Patently-O Bits and Bytes No. 35: Politics

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

13 thoughts on “Patently-O Bits and Bytes No. 35: Politics

  1. MVS wrote: We here all too often (rightfully so) that there is too much emphasis on rejecting everything and that “reject = quality” and how bad this is. (And I agree with you all here.) But then you all turn around & argue that we allow too many “bad” patents.

    >Which is it?? The combination of the 2 arguments makes no sense! Are you all REALLY trying to say that we only reject things that should be allowed and allow only things that should be rejected?!?!? I hope that you all have more sense than that!

    Both problems are real, and both have the same cause — a lack of time and resources for substantive examination.

    Lack of time causes the USPTO to issue rejections without a basis (i.e. the examiner knew not to allow the application, but could not find art disclosing it). Lack of time causes the USPTO to issue allowances even though there is tons of prior art (i.e. the examiner allowed the application, even though there was prior art the examiner did not find).

    A proper prior art search takes weeks, if not months. How many USPTO examiners spend months on a prior art search (and make their quota)?

  2. “Where do I recognize this Noonan name from?”

    He’s the smarmy and occasionally bitter guy with a beard over at Patent Docs.

    Thanks for your comment.

  3. There is a great quote on the Patent Docs page, in an article different than the one Dennis linked to above:

    “One of the ETC Group’s criticisms regarding the 532 filed applications is that these applications contain claims that are far too broad, encompassing numerous plants and a litany of environmental stresses. However, because the vast majority of these applications have yet to issue as patents, the actual claim scope that the applicants will be able to secure remains unclear.”

    link to patentdocs.net

    Of course, Patent Docs takes the position that ETC is naively standing in the way of the awesome, non-obvious innovations that Monsanto et al. are going to disclose to Americans. I wonder if any of the claims are along the lines of, “A method for making a plant resistant to a hotter climate, comprising the step of introducing a recombinant heat shock gene into the plant”? Would anyone be surprised to see a claim like that filed in the past three years?

    I wouldn’t. That’s because Rule 56 is toothless.

  4. GratefullyExExaminer,

    I think you’re pretty much dead on.

    Except the fees. If they kept them in the patent office, and we got what we paid for, then the fees would be appropriate. Neither of these happen anymore which is why fees are so abstract now.

  5. MVS has made an important observation on where the actions performed by the PTO arise and how they gain traction. Of course, blame still rises to the top, since Dudas has adopted these actions. This shows how, in selecting someone lacking subject matter expertise only for political reasons is a very bad idea as they are more likely to be “captured” by the long time management into adopting their agenda rather than rolling down a different course of action.

    This then begs the question: how did the Loves and Rollas get into a position to champion such initiatives in the first place? My take on this is that people such as Love and Rolla are products of management that developed over decades and that has its roots in the original push for “compact prosecution.” A management culture developed around enforcing the various aspects of the compact prosecution program and, over the generations, people promoted to SPE, then Director, and other management positions tended to be favored who exemplified two fundamental principles: 1) encourage throughput by rigorously enforcing easily measurable quantitative measures such as production and action taking and 2) don’t do something that will embarrass the Office. Patent examining became “processing patent applications,” an assembly line view of the function of the agency.

    In engineering there is a saying I’ll paraphrase as “Fast, cheap, good; pick two out of three.” Management chose fast and cheap (notwithstanding the current level of fees they are cheap for the quality that many feel is needed) since fast is quantitative and directly addresses the long standing pendency complaints, and good often is only visible many years down the road in an infringement case, and only in a handful of issued patents. Quality issues are addressed by afterthoughts such as second pair of eyes

    The current state of the Office should be no surprise to any longtime observer since production and date requirements continue to be enforced as strictly as they ever but the “reject regardless of the lack of good prior art” is a superficial reaction to externally idendified quality issues. Management is in a bind; they can’t get quality examination with case throughput that is demanded and there is only so much beating that can be meted out to the examining corps to “encourage” more production, so now it’s the applicants who must become “part of the solution.” The patent bar is seeing the same kind of management that examiners have seen for decades.

