[Update — SSRN Link Now Works] Download my five-page essay that forms the newest entry in the Patently-O Patent Law Journal: Broadening Federal Circuit Jurisprudence: Moving Beyond Federal Circuit Patent Cases, 2010 Patently-O Patent Law Journal 19 (2010). The essay is an expansion of my prior post on the SEB v. Montgomery Ward.
Abstract: Federal Circuit patent jurisprudence has typically focused on Federal Circuit law and Federal Circuit precedent. However, recent Supreme Court decisions such as eBay v. MercExchange, MedImmune v. Genentech, MGM v. Grokster, and KSR Intl. v. Teleflex cases have challenged that default position. These cases represent a directive from the Supreme Court that the interpretation of patent law doctrine requires a consideration of history and doctrines that arise from other areas of law. In this essay, I examine the recent Federal Circuit decision of SEB v. Montgomery Ward and consider whether that case represents a shift in Federal Circuit jurisprudence toward an increased influence of non-patent considerations when deciding patent cases and patent issues.
Says who? This is typical Alinsky subterfuge.
RealWorld, are you disagreeing with the assertion that there are problems at the PTO? Or was it just time to link someone you don’t like to Alinksy?
Act as if the existance of a “crisis” is a foregone conclusion and then “find a solution,”
What crisis?
“The issue isn’t whether there are problems with the PTO (I think we can all agree on that), but how best to solve them.”
Says who? This is typical Alinsky subterfuge. Act as if the existance of a “crisis” is a foregone conclusion and then “find a solution,” which really means deconstruct or destroy the old system, whether its broken or not, and then put something else in place (e.g. something that will benefit your cronies).
I think this is how they do stuff in banana republics – and I don’t mean EDT.
With 6 we know he is an examiner and simply loves to annoy attorneys.
IANAE: you seem to like to get on here and stick a pin in people’s head. I guess I am curious where you come from to try to understand why you seem to like to get on here and annoy people.
NAL: you amaze me at your persistence and patience with Malcolm. I find him to be too tiring. He gets pinned to the mat and runs to the next thread seemingly unscathed with no memory of his previous defeat. I half suspect that he is a computer program–seriously. Or a baboon that has learned to type.
I presume you’ll post the serial numbers for all to see.
I think it would be even more fun if he posted the serial numbers now, so we could read the briefs and lay bets.
“I think you’re the only person in the world that so many people call ‘Darling'”
You’re the only creep who calls me that.
“Then, in about a year or two we can discuss the outcome of my cases that are now pending at the board.”
I look forward to that. I presume you’ll post the serial numbers for all to see.
Darling: give me a call.
I think you’re the only person in the world that so many people call “Darling” and yet so few people would want to ever call.
6: You are representative of a stereotypical pissed attorney who thinks he knows something and is better than everyone around him because he has spent a great deal of time acquiring a mediocre grasp on a small portion of the law
Looks like 6 can make at least one rejection stick.
Malcolm,
Your comment, and subsequent running away from providing any evidence on “dishonest” can be found at link to patentlyo.com starting at Jan 30, 2010 at 01:39 PM.
This was less than a month ago – Yet another example of my explicitly calling you out, providing actual evidence and your inability to do anything but play your cheap parlor tricks.
Don’t you get tired of playing the fool?
“You had your chance to discuss whatever you wanted at the GSK hearing at the Fed. Cir. But you wussed out. What was your excuse? Oh yeah, you had a “mandatory art unit meeting.” On a Friday morning. LOL”
Man I did have a meeting, you know I wanted to go to that sht. And I made it to both Bilski and Ariad. That’s 2 I made it to to your one.
“Tell it to the Board. Why don’t you call up the last couple of primaries I embarrassed at the Board and ask them what it’s like to get beaten like a drum by somebody with no technical knowledge? Some day you’ll get the chance to join them.”
LOL, then let’s discuss your loses, and I’ll contact those last few primaries that embarrassed you at the board. Then let’s also discuss how much incredibly better I probably am than those random primaries are. Then, in about a year or two we can discuss the outcome of my cases that are now pending at the board.
Then, after all that, we’ll take a look at your work product from your 3rd year of examining. Then we can all settle in for a real hearty chuckle. How’s about that?
The last examiner who I checked up on only took one patent for me to find something embarrassing for them. I wonder how long it’ll take me for you? One, two patents? The one thing that I can say for certain is that I take pride in my issued patents, which is probably a far cry from what you’d be able to say. Even leaving the topic of the subject matter aside.
JD, why I refer to you is simple.
You are representative of a stereotypical pissed attorney who thinks he knows something and is better than everyone around him because he has spent a great deal of time acquiring a mediocre grasp on a small portion of the law (and little else, especially not technical concepts). Furthermore, this sense of accomplishment is fueled by his being allowed to lord what little understanding of the law he has over those with no training to match his. He is slow to recognize his betters and is even slower to admit defeat on a point on which he is often blatantly now taking the opposite position than he previously took. Finally, this person is outlandishly slow to see the faults in his own behavior even when having them benevolently pointed out for him.
