PO whining. Most lower level ones don’t even know it exists, or barely care.

                1. There are 9000 examiners. There are a lot of popa leaders among them.

                  Notwithstanding any other positions still in your mind, the ones that you HAVE talked about simply do not align with your view here concerning a majority of those 9000.

                  That’s kind of an important point.

                  You don’t see but a handful on PO whining.

                  Certainly true on its face – but you miss the connection in that these whining examiners here do implicate (and you are one of those making that implication) that the “problem” they are whining about is universal and felt by the silent majority. They certainly do not implicate that their views are but part of a vocal minority.

              2. “Your past “defense” was NOT that the majority of whom POPA represents feels otherwise, but it was that the minority “in power” were “content with the status quo.””

                You’re so re tar ded or mentally ill it’s hard to talk to you. Apparently in your mind there being more than one aspect to the situation means that my other “defense” (lol?) is tooooootally wrong. Bro, rein in your OCPD for like 5 seconds. That is not a defense, it is an observation of reality. And further, there’s more than one issue on POPA’s plate. And there are a lot of leaders all with different personal concerns. Regarding the status quo on the production front, yes, my perception is that there is still a majority of popa leaders that are more or less on board with the status quo so far as I can see. It’s not that they want to work that much, or that they’re all “yay high production forevs” it is just that they’re “used to it” and they know the tricks that applicants have pulled on them in order to meet those numbers. And they generally have sig authority or are management themselves so they don’t get fed with much and just do their thing how they see fit. And yes, they’re the majority of the popa leaders as far as I can see. That’s why we’re lucky to have some folks like Robert, and usually the very upper echelons of popa (in addition to robert), that take the organization formally in another direction.

                “And either way the “problem” that you (the royal you as in examiners) are whining about is STILL an internal employee/employer problem that your union should be your avenue of redress.”

                That formality doesn’t do di ck to solve the problem. So if you want it solved then feel free to jump in. Otherwise just sit quietly and endure the problem. Sitting and whi ning yourself doesn’t do jac k squ at.

                1. That’s why we’re lucky to have some folks like Robert, and usually the very upper echelons of popa (in addition to robert), that take the organization formally in another direction.

                  LOL – stop with the ad hominem and listen to what you yourself are saying here.

                  Do you see how you are contradicting yourself?

                  On the one hand you want to claim “majority and won’t move” and on the other “a leader who will move.”

                  And your “advice” to sit quietly and endure when examiners seek to improperly move THEIR problem and attempt to make THEIR problem into a problem for my clients is exactly the WRONG advice.

                  IF – as you now want to have it that “the formality doesn’t do di ck,” then YOUR praise of his leadership is NOT what you would have it.

                  Do you see that, or are you just intent on being an arse with baseless ad honimem?

              3. “even taking for argument’s sake here your changed position that a majority of examiners are “OK” with the time allotments, ”

                I didn’t change my position to that. There is a difference between the general examiner population and the general population of popa leadership which your mind brain seems incapable of understanding. The analogy wasn’t perfect in that I wasn’t comparing the general pop of the US to the general pop of the office. Though there are plenty of examiners in the general population “used to” the production reqs anyway.

                1. It is not my mind that is not grasping that difference 6, as expressly here I am pointing that very difference out to you.

                  Your analogy not only “wasn’t perfect” – it is a F A I L for the very reason that I point out to you.

                  Maybe instead of merely responding to respond, you first understand the (plain English) of what you are responding to…

                2. Bro, you’re ret arded. I don’t know how much simpler I can make this for you. There is likely a majority of EXAMINERS that are for more time. There is also likely (and indeed I have observed irl) what appears to be a majority of POPA LEADERS (a subset of EXAMINERS) that are not so flustered by the production req’s. At the same time, there are the tiny minority, like ROBERT at the very top, who do try to press for that. But what popa as a whole (everyone practically) generally concerns itself with moreso is trying to get time to do “extra” things that management tries to foist on the core that aren’t “core functions” (and there are like a million of them). But they can’t ride in to the rescue every thousand times every manager tries to implement one of those thousand things, so they focus on things that affect the corps all around. There is 0 that is “inconsistent” or “contradictory” about this “position” or properly worded “observation of reality”. If something in it seems “contradictory” to you, then you’re not understanding it, or else reality is creating a situation you find to be contradictory, which isn’t impossible but might be what is causing your malfunction.

