by Dennis Crouch
David Kappos is now the former Director of the United States Patent Office — joining a select group that claims Thomas Jefferson as its inaugural member and more recently includes Todd Dickinson, Jon Dudas, Jim Rogan, and Bruce Lehman. The Kappos era has been interesting and eventful. In the next few weeks we will be jointly publishing a set of Kappos Stories both here and in the Yale Journal of Law & Technology.
Without fanfare, Teresa Stanek Rea has moved into the leadership role as Acting Director after joining the USPTO in 2011 as Deputy Director. Congratulations Director Rea. Rea is expected to continue to push many of the same levers as Kappos – namely reducing the patent backlog, “right sized patents” through cooperative applicant-examiner negotiation of patent scope, and full implementation of the post-grant trial system.
I expect that President Barack Obama will not name a new director until after March. The USPTO Director is also an Undersecretary of Commerce, reporting directly to the US Secretary of Commerce. That position has been held by Acting Secretary Rebecca Blank since June of 2012.
“It is, after all, your position.‘
You obviously do not know my postion then. Nor do you recongize what the facts of the case were, or why such an argument could be dismisses without any reflection.
You are chasing angels on the head of a pin, trying to use a case that does not fit.
“But he will still deny it – and return to post the same crrp again.”
LOL – see any MM post over the last two days. ANY.
MM, where is my page cite you offered?
MM, Might this be an artifact of PTO policy makers studiously trying not to get it because they disagree with the Supreme Court?
anon, the point is this: the government actually made the argument that the ONLY thing wrong with the Bilski claims was that they did not recite the use of a computer or computer readable medium. Think on that just a bit.
It is, after all, your position.
“record rates, every week. Get your head out of the sand.”
That’s MM’s sand and he wants to stick his head into it.
But before you do MM, where is the page cite you offered me?
“suddenly favorable to applicants?”
(sigh) – yet again with a misrepresentation.
Rate, MM, does not equal quantity. It’s a basic concept, and one you are not at liberty to spin.
LOL! Have you seen the grant rate David?
David Boundy said in reply to MM…
Yes.
Right. And you’ve seen the patents that are issuing. If the “laws that work against applicants” were enforced vigorously, we wouldn’t have record number of patents issuing every week.
Did I miss a recent Supreme Court case that opened up the interpretation of our patent laws so they were really loose and suddenly favorable to applicants? I seem to recall the opposite taking place over the past several years. And yet the grant rate goes up.
Maybe the human brain suddenly became incredibly innovative? That must be it.
Gosh, imagine if the PTO stopped enforcing those laws so “vigorously”. We could probably get a 100% grant rate! It would be like a paradise. Everybody could have their own little invention shop, David, in their garage or basement. Just like the old days.
So you are saying that that if you are an innovator, you are anti-patent and if you are a copier, you are pro-patent?
I’m saying everybody copies to some degree. I’m also saying that most what the USPTO consideres “innovative” in the computer-implemented arts is really just copying.
First it was loads of j–k claims re doing that old obvious thing on a computer. Then it was loads of j–k claims re doing that obvious thing on the Internet. Now it’s loads of j–k claims re doing that obvious thing on a hand-held device or on a (get my v-mit bag) “social network”. This isn’t “innovation”. It’s copying.
over-exaggerated and unrealistic caricatures of computer-related patents
LOL. “Unrealistic”? Like that p.o.s. swipe patent? This g-rbage is being issued at record rates, every week. Get your head out of the sand.
I am working with the (admittedly) SIMPLE concept that most people look out for their own economic interests.
No doubt. But most people aren’t sl–zebags who spend their time pushing the limits of the law trying to “make it big” at the expense of others. But it’s not surprising that a certain political party likes to characterize giant swaths of the population in that manner. Hint: it’s the party that caters to wealty people. And wealthy people are the ones who benefit most from our patent system.
I personally believe that many in PTO absolutely refuse to get it, and will issue patents on subject matter that clearly violates Supreme Court case law.