  6. Darth Dudas here. I really don’t have a plan, just marching orders from dubya’s pals at PTO underwriters to kill the patent system. I admit, I’m pretty dense at how I go about it. For example, appealing a finding from a district court that I lack the statutory authority to impose draconian rules that exceed my statutory authority? I would have to be pretty boffo to fight that out. But that’s not my purpose. Its to delay and obfuscate my goal of getting the patent allowance rate down to zero. I will do it, or my underwriter’s pals in congress will. Believe me, they would rather give lobbyists a bazillion than pay another inventor or entrepreneur a cent. If I succeed, well, there are a few dozen board positions waiting that will more than compensate me for the eradication of my morals (which were almost nonexistant to begin with). I have bureaucracy and the general apathy of the average person on my side. Face it, you losers are toast. Give up now, and turn to the dark side of bureaucracy and incompetence. The trickle down effect will pay you well.

  7. MVS, you wrote that a person cannot be inexperienced and Machiavellian at the same time. I disagree. I think that is what makes them even more scary. An ignorant inexperienced person can still be Machiavellian and have a masterplan. Unfortunately, their masterplan is likely to have many problems. That is what makes all us lawyers so scared and complain so much. The idea you can have strong convictions about what to do and still be ignorant or mistaken at the same time is something that has plagued this country recently and escapes those with strong convictions that conviction does not equal wisdom.

  8. Oh, and one more thing that goes along with the preceding.

    We here all too often (rightfully so) that there is too much emphasis on rejecting everything and that “reject = quality” and how bad this is. (And I agree with you all here.)
    But then you all turn around & argue that we allow too many “bad” patents.

    Which is it?? The combination of the 2 arguments makes no sense! Are you all REALLY trying to say that we only reject things that should be allowed and allow only things that should be rejected?!?!? I hope that you all have more sense than that!

    Based on what I see (& I do see a lot of cases), the PTO has a MUCH bigger problem in rejecting things that should be allowed than they do in allowing things that should be rejected. The “quality” stats of the % of “improper” allowance that the PTO publishes seems to be reasonably accurate. And many of those “errors” are because of things like mot making 101 or ODP/DP rejections rather than not finding prior art.

    MVS

  9. You attorneys are so all-over-the-place in your complaints about the PTO management (and I am not a defender of all that they do by any means; some I agree with, a lot I do not. So don’t think I am an apologist for them.)

    On one hand you argue that people like Dudas & Peterline should not even be in office because they do not have any IP experience for their positions. And then you turn around and say that they are all a devious bunch & are out to destroy the patent system because of their Machiavellian schemes. Which is it?? Both can not be correct.

    And, all too often, you are “blaming” (or “crediting” as the case may be) the wrong person for being the one pushing various ideas.
    The one pushing hard for the ESD/AQS types of submissions by the applicant is J Doll. That is his baby and something that he feels very strongly about. His coming from the chem area probably has strongly colored his opinions and many of the problems that are faced there do not really apply to the rest of the office. Thus, he is trying to push for rules for the whole office where the problems are really more specific to 1600 & 1700.
    Many of the other rules, as has been posted by various individuals here in other threads, comes from Joe Rolla (not Dudas, etc.). The things like IDS rules, limiting the # of CONS and claims, etc., where all ideas of his going back at least to the time he was a director in 2600 (if not further). This is something that he strongly pushed for (and directed/orchestrated) as a director, as a contractor when he “retired”, and now that he is a PTO employee again.

    Bottom-line, before complaining randomly and incoherently about everyone in management, do some work & actually learn where the ideas come from and whose ideas they are. And be consistent in your complaints! Sating someone is “incompetent” in one breadth and the have some “master plan” in the next just makes you & your arguments look 1d10tic and have no merit.

    MVS

  10. In other words, Clinton is saying “I have no idea how exactly the patent system works, what it’s problems are, or what’s in this bill to “fix” it, but don’t worry, I won’t let it hurt anyone.”

  11. Where to start, where to start? There is so much wrong with the direction that the current adminstrations are trying to steer the patent system. All are heavily pushing the ADS/ESD requirement, which I fear will have a devastating impact on patent filings, patent jobs, innovation, and the like. The last thing we need at this point, based on the economic condition of the country, is something that can have such a dire impact on innovation and jobs.

    I agree wholeheartedly with Mr. Noonan’s conclusion. I have felt, as I am sure many others have, that the current administration’s solution to the backlog of patent applications is to dissuade people from filing patent applications.

  12. Lol, I bet the guy in the top article is JAOI.

    Where do I recognize this Noonan name from?

    Also, here’s a little something I found interesting about the Jon Doll lunch the other day:

    link to patentdocs.net

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