Patent Term Adjustment for Fun and Profit

PTAThe phrase “Patent Term Adjustment” elicits two divergent reactions from patent prosecution specialists.  PTA is wonderful because it provides a strong counterbalance to USPTO delays. On the other hand, PTA rules are complicated and it is easy for a practitioner to unintentionally lose-time.

In general, the PTA is an attempt to retain a patent term of approximately 17–years from issuance.  Under the rules, the statutory 20–year term is increased for certain PTO-related delays and is decreased for other Applicant-related delays.

Scott Kamholz of Foley Hoag has written a great guide to PTA entitled “Patent Term Adjustment for Fun and Profit.” The guide was originally published this Fall in IP Today, but is now available on Patently-O: File Attachment: PTA for Fun and Profit.pdf (147 KB).

Highlights of the article include:

  • CIP’s are more likely than continuations to capture PTA;
  • Extensions, non-compliant responses, and RCEs all decrease the PTA;
  • Late filing of formal drawings decreases PTA;
  • Written restrictions count as an office action — thus, consider making oral elections of species;
  • Express Mail or Fax improves PTA;
  • Terminal disclaimers are problematic;
  • Examine the PAIR system for docketing errors;
  • Appeal rejections;
  • Do not file papers after allowance;
  • Ask questions!

At some point, this may become moot as the PTO is considering simplifying the PTA.

186 thoughts on “Patent Term Adjustment for Fun and Profit

  1. Check it out:1. A method of testing a system for sending X to a subject, comprising the steps of: (a) setting up a policy to be used in testing the system; (b) setting up a plurality of representative subjects of said system; (c) causing said system to interact with said plurality of separate subjects of said system by sending X to said subjects; (d) verifying a compliance level with said policy by examining X sent to said subjects.Now try to believe that a someone in this thread asked what the ancient art of performing a test run of a method/device had to do with this claim. And the same person suggested that they needed “proof” that such methods were actually in the prior art. Try to believe it.Does anyone need any “actual evidence” of how intellectually dishonest the patent teabaggers are? Just read the thread. It’s all there in black and white. Wealthy, greedy, self-entitled dishonest know-nothing bottom feeders. That’s who’s benefitting from this broken system and that’s who doesn’t want to talk about junk claims.

    1. Absolutely correct, Malcolm. Just reading the claim, one instantly sees the only possible novelty is applying a well known system quality test technique to a “recommender system” as that term is defined in the specification. But why is that not obvious?It is a crying shame that the PTO failed to provide even one reference to show a recommender system as defined in the specification. Instead they essentially ignored the limitation leading to grant.

      1. t is a crying shame that the PTO failed to provide even one reference to show a recommender system”Recommender systems” were admitted prior art. There’s no need to for anyone to “prove” that. Rest assured that if this shameless applicant thought he was entitled to a patent on “recommender systems” he would have claimed it.More importantly, the identity of the “system” being tested has zero relation to the method, which is just the ancient common sensical way to test the function of a method/device. I would not be surprised if there is prior art showing that apes have used the method. Moreover, “compliance levels” aren’t unique to “recommender systems.” Any system can have a “compliance level.” And everybody knows this. But that’s one of the gaping failures in the USPTO’s procedures and weird computer-coddling culture, not the law. And the applicant surely knows this because he’s a patent attorney and he’s been through the process before. He’s been down the road all the way to the point where his junk patent got trashed in court and the defendant appealed to the Federal Circuit so that the law regarding when fees should be shifted could be clarified! But we shouldn’t be talking about any of that. It’s not part of the “approved process.”

  2. Stumbled across this interesting thread:link to techdirt.com…Funniest part is this comment about one of the blogtrolls there:”your writing style falls neatly into place: Post insane s—t making sure to put the most insane bits in bold, italics, and all caps”Golly, that sounds familiar. Birds of a feather …Ultramercial is going to be a lot of fun, isn’t it? Exactly how is the Supreme Court going to tank that ridiculous piece of junk and still leave some meat on the bone for the “computer-implementers” to peck at?

  3. More incredible breaking news:Any information about a person (or a thing) can be used to “target” that person (or thing) with other information.It’s true. And it was always true. Computers didn’t change that fact. But for some strange reason people at the PTO like to pretend that information passing through a computer is different than information that doesn’t pass through a computer. Even more bizarre, this self-delusion is more extreme now in 2014 than it was in 1974, when computers are that much older.The USPTO needs to pull its head out of its collective ar se and institute clear common sense rules about how junk “computer-implemented” claims are examined and make sure that everyone — Examiners and so-called “stakeholders” — understand those rules. This will certainly cause many exploiters of the system to have a sad. But either the USPTO needs to do it now or the courts will do it for them. And that will make the same people just as sad, plus it will make some patent law professors sad. Maybe some of those patent law professors should consider actually taking a practical position on the subject instead of looking the other way and whining about “Federalism” while the patent system implodes.

  4. Breaking news! This is huge. Get ready.Among the half a million or so patents that the USPTO is going to grant this year, there will be an incredible number of patents that are nothing but incompetently examined “computer-implemented” junk filed by “inventors” who did nothing but apply old concepts (e.g., performing “test runs”) to old computer programs (e.g., “recommendation software”), who never wrote a line of code that achieves what they claimed in any context, and whose intent is to take those junk patents and threaten people with them. The threats implicitly include loss of money spent in litigation and the possibility of obtaining discovery that will enable the filing of even more junk by the same self-identifying “inventors.”People will look at these patents and they will know, beyond any doubt, that the US patent system is broken. And they will talk about it. Online. And the people invested in exploiting the broken system will be sad about that and call the critics names and insult their intelligence (oh, and “downvote” their comments, LOL!). But they’ll never defend the junk patents on their merits because they know that it’s impossible to do so in the “real world” (i.e., outside of the broken patent system).

  5. Was the applicant who filed this case (soon to be USPN 8,630,960) not aware of the concept of “troubleshooting” or “test runs to verify desired functionality”? That seems impossible. Was there prior art submitted or cited that discusses typical ways of trouble-shooting devices/methods? With or without “automation” (the term that is generically recited in the claim). I would certainly hope so. It’s difficult to imagine more relevant prior art to this piece of junk.This patent really deserves its own headline, as an example of just how broken and dysfunctional our patent system is: “PTO Grants Patent on ‘Automatic’ Testing of a Computer Program”.But I suppose we can just wait until this piece of garbage gets shopped around to mouthbreathing “licensees” who can’t tell the difference between unenforceable functionally claimed junk and an actual invention.

    1. I couldn’t agree with you more — to the extent I understand the claim. All it requires is setting up dummy accounts to test a software system and that should be notorious in developing of any software system. The particular kind of software being tested here is “recommender.” But the principle is so well know that the only claim to invention here is to apply the well known to the particular case. There is nothing at all special about recommender systems that would make it non obvious to apply the general technique to the special case.It is literally unbelievable that such stuff is allowed.

      1. Indeed, Ned, and well put. Too bad there aren’t more people out there with the integrity to call a spade a spade. It’s certainly not rocket science. It’s not even computer science.And if you read the briefs you’ll see that while the Examiner didn’t do as neat of a job as you just did, the basic point was made. And the basic point should be all that is needed to tank a piece of unbelievable junk like this. Instead, we get this know-nothing at the Board pretending that the Examiner needs to re-prove the law of gravity before he can tank a claim to a plumb line.Even sadder: an educated grown-up adult man thinks he invented something and deserves a patent. And he thinks we’re “jealous” of him because he got this junk out of the USPTO (only a half million more grants on the way this year! it’s so impressive belonging to that exclusive club — and it only costs thousands of dollars to join!).

  6. Funny how you (again) wish to portray patents as ‘laws’ when the law actually states that patents are property.”unreadable and incomprehensible”… is that why you so ‘easily’ just want to sniff and go?Why are you trying to deceive people?”foam at the mouth, spew insults, and attempt to bury any criticism under a sea of unintelligible gibberish”… sort of like Malcolm when pressed to give a few simple answers to questions that he really should know, given the soapbox that he wants to always climb up on.So Malcolm, why are you so afraid to answer the simple questions at the heart of this issue? Why all the dust-kicking, name-calling, dodging, smokescreens, and evasion? Why not just answer the questions?

    1. you (again) wish to portray patents as ‘laws’ when the law actually states that patents are property.It’s not about “wishing” to “portray” anything. As a practical matter, each patent claim is a law that applies to everyone (except the patentee and people “forgiven” by the patetee). It’s silly to pretend otherwise. But go right ahead. We can use the laughs.