                3. Again with the accusation that somehow this is my malfunction when it clearly is not.

                  6 – you have really got to do better.

                4. “There is likely a majority of EXAMINERS that are for more time. ”

                  Of course the majority of examiners want more time. They would love to have two, three, four, five, lord knows how many times as much time as they have now. The problem with that is simple: increasing the amount of time isn’t going to lead to any increase in quality if no other changes to the system are made.

                  So if some examiner’s getting 20 hours/BD and has to churn out 8 counts per bi-week (at 80 examining hours), doubling, tripling, quadrupling the hours/BD isn’t going to increase quality. If the hours were doubled so that examiner only had to do 4 counts per bi-week, the examiner would do 4. And it would be the same old, same old: 1) don’t read the spec; 2) do a text search of the independent claim(s); 3) match the search terms from the search results with the claim; and 4) take official notice that’s inherently obvious to optimize the prior art through routine experimentation.

                  Examiners don’t need any more time for that than they currently have. They’ll all swear on a stack of b!bles that they do, and if they got more time, the quality of their work product would increase, but it’s all bs. They know it. You know it. I know it. They know you know it. They know I know it. We all know it. So stop asking for more time and get back to doing more of that record breaking outstanding quality work you’re all doing.

                5. If AAA JJ was being fair, he would acknowledge that some minority of examiners may be time constrained, and that he is against giving more time because the marginal improvement is not worth the cost.

                  But since it’s rabid attack on greater examination time, it seems likely that his legal strategy is based on examiners being unable to do a complete search.

                  Good luck with that AAA JJ!

                6. Sorry Bob – but your logic just does not fly.

                  Examiners ALREADY have some flexibility with time with any one application as they have a net time to finish a number of applications.

                  Your “logic” would require every application to press that “available time window” consistently. That’s a far cry from the “fair” (and mere) “on occasion.”

                  While AAA JJ may indeed be hyperbolic, he is closer to the mark than your view.

                7. Thanks. The moderation is ridiculous. That bab00n is allowed to pollute this site without any restraint whatsoever while the rest of us get moderated.

                  WTF, Dennis?

                8. Dennis needs to implement some limits. A limited number of posts per hour, day, week, etc. For both sides.

                9. A limited number of posts per hour, day, week, etc. For both sides.

                  I have a better idea – and one I shared personally with Prof. Crouch more than four years ago.

                  Instead of just a limit, which might actually curtail on ongoing discussion, have a limit on the mere drive-by postings that are clearly nothing more than propaganda and that do not seek any type of engagement and interaction.

                  When the sAmeones post the same things over and over and over – and certain people do this no matter the topic of the thread (Malcolm), and there is an ACTIVE attempt to avoid interaction and engagement on counterpoints presented, that type of post should be seen for what it is: the blight of propaganda attempting to influence by sheer volume of repetition.

                  Remove THAT and you will see the rejoinders (that are in and of themselves attempts to engage) likewise drop to a more “palatable” level.

                  Somehow I think that this (same) balanced advise will receive the (same) lack of response.

                  Now if you wonder why that would be, when this advice would undoubtedly improve the “ecosystem,” well, I just do not have an answer for you. Perceptions abound – but no answer.

    2. 6, managing examiners to achieve agency goals is always going to be a hard task. If I were Director, I would walk the halls talking to examiners until I had a good idea of how they felt about the current system and how they thought we could make it better.

      1. “If I were Director, I would walk the halls talking to examiners until I had a good idea of how they felt about the current system and how they thought we could make it better.”

        That’s what I always say Ned, even if I wasn’t undersec I’d do it in any management position above spe. I have yet to witness that happen, even of lower directors (except the ones I literally know personally and were promoted). Though on the other hand I’m also informed that the higher ups actually do spend a lot of time talking with examiners. Individually and otherwise.