I haven’t been diligent about identifying the grant numbers but I am certain that the PTO is still pumping out easily-recognized Prometheus-style jxnk.
“Why don’t you listen to it?”
Did the court listen to it and grant it any weight? Or did they dismiss it (as I have done)?
I referred to the argument of the US government actually made in oral argument. Why don't you listen to it?
“I personally believe that many in PTO absolutely refuse to get it, and will issue patents on subject matter that clearly violates Supreme Court case law.”
You mean on machines and methods? Heaven forbid.
“I refer to the oral argument.”
I refer to the decision.
(geesh – as if the lecture on holding versus dicta wasn’t enough (with your own supplied reference – you are now trying to make a legal position from oral arguments…?)
I refer to the oral argument.
Sent from Windows Mail
“Certainly, that was the gist of their argument to the Supreme Court in Bilski”
Ned – certainly NOT. Return and re read Bilski, then provide the cite for this gist related to software or computers. You are confusing the courts for the blogs (and missing badly).
Dennis, the PTO also has a lot of power in choosing which issues to not push up, by simply issuing the patents.
Off the top of my head,
DNA
Beauregard claims
Patents on animals
Recall, the main argument that won on the DNA issue in the Federal Circuit, even after remand from the Supreme Court, was that the PTO has been issuing such patents for decades (over the objection of the medical profession, of course).
The PTO could “solve” the patentability of software issue by issuing every apparatus claim involving a GP digitial computer. Some think the have already. Certainly, that was the gist of their argument to the Supreme Court in Bilski — that the only thing wrong with the Bilski claims was the failure to recite a computer or a computer readable medium. This implies that their practice in point of fact has been exactly what I said.
Supporting this notion, I just listened to the oral argument in CLS v. Alice. The argument is still seriously being presented by counsel — relying on Alappat, of course — that a programmed computer is a special purpose machine. Stop thinking. Just issue the claims, they said….
I personally believe that many in PTO absolutely refuse to get it, and will issue patents on subject matter that clearly violates Supreme Court case law.
It takes or it should take a Director with real b#lls to follow the Supreme Court. But, when was that such a person was last appointed to the position? When?
“Yes but what do you do when you have a particularly belligerent examiner that is obviously biased against your type of invention ( e.g. software or business method) and won’t allow the claims no matter what the law says?”
Appeal. There are quite a few examiners in the 3600 group that wouldn’t allow anything unless it was reversed at the BPAI/PTAB. That’s changed recently (hmmm … I wonder if that has anything to do with Kappos).
MM writes “blah, blah, blah, blah”
Did it feel good to write your first paragraph? Did you get a warm, fuzzy feeling inside after you typed it out? I hope so … because that is pretty much the only apparent use for it.
“LOL. That truly is about as simple-minded (and wrong) as it gets.”
As wrong as it gets? So you are saying that that if you are an innovator, you are anti-patent and if you are a copier, you are pro-patent? If not, explain to me what you mean by as wrong as it gets.
I am working with the (admittedly) SIMPLE concept that most people look out for their own economic interests. It isn’t perfect, but its a good rule of thumb.
What are you working with besides incessantly bashing over-exaggerated and unrealistic caricatures of computer-related patents?
David,
Just same old same old MM…
MM,
You have been corrected (multiple times now) on the grant RATE.
Better trolling please.
Yes. Is there a sequitur or only a non?
Big David Boundy: PTO senior staff have only an asymmetric commitment to the rule of law — laws that work against applicants are enforced vigorously
LOL! Have you seen the grant rate David?
IANAE wrote —
Yes, obviously, but they’re not “countering” the Supreme Court. They’re implementing what the Supreme Court says, in theory as best they can, within whatever guidelines can be gleaned from the caselaw.
We all wish that were true. I’ve had more than one conversation with more than one SENIOR PTO official that included sentences like “I am not getting into the United States Supreme Court” or “I decline to follow an instruction from President/Supreme Court/Federal Circuit, and if you don’t like it, go to court/Department of Commerce/OMB” (not “we’re interpreting it differently,” a straight up defiant refusal to follow the law) or “That’s just procedure. We’re trying to get the right answer” or “We don’t give too much attention to statutes like the Administrative Procedure Act and Paperwork Reduction Act.”