Oh, and I didn’t mention one thing, the real kicker is, he’s pissed for no real reason.
You are, in a word and in a way, the Everyattorney.
I’m getting a sense of deja vu, did I explain this to you before?
“I think that’s actual looped footage of JD receiving a Final Office Action.”
Your post of Feb. 3 at 8:27.
Yes, that’s the one I was referring to. Thank you. So, a single (spot-on, hilarious) comment referring to you over a span of at least 6 months makes me “obsessive”?
Seems like the bar is set a tad low, friend.
“I think that’s actual looped footage of JD receiving a Final Office Action.”
Your post of Feb. 3 at 8:27.
Don’t sweat it Malcolm, 6’s obsession with me is way deeper than yours.
“Your horrendous ability to be persuasive?”
Tell it to the Board. Why don’t you call up the last couple of primaries I embarrassed at the Board and ask them what it’s like to get beaten like a drum by somebody with no technical knowledge? Some day you’ll get the chance to join them.
“I’m going to need some sort of an agenda for the day’s meeting. A list of topics so I can be prepared.”
You had your chance to discuss whatever you wanted at the GSK hearing at the Fed. Cir. But you wussed out. What was your excuse? Oh yeah, you had a “mandatory art unit meeting.” On a Friday morning. LOL
“I still don’t care what you think of me, Professor Darling.
Funny how that works, isn’t it?”
Not really. When you gain your first convert to your “idealistic” approach, give me a call. If you ever find the courage.
Wow, I stay away from The O for a couple days and I miss out on Teabaggapalooza! NAL, JD, AI, the gang’s all here. Quoting Ronald Reagan no less. Excluding Joe the Plumber, I believe that’s the entirety of AI’s crack team of Constitutional Analistes.
A humble request: AI, more of those homemade Inventors Rights documents, and NAL, more of those “voices in your head” style posts. They were classics! Almost up there with Leviathan.
“Wanna see my Hawaiian birth certificate? It’s only the short form, but I think it’s pretty convincing.”
I would be interested in seeing this document. I am fairly certain that all Hawaiian birth certificates are forgeries.
“I figured sometime last year you shaved your head and set yourself on fire in front of the patent office.”
lolololololol, that’s what Noise should do next time she gets a notice of non-compliance for forgetting to put a period on the end of the first claim.
You misspelled “wit” there.
You misread “satire” there.
You has a guest book?
If I signed your guestbook then I’d have to kill everyone who saw it since there can be no record of my comings and goings.
Besides, what views should we discuss? The underside upwards view of a toilet paper holder and the benefits of over/under (as recently seen on TV)? Stand alone structural limitations in a method claim? Your horrendous ability to be persuasive?
I’m going to need some sort of an agenda for the day’s meeting. A list of topics so I can be prepared.
And wait a minute, why is it that I have to go all the way downtown when you come down here for interviews every now and again anyway? Surely you do interviews. And I won’t even make you sign the guest book.
NAL’s obsession with you is not any more weird or creepy than your obsession with me, Malcolm.
Dude, just a friendly reminder: it wasn’t me who decided to call him/herself “Huh?” or “Gah” while littering the thread with insults and invective baloney directed at yours truly.
Until that hilarious cartoon of you in the David Byrne suit showed up, I don’t think I’d mentioned your name for half a year, at least. Why would I? I figured sometime last year you shaved your head and set yourself on fire in front of the patent office.
I still don’t care what you think of me, Professor Darling.
Funny how that works, isn’t it?
“Yeah, but you still would even if I posted my registration number, so forgive me for not caring.”
If you had the courage to post it, I’d believe it.
Unfortunately, the only courage you have is the type of courage you so loudly accused others of having.
Funny how that works, isnt’ it?
Obfuscation!
You misspelled “wit” there.
See, there’s a point I was trying to make, but you need to read harder if you want to see it.
Wanna see my Hawaiian birth certificate? It’s only the short form, but I think it’s pretty convincing.
Obfuscation!
So I take it the answer to the question of wheter your licensed to practice before the PTO is no.
Yeah, but you still would even if I posted my registration number, so forgive me for not caring.
Wanna see my Hawaiian birth certificate? It’s only the short form, but I think it’s pretty convincing.
So I take it the answer to the question of wheter your licensed to practice before the PTO is no.
And you obviously don’t know me at all.
Probably so instructive that I’ll be persuaded that I’ve been doing it all wrong all these past 11 years.
I know you well enough to confidently say that nobody could ever persuade you that you’ve ever done anything wrong.
BTW IANAE, in the unlikely event you do find a little courage and want to stop in for a chat, bring along some of those great patents you and your idealism have prosecuted. I’m sure I’ll find them quite instructive. Probably so instructive that I’ll be persuaded that I’ve been doing it all wrong all these past 11 years.
I think somebody asked you if you’re licensed to practice before the PTO. I can’t recall seeing an answer from you.
So what’s your answer?