    2. you (again) wish to portray patents as ‘laws’ when the law actually states that patents are property.,”Property” doesn’t describe what people can’t legally do. Laws do that. And so do patent claims.Pretending otherwise doesn’t help you, TB. You and Eric really need to work on your script. Maybe you should hire a professional “public relations” team.

      1. All of property’s bundle of sticks are enforced at law.You really do svck at this.Notwithstanding the Oh so very Carroll treatment you wish to use.(hmmm, maybe I should have put property in quotes – like Malcolm – so that any old Carroll version could be claimed…)

        1. All of property’s bundle of sticks are enforced at lawMaybe, for a change, you should try licking the goalpost while you move it. Wait until it gets below freezing, though.

          1. Pretty funny coming from the guy who refuses to address just ‘what’ and ‘where’ the goalpost is in the whole software debate at a first principles level.No surprise the reason he does not address those simple questions is that he wants to engage in the very activity he accuses others of doing: moving goalposts and thus obfuscating what should be a discussion on the merits of the law itself.

      1. People get their sht in condition for allowance so much faster at just around this time, corresponding to the increased fees. When people get their stuff going less office delay even has a chance of occurring.

        1. Sorry 6, but the applicant delay and the office delay are not related as you suggest.In fact, they are expressly unrelated. You need to understand the PTA regs much better.

          1. I’m not talking about “applicant delay” being “related” to office delay. I’m talking about “applicant getting claims into condition for allowance” sooner. The case issues (see the rising issuance rate) and there is no chance for further delay in the case.

              1. Jes us chri st on sale, how do you not understand that if the application gets resolved through allowance (or abandonment tangentially) then there is no more opportunity for there to be any more PTA added on than there already was? If the applications get allowed faster then examiners (or the office as a whole) don’t even get the opportunity to cause delay. If you can’t understand something that simplistic then I’m not going to further explain it.

                1. How about the assertion of yours that it is the applicants acting in order to ‘speed things up’ to avoid fees? (emphasis added)Seriously 6 – you made up an unfounded point and just winged it. I merely called you on your making something up. It goes without saying that less PTA means a faster process to resolution, but that is NOT what your assertion was.You kind of gave up on logic when you stopped considering law school, didn’t you?

                2. Apparently my original response got lost. So here, let me be brief.Do you remember the thread where you had an epiphany and realized, and eventually exclaimed, that you, out of all the members on the board had simply misinterpreted what someone on the interbuts was saying in a meaningless thread on the interbuts? Because I faved that life changing experience that you had in that thread. Every time you assert that that someone is changing their position mid-explanation when they’re trying to explain something known only to themselves to you I’m simply going to reference that thread. It is possible for you, as a person, to misunderstand things people say on the interbuts. Get used to it already.

                3. Sure, it is possible.But let’s look at the track record here, 6. That type of thing happens so rarely with me that you felt compelled to fav the day. With you, that happens so often that it is simply part of the ‘character’ that you habitually suicide.

                4. ” That type of thing happens so rarely with me”That you know of. You’re literally not competent enough to understand when it is happening without someone holding your hand through it.

                5. LOL – sure 6, keep on believing that. Given my ‘adoring fans,’ I am more than sure that they would promptly inform me of any such errors.In other words, you are again making things up whole-cloth.

                6. You presume that they care about the instant topic of the day or you. And you also presume that they themselves are competent enough to do so.

                7. It’s actually much simpler – I know that you are making this up.”Nobody has enough time for that.”LOL – says the guy who vomits all over the blog and yet cannot give just a few simple answers.Happens to be the same guy that vomited 30,000 plus words of mewling QQ post Myriad , when all he had to do was say three little words.Way to be inconsistent yet again.

                8. Making what up you ta rd? I made up that it was a function of fees. Following along with the discussion we had about the fees leading to quicker allowances just the other day. Yes, I “made that up”. Je sus f uck you’re dum.

                9. LOL – 6, you never established the relationship between fees and shortened overall prosecution time – you failed at logic because you merely applied the rather non-surprising second half of what you first posted, that is, only the shortened time aspect will lead to shorter PTA – you failed to logically tie in the front end, that fees were somehow a driver of that shortened time aspect.Pay attention.

                10. Go d dammit you’re so dum I’m just going to stop talking to you. You’re obviously off in right field and refuse to come in from there no matter what is said. You’ve already admitted that the thing I care about is not controversial, yet you think I care about something else (the shortened TIME), that I don’t, and blab on and on endlessly about it. Good day ta rd.

                11. 6, It is a simple matter of A, B, and C.Your logic faltered at the A to B link.You seem to want to rest on the completely uninteresting and “no duh” link of B to C.A) your “applicants are responding to fees.”B) There is shorter office processing timeC) There is lower PTAYou have established NO link between A and B, which is the crux of your initial post. I have merely pointed out that you made up that connection and have offered no support.

                12. As now noted over at PatentDocs, the Office is now getting better at B).Of course the view on PTA is also a matter of which deck chairs the Office is focusing on. A point not clearly made is that the Office’s program on clearing out the excessively long items (those that may even have different patent term rules – i.e., pre-June 8, 1995 filed applications) and the drop in such grants ‘may’ have a sizable impact in any gross calculations.As to ‘which deck chairs,’ it is interesting to note that “The total number of pending applications also decreased, dropping from 1,157,147 in FY 2012 to 1,148,823 in FY 2013.”Hooray. at a rate of reducing the overall by 8,324 per year we will have the backlog licked in 138 years.

                13. “Hooray. at a rate of reducing the overall by 8,324 per year we will have the backlog licked in 138 years.”Your target for the total number of pending applications is zero?

                14. lol – good point.What would be a good target of pending applications? Half a mil?With that aim, our wait is reduced to a mere 78 years.Thanks Leopold !

                15. “What would be a good target of pending applications? Half a mil?”That’s a good question. It seems to me that the PTA targets give us an idea. Right now, the total is about 1.9 times the annual rate of new filings. That suggests they have 2 years worth of backlog – that sounds pretty good to me.Looking at unexamined applications, the backlog is less than 1.1 times last year’s new filings. That suggests the PTO should have its first-action pendency under control pretty soon.Given that the number of new filings continues to grow, it seems to me that the PTO’s progress is pretty impressive, if judged solely by these aggregate numbers.

                16. Not sure what you mean by 2 years worth of backlog.Also not sure if you are accounting for more than one deck chair level (your comment about first-action deck chair does not belong in this conversation of the overall level – in fact, that merely leads to a type of game playing and deck chair moving). Focusing on first action is not enough.

                17. “Not sure what you mean by 2 years worth of backlog.””Backlog days” is a commonly used performance indicator – it’s defined as the total backlog divided by the average rate at which you’re closing items. It gives you a rough idea of how long it would take to clear everything in the queue if work stopped coming in, and also gives you a good idea of what the average pendency should be. Here, the PTO is closing 600K+ applications per year; hence, they have 2 years of backlog.” Focusing on first action is not enough.”I never said it was. All I did was suggest that we could look at TWO parameters that tell us about PTO progress in handling backlog, instead of just the one that you called out. Focusing on first actions is obviously not sufficient, but it’s pretty important.

                18. Of course that other parameter is important – I did not say otherwise (there is a PTA guarantee tied to it as well).That being said, my post still stands. I was talking about the overall picture, and I also will advise (again) that one must be careful of the moving the deckchairs problem by focusing on that second parameter that I was not discussing.Your “backlog days” is interesting but flawed. First, work will not stop coming in and it is clear error to base any measure on such a premise. Second, my calculations already take into effect any work in AND the changed throughput by looking at that whopping drop of 8,324 per year. That is the driver for reducing the current backlog to whatever level you deem reasonable. I randomly choose a level of half a million. You get to that level in 78 years, all else being equal. It is not too difficult to compute the number of years to reach any level. I don’t think your calculations of “2 years” (which is 1.2 MILLION applications in backlog) is going to be accepted by too many people. Do you?

                19. “Your “backlog days” is interesting but flawed.”A lot of people find it to be useful. If you don’t, then don’t use it.”I don’t think your calculations of “2 years” (which is 1.2 MILLION applications in backlog) is going to be accepted by too many people. Do you?”No, I don’t think that level of backlog is low enough, if that’s what you’re asking. But, you can’t look at the absolute number all by itself. If applications could actually be examined and disposed of in a matter of a few days then the target total backlog should be as close to zero as you can get it. But, if we accept that the active part of the process is going to take an average of two years (that’s about the duration suggested by the PTA parameters), to account for all the back-and-forth, then it’s not feasible to get the total backlog lower than one-year’s worth of applications, or 600K+, assuming a reasonably symmetric distribution on the active processing durations. (That’s the level of backlog at which each new application is being picked up immediately and the average application is half-way through the active process – this is the best you can do without shrinking the active processing duration). In reality, the distribution of processing times is going to have a longer tail on the right-hand side, which means that the minimum total backlog is necessarily going to be somewhere greater than 600K+. Plus, the minimum feasible level will also grow along with the growth in new applications, which shows no signs of abating. Thus, it’s not possible to get to your one-half-million figure unless you shrink the duration of the active examination phase, by quite a bit, or reduce the rate of new filings. Does the PTO have a lot of work to do? Of course. But the trends for these numbers are actually pretty good. I’m more concerned with whether these things are actually being examined properly.