PTO senior staff have only an asymmetric commitment to the rule of law — laws that work against applicants are enforced vigorously, laws that provide procedural checks are routinely ignored, or explained away with the blessing of SENIOR PTO staff.
Acting Director Rea, you know where to find me. If I don’t hear from you before then, I’ll touch base after we get past our March 15 filing bubble.
“I wonder if simians are a protected class”
No.
Headless simians, however, are a protected class. They even get away with direct, and repeated blatant lies.
But don’t worry, handing their head back can be quite fun, and can provide a rich lesson to the reading public.
“Is CJ Smith one of the leadership positions?”
No.
“Is CJ Smith a male?”
Yes.
link to uspto.gov
That is MM’s pattern. I’d like to know why everyone else can post comments with less than polite messages, but if I am polite, Dennis deletes my posts.
I wonder if simians are a protected class according to the SCOTUS.
Is CJ Smith one of the leadership positions? Is CJ Smith a male?
NWPA,
You might note that IANAE did not actually answer any of your questions.
I wonder, why not?
The mutually exclusive limitations is funny. I like it when, in an interview, the examiner and SPE discuss whether the several dependent claims that’d collectively add to the independent claim present enough extra limitations to allow the case.
But he will still deny it – and return to post the same crrp again.
“You think my position is that individual Supreme Court justices get to “win” things?”
I think your position is prone and castrated.
I also think that for some unexplainable reason, you really do believe that just because a patent decision goes against a particular applicant, that there can be no pro-patent holding that comes from the decision.
I also think you don’t know shtt about patent law.
Well, he sure knows hot to “effectively” run away from “Integration Analysis”
Ms. Rea is CJ Smith’s boss.
… Flook and Benson would have gone uncabined…?
Don’t look now, but we may be in store for a reprise of MM forgetting what “effectively” means…
Don’t waste time.
Just appeal right away.
Then wait to see which direction the winds blow at the Supreme Court.
Just imagine what would have happened if Diehr had read Flook and then gave up?
IANAE,
Why do you insist on saying things you know are untrue?
“The federal government told the U.S. Supreme Court on Thursday that breast cancer genes isolated by Myriad Genetics Inc. cannot be patented because they are no different from genes that exist in nature, and that patents on isolated DNA should not be issued.”
Hmmm… Well not knowing the case and with no expertise in the art(s) involved, and just going on the 101 statute it would seem that:
the medical process/technique of isolating genes should be patent eligible as a series of acts, A.K.A. process.
But, that the isolated gene itself should not be patent eligible under the product of nature exception.
Agreed Dennis:
For example here are a few hot button 101 disputes the PTO now has the power to push up to the Court if it so choses.
1. MoT Vs. Integration.
2. Underlying Inventive Concept Vs. Inventive Application of Concept
3. Technology Requirement Vs. No Technology Requirement
4. New and Useful Requirement Vs. Novel and Non Obvious Requirement
5. Claims as a Whole Vs. Dissection ( in all it’s guises)
As evidenced by the discussions on this blog the patent community is split over these legal concepts.
And how an applicant fairs at the PTO not only depends on who’s in charge and setting the guidelines, it depends on whom one draws as an examiner.
In my view of course it would be better for everyone if the PTO simply applied the law in all 101 cases as follows with no exceptions :
1. Integration.
2. Inventive Application
3. No Technology Requirement
4. New and Useful Requirement
5. Claims as a Whole
CJ Smith may have something to say about that comment.
such is so unremarkable
Yes, anon, such is a very interesting point.
US Tells High Court Myriad’s Isolated DNA Can’t Be Patented
The federal government told the U.S. Supreme Court on Thursday that breast cancer genes isolated by Myriad Genetics Inc. cannot be patented because they are no different from genes that exist in nature, and that patents on isolated DNA should not be issued.
This is a bummer, eh?