“As noted, you are obsessed with me”
NAL’s obsession with you is not any more weird or creepy than your obsession with me, Malcolm. Wear it like a badge of honor.
“I’m looking at you, Darling”
Now this obsession is really weird and really creepy.
“…and depend on a heavy dose of keyboard courage…to back up their opinions.”
Any time any of you anonymous wonders want to discuss your views in person with me, you know where to find me. Stop by. Sign the guest book. We’ll chat.
Somehow I get the feeling that IANAE, Malcolm, 6 et al. won’t be able to muster up much beyond their “keyboard courage.”
Funny how my suggestions, which are meant to help are taken as an attack, or a battle call to – “you better lambast the Office or else”.
I’m still trying to decide whether your suggestions are genuinely helpful or a clever way to appear open-minded while suggesting that “other people” will only accept my views if I act a certain way.
Either way, my opinions are what they are. I’m willing to be persuaded to change them, but never by someone who has clearly chosen his side before the first word is spoken. (I’m looking at you, Darling)
Likewise, I see value in IANAE’s messages at times. However, his message does get lost
Thank you. When I see the words “professor”, “examiner”, “academic” thrown back in my direction, I know my message was not so much lost as carefully avoided. People like JD pick a side and vehemently defend that side against all comers, regardless of the strength of the arguments on either side. They use the same tactics and arguments that they loudly criticize in others. If truly desperate to not consider an opposing view, they’ll classify people into categories they’ve already decided to ignore. That’s what lawyers are usually paid to do, and some clearly also do it in their spare time.
When I say “it’s the internet and I don’t care”, I don’t intend that for everyone here. It’s only for the sort of knee-jerk name-callers and attention-seeking trolls who are impervious to reason and depend on a heavy dose of keyboard courage or a bar membership to back up their opinions.
“What bugs is the incoherency, the inanity, the misinformation, the hypocricy, and the weird pride in being a miserable pill.”
That describes you perfectly, Mooney.
I’m loling at all of u 🙂
NAL That link does not prove your point in the least
Yes, it does actually.
I will sling just as fervently as you
As noted, you are obsessed with me, and 6, and MaxDrei and you are working now on IANEA. That much is beyond dispute. I don’t really care how “fervent” you or AI or any of the other angry teabaggers are. What bugs is the incoherency, the inanity, the misinformation, the hypocricy, and the weird pride in being a miserable pill.
My dear Noise, you’ve outdone yourself once again. IANAE suggested earlier that he is sometimes ashamed of the behavior of certain individuals who are privileged to be members of the bar. But, I ask, could anyone, after reading your declaration, feel anything other than an overwhelming pride at being evenly remotely associated, through even such an imperfect vehicle as this blog that we affectionately call the Trainwreck, with practitioners of such obvious passion, speaking to us, teaching us, with the level of clarity and precision that you unwaveringly deliver?
This is a rhetorical question, of course, as the answer should be obvious to almost all of us. Of course, nihilistic naysayers, perverse obstructions, and other disseminators of obfuscation, red-herrings, and strawmen, will doubtless feel compelled to continue their attacks and their distracting dissembling. But, as you say, it “is sometimes necessary to counteract those whose want is to purposefully misdirect” – thus I am compelled to speak, and keep speaking, until the truth rings through, loud and clear.
IANAE
MY guess is he is a Professor. And a very respectful person. The kind of person that would treat a janitor the same way he’d treat anyone that taught school. He see’s everyone as a Human Being. If I were you I’d stop guessing. Stop guessing, because he ain’t saying.If you listen to his post, you may see him as more than just an academic. You ask why I think that? Well that’s easy because he sees more than a janitor, or a teacher, or a lawyer. Sometimes he is even eloquent. He may even be an Atty. Or he is licensed as one. But does other things instead.
That’s my story and I’m stickin to it.
“We’re discussing one such example right now, JD.”
We are? Whose character was assassinated?
“How many dozens, JD? Two dozen? Three dozen?”
Too many to count.
“But if you have actual knowledge that some people don’t stop at stop signs, you should demand proof in case said proof presents you with an additional technicality to argue.”
Huh?
You’re rambling. But maybe you can work that hypo into your next Law of Whatever 101 you’re teaching next semester. Extra credit for any student who can actually figure out if you have a point about anything in particular.
NAL give me an example of my behavior which exemplifies this so-called difficulty with integrity?
Pretty much any thread you’ve ranted in where you posted incomprehensible stuff and then, when asked to explain what you meant, you resort to name-calling and smears and dredging up some perceived “misdeed” from months or years back to justify your behavior.
You know, sort of like you did just now.
For those not yet aware of Malcolm’s humiliation
LOL. That link only proves my point, NAL. Thank you.
Given the propensity of Malcolm to openly flaunt his shame and accuse those who would hold him up to scrutiny, perhaps the club should be rechristened as follows:
Skirt-wearing and
Hiding
In plain site,
Track
Shoe club
AI,
I found your Top Ten list to be a creative and rather humorous compilation. Perhaps it should be posted on the respective threads wherein the arguments were made. Such humor is a nice counterpoint to the vexatious postings of Malcolm.