                20. “In reality, the distribution of processing times is going to have a longer tail on the right-hand side, which means that the minimum total backlog is necessarily going to be somewhere greater than 600K+.”I might have that backwards – somebody who’s done some queuing theory more recently than me might want to correct me on that score. Still, I don’t think 500,000 is likely a feasible target, especially with the filing rate still growing.

                21. 78 years is NOT pretty good no matter how you try to look at it.And again, if you don’t like my half mil target, please provide one that you think is reasonable (and will be reasonably accepted).

                22. “78 years is NOT pretty good no matter how you try to look at it.”Actually, hitting an impossible target in 78 years sounds like a remarkable achievement to me. You’re obviously harder to impress.

                23. And you tend to the pedantic. An ongoing backlog (full load including incoming less completions) of half a mil better not be impossible.

  7. Dennis – my PTA notice for SN 10/856,030 (which will issue next week as 8,630,960) is listed as 3079 days – this is the longest I’ve ever received in my practice and the highest I’ve ever seen anywhere – curious if you know of longer numbers than that??

    1. http://www.freepatentsonline.c…1. A method of testing a recommender system, which recommender is used for recommending items of interest to subscribers of an online content service provider, the method comprising the steps of: (a) setting up a policy to be used in testing the recommender system; (b) setting up a plurality of separate proxy accounts at the online content service provider; (c) causing said recommender system to interact with said plurality of separate proxy accounts and generate a plurality of separate recommendations for a plurality of corresponding items; (d) verifying a compliance level with said policy by examining said separate recommendations.Oh, lookie! Someone discovered how to test something! I wonder if he also discovered how to “cut and paste”. Because he’s really pretty good at it.Is there a better poster child for our broken patent system? I kinda doubt it.

      1. Regardless of the merit of your arguments MM, you do seem jealous. It drips out of your posts. I feel jealous and contemptuous of Wall Street traders who made a fortune bringing down our economy and suffered no consequences. They now live the good life and buy off our government to stay out of prison where they belong. But, in the case of Wall Street, I think the facts are clearly on my side. In this case, I wish you would try to make more factual arguments. The biggest problem with your arguments is hindsight. And, if these inventions are so obvious and silly, then why aren’t they rejected over known art? Where is the art? Why do they stand up in Fed. Dist. Ct. and the PTO against validity challenges. Etc. And, then you just pull out 101 and try to explode them all without answering any of the questions I’ve raised. In Alice, for example, we get statements like, this has been known for 300 years, but we can’t find any references so we are going to use 101 ’cause we don’t like you.To rational actors, you appear to be a bad actor in this play.

        1. you do seem jealousRight. And you seem jealous of me! It drips out of your posts. You’re part of my “whiny fan club”. Blah blah blah.

        2. What’s to be jealous of? It’s not like he’s actually inventing. You can be jealous of people inventing. But you can also be pissed that our patent system has devolved into nothing but an extortion racket related to doing new stuff on a computer. I think that’s what you’re mistaking for jealousy brosefus.I have to say I’m not jealous of wall street types that screwed everyone over to make a buck. Contemptuous surely. Not jealous of their money at all. If I wanted to make huge dollars dishonestly it isn’t terribly hard to imagine how to do so.

        3. this poor MM guy seems really starved for attention and he tries to fill some kind of emotional hole by attacking other people: YES all the Examiners in the PTO MUST be incompetent b/c they gave Mr. Gross a patent, YES all the appeal Board judges must be on drugs because the confirmed the patent! For fragile brained people like him reality is too painful so they manufacture a fantasy world where they can become legends in their own mind

          1. I thought he said that it was technically possible for you to have drawn a competent examiner and a board that wasn’t on crack.

            1. its also “technically” possible that MM may something intelligent in the near future about the merits of a matter instead of his personal biases, but the odds seem long that too – I had 14 decisions this year from the PTAB, 11 of them in my favor finding error in the rejections – I guess that has nothing to do with the merits, its just that – according to MM – the whole Board – every PANEL – is apparently on crack, all the time LOL

              1. its also “technically” possible that MM may something intelligent in the near future about the merits of a matterI make intelligent comments about the merits of matters all the time. Let’s talk more about the merits of the claim I posted upthread.The concept of testing the function of a method or device by performing a test run under simulated or actual conditions and then evaluating the results of that test run against a set of parameters is ancient.That’s an intelligent comment. It’s also banal, elementary stuff that a typical high school kid could tell you.You took that concept and tacked on “using a computer.” That’s also old. And then you simply applied that to “recommendation systems”. Why in the world would anyone not expect the ancient testing concept referred to above to apply to any endeavor? And why in the world should the generically recited (and old) concept of “automating” a process (e.g., testing) with “a computer” make any difference for patenting purposes?So there you go. Now what, Nick? Are you going to pretend that my comment isn’t “intelligent”?

                1. “I make intelligent comments about the merits of matters all the time”Still waiting:Do you recognize the controlling law regarding exceptions to the printed matter doctrine?What is it and what does it mean (especially in regards to your vapid assertions against software patents)?Why have you not been clear about the Grand Hall experiment? How does an ‘old box’ gain a new function without being changed? Make sure you address the controlling law of Alappat when you give your ‘intelligent comments.’Why do you prevaricate and accuse others of that which you do on such an incessant basis?.You want to know what else is ancient? Electrons, protons, neutrons, elements and the methods of configuring those items.

                2. I’m pretty sure that Nick doesn’t need your, um, “assistance” here, TB. Go get your prescription checked. You can lick Nick’s buttons clean some other time.

                3. Nothing at all to do with Nick, Malcolm, I am seriously looking for answers from you.That you think this has anything to do with Nick only shows that you have an odd obsession about avoiding giving actual answers (although you continuously claim – clearly falsely – otherwise).Still waiting.These are very straight forward questions, Malcolm. You have spent far more time and energy avoiding them then it would take to simply give some intellectually honest answers (we can explore exactly why you do not give intellectually honest answers later).Even easier to note is that you actually have volunteered and admission as to knowing the controlling law regarding the exceptions to the printed matter doctrine – but you oddly insist on being coy about that.(and I am afraid that I have no idea what your colloquialism of “licking buttons” means, but I am pretty sure that you would NEVER use that in a courtroom).

                4. And that is a non-responsive evasion – yet again.But we both knew that, right?Why don’t you just answer the questions?

                5. Anon why do you care so much about this brosefus? There is a case before the supremes that is going to help us all out on this matter so why not just wait until it comes out and then continue your daily trolling for “answers”?

                6. You don’t get it at all, do you 6?It isn’t that Malcolm wants a different legal system in place, it is how he goes about posting here. The answers I seek (no need for parentheticals – I really do seek his answers) are based on the law as it is today. Malcolm knows this – although he likes to pretend otherwise. add: Any reasonable person should wonder why Malcolm spends so much time and energy NOT answering the very simple questions that I have posited, simple questions that go to the heart of the matter. Any reasonable person should question the tactics of spin, obfuscation, outright blatant 1ies, his notorious “Accuse-Others” tactic and other pure FUD (his attempts to denigrate the asker of the questions, while still running from the questions) that flows so heavily from Malcolm, when an intellectually honest conversation would not try to run from the questions I have put front and center.The point of the matter is that if Malcolm were to post with respect for the law, and simply post to advocate a change in the law, as that is what he is really doing, he would not only be more effective, but he would be posting with intellectual honesty. It is the utter lack of intellectual honesty, coupled with his high and mighty preachiness that is so fun to take down.I mean seriously, look at how often he accuses others of the very things that he does. He is morally bankrupt, and yet cannot figure out that such impugns the positions that he wants to advocate for. It’s downright hilarious that he is so utterly clueless.It’s also fun to be right at his expense.The nonsense he spouts simply cannot be sustained with any knowledge and appreciation of reality and the law.

                7. Malcolm wants a different legal system in placeRight. I want one that actually works, with competent people applying the existing laws in a sensible fashion.But you like the status quo because it allows you and your bottom-feeding friends to claim junk and troll it.