        1. Yes 6 – good management would take steps to resolve the internal problems of the organization.

          Of course, this is true of ANY organization.

          1. While that’s definitely true anon, from what I can see the management is constantly trying to resolve the internal problems of the PTO. The issue is not that they don’t try, the issue is all too often that there is simply not enough management attention to go around to cure all the thousands of “problems” that pop up everytime examination gets more complex in terms of procedure of law, and that many of those problems are ridiculously hard to spot from an inside perspective. Especially if you don’t even know what you’re looking for and nobody is btching about it.

            1. 6, the leader of 7,000 examiners cannot solve 20,000 examiner problems. There must be a lot of delegation so that the problem solving is at the proper management level.

              1. Of course there is Ned. There are like a bazillion director level people now (apparently at least some qas’s are that level and there are plenty of other director level folks). But even with that, there’s like a billion everyday issues they handle as is, just day to day stuff, set aside all the internal problems. Besides, finding, rooting out, correcting (hopefully gently) problems is a blow to morale and all that, so you’ve got to be like a super manager to do it well, consistently, and then have everything turn out well.

                Right now in fact POPA is reporting that there are a number of managers (I don’t know what level but probably low level, and probably newer folks mostly) that are causing unnecessary upheaval in the AUs. That’s what happens when people try to root out problems that either aren’t even problems or else they didn’t handle it quite smoothly enough. They’re obviously not purposefully making their AU a trainwreck.

                1. “There are like a bazillion director level people now…”

                  That is one of the HUGE problems at the PTO that not only isn’t the PTO addressing and fixing but is actively making worse. They are creating more and more and more of these useless, know nothing, do nothing positions. Send all of these QAS’s, “business process specialists,” “subject matter experts,” etc. back to examining. Giving these people jobs where 1) they have zero production requirements, 2) the ability to insert themselves into the examination of cases 3) without ever having to sign anything and 4) having zero accountability to the applicants for decisions they make is beyond ridiculous. Stop it. Send them back to the examining corps and make them sign whatever nonsense it is they want to send out and make them accountable. Jeebus.

                2. “Right now in fact POPA is reporting that there are a number of managers (I don’t know what level but probably low level, and probably newer folks mostly) that are causing unnecessary upheaval in the AUs. ”

                  These are the MQAS’s. They are even more useless, know-nothing, and do-nothing than the average run of the mill QAS’s, RQAS’s, TQAS’s, etc. What is the PTO thinking creating more of these positions?

                3. It is easy when the shadows are not only allowed, but as the sAmeones are ever quick to defend, are somehow viewed as a “good things.”

                  “The shadows” of course, refer to not only the SAWS program which was eviscerated when brought into the light, but all of those other “similar” programs that STILL have not been brought into the light.

                  Or are people still choosing to clench tight there eyes to the admission made by the Office when SAWS was going up in flames that SAWS was but one of many such programs?

                  Funny that notion of “visibility” seems soooo inconvenient when the organization does not want to have explain itself or be held accountable.**

                  **especially given the requirement that only the written record will be used for all examination.

                4. “These are the MQAS’s. ”

                  Interesting, didn’t know we had management qas’s. Never heard of them before today.

                5. “They are creating more and more and more of these useless, know nothing, do nothing positions. ”

                  People say that, but in my experience those people are some of the most knowledgeable folks in these here parts near my AU. It may be that they should be left to be productive, or spes, but there are legitimate internal things that need doing bro.

                  Though I agree with you that they shouldn’t be able to insert themselves in everyone else’s business, especially at will. That is insane, never heard of that going on though.

            2. Especially if you don’t even know what you’re looking for and nobody is btching about it.

              I see you know as much about management as about most all other things.

              That is to say, not much.

              Responding to the “loudest noise” is a notoriously POOR way of managing.

              Managers have their job too – and that job is to know “what you’re looking for even if nobody is btching about it.”

              And even your “no one is btching about it” is just not correct, as people like me ARE “btching about it.”