There is one minor point of clarification: it is the Skirt and Track Shoe Club.
So, either start bashing on the PTO or get used to it. These people are really obsessed.
I’ve seen “really obsessed”. These people couldn’t hold a candle to “really obsessed”.
I wouldn’t flatter them with anything stronger than “opinionated on the internet”.
If you have actual knowledge of an ethical violation by a member of the bar, you have an obligation to report it.
But if you have actual knowledge that some people don’t stop at stop signs, you should demand proof in case said proof presents you with an additional technicality to argue.
Patent agenting is so complicated sometimes.
“NAL has difficulty with concepts like “integrity””
– coming as it were from the person whom I lambasted for complete lack thereof – this post falls to “irony”. At the very least, I thank God that I have difficulty with your sense of “integrity”, Malcolm. For those not yet aware of Malcolm’s humiliation, please see the thread at: link to patentlyo.com
As I have asked you in prior posts, Malcolm (when you likewise accused me of similar misdeeds of dishonesty), give me an example of my behavior which exemplifies this so-called difficulty with integrity?
One example.
Just one.
…Thought so (you never supplied an example to back up your “dishonest” comment either – funny how you don’t seem to be able to back anything up – yet examples of your misdeeds are so readily available).
JD If you have actual knowledge of an ethical violation by a member of the bar, you have an obligation to report it.
That’s nice.
Any examples you’d care to provide?
We’re discussing one such example right now, JD.
dozens of posts you’ve made calling certain members of the bar “sleaze bags.”
How many dozens, JD? Two dozen? Three dozen?
“…has a tendency to engage to engage in… character assassination…”
Any examples you’d care to provide?
Then maybe we can round up the dozens of posts you’ve made calling certain members of the bar “sleaze bags.”
“…has a tendency to engage to engage in… character assassination…”
In the event that you actually obtain any character, Malcolm, let me know.
“At least some practicing members of the patent bar certainly do their own interests ahead of their clients’ interests, at least some of the time. I’ve seen it often enough.”
If you have actual knowledge of an ethical violation by a member of the bar, you have an obligation to report it. You shouldn’t use your snivelling, anonymous comments posted on this site as a substitute for what you don’t have the ethical backbone to do.
If you don’t have actual knowledge, you should keep your mouth shut. You should also spare the rest of us your sanctimonious BS.
NAL: Yet another non-answer. In fact, the point I was making is that you, IANAE, are one of those going out of your way to cultivate that image.
Don’t say I didn’t warn you, IANAE.
NAL has difficulty with concepts like “integrity” and, like JD, has a tendency to engage to engage in hyperbole and character assassination when cornered (or sometimes just for the heck of it). It’s hardly worth responding to, although that will not prevent them from using you gratuitously as a punching bag.
So, either start bashing on the PTO or get used to it. These people are really obsessed.
JD Instead you regularly post accusations that practicing members of the patent bar put their own interests ahead of their clients
I haven’t noticed these “regular” accusations but it’s hardly a novel concept. At least some practicing members of the patent bar certainly do their own interests ahead of their clients’ interests, at least some of the time. I’ve seen it often enough.
Posted by: Thomas Hobbes was here | Feb 16, 2010 at 04:20 PM: Cool – broje and WCG have now joined the Track and Skirt club! AI, those nattering nihilistic naysayers are falling like dominoes, aren’t they! Nice work.”
_______
LOL..well they are quite the intellectual cowards for posting their bold and often ridiculous assertions then cutting and running up the hill with Malcolm.
So, in homage to the not so brave souls of the TSC, I have complied their top ten list of reasons why the Inventor Rights Stated in the Constitution, are not Constitutional Rights.
THE TOP TEN REASONS
The Inventor Rights stated in the Constitution are not Constitutional Rights. According to the Track and Skirt Club.
(10) Because Congress has exercised its power to enact legislation that created Statutory rights for Inventors, those Statutory rights can’t be Constitutional Rights.
(9) Because the Inventor Rights stated in the Constitution can be taken away with amendment or abolishment those Rights are not Constitutional Rights,
(8) Because Rights that have been codified into statute are statutory rights and therefore cannot be Constitutional Rights, even though the Rights were first stated and ratified in the Constitution.
(7) Because the word PATENT is not in the Bill of Rights or in the original text of the Constitution there is no Constitutional Right for a Patent.
(6) Because Congress had a choice to act before it acted to exercised its power to promote the progress of Science and Useful Arts, by securing for limited times to Inventors the exclusive Right to their discoveries; those exclusive Rights stated in the Constitution and Secured to Inventors by Constitutional power are not Constitutional.
(5) Because you need to go to Law School. Or if you are 6, “LOL” school.
(4) Because The preamble of the Constitution is just a bunch of fancy words and carries no weight. And Congress = We the People is absurd. WE THE PEOPLE are the servants to Congress Dam you!