                8. “applying the existing law”You still have not answered the simple question as to whether or not you know what is the controlling law regarding the exceptions to the printed matter doctrine. In other words, it is clear that you don’t know what you really want. (or you do, but you insist on dissembling).Either way, svcks to be you.

                9. Nick only shows that you have an odd obsession about avoiding giving actual answersI’m not aware of Nick asking me any questions that I haven’t answered directly. But do keep up your pathological lying. It’s what you do best.I’m the last person on earth Nick wants to have a conversation with about patent law with particular attention to Nick’s patents and Nick’s behavior. Nick knows that. And so do you.

                10. LOL- way to incorrectly parse that sentence Malcolm.More of your stellar English as a First Language skills, or are you being purposefully obtuse?Maybe you just need to stop hyperventilating and read a little slower.Funny too, you (again) don’t seem able to get to the actual questions. More time and effort from you in running away from those simple questions…add: you say that you want the existing laws applied – yet you are unwilling to answer my very simple question about those same existing laws…

              2. I had 14 decisions this year from the PTAB, 11 of them in my favor finding error in the rejections,That has nothing to do with my intelligence, Nick. The fact that you think so does suggest (again) that you are rather full of yourself.

                1. “you are rather full of yourself”LOL – there’s that Accuse-Others gambit again……because, after all, Malcolm has worked with Nobel-winning people in his ‘patent efforts’ and not some (implicit common man scvm – nay mere 14-year old), dabnit Gumby.

              3. “I guess that has nothing to do with the merits,”I think according to MM it has to do with the incompetent examiners examining your case initially. That means that their rejections were wrong on the merits, due to their incompetence.

          2. this poor MM guy seems really starved for attentionSorry, Nick. I’m not starved for attention. I’m just concerned about the patent system being exploited by bottom feeders. Anybody can see that’s what you’re doing. You don’t need to know much about technology or patent law to see that. Unfortunately for you, there’s plenty of us who know quite a bit about both so it’s difficult for you to avoid the scrutiny.I’ll remind everyone that I didn’t randomly pull you or your patents out of a hat. You just sort of “bubbled to the surface” like hot gas in a fetid swamp. If anyone here is “starved for attention”, it’s most likely you.YES all the Examiners in the PTO MUST be incompetent b/c they gave Mr. Gross a patentOf course, that’s not the argument I’m making about why your claims are junk. It has nothing to do with you personally. It has everything to do with the junky functionally claimed garbage in your applications and patents. It’s 2014 and the USPTO still behaves as if generically recited computers are some brand fangled magical unexplored technological terrritory where thousands of years of prior human behavior and common sense apparently have no bearing. And that creates an opportunity for bottom-feeders.Maybe write some actual bug-free working software that achieves what your patent applications claim to be bringing to the table and I’ll start being impressed. Otherwise you’re “innovating” just looks like a prime example of a greedy lawyer dreaming up stuff that you can threaten people with once you manage to shepherd your claims past the fossil-minded stooges at the USPTO.

            1. “Maybe write some actual bug-free working software that achieves what your patent applications claim to be bringing to the table and I’ll start being impressed.”LOL – Malcolm claims “Unfortunately for you, there’s plenty of us who know quite a bit about both” and YET still wants working models submitted with patent applications. Talk about fossil-minded…(oh wait, he just accused someone else of what he is – go figure)Way to self-FAIL Malcolm.add: “hardly worth conversing”Malcolm, you and your tired script of QQ and low quality blogging is not conversing (unless you are doing that Oh So Very Carroll thing again)

        4. if these inventions are so obvious and silly, then why aren’t they rejected over known art?It’s hardly worth conversing with you when you make silly circular arguments like this.I feel jealous and contemptuous of Wall Street traders That’s nice.

        5. In Alice, for example, we get statements like, this has been known for 300 years, but we can’t find any references so we are going to use 101 cause we don’t like you.That’s not the argument in Alice. Nice try, though.

          1. Uh, yeah, it is the argument in Alice. And was the same argument in Bilski. A variant is this is way too abstract with giant claim scope and has nothing but known elements that add no structure, but we can’t find any art to put together a 103, so we are going to use 101 ’cause we don’t like you.

            1. NWPA,Now you know that your view is silly and that is just silly, well, because Malcolm said so…Now isn’t that nice?(just don’t ask him to answer questions that go to the heart of the matter, or explain a graph of data)

      2. Believe it or not, that garbage is the claim as original filed. During prosecution the claims were amended in a manner that demonstrates exactly what a ridiculous joke it is to suggest that claims in the so-called “computer-implemented” arts are examined in any meaningful way.In a nutshell, all that happened was that Nick sprinkled in some “limitations” about “automating” the method with a “computer.” Try to believe it.In other words, as is usually the case, all the actual work and creativity is left to someone else. But that “someone else” will be beholden to a bottom feeding patent attorney who believes he is “promoting progress.” ** I’m just being facetious; I seriously doubt that Nick believes in much of anything other than his own skill at exploiting a broken patent system

        1. B-b-b-but Malcolm’s doing a valuable service by being here and QQ ing./eyeroll(it’s too bad just how clueless he is regarding the impression he actually makes – but after all, many people have told him he’s doing such a swell job, people like Robert, Francis, Shirivan, Friend(s) of the Court and the rest of his legion of svckpuppets – which of course, he ‘does not use,’ wink wink)”Maybe I will”Funniest.Line. Ever.Why do any actual work and create an actual case that might have lasting meaning, when Malcolm can keep on posting his mewling QQ here ad infintium, and ad nauseum?

          1. actual workThis from the guy who trolled this blog for years insulting people and spewing incomprehensible gibberish under hundreds of different pseudonyms. And pretended to be doing battle with a “vocal minority”. Thats right — the “vocal minority” of people who don’t think terribly highly of bottom feeding patent attorneys exploiting a broken patent system. Because those bottom feeding patent attorneys really need louder voices and a bigger platform to represent their precious “interests.” The PTO doesn’t give them enough patents fast enough! Big Corporations are against them! And socialists! And jealous poor people! Boo hoo hoo hoo!!!!!Pretty funny.

            1. Vocal minority like the three people of you, Ned, and 6 that account for 50% of all posting here?You mean like that?LOL – more Malcolm FAIL.And by the way, dust kicking is clearly NOT an answer to the questions put to you.Why not just answer the questions? What are you afraid of?

              1. you, Ned, and 6 that account for 50% of all posting here?A few points in response to this looney tunes garbage:(1) you’re the other 45%; that still doesn’t make us a “vocal minority”;(2) a lot of those posts are directly responding to your unfortunate habit of baiting people by personally naming them and falsely accusing them of making a statement that they never made;(3) even if we were a “vocal minority” none of our actual views on any subject are so particularly controversial to merit your bizarre sockpuppet-fueled “battles” or your equally psycho habit of demanding “answers” to questions that you could either look up yourself in two seconds, or that assume some conclusion about your victim, or that are complete gibberish;(4) Ned, 6, myself and others disagree (and have disagreed) on all kinds of topics but somehow we manage to get along pretty well with each other. Maybe take some time to figure out why.(5) People disagree about policy and the proper application of the patent laws. That’s not going to change. It’s part of what makes patent law interesting. I have so-called “civil conversations” about patent law and particularly the patenting of software with people all the time. Mostly they come out agreeing with me or acknowledging that my points have merits and something about the present law and its application needs to change. Of course, it’s nearly impossible to do that when a raving nutcase like you is interjecting ridiculous incomprehensible garbage and non-sequiturs into every conversation.(6) The PTO is virtually incapable of properly examining the typical sort of computer-implemented junk we see here on a semi-daily basis. That is because, for whatever reason, they treat computers as if they were invented yesterday and as if there are no relevant non-computer concepts abounding in the prior thousands of years of documented information-processing by humans. Also, the PTO allows applicants to claim new machines by their new functions alone, a ridiculous proposition given that there is no relationship between the functions of those imaginary machines and the actual structures of the machines which are subsequently engineered (i.e., “programmed”, after much trial and error) to perform those functions. Together, these conditions lead to the present situation where the prior art typically cited against computer-implemented junk is prior art patents only, and that the use of any new descriptive term for an applied field or source of information often (in the blinkered collective mind of the PTO, at least) renders the claim both enabled across an infinitely broad spectrum of undisclosed embodiments, and also “non-obvious.”

