Comments for Patently-O

Comment on Are Rising Maintenance Fees Shortening the Effective Patent Term? by paulf

paulf — Sun, 15 Mar 2026 17:15:15 +0000

Re why Dennis has found that roughly 60% of all U.S. patentees now abandon their patents before or at the final 3d (11.5 year) maintenance fee is due. [Full patent terms down from 51% to 40%.]
Besides the reasons noted – increased fees and more cost-savings U.S. and foreign maintenance fee reviews* – one should add the greatly increased rate of modern product technical obsolescense it is primarily based on. Also, the large decline in real product patenting (and U.S. real product engineering and manufacturing) as compared to digital and internet features patenting? Also, the decline in importance to stock prices of the number of patents a company has, as compared to fab features like cripto and AI, or trade secrets, or market dominance?
[Of course some folks would like to blame it all on 101 decisions.]

*which had been long overdue for improvement in many corporations.

Comment on Judge Newman Asks the Supreme Court to Intervene: Framing Judicial Independence as a Constitutional Imperative by Dennis Crouch

Dennis Crouch — Sat, 14 Mar 2026 20:07:16 +0000

In reply to Paul. Agreed. Thanks Paul.

Comment on Judge Newman Asks the Supreme Court to Intervene: Framing Judicial Independence as a Constitutional Imperative by paulf

paulf — Sat, 14 Mar 2026 17:54:52 +0000

That other Paul commenting here was not me.
My only question would be why was the Constitutionality of the Judicial Conduct and Disability Act of 1980 (28 U.S.C. § 357(c)) itself [in place of impeachment] not Directly challenged in Judge Newman’s cert petition, rather than just its due process application in her case? That should be a general question of greater and now particular interest to the Sup. Ct. in these unusual times of frequent executive branch attacks on federal judges and their decisions. The Constitutional founding fathers considered the unique Constitutional lifetime tenure and salary of federal judges [and, obviously, their continuing functioning as judges] to be a vital protection for U.S. democracy.

Comment on Judge Newman Asks the Supreme Court to Intervene: Framing Judicial Independence as a Constitutional Imperative by Paul

Paul — Sat, 14 Mar 2026 14:49:40 +0000

You raise many strong process concerns about which I have no knowledge and on which I will not comment, other than to say that the whole thing does sound weak. Still, there are tons of unfortunate weak spots around, in most every process.

I will say, though, that whether someone can manage their workload cannot be determined from one phone call.

Comment on Made in America: Director Squires Ties IPR Institution to Domestic Manufacturing by dstout

dstout — Fri, 13 Mar 2026 19:49:47 +0000

In reply to davidlewisnmn. I agree with your approach to actually honor the presumption of validity that supposedly attends the original issuance of a patent, and to sharply raise the bar for invalidating the patent. The real issue is that Squires does not like the IPR and recognizes that it did not work as intended, but rather has greatly increased litigation costs and risks for patentees. The real solution is for Congress to repeal it, but of course they will not. So he is acting on his own to sharply limit it. Can't blame him, and in fact it is my experience that U.S. litigants are very much already discriminated against in foreign jurisdictions, so I am not sure this policy will make that much difference on that front. Plus, as Dennis points out, the policy is not discriminatory against petitioners, but rather against where they conduct their operations. Many U.S. petitioners would face a higher barrier to a successful institution because they import their manufactured products, and many foreign petitioners manufacture here in the U.S. and would face a lower barrier.

Comment on Guest Post: Protectionist PTO Memo is on a Collision Course with TRIPS by paulf

paulf — Fri, 13 Mar 2026 16:55:44 +0000

Good point re TRIPS violation by this Director memo. But if the Director continues to deny IPRs without any explanation at all, how will an IPR petitioner know and be able to appeal which normal, novel or even irrational or illegal ground for denial controlled or predominated?

Comment on Untethered: USPTO Loosens the Article of Manufacture Requirement for Digital Designs by ssereboff

ssereboff — Fri, 13 Mar 2026 11:49:48 +0000

How does this new US practice correlate to foreign practice? Will a foreign filed US application fly or crash?

Comment on Made in America: Director Squires Ties IPR Institution to Domestic Manufacturing by davidlewisnmn

davidlewisnmn — Thu, 12 Mar 2026 21:17:17 +0000

What goes around comes around. This encourages other patent offices to give favorable treatment to patent applications for devices that are locally manufactured, which is not necessarily good for US interests.

It seems to me that the better approach is to give greater deference to the original examination once the IPR is instituted. Just not using the broadest reasonable interpretation is not enough.

What I think is not appreciated in IPR proceedings is that the Examiner is far more knowledgeable of the art than the Board or CAFC is, and therefore has a better appreciation of the true significance of what to outsiders might seem like insignificant differences.

Also, just because a reference does not appear on the front of the patent does not really mean it was not considered. It just means that the examiner did not see a combination of references, including that reference, that would result in a rejection that would stick (citing many references takes time, and the Examiner has a quota to meet and is therefore unlikely to cite more than a handful of references).

Comment on Untethered: USPTO Loosens the Article of Manufacture Requirement for Digital Designs by paulf

paulf — Thu, 12 Mar 2026 15:38:43 +0000

In reply to paulf. P.S. I suspect that the extensive design patenting of GUI images [with no 103 application rejections] has contributed to the learning-burdensome and confusing differences between the GUIs of different apps or computer programs?

Comment on Untethered: USPTO Loosens the Article of Manufacture Requirement for Digital Designs by paulf

paulf — Thu, 12 Mar 2026 15:12:11 +0000

Good idea.
[Having been peripherally involved in the disputes with the PTO over requirements for screen displayed GUI images being design patented by the expanded-Board decision in Ex parte Strijland (Bd. Pat. App. & Int. 1992).]