(3) Government can do what it wants and life is meaningless. Death to patents Long live Nihilism!
(2) Because Malcom Mooney while dresssed in drag as Orly Taitz and typing on a computer kicked your but!
And the number one reason the Inventor Rights stated in the Constitution are not Constitutional Rights.
::DRUM ROLL::
.
.
.
.
(1) Inalienable (R) ights are not endowed by any Creator but by the (S)hift (K)ey on your (C)omputer!!!
IANAE,
In response to my statement of “Your “fresh eyes” consistently view our profession in negative tones.”, you mentioned “Some members of the profession seem to go out of their way to cultivate that image.”
Yet another non-answer. In fact, the point I was making is that you, IANAE, are one of those going out of your way to cultivate that image.
One wonders why you expend such prodigious effort in doing so.
What exactly this forum is, or could be, is open to us as users. To your remark that simply agreeing would merely add clutter – I would posit that simply disagreeing adds just as much clutter. While we can both be clever about how we present our countervailing views, much to the enjoyment of the reading masses here at the Trainwreck, such banter does not reach what you identify as a noble goal – to actually solve problems.
However, your responses typically fall short of anything more than negatively disagreeing. You indicate that the issue is in how best to solve problems at the Office – yet you do not seem to post such suggestions. As you are the one identifying this as a reason to post, shouldn’t you be at least one posting such suggestions?
In fact, your typical flavor of post (ideal) IGNORES the need for such suggestions. It’s not that harping on the Office’s problems is essential, but it is essential to recognize the problem in order to put forth corrections to those problems. You often have to have your initial views assailed for you to come forth with recognition that a problem is even under discussion. Your “ideal” posts tend to slam practicioners and make it seem that the Office has no problem that a solution must be found for. It is this combination of “idealism” (again –this is not a compliment) and negative views on the patent bar that jade your moniker and any input you offer. Granted, this is the internet and I am not asking that you write to please JD or even myself – but in the interest of reaching that noble goal, you should be aware of how your message comes across. JD tends to be a vocal proponent- but one that I would daresay represents your target audience. If you do not care whether your message is effectively reaching your target, I would posit that such postings of yours are just as much clutter as the “agreeing” type that you would be loath to put forth.
“I pointed out an admission of same.”
Feel free to repost or provide a link.
Then maybe I’ll dredge up some of your accusatory posts. If I feel like it.
Reminder: A simple yes or no will suffice.
Instead you regularly post accusations that practicing members of the patent bar put their own interests ahead of their clients
I pointed out an admission of same. That’s not the same thing.
“It’s not like anyone could ever change JD’s mind anyway. I’d really have to be an idealist to shoot for that target.”
If you weren’t such a sanctimonious tool you might have a chance at changing his mind.
Instead you regularly post accusations that practicing members of the patent bar put their own interests ahead of their clients when you’ve never seen the work those practitioners do and you have no knowledge of their clients or the clients’ relationships with those practitioners.
NAL let you off the hook with a softball question, but the question that should have been asked is whether you are licensed to practice before the PTO.
A simple yes or no will suffice.
Your “fresh eyes” consistently view our profession in negative tones.
Some members of the profession seem to go out of their way to cultivate that image.
ignoring (treating reality as an ideal world) the substance of what the bar is trying to draw attention to.
This board isn’t a good forum for agreeing with people. If I could post agreement with people here without adding empty clutter, I would do it more often.
There are already more than enough people calling attention to the problems at the PTO. The issue isn’t whether there are problems with the PTO (I think we can all agree on that), but how best to solve them.
I don’t treat the PTO as an ideal world, I say how I think it should operate. That’s no different than anybody else here. If you think my ideas are unrealistic that’s fine, but they’re certainly no more so than telling fewer examiners to do more counts for less money until things get better.
You are being dismissed out of hand
Yeah, I’ve been to the internet before. I know how it works.
It’s not like anyone could ever change JD’s mind anyway. I’d really have to be an idealist to shoot for that target.
“the JDed perspective of my profession”
Odd it is then, that it is YOUR posts, more often than not, that exhibit a jaded view of our profession. Your “fresh eyes” consistently view our profession in negative tones.
I can understand the distancing from the Office bashing, but your posts go to the opposite extreme, both bashing the attorney profession and ignoring (treating reality as an ideal world) the substance of what the bar is trying to draw attention to.
I will grant that you do post on Office foibles, but that is not what the monkier “IANAE” brings to mind. In fact, the very notion that you have to announce that you are not an examiner in your moniker underlies the problem you have with your general posting – it is hardly a “fresh” view, and more in truth, a rather jaded view of your self-professed profession.
I harp on this point, not so much to disparage your every posting – but to bring additional light as to why your very pedigree is questioned. BTW – it is not in a good light that those comments are made, so do not fool yourself into thinking that you are effectively making your point. You are being dismissed out of hand – not by me, but by at least a few of those that you may be wanting your message to reach.
“Not everyone is a jackxss like you.”
True. There’s quite a few who are jackxsses like you.
“Pun of the Year nominee.