                1. 1) Actually, I am at 25% – not bad for dealing with the three biggest yahoos, and yes that still makes you a vocal minority.2) And you engage in the Accuse-Others gambit once again, as it is quite the reverse: my many posts are directly in response to the level of CRP by you three (predominately – although there is a huge difference because many of my posts actually deliver substantive content – you might try that sometime). Since only Ned of you three ever attempts to treat law seriously, someone has to pick up the slack you create. As for accusing someone of something they never said, your blatant 1ies speak for themselves.3) Your views are not only patently ‘controversial,’ they are dead wrong. More than half of the ‘controversy’ is that you know that they are wrong and yet persist (of course, you are afraid to answer my questions for that very reason). [add: your reference to me ‘looking up the answers’ is way besides the point. First, I don’t need to look them up, as they match my posts, and second, the point is for you to provide answers so that it is clear that you do know what the real answers are, and that you stop {at least some of} your senseless games like pretending that the law and the facts are something other than what they are – you know, your dissembling.] As for “sock-puppet fueled” that would be completely false, as the only one known now to engage in sockpuppetry is you (yet again with the Accuse-Others gambit)4) “getting along” is meaningless – if you all “get along” on fallacies, well, that is nice for you. Sorry you get sad when I point out reality and the law. Get a puppy. Or post in an intellectually honest way.5) Once again, “disagreement” is not the issue. It is HOW you disagree. Drop the CRP and poor blogging techniques, recognize and admit (fully) to controlling law, and post with some modicum of intellectual honesty and we will get along peachy keen. The rest of your comment under this bullet is pure B$.6) More pure B$, as if you actually worked up the courage to honestly attempt to answer me, you would immediately recognize. Lose the strawman of “computers invented yesterday” and face the fact that your precious ‘old box’ is changed into a new box with the addition of a man-made manufacture and machine component called software. That is a plain fact and that is the plain law. In other words, you are free to disagree to the exact same extent that you are free to be wrong. Again, so ‘sorry’ that makes you sad. “No relationship”? LOL -simply false. If there was no relationship, then in the Grand Hall experiment neither computer would do anything. CLEARLY, a computer changed and configured with software is not the same as a computer with no software. The rest of your rant was simply unreadable.And please give me my answers. They really are quite simple questions. Why are you so afraid?

          2. Malcolm’s doing a valuable service by being here and QQ ingWhat remains fascinating is why criticizing patent claims and patent policy, especially functionally claimed computer-implemented inventions that most of the educated population can see immediately are little more than scams on the public, draws people like you out of the woodwork.The sense of entitlement that emanates from your tribe just takes the ordinary person’s breath away.

            1. …tribe?Nice rant Malcolm. Let’s see if you can base a response in the law and facts instead, though.Hmmm, thought not….entitlement?LOL – I think AAA JJ indicated a piece of law that covers that. You know, real law..”ordinary person… most of the educated population can see immediately are little more than scams “Because Malcolm says so – Oh, how very Carroll of him.”is why criticizing…”Malcolm, you are not paying attention. It is not that you are criticizing. It is HOW you are criticizing. Be intellectually honest. Drop the CRP (and massive CRP at that). Use law. Use facts. Or at the very least, acknowledge that the law is what it is and facts are as they are without your massive attempts at spin and deception.It is easy – but you have to let go of your banalities.

        2. prove your point.This from the guy who compared software patents to a “host” and critics to “parasites” who didn’t realize they were signing their own death sentence. Because (apparently) if we don’t grant patents on functionally claimed computer-implemented junk, people will stop coming up with ways to shove ads in our face.It takes only a modest amount of “intelligence” to understand that’s just a giant crock of self-serving garbage. Or, more accurately, an empty threat.The best part is when the software patent teabagger types accuse their critics of not understanding the “real world,” as if there are no other incentives to shove an ad in a person’s face besides patents.

          1. Implicit in this crock of sheepd1p reply from Malcolm is that patents should only be given in cases of but-for.That canard should have been laid to rest long ago.

          2. Not just any critic, Malcolm; you. And clearly, deservedly so.As to the rest of your post, it appears that you are just dissembling again.Tell me why again (or for the first time) you have decided on the ultra-private Disquis settings…? Is it because you do not want a ready access to all of the banalities that you post? Is that what you are afraid of?Funny that parasite thread of roughly three months ago ( link to patentlyo.com… ) has the following post:Malcolm: “The computer was invented a long, long time ago. Last time I checked”Me: Last I checked the vacuous and debunked ‘House’ argument should have been put to rest long ago.Last I checked 35 USC 101 still allows for “and any improvements thereof” – so much for the false reliance on ‘old computers’ claptrap.Last I checked Alappat was still good law and that a new machine was made with new configurations when the manufacture of software was added to an old machine. – so much for the so-called favorable results.Last I checked, such banal ad nauseum repetitious soapboxing that Malcolm vomits onto every thread is not (and cannot be) included in any sense of ‘norms of conversation.’Last I checked, Malcolm is still not included in the Patently-O community stats. Of what use is this new software if the same old tired CRP runs rampant?Hmmmmm. perceptions, perceptions perceptions..So tell me Malcolm, what is clear here? Your position of claptrap postings of fallacies and unanswered counterpoints is what.As I pointed out long long long ago, the poor quality blogging of CRP, ignore counterpoints, run away and CRP again is what needs to be fixed. The new software clearly has not helped nearly as much as needed (several of Malcolm’s “clear position points” were excised as unacceptable on that thread from three months ago).add: Malcolm again fallaciously states “as if there are no other incentives” – Malcolm, the ‘but-for’ rationale of patents is only one of the recognized rationales – stop already with the deceptive posts, stop trying to make it look like that is the only acceptable rationale for patents.

              1. Clearly, that has no relation at all to my questions, and clearly that is not what I mean.Why don’t you just answer my questions?Answer my questions already – Come Malcolm, make your position clear as you claim that you do.(Malcolm throws out a completely odd-ball answer having nothing whatsoever to do with the clear point at hand [add, lol, talk about your aggregation…] and then does his Accuse-Others thing again – what a dissembling t001)

                1. Why don’t you just answer my questions?”What’s the frequency, Kenneth?? What’s the frequency, Kenneth??”

                2. Y A W NReally Malcolm, are you that afraid of answering a few simple questions?…as for Kenneth, it is quite apparent that it is you that cannot get monikers correct (nor as shown on recent threads with your attributions of others statements to me, what is actually being said), and of course, we have your wild gyrations and over reactions on a constant basis to deal with – there’s that Accuse-Others gambit again.Finally, why don’t you just answer the questions? Your insipid “frequency” innuendo is clearly misapplied. My questions go to the heart of the discussion and quite frankly that is why you are afraid to give answers to them. You claim that your position is ‘clear,’ when the only ‘clear’ thing is that you are afraid to answer the questions. Admitting to what the law is and what the facts are would only leave you your paper thin policy table to pound on.

                3. as for Kenneth, it is quite apparent that it is you that cannot get monikers correctWe’ve got a live one here, folks! Watch out!

                4. Why are you having such a difficult time with this?You are a complete joke, a blogtroll, and you belong in a psych ward. There’s no real “difficulty” with dealing with you. The only “difficulty” is figuring out why Dennis continues to let you comment here. He knows you’re completely nuts, just like I know you’re completely nuts, and just like everyone else whose ever tried to reason with you about anything that you find disagreeable. And of course part of your kookiness is that you think everyone else is just like you. We’re not. There’s you, and then there’s everyone else. Your looney tune “friends” who used to comment here are long gone and nobody misses them either.[shrugs]

                5. Lots and lots of name-calling (and all because Malcolm says so – very Carroll of him, but not very convincing).”ever tried to reason with you” No answers – you are not trying very hard at all.Go figure.”no real “difficulty” with dealing with you” – if you mean play your usual low quality games and avoid any semblance of intellectual honesty, then yes, it is clear that you have no real difficulty with “dealing with me.” On the other hand, joining in the conversation, and dealing with the law and with reality…. well, it is clear that you have some extreme difficulty with that.”you think everyone else is just like you” No Malcolm, the Accuse-Others gambit is your motif.

          3. Forgot I compared software patents to a host and critics to parasites. Will have take your word for it, since you apparently faithfully record and recall every word I say. You flatter me even further with not one but three sandbox retorts to a single post. From that, and your overall saturnine malevolence, I infer you to be one angry little old coot. Recommend imbibing in the one glass of wine I imagine your nurse permits you every night, Gramps Malcolm, and then hobble off to bed, you’re crankier than usual and need your sleep.