              The levels of your wrongness are deep.

              1. “Responding to the “loudest noise” is a notoriously POOR way of managing.”

                So what makes you think we have world class managers coming from the examining corps (the only place our managers come from) that do not merely respond to the loudest noises?

                Lulz, anon, such confidence in the management practices of your federal gov.

                Also note that “going looking for problems” is not always best for this new thing called production, which is what is foremost on their minds.

                “Managers have their job too – and that job is to know “what you’re looking for even if “nobody is btching about it.””

                And what makes you think they’re particularly good at this? Who trained them to be all that good at finding these problems? Ask them sometime. Nobody. Your confidence in PTO middle management is both hilarious and laudable at the same time.

                “And even your “no one is btching about it” is just not correct, as people like me ARE “btching about it.””

                You’re not complaining to my AU, we get very few complaints last I heard. And I also hear that is how it usually is. Our attorneys aren’t jack ar ses generally speaking and they know the PTO already has its hands full just looking at their super complex apps.

                1. Clearly you have misread what I posted 6.

                  I am talking about what it entails to do a good job of managing. I made no assertion that such is going on at the Office, or that those actually doing the “managing” at the Office are even remotely capable.

                  That just does not change what the aspects of good management are though.

                  Nor does it change the as1n1ne “recommendation” of just being quiet when whiny examiners want to make THEIR problem of internal process measurement into the problem of my clients with shoddy examination and an excuse of “that’s all the time I have.”

                2. Anon, always slipping into talking about a fantasy office that doesn’t actually exist without telling anyone you’re talking about a fantasy office.

                  It would be helpful to other people around you for you to realize that when other people talk about the office they’re talking about the irl office, not the fantasy office and how “it should be” that exists solely in your mind. And it will also be helpful to others if you notify them that you’re talking about a fantasy office that exists only in your mind.

                3. 6,

                  You need to try to read again – I was not talking about ANY fantasy Office.

                  Talking about attributes of what makes good management simply does not take the spin that you are so desperately attempting here.

                  Why are you so intent on spinning what I have said?

  6. As to the Johnston Paper, is not the assault on the “untouchable ” patent no more than what one would expect? Just because your horse is unable to jump a high hurdle is no reason to suppose that it will fail to clear a lower bar. To the contrary, if it was thought to have good chances of clearing the higher fence, it is to be expected that it will clear the lower bar, and with aplomb.

  7. Oona Johnstone: the PTAB did not even mention secondary considerations in the Decision on Institution, consistent with a trend in post-grant proceedings of minimizing the relevance of secondary considerations in obviousness analysis.

    If that trend is real, that’s great news. Most of the evidence of “secondary considerations” presented by patentees is worthless garbage, even if there was some logical connection between the evidence and the strength of the innovation (and most of the time there isn’t).

    1. I would hope that a distinction is made between “commercial success ” and all the other secondary considerations. Patents fought over invariably come wreathed in commercial success. Whether that commercial success comes from the claimed subject matter being inventive rather than obvious though, that’s hardly ever the reason for the success. In reality, it’s something else.

      Proving a negative (that the success is not down to the non-obviousness) is hard though, isn’t it? Much harder than for the patent owner to establish a plausible “nexus”, I would suppose.

    2. The thing I don’t understand about the “secondary consideration” of having licensees is why don’t the patent owners just get some of the licensees, who we’re supposed to believe think teh worldz of the patented tech, to submit some evidence of just how amazing they think it is? Surely with 70 licensees (many who no doubt want a license to other patents also) they could cajole someone into putting something in writing.

    3. It seems to me that secondary considerations should be more important now than ever given that the KSR decision essentially destroyed the previously relied upon objective test for obviousness. Plus, Learned Hand liked secondary considerations. I trust that dude over you, MM. No offense, of course.

      1. >It seems to me that secondary considerations should be more important now than ever given that the KSR decision essentially destroyed the previously relied upon objective test for obviousness.

        I can appreciate legitimate secondary considerations, but the reality is secondary considerations have turned into an easy gimme (maybe this is what MM refers to; were always this easy?).