Well done.”
I’m sure that means so much to IANAE, as IANAE, and everybody else here, just lives for your approval.
LOL
IANAE the JDed perspective of my profession
Pun of the Year nominee.
Well done.
Huh? Sure you do. Because you know that academics receive no respect from practitioners on this site.
Speak for yourself. Not everyone is a jackxss like you.
“Yeah, I live for your approval. Just like everyone else here.”
Right back at you, Professor.
Because you know that academics receive no respect from practitioners on this site.
Yeah, I live for your approval. Just like everyone else here.
Dennis: Sorry to hear that the practitioners on this site don’t respect you. I had no idea.
It is also slippery answers like this that tend to make people doubt that you are a practicing attorney
It’s funny how we come to believe what we believe. Most people would see a slippery answer and assume the person is an attorney.
I am a practicing attorney. I don’t like to get all caught up in taking sides, and I don’t put much stock in titles or labels. I’d rather approach each issue with fresh eyes than through the JDed perspective of my profession.
(let’s just say that I would fight harder for more coverage)
I would also fight harder for more coverage, but I would first think about how likely that fight is to result in more coverage, and how likely it is to simply result in delayed coverage. I don’t mean this for you in particular, but some people do get so caught up in the fight that they forget what they’re fighting for and what counts as winning.
Alun: good points all around. I completely respect taking issue with “official notice” of what may not have been well-known at an earlier date, or of a fact that really should be supported by a reference. I only take issue with proudly doing it as a matter of course.
Sometimes examiners take official notice because it’s simpler than finding a reference for something really blatant in the limited time they’re given, or because it’s so well-known it doesn’t get mentioned a lot in patents. In that case, you (not you personally, but… you know) do your client a disservice by not simply amending your step of “making an incomplete stop in response to said stop sign”.
It puts the lotion on its skin…
“I don’t mind being called an academic”
Sure you do. Because you know that academics receive no respect from practitioners on this site.
If you weren’t an academic, you would have simply responded to NAL’s question with “I’m not an academic.”
We’re way past substantial evidence now. We’re like in beyond a reasonable doubt territory. Coming up fast on beyond all doubt.
Thanks IANAE, I do appreciate your comments, and more often than not I read your comments earnestly – even if I do not agree.
You did not answer my question, tho. At least not directly, and I do not want to make an errant assumption. It is also slippery answers like this that tend to make people doubt that you are a practicing attorney (perhaps a retired attorney, or one who has made a career change…).
As to ideals – that’s a little coy – and again very negative to attorneys in general, as the subtle hint is that attorneys do not have ideals, inwhich we will disagree – in fact, we have tussled on what the ideal level of “fight” should be in obtaining appropriate coverage (let’s just say that I would fight harder for more coverage).
So your language even here paints you as someone NOT in private practice at the least, and probably not a practicing attorney at all. I do not want to put words in your mouth either way, so a direct answer would be appreciated.
Alun – good points.
Regarding 112, the Examiner can often come up with strange interpretations of the claims that have nothing to do with the invention, and amending to foreclose those makes more sense than arguing. I only argue over substantive issues, as I see it.
As for asking for proof in response to receiving Official Notice, my attitude is quite simple – if it is that well known, then why can’t you give me a reference? Sometimes the answer may be that although it is well known now, it wasn’t back when the app was filed.
The Examiner may instinctively recognise something they have seen before, but have no idea when they saw it, and all my cases take 4 or 5 years to get a FOAM in the electrical art, whilst a huge number of new innovations have appeared on the market in that time.
“From comments like ~ “you are being too lawyerly” to “Go back to being the lawyer version…” you exhibit an animosity towards lawyers that indicates that you are outside that group.”
It’s not that I’m outside that group, it’s that I don’t want to be associated with that group when I see how some of its members conduct themselves.
I also recognize that patent prosecution has two sides to it, and both sides have their problems. Lawyers often get too caught up in being adversarial, and circle the wagons rather than admit any personal or professional shortcoming. It’s disingenuous for lawyers to insist that the PTO is the source of all their problems, and I won’t stand by them while they do it.
“Add in your propensity to post as if the patent universe operated in an ideal world, and it is easy to see why people would think that you are an academic.”
Okay, so I have ideals. I have an idea of how things ought to work, and I usually see them more as objectives than as whimsical imaginary alternate universes. I also see a few people here who have been prosecuting patents for years but are blind to the realities of the system because they live in their sheltered billable world where all the real costs and risks are passed on to their clients. If you’re looking for someone who lacks perspective, talk to a lawyer in private practice.
I don’t mind being called an academic or an examiner. It tends to mean someone is resorting to name-calling so they don’t have to think about what I’ve just said.
My post did not take, so I’ll try again:
IANAE,
As I have already posted – your manner of posting paints you as not an attorney. From comments like ~ “you are being too lawyerly” to “Go back to being the lawyer version…” you exhibit an animosity towards lawyers that indicates that you are outside that group. Add in your propensity to post as if the patent universe operated in an ideal world, and it is easy to see why people would think that you are an academic.