            1. Turbo,It is simply much more likely that he clicked on the Disqus icon of your name, and then blindly tried to create an insult from your past posts, all of which are listed.By the way, Malcolm well deserved your past insult, and there is absolutely nothing for you to apologize for. As you can see by my recapture of comments from that thread nearly three months ago, Malcolm continues to debase any actual conversation with the same old claptrap and same old worn out CRP. You might find it humorous that Malcolm is quite contradictory in his habits, and has engaged the maximum secrecy possible related to his posts under the Disqus account. Of course, the reason why he does this is known to all those that are long time readers. Basically, he 1ies (prevaricates, obfuscates, dissembles, well, you get the picture). On the rare occasion that he has engaged in actual substantive conversations, he has slipped and volunteered admissions against his interests. He tries very very very hard now not to ever actually engage in conversations on the merits of law and fact. If he were to treat his Disqus account normally, the plain inanity of what he posts would be magnified so intently, that even he might have to relent in his poor habits (doubtful given his clear lack of shame or conscience, but one could always hope)

              1. Regret the insult, witty though it was. He’s kind of a hateful, disturbed old soul, probably through circumstances beyond his control, and it makes as little sense pouring oil on the fire as it does trying to enlighten him. Peace MM, and if your behavior here is therapeutic for whatever peculiarity ails you, you go boy.

            2. Will have take your word for it, since you apparently faithfully record and recall every word I say.Uh … no.Computers store information. That’s old news, friend.

              1. Protons, electrons, and neutrons combine….Elements combine…Oh, it is important how those combinations are configured…. hmm, exactly like new machines are configured with the man made manufacture of software…

                1. Protons, electrons, and neutrons combine….Elements combines…it is important how those combinations are configuredIndeed. That’s why the combinations and their configurations need to be recited in the patent claims, not just their functions.Only an idiot or a liar denies this. Which one are you? Oh right: both. That was settled long ago. Do you miss your sockpuppet friends, nutcase? Nobody else does.

                2. “configured to” is structural language.Also, take notice of the difference between “configured to” and “configurable.”Just saying..Does “sockpuppet friends” include “Friend(s) of the Court”? – you hypocritical windbag. Once again the board finds you doing that Accuse-Others-Of-That-Which-You-Do dissembling thing.

    2. You should consider yourself lucky that the patent ever granted. I mean, you could have drawn a competent Examiner (I think there are one or two those left at the PTO) and a Board that wasn’t high on crack (also possible) and then you’d have nothing but a prosecution history.

      1. main problem was that the Examiner changed midstream, and when that happens, human tendency is to try and do one better than the prior examiner, regardless of the merits….

        1. JNG,I happen to know that “Appeals Conference Specialist” from my time at the PTO. And the SPE. Neither knows their arsehole from their elbow when it comes to the law of, well, just about anything really. Two incompetent hacks.Don’t waste your time with Mooney. If the examiner had allowed your claims on the first OA, he would have raved the examiner was incompetent. If the case was allowed, as it was, after two appeal briefs, he would have raved that the examiner was incompetent. The examienr(s) probably would have allowed your application years ago, but this particular “appeals specialist” and this SPE are in the positions they are in with instructions to try to force as many applicants into abandonment as they can. Mooney is just another hack examiner bitter that he’s searching for “isolated” protein bits and DNA fragments day in and day out.The APJ who wrote the decision had a fairly distinguished career in private practice prior to being appointed to the Board. Clearly his understanding of the law is head and shoulders above that of the “appeals specialist” and SPE. And Examiner Mooney.Congrats on your patent. Thanks for appealing. Keep up the good work.

          1. If the examiner had allowed your claims on the first OA, he would have raved the examiner was incompetent.That’s correct. Have you looked at those initially filed claims?Mooney is just another hack examinerNope. And that settles the question of which of us is “the hack.” But we knew that already.Keep pounding the table. It’s what you do best.

            1. LOL – yet another example of the Accuse-Others gambit: no one pounds the paper policy tables (having neither law nor facts on their side) like Malcolm.

          2. this particular “appeals specialist” and this SPE are in the positions they are in with instructions to try to force as many applicants into abandonment as they can. We know the names of those people. What is the name of the person giving them the instructions you refer to?… still waiting. Lots of big talk from this AAA JJ. Some kind of government conspiracy that he knows about (or wishes he did). Or maybe he’s just spinning a tale that he finds pleasing to fantasize about. He’s got the whistle in his mouth but for some reason he’s afraid to blow it.

            1. “Some kind of government conspiracy that he knows about (or wishes he did)”LOL – as if the Reject Reject Reject era never happened….Prof. Crouch, why don’t you publish the famous Doll-Look-At-The-Great-Quality-Allowance-Rate-Going-Off-A-Cliff-For-No-Other-Discernible-Reason graph?Oh wait, I found an article with it: link to ipwatchdog.com…Malcolm continues to blow something, but it is not a whistle (maybe he wants to deny that Taffas happened as well).

              1. the Reject Reject Reject eraLOL. The patent teabaggers will never, ever stop chewing on that bone, will they?Funny thing: I got plenty of patents granted during that “era”. So did everyone else I know.

                1. Dare I ask you then to explain the graph?Or will you be too busy answering the simple questions that go to the heart of the issue (or too busy running away)?add: again with the Kenneth CRP? LOL – is the graph too much irrefutable data for you?

            2. Keep waiting, Examiner Mooney. If you’re still in denial that the PTO decides that certain applications, or even certain categories of cases, should never be allowed no matter how silly and flimsy the rejections they have to send up for Board review, maybe find yourself a twelve step program and get some help.

              1. If you’re still in denial that the PTO decides that certain applications, or even certain categories of cases, should never be allowed no matter how silly and flimsy the rejections they have to send up for Board review,LOL. The phrase “you haven’t proved sh!t” leaps immediately to mind.But I’m not “denying” anything. I’m asking for names since you seem to be in possession of very important, specific information about individuals at the PTO who you believe are engaging in illegal activity.I’m wondering why you are refusing to share this information. Are you afraid that you might be wrong? Or are you just afraid?

          3. “I happen to know that “Appeals Conference Specialist” from my time at the PTO. And the SPE. Neither knows their arsehole from their elbow when it comes to the law of, well, just about anything really. Two incompetent hacks.”So AAA JJ confirms that the people on the case are incompetent. Yet he then goes on to act as if he disagrees with MM stating that clearly the people on the case were incompetent. He’s an interesting sort of ta rd, AAA that is. He knows some things under the surface of his ta rdation, but then he immediately counteracts the effects of his knowledge with a big ol helping of ta rdation. “he would have raved that the examiner was incompetent.”Kind of like you did? I mean, from listening to the both of you, I’m of the opinion that clearly the supervisory examiner on this case, who was likely responsible for the allowance, was incompetent. Regardless of the action he took, everyone seems to agree to one fact: he’s incompetent. “Mooney is just another hack examiner”Have I not told you that we figured out who MM was awhile back? He works for big pharma. “Congrats on your patent. Thanks for appealing. Keep up the good work.”See, he always throws in a good ol helping of ta rdation!

            1. “What really matters is not that the tainted hamburger meat was put into the stream of commerce, but that the Certificate of Approval from the government inspector was grammatically correct and signed in the correct color of ink, as required by law. We thank you for the continued attention and, as the demand for meat rises exponentially, we will be sure to place increased attention on these critical details until we are told to do otherwise by the ranchers who tamed the wilderness and made America great.”

            2. 6,Being pro patent is not ‘tard dation.’You never seem to quite understand that…”That is, the law as it actually is, not the law as you and Mooney would have it.”That cannot be emphasized enough..Malcolm quips “Show us your cards. Show some intelligence” all the while refusing to show even the most basic of cards – answers to questions that are at the heart of the matter. (emphasis added) When shown facts, he closes his eyes. When shown the law, he (baselessly) mocks it and says the law is bad. [add: and yet, he readily accuses others of what he does and calls them cowards] Intelligence? Clearly the only intelligence that satisfies Malcolm is that ‘intelligence’ that agrees with whatever he says. Why? Well, as near as can tell, merely because he says so. (my what a pretty bubble chamber you live in, Malcolm)Leopold, the responsorial psalm is “That’s pathetic.”

            3. “Kind of like you did?”I never the examiner was incompetent. if you read what I posted, difficult for you I know, you would see that my informed opinion of this application is that the examiner was merely writing the rejections his/her t#rd SPE/appeals specialist were tellilng him/her to write. The incompetence of the SPE and the “Appeals Conference Specialist” (lulz upon lulz upon lulz, what does that guy do all day???!!!!!!) was on full display in the decision of APJ Smegal, who is clearly experienced in, and understands, the law. That is, the law as it actually is, not the law as you and Mooney would have it.If this clown is an “appeals specialist” how is it that he sent this clear loser up to the Board?

              1. APJ Smegal, who is clearly experienced in, and understands, the lawJust curious: exactly what part of “the law” requires APJ Smegal to grant patents on obvious junk? If it’s true that APJ Smegal’s hands are tied and he has no choice but to grant the patent, that’s one thing (and certainly a major problem with “the law”). If his hands aren’t tied, than Smegal is as much to blame for granting a patent on this junk as anyone else.But the Board’s decision reads like it was written like a five year old, born yesterday, not unlike the claims themselves. It’s the ignorant playing patty-cake with the ignorant.