        “Unexpected results” now pretty much means “marginally better” for the applicant, according to some SPEs. I can’t believe some of the garbage that has been granted/I’ve been told to grant in the past over this one, even when the only difference is something that is known to be a result-effective variable. So much for a “marked improvement” and “difference in kind, not difference in degree”. SMH

        Likewise, “commercial success”.

        Also, all of at least KSR A-F *are* evidence of obviousness, and maybe you’re not referring to those rationales, but examiner’s own rationales (aka I-do-what-I-want-because-KSR), but I know some attorneys who hate hate hate KSR A-F. I’ve had an attorney argue that someone wouldn’t substitute known things for the same purpose (e.g. subbing metal B for metal A for electrodes, when they even have “or other metals” after a list of two-three metal As, and they are in the same devices) because I didn’t provide an explicit motivation beyond known materials for equivalent parts. I mean, you can come up with one pretty easily (cost, ease of processing), but it’s already obvious, and I’m not going to pander to attorneys who don’t want to live in a post-KSR world.

        I don’t understand the filter sometimes.

    4. MM, correct me if I am wrong, the patentee cannot by rule present evidence in his or her preliminary response. So any attempt to introduce such evidence has to be ignored.

      Which is one of the reasons may think the IPR procedures are rigged against the patent owner.

  8. Steve Brachmann:

    When combined with statistics on mixed claim findings, settlement and more, the reported data reflects a PTAB reality which is much less stark than many have been led to believe.

    Ah, so the folks who have been running around screeching about “death panels” are completely full of it. Again.

    Nobody saw that coming.

    1. Love how you like “little Stevie” here when he says something you agree with…

      That “6-is-a-genius-because-he-agrees-with-me” thing is catching in that little chamber of yours.

      😉

        1. Whether or not he “found that nut by himself” is completely immaterial to the point of my post, Malcolm.

          Then again, you probably knew that, eh?

  9. “While the outcome of this case is still unknown, the statistics do not bode well for patent owners following institution of IPR proceedings. As of December 31, 2015, out of 1,204 trials instituted, only 96 resulted in all instituted claims being upheld (corresponding to 8% of proceedings that were instituted).”

    Yikes!

    (The quote is from the Johnstone article.)

    1. That’s a meaningless statistic. I do have a masters in math.

      There’s lies, d*mn lies, and statistics…

      [i]Only 96 of 1204 resulted in all claims being upheld[/i]

      Without knowing how many claims each patent had, that is a meaningless number. It could have broken down as ’96 were untouched, 850 had 1 dependent claim invalidated, 200 had 1 primary claim invalidated, 50 had more than 1 primary or dependent claim invalidated, and 8 were completely invalidated’, or it could have broken down as ’96 were untouched, 8 had 1 dependent claim invalidated, 200 had 1 primary claim invalidated, 850 had two or more primary or dependent claims invalidated, and 50 were completely invalidated’. Without a detailed analysis of the invalid to valid ratio by claim number and type, it’s a bogus statistic.

      It’s like those ‘people who switched to Insurance Company A saved an average of $548! You should switch to!’ claims. First of all, people don’t switch unless they are going to save a lot, not everyone will save, it doesn’t include people who may have paid more by switching (someone who got dropped for an accident and had to pay more didn’t ‘save’ so they aren’t in the average). You can cook statistics however you like. Anytime someone quotes statistics and isn’t a mathematician, assume they are lying through their nether orifice. If they are a mathematician, go over their math with a fine tooth comb in case they are lying.

      1. Note, given the change in jurisprudence by the various recent key rulings (Alice, Mayo, KSR, etc), expecting older patents that were validated under them to NOT be at least partially invalidated in an IPR would be a really big stretch. I’m actually kind of surprised 96 IPRs were instituted where there was no ability to invalidate anything. Why bother? Unless it was someone shorting.

            1. Are patents in an IPR reviewed for validity based on the caselaw when they issued, or under current caselaw? Unless they are reviewed under the caselaw as of their issuance, then any major change in case law makes it more likely that some or part of a patent that was previously issued is now considered invalid. Is this incorrect?