However, as one who also subscribes to preserving my identity, I would not ask for serial numbers from someone who obviously wants to preserve their identity. I would not expect serial numbers to be forthcoming, even if you were an attorney.
So short of guesswork, let me come right out and ask – are you an academic? Are you a practicing attorney, not affiliated with the Office?
Actual Inventor and West Coast Guy,
Rather than writing off one another, perhaps West Coast Guy could be enticed to visit a thread that has this debate ongoing. There he can read through the voluminous posts before he is tempted to address his position and retread ground already covered. There too he can put his position in a tone more inclined to scholarly debate (he need not be as formal as the honorable Mr. Hobbes), but he can definitely avoid the stain of Malcolm in the ardent hopes of advancing the discussion, rather than shouting back and forth. He may also find the smackdown of Malcolm entertaining (who wouldn’t? – wait 6 wouldn’t – well that says enough, doesn’t it?). Perhaps then also, he would be a little less quick to heed any advice offered by Malcolm.
Malcolm,
I see that you are slipping to the de-personification mode by the reference of feeding “it”. Lovely that the Jame Gumb side of you comes out yet again. After all, isn’t that what these message boards are for? How is your human suit coming along?
West Coast Guy | Feb 16, 2010 at 03:53 PM: Wrote, I disagree for the reasons that I’ve already stated. There is nothing more that you can say to convince me that I’m wrong and that you’re right. I will now heed Malcolm’s advice.
Okay West Coast Guy, that is fair. Since you have chosen not to clarify your statement, I will now take your statement at face value.
So in Court your evidence that the Inventor Rights stated in the Constitution are not Constitutional Rights for Inventors is based soley on your argument;
” because Congress has exercised its power to enact legislation that created Statutory rights for Inventors, those Statutory rights can’t be Constitutional Rights.”
To which my team of Constitutional Law Scholars will first enjoy a brief internal chuckle, and respond that not only is no such text stated anywhere in the Constitutional, there is clear precedent where courts have decided Constitutional Rights independent from the statute. Citing Wisconsin v. Yoder, 406 U.S. 205 (1972) for starters.
And down Goes Malcolm and West Coast Guy!
IANAE,
As I have already posted – your manner of posting paints you as not an attorney. From comments like ~ “you are being too lawyerly” to “Go back to being the lawyer version…” you exhibit an animosity towards lawyers that indicates that you are outside that group. Add in your propensity to post as if the patent universe operated in an ideal world, it easy to see why people would think that you are an academic.
However, as one who also subscribes to preserving my identity, I would not ask for serial numbers from someone who obviously wants to preserve their identity. I would not expect serial numbers to be forthcoming, even if you were an attorney.
So short of guesswork, let me come right out and ask – are you an academic? Are you a practicing attorney, not affiliated with the Office?
Actual Inventor and West Coast Guy,
Perhaps West Coast Guy could be enticed to visit a thread that has this debate ongoing. There he can read through the voluminous posts before he is tempted to address his position and retread ground already covered. There too he can put his position in a tone more inclined to scholarly debate (he need not be as formal as the honorable Mr. Hobbes), but he can definitely avoid the stain of Malcolm in the ardent hopes of advancing the discussion, rather than shouting back and forth. He may also find the smackdown of Malcolm entertaining (who wouldn’t? – wait 6 wouldn’t – well that says enough, doesn’t it?). Perhaps then also, he would be a little less quick to heed any advice offered by Malcolm.
Malcolm,
I see that you are slipping to the de-personification mode by the reference of feeding “it”. Lovely that the Jame Gumb side of you comes out yet again. After all, isn’t that what these message boards are for? How is your human suit coming along?
Cool – broje and WCG have now joined the Track and Skirt club!
AI, those nattering nihilistic naysayers are falling like dominoes, aren’t they! Nice work.
Actual Inventor,
“Then by all means explain yourself.”
No more. I have already in many previous postings.
It is quite evident that we will not have a meeting of the minds in what constitutes a Constitutional right.
Because the word “Right” appears in the Constitution, that makes it constitutional, i.e., a constitutional right.
I disagree for the reasons that I’ve already stated. There is nothing more that you can say to convince me that I’m wrong and that you’re right.
I will now heed Malcolm’s advice.
–30–
Posted by: broje TINLA IANYL | Feb 16, 2010 at 12:07 PM: AI asks, “Where does it state in the Constitution that Inventors have no Constitutional Rights to their invention?”
Its where the Constituion empowers Congress (i.e., the Federal Government) not to grant patents or to grant patents, at its option.
AI: Can you state exactly where in the Constitution the word “Option” is used regarding the grant of patents?
broje: It’s like asking, where in the Constitution does it say that the Federal Government cannot abridge free speech of the People? The answer is that is is in the first amendment where the right to free speech is reserved to the People.
AI: This is akin to arguing that the only Constitutional Rights WE THE PEOPLE have are in the Bill of Rights. Yet you can’t provide any historical facts to support such an assertion.
broje:Your argument that Congress = We the People is absurd.