                1. Uhm, maybe that part about the applicant being entitled to a patent unless the PTO can prove otherwise. BTW, APJ’s don’t grant patents. Keep s#cking, Examiner Mooney.

                2. maybe that part about the applicant being entitled to a patent unless the PTO can prove otherwise.Right. Well, given that proving this patent is a piece of junk takes about five seconds, what happened at the PTO in this case?APJ’s don’t grant patents.So at the end of the day who’s to blame for this junk being granted? The director? Tell everyone. Where does the “buck stop”?Or maybe tell everyone why you think the patent isn’t a piece of complete junk. Oh wait — that would create a bit of a conflict for you, wouldn’t it? Keep s#ckingShow us your cards. Show some intelligence. Tell everyone why this claim isn’t pure junk. Walk us through the “inventor’s” contributions to the art of, um, “computation.” Or is it “electronic logic”? Go ahead. You’re the expert.

                3. “Right. Well, given that proving this patent is a piece of junk takes about five seconds, what happened at the PTO in this case?”You haven’t proved sh!t. In 5 seconds or in any time frame. All you’ve done is post 1,000+ comments of your usual “It’s facially invalid!!!” ranting. File a re-exam request. If you tank this patent, I’ll gladly send you a check covering your expenses.

                4. You haven’t proved sh!t.In fact, I have. Apparently you are easily fooled by big words (you’re not alone in that regard).The applicant did not invent trouble-shooting by running a simulation (let me know if you disagree). The applicant did not invent “making recommendations”, with a computer or without a computer. (let me know if you disagree). The claim is nothing more than “automating” the process of testing a computer program. That’s a per se obvious piece of junk. If you see something new in the claim that you believe rescues it from being obvious junk, let everybody know what it is that you see.In this way we can determine (1) how ignorant you are about your beloved “computer technology “and/or” (LOL) (2) how far down on your belly you’ll crawl to defend pure unadulterated junk granted by an agency you have admitted is incompetent.

                5. I hope the Office Actions you’re churning out are a little better than the sh!t you post here, Examiner Mooney.

                6. I’ll make you a deal, dipsh!t. Post the serial number of the re-exam you file on JNG’s patent, and I’ll name some names.Are you afraid to request the re-exam? Or are you just afraid?

                7. Post the serial number of the re-exam you file on JNG’s patent, and I’ll name some names.Ah, so you do have the names. Thanks for confirming. You’re just afraid to provide them to us. Why?Are you afraid to request the re-examNope. Am I afraid that the grossly incompetent stooges at the USPTO will simply fumble the ball like they did the first time around and waste everyone’s time? Yes. But that’s a very reasonable fear. After all, you’ve admitted that these people are incompetent.Still waiting for you to come up with an explanation, however, as to how any competent person could defend this piece of junk patent. I mean, you’ve asserted in the past that you are some kind of specialist in computer-implemented junk. Tell everyone why this particular junk isn’t obvious, given the facts I’ve provided for you already. Go ahead.

                8. “I mean, you’ve asserted in the past that you are some kind of specialist in computer-implemented junk.”Ah, no. I’m a mostly mechanical practitioner, as I’ve explained in past posts. But feel free to post your evidence that I’ve “asserted in the past that I’m some kind of specialist in computer-implemented junk.””Am I afraid that the grossly incompetent stooges at the USPTO will simply fumble the ball like they did the first time around and waste everyone’s time? Yes.”So even with your super awesome “evidence” that JNG’s patent is “faciallyinvalid” you’re not capable of persuading some examiner to tank his patent?You really, really, really s#ck at this.

                9. I’m a mostly mechanical practitioner, as I’ve explained in past posts.Oh, okay. Thanks for the correction. Maybe I’m confusing you with someone else. The group of commenters who refuse to discuss patent validity or eligibility (except to shout down any criticism of patents) do tend to blur into each other at some point.I’ll try to remember that you’re “mostly a mechanical practitioner.” That might explain why you seem to know so little about computer “technology” even at the extremely low levels of the typical junk patent (did you know that computers can “automate” information processing? it’s true!).you’re not capable of persuading some examiner to tank his patent?Again: it’s a broken system. You’ve admitted that. Logic and common sense aren’t valued so why is there any reason to expect “evidence” of any kind to be respected on a routine basis?It’s amusing watching you do everything you can to avoid admitting the obvious. Also very typical behavior of someone with conflicts, as is true of most folks who’s mental faculties shrivel up and blow away when presented with a junky computer-implemented claim.

                10. “Again: it’s a broken system.”Why don’t you take a look at the statistics on the percentage of claims that are cancelled/amended during ex parte reexam, and in the old inter partes reexam system and explain to us why all of those challengers were so successful at tanking patents, but by your own admission you couldn’t even hope to succeed.Keep s#cking, Examiner Mooney.

                11. explain to us why all of those challengers were so successful at tanking patentsYou’re the master. You know the statistics. You explain it. Why were all those challengers so successful?And while you’re at it, still waiting for you to show an error in my explanation as to why the patent we’re discussing (remember that one? the one you are afraid/ashamed/unwilling to talk about?) is, at best, obvious junk of the lowest order. Go ahead. Costs you and me absolutely nothing except a tiny bit of time, and you seem to have plenty to spare.

                12. Show an error in your “explanation”? That’s funny. Your “explanation” is nothing more than your usual rant. Keep pounding the table though. “…nothing except a tiny bit of time, and you seem to have plenty to spare.”Says the guy with 1,060+ posts.

                13. Your “explanation” is nothing more than your usual rant.I have no idea what you think my “usual rant” is but my explanation is very specific to this particular junky patent.It never takes long for you to begin your dissembling. Trouble with the facts, I guess? Do you want to pretend that the sun is green until you see “actual evidence”? How far down on your belly will you crawl?”…nothing except a tiny bit of time, and you seem to have plenty to spare.”Says the guy with 1,060+ posts.Uh … quick reminder for you. I’m not the one refusing to engage in a discussion about this junky patent. You are. My point was only that it doesn’t cost either of us anything to discuss that junk and you apparently do have some time to spare. Of course, you knew that already.What’s the phrase again? Oh right: “you s*ck at this.”LOL.

                14. You’ve posted some facts? Where?Again:1) Testing the level of functionality of a device/method by running test runs on them is ancient.2) Using a computer to facilitate such processes is ancient.So: how dumb are you? Or how dishonest are you?We’re talking to a patent teabagger about a junk patent and we’re back to those same basic questions again. What a surprise.Try to imagine if these patent teabaggerclowns were historians. You’d have to dig up Ronald Reagan and parade his corpse around every time you brought up his death. Because otherwise no “actual evidence.” That’s how nutty they are. And the best part is that they don’t even hide it. Heck, they’re proud of it. All the evidence you need can be found in any thread here at PatentlyO where a junk patent is discussed.

                15. “Again:1) Testing the level of functionality of a device/method by running test runs on them is ancient.2) Using a computer to facilitate such processes is ancient.”That’s it? That’s the extent of your invalidity case against this patent? The depths of your svckitude may never be fully determined.Again, feel free to present those awesome “facts” and “analysis” in a request for reexam and see how far it gets you at the PTO. Better yet, offer to defend anybody accused of infringing this patent and cut and paste those “facts” into your answer and see how far it gets you in a USDC.If you got nothing better than “it’s ancient!!!!!” I’m pretty much done with you.

                16. f you got nothing better than “it’s ancientI don’t need “nothing better”. Again, either you are capable of having the discussion about the junk patent or you’re not. And you’re clearly not. All you are doing is sticking your head in the sand and pretending that basic facts don’t exist or they are “irrelevant” without explaining why.What kind of a person does that? A dishonest one. A person who can’t handle the truth. A coward.There are two types of patent attorneys: those who can recognize a piece of junk when they see it and aren’t afraid to say so and explain why it’s junk, and then there’s your kind. So wallow in it, I guess.

                17. “All you are doing is sticking your head in the sand and pretending that basic facts don’t exist”LOL – beyond irony”What kind of a person does that? A dishonest one. A person who can’t handle the truth. A coward.”In other words, Malcolm.First principles first, Malcolm – before you even get to any patent whatsoever – answer the very very very simple questions that you keep running from. Let’s not see any of the cowardly dissembling and distraction.