      2. MDT, you haven’t even addressed the fact that this is dealing with instituted IPRs. Technically, when the IPR petition is denied, this is a defacto affirmance of all the claims. Moreover, all IPRs that are instituted were already determined to have a reasonable likelihood of success. It should not then come as a surprise when the reasonable likelihood becomes an actuality more often than not.

          1. Yeah, I didn’t want to get into that, as I feel comfortable commenting on how statistics are usually garbage unless you know exactly what the data points are. Patent validity is beyond me, I leave that up to experts. Math abuses I feel comfortable commenting on. :)

      3. MDT, I do not see any statistics in the numbers 96 and 1204, or 8%.

        Is your point rather, that it is hard to decide whether any particular case counts towards the “96”?

        It reminds me of the stats for oppositions at the EPO. One third of opposed patents survive unlamented, one third are revoked and the remaining third are maintained in amended form. Does one count each of that last third as a win for the patent owner. No. Does each count as a win for the opposer. Just as surely not.

          1. The original poster indicated that 8% was shocking (with the ‘Yikes!’). I was pointing out that trying to use 96 and 1204 to get 8% was a useless statistic and shouldn’t be used for shock value, as there is insufficient data points.

            My point was, trying to make out ‘8%’ meaning anything is impossible without a full analysis of the underlying data, and thus posting ‘Yikes!’ is probably a bit alarmist.

            1. The 8% figure meaningless. You mean, about as meaningless as asserting that 25% of 4-man bobsleigh crews are brakemen? Or that just under 10% of soccer team members are goalkeepers?

              That said, I share your abhorrence of numbers (percentages) put out to the media, purporting to be statistically significant when they are nothing of the kind. That is to say, so bad as to be not even wrong but used deliberately to mislead the journalists and, through them, the public. Let’s concentrate our fire of disapproval and censure on them, shall we? I’ll be the first to support you.

              1. Any time you are happy with the statistics and they aren’t yours and you don’t know the underlying data points, you should suspect confirmation bias. Always question the numbers, even when they are numbers you like hearing. I promise you, anyone trying to sell you a car is going to tell you numbers you like to hear (like 50MPH, low polution diesel engines).

                Beyond that, yes, if you hear a % on the news, any news, it’s a good bet it’s bogus.

                1. I think there are real differences between percentages that may be truly “bogus” and percentages that are in and of themselves NOT “bogus,” but the message that the percentages are being used for IS “bogus.”

                  The situation you seem to be pointing out MDT is in the land of half-truths and spin.

                  And yes – when dealing in this land, one must always be aware of the terrain that the battle is taking place in. There is no substitute for critical thinking and recognizing the terrain – what is being said, and what is not being said, and when “real” numbers may be being used for obfuscation and a desired ends, rather than for clarity along a proper means to any ends.

    2. PatentBob: “As of December 31, 2015, out of 1,204 trials instituted, only 96 resulted in all instituted claims being upheld …”

      MDT, quoting PatentBob: “Only 96 of 1204 resulted in all claims being upheld…”

      He then says, “Without knowing how many claims each patent had, that is a meaningless number.”

      All in all, a misquote, followed by a strawman argument.

      I am sure that MDT did not mean to do this. But if he ever did that, even negligently, before any court, he would be reprimanded and perhaps even sanctioned.

      1. My comment was that saying ‘only 96’ = 8% makes it sound like 92% of all patents were invalidated, and that’s a misleading statistical statement. With that, all we know statistically is that 8% were unmodified after IPR. We have no knowledge of how much or little the other 92% were modified, so a ‘Yikes!’ feels like using an incomplete statistic to convey that this is a shocking result. My point was, without the other data points, any statistical meaning to 8% being unmodified is completely unknown. You might as well say only 8% of Flibbers are Gibbits. If you want to know what that 8% means, you have to have a full data set of how much changed on the other 92%. Without that other data, getting excited or upset about 92% is rather pointless.

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