Interesting, Alexander Hamilton when faced with similar sentiments from Anti Federalist retorted; Is Congress to be a tyrannical Aristocracy?
Forgive me if I err on the side of History and Alexander Hamilton.
AI, I will only respond to your arguments against my statements above if you make them in this thread: link to patentlyo.com
There are already plenty of opportunities in that thread and next for you to respond if you so desire. I am only in this thread because Mooney so cowardly posted under so many alias a barrage of fallacious statements to only to cut and run when confronted. If you wish to join him in the Track and Skirt club, that is your prerogative.
Actual Inventor,
“Okay so if I understand you correctly you are stating that because Congress has acted and created statutory patent rights, the Inventor Rights stated in the Constitution are not Constitutional. Is that a fair assessment?”
West Coast Guy : “No, this is not a fair assessment.”
Then by all means explain yourself.
Posted by: West Coast Guy | Feb 16, 2010 at 02:49 PM: Simple question: In your opinion, what day was the first day on which an inventor had a constitutional right to a patent?
I have no opinion on that. Now, what is your point?
Please, WCG: do not feed it.
Actual Inventor,
“But regardless of the exact historical time line you have simply failed to establish as fact, that the Inventor Rights stated in the Constitution are not Constitutional Rights.”
Wrong.
Simple question: In your opinion, what day was the first day on which an inventor had a constitutional right to a patent?
“someone from this great Patent Community could present a solid reason that would stick.”
It’s harder than you’d think to present a solid, persuasive argument that can overcome “lalala I can’t hear you lalala”.
That’s why some people make it a central pillar of their OA response strategy.
Actual Inventor,
Question: Do you understand that on the day the Constitution was ratified, inventors did not have an exclusive Right?
West Coast Guy:
As I understand it, the Constitution was not ratified in a single day. The Constitution was ratified over a period of time by each state starting with Delaware on December 7, 1787, and ending with Rhode Island signing last in May 1790.
But regardless of the exact historical time line you have simply failed to establish as fact, that the Inventor Rights stated in the Constitution are not Constitutional Rights.
So far ever every reason you have given has fallen apart under closer examination.
You would think, that if it was so cut and dried, that Inventors have no Constitutional Rights to their Inventions, someone from this great Patent Community could present a solid reason that would stick.
Advisory Action:
IANAE, your request for reconsideration was considered, but unpersuasive.
6,
Still waiting for a serial number. Just one. Any one.
BTW, it’s spelled “referred.” I guess you’ve given up all hope of ever crawling out from under your rock.
Enjoy.
Actual Inventor,
“Okay so if I understand you correctly you are stating that because Congress has acted and created statutory patent rights, the Inventor Rights stated in the Constitution are not Constitutional. Is that a fair assessment?”
No, this is not a fair assessment.
Question: Do you understand that on the day the Constitution was ratified, inventors did not have an exclusive Right?
If you don’t understand this, there is no hope.
“Where does it state in the Constitution that if Congress chooses to exercise its power to enact legislation that creates Statutory rights for Inventors, the Inventor Rights stated in the Constitution are not Constitutional?”
The “if Congress chooses” part.
Constitutional rights aren’t optional. Optional rights aren’t constitutional.
“The answer is that is is in the first amendment where the right to free speech is reserved to the People. ”
Unless of course the USSC and lawyers say otherwise. Lawl in this country is so lolable.
“So you sit around reading applications and patents all day, and consider yourself a “technical expert”, but you think that the people who write all those applications and patents you read don’t have any technical knowledge?”
Actually the portion of the population of people who “write all those applications” to which I refered was a single individual. That single individual was you JD. Read mah post before you post.
“the % of that happening is rather small.”
I might go check your record. If the instances of this occuring exceed 90% shall we all havea good lol @ u? Maybe while I’m at it I should take a gander at how many method claims you issued as an examiner that include stand alone structural limitations? How many would it take for everyone to have a good lol @ u?
“Well isn’t that cute.”
Actually it is. Cuter even than you being eaten by a suit. Which was a rather cute little animation mind you so that is saying something.
“You said it would be easy to find.”
It is easy to find. In fact I have it on my screen as we speak. In my rejected tab lol.
“Well, let’s see, you don’t actually prosecute applications yourself, but you’re on this site lecturing others on how they should prosecute their applications.”
Based upon that evidence, couldn’t he be, inter alia, a partner?
“you don’t actually prosecute applications yourself,”
You can’t back up one unsupported fact with another. Try harder.
“In the absence of an adequate traversal of my taking Official Notice that you’re an academic (i.e. some patent numbers), I’ll take it as admitted that you are an academic.”
Yeah, that sounds like something you would do. By which I mean, it sounds exactly like something you get very upset when other people do.
Go back to smugly issuing your notices of non-compliant rejection and padding your counts. Go back to being the lawyer version of this guy. Don’t delude yourself into thinking you’re any better than him just because you charge more per hour to do it.