                18. “I’m not the one refusing to engage in a discussion about this junky patent”LOL – sure, Malcolm will skip the most basic and foundational (and simple) questions…

                19. “Why were all those challengers so successful?”Probably because they actually made a case based on actual evidence, as opposed to just whining, “It’s facially invalid!!!!”You might want to try it some time.

                20. they actually made a case based on actual evidenceAh, “actual evidence”. That’s funny. Do all “mechanical” patent prosecutors need “actual evidence” that peforming test runs of methods/devices is old in the art? Or is pretending to be born yesterday just a personal quirk of yours?Serious question. Let everyone know the answer.

                21. “…peforming test runs of methods/devices is old in the art?”And that’s relevant to the validity of this patent how?

                22. “…peforming test runs of methods/devices is old in the art?”And that’s relevant to the validity of this patent how?Wow, you really are that stupid.

                23. There’s plenty of prior art in the IFW, including all the NPL that JNG submitted. Feel free to present something a little more than “it’s ancient in the art” and maybe I’ll get back to you. But I seriously doubt that you could do any better of a job than the examiner/SPE/”appeals conference specialist” already did.

                24. Feel free to present something a little more than “it’s ancient in the art” and maybe I’ll get back to you.I already did. You need to learn to read.But you seem to admitting now the facts that I’ve presented about the prior art? Retracting your previous b.s. about the veracity of those statements that I made?There’s plenty of prior art in the IFW, including all the NPL that JNG submitted.Doesn’t change the facts. The existence of some reference in the prosecution history doesn’t mean that this patent isn’t any less junky in view of the facts I’ve presented, or in view of those facts combined with other well-known facts understood by anyone older than 12 years old.Do any of your clients test their devices/mehthods using test runs? Any computers involved? If so, you might want to advise them to keep an eye on this applicant and his activities (the term “invention” being left out of the discussion for a very, um, obvious reason).

                25. AAA JJ, the way I read the Board decision is that the software test being performed was in fact disclosed in the prior art, the use of dummy accounts and the use of “policies,” e.g., criteria is notorious. Apparently, and I have not gone through the entire file history, the examiner did not cite even one reference that was a “recommender system” as that phrase was defined in the specification. He simply ignored that limitation.Thus the PTO loses? The real issue all along was whether a very well known way of testing software could be applied to the particular kind of software claimed here. That seems, on its face, obvious. Is there something different about recommender systems?The PTO should have done a better job and not used BRI to substitute for finding a reference, but issuing this patent on this record is simply wrong.

                26. The real issue all along was whether a very well known way of testing software could be applied to the particular kind of software claimed here. That seems, on its face, obvious. Is there something different about recommender systems?Even if there was (there’s not), there is nothing at all in the claim suggesting a “solution” that specifically addresses that difference. There’s just the hand-wavy, abstract recitation of a “compliance” determination. Oh right — it uses a POWERFUL COMPUTER BRAIN to “automate” that step. And someone else will have to do the work of writing that program and de-bugging it of course. That sort of work is for the little people, not important “inventors” (gag) like our beloved “IP Law Master.”

                27. Examiner Mooney?I’m not an Examiner. You just keep hacking away and do your best to defend the junk issued by an agency you’ve admitted is incompetent and, if your assertions are taken at face value, harboring individuals engaging in what would seem to be illegal activity … whom you apparently despise but for some reason are unwilling to name.In the meantime, be sure to take full advantage of a broken system for the benefit of your bottom-feeding clients in the “computer arts.” And why not grab some of the pie for yourself, too? As long as you “appeal appeal appeal” you’re virtually guaranteed to end up with some broad functionally claimed junk that you can “monetize.” Isn’t that what you’ve been telling everybody? I don’t ever recall you suggesting otherwise.

                28. The APJs do effectively grant patents because a reversal requires Director approval to reopen (which almost never happens).

                1. I wish I got to eat in the cafeteria every day! I always forget and then its closed before I remember to go.

              1. I already forgot Ned and didn’t fav it I don’t think. There’s a thread at the Docs from about a year ago wherein I noted it. But I don’t mind him being anon so I’m not going to trouble myself to find it.

            1. Ned, All I can tell you is that if it walks like a duck and quacks like a duck, then it’s a duck. Mooney’s every post is the quack of an examiner.

            2. Ned, I do recall Mooney posting about an interview he participated in at the PTO in a reexam in which the patentee was represented by a former Commissioner of the PTO (obviously back when the head of the PTO was called the Commissioner). So Mooney was either an examiner, or an agent/attorney with the firm representing the patentee. Nothing Mooney’s ever posted would lead me to believe that he’s ever been in private practice.

              1. AAA JJ, I just posted on the fact that the claim at issue has an “aggregation” problem in the “and/or” blog post. I found that Gene Quinn had posted on this topic in 2012 and suggested the problem was a 112, p.2 problem. You replied to Gene that there is no invention in aggregation, but isn’t there also a proper rejection under 112, p.2?

              2. do recall Mooney posting about an interview he participated in at the PTO in a reexam in which the patentee was represented by a former Commissioner of the PTONever happened. Nice try, though.Nothing Mooney’s ever posted would lead me to believe that he’s ever been in private practice.LOL. Whereas people like you who dispute the existence of trouble-shooting and testing of devices/methods in the prior art should be taken seriously.

    3. Nick – The longest PTA appears to be 4256 days (11.6 years) for U.S. Patent 8,495,728 (owned by IBM). As you know, these long-PTA cases generally involve appeals to the PTAB. Of importance, PTA is given even when the examiner is affirmed-in-part. Although not top, your 3079 days of PTA is in the 99.9th percentile.

      1. Outstanding! I knew if anyone could find the answer it would be you… and of course sometime you’ll have to reveal the secret source of such valued info – does Delphion keep track?

    4. Nick, the claim, clause (a) includes “wherein said policy is associated with a programmed deviation to be given TO a neutral recommendation….”For the life of me, I have no idea what this could possibly mean. What is it suppose to mean?

      1. Ned, I can’t possibly do justice to the whole thing in a small isolated post here; the spec is online and the term is both explained and known in the art. See link to goo.gl – I encourage you to take a look as you can see Mr. Moonunit misquoted the actual allowed claim, and knows even less about this field or the evolution of this technology. If you check how many patents even mention the term “recommender” in 2003 (12) compared to last year 2013 (>300) you can see there has been a rapid evolution and interest. But at the time no one appreciated the problem addressed by the invention, namely that the operators of such systems (Amazon, Netflix) and others could “game” such systems and go undetected but for some form of neutral automated testing.

    5. I recently received one with PTA just slightly longer than that. My application involved several appeals (that resulted in the Examiner reopening) and an appeal that finally went to the PTAB in which the Examiner was reversed.I put a lot of emphasis in preserving PTA in my practice. For patents involving technology that stands the test of time, the highest value of the patent is at the tail end of the patent term (when the technology enjoys wide implementation). As such, if you can get a bigger tail end (via PTA), you can significantly increase the value of the patent.

  8. OT, Ultramercial’s late requested brief is listed as having been filed with the US Supreme Court on January 6, but I have not seen a copy of the brief yet. Anyone have a link?

  9. Shouldn’t the data from before the Wyeth decision be readjusted so as to compare apples with apples?I wonder what Kip thinks of Wyeth and how the Office’s ‘reasonable view’ lost out in that decision.Also, what is not captured in the chart is the still unfelt impact of the change in RCE processing – especially if Exelixis I prevails – there will be another huge blip up if that case’s precedential effect is followed.Finally, I cannot remember off the top of my head when the Office put forth its concerted effort to attack the deck chair section of those applications that had not yet seen a first action, but there surely is some correlation with this data.

  10. Here are a couple of questions: (1) if a patentee fails to pay a maintenance fee, will the PTA be tacked on when the patent then expires, or is the PTA available only if the patentee makes all required maintenance fee payments? What if the final maintenance fee for the patent comes due during the period of PTA (for example, if the patent is a continuation with only twelve years of “natural” term)?

  11. PTA is indeed a wonderful thing !

    I just got mine adjusted for 3 (!) years.

    The application was just sitting at the PTO for almost 4 years before the First Office action was issued (I guess there were no takers at the PTO, as it was a complcated subject matter on the boundary between 2 disparate fields -the application was reassigned to a different examiner at least once, maybe twice…)
    After the first office action (partial allowance) and the quick examiner interview (cost me a few grand to bring my lawyer to DC) it only took 4 month to get a complete allowance with 12 more claims (including 2 very broad independent claims) added and allowed by the examiner without further discussion…
    Now I have my sweet little revenge…

    Can anyone do better than 3 years ? :-)

  12. One nit pick:
    I think the last two words in the excerpt below should be “from issue”.

    “In general, the PTA is an attempt to retain a patent term of 17–years from filing.”

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