Obama has shown a streak of virulence towards information processing.
Where did you discover this “news”? Or did you make it up?
That 11:21 comment is a classic example of the workings of the wingnut mind. They assume that everybody thinks like they do: kids and other lazy people (remember Ronnie’s “welfare queens”?) want everything to be “free” and they will steal it if they can’t get it legally. Yes, that’s why people are offended by patents on “computerized methods of controlling where Grandma can use her credit card” or “methods of touching a screen to make something happen on a computer”. Because they want everything for free and they are d-mb to innovate by themselves.
If you are a copier, you are anti-patent. If you are an innovator, you are pro-patent.
LOL. That truly is about as simple-minded (and wrong) as it gets. Keep it up! As Kevin Noonan noted a couple weeks ago, you’re doing an excellent job of convincing the public that “innovators” are suffering terribly in this country as a result of those darn kids and all those software “copiers”.
Yes but what do you do when you have a particularly belligerent examiner that is obviously biased against your type of invention ( e.g. software or business method) and won’t allow the claims no matter what the law says?
I think it’s just great that, while women now occupy all the senior posts at the USPTO, such is so unremarkable in our society that no one has commented on it.
Ask him if he feels that he “won,” of course.
You think my position is that individual Supreme Court justices get to “win” things?
Stevens would definitely agree that in any disagreement between the PTO and the Supreme Court, the Supreme Court would win. Because he understands how appellate courts work.
Remember Diehr? You like Diehr. Don’t think the PTO won that one.
“You misunderstand”
LOL – you are projecting and mischaracterizing.
Please don’t do that.
the PTO has tremendous power on-the-ground as the administrative agency making these day-to-day decisions and deciding which disputes to push up.
No doubt. Like other administrative agencies, the PTO can decide for itself (with “client” input) which “disputes” and which Supreme Court holdings can be safely ignored. One “method” of achieving that goal is to train Examiners poorly and encourage all employees to take the narrowest possible view of any Supreme Court decision that might negatively affect the PTO director’s preferred “customers”.
Let’s not forget the awesome job that an earlier President did with his “technology” savvy appointments:
a 24-year old presidential appointee (by George W. Bush) to NASA tried to force NASA scientists to call Global Warming and the Big Bang “just theories”. It turns out his qualifications for his job consisted of working for the elect Bush campaign. Deutsch had also claimed that he had a degree from Texas A&M University. Similar to other claims by the current administration, this educational claim was fraudulent.
And then there was that Arabian horse dealer GWB put in charge of FEMA. Heckuva job.
Please tell me another joke about how Obama has a “streak of virulence towards information processing”. That was a funny one.
wht the SC says is garbled and inconclusive as to that ‘what to do.”
You misunderstand other people’s writing way too often for it to be everybody else’s fault.
“With them, the facts/law are manipulated to support the conclusion instead of having the facts/law inform the conclusion”
Word.
Ask him if he feels that he “won,” of course.
“somehow has historical or statutory authority to do other than what the Supreme Court says.”
You quite miss the point that wht the SC says is garbled and inconclusive as to that ‘what to do.”
Take, for example, Bilski, or for that matter Prometheus.
LOL – ask Stevens.
LOL – ask him what?
“The Supreme Court always wins that “conflict”, as I recall.”
LOL – ask Stevens.
there is no question that the PTO has tremendous power on-the-ground as the administrative agency making these day-to-day decisions
Yes, obviously, but they’re not “countering” the Supreme Court. They’re implementing what the Supreme Court says, in theory as best they can, within whatever guidelines can be gleaned from the caselaw.
I only take issue with the implication that the PTO somehow has historical or statutory authority to do other than what the Supreme Court says.
Just read the guidelines for examining an information processing application. Kappos is responsible for those guidelines. Read the board decisions on 101. Read the briefs by the solicitor of the USPTO. Etc.
In the version I get, the examiner calls up and says “I’ll allow the application if you amend the independent claims to include all the features of the only claim that has a 4-level dependency.”
In a variant, the examiner calls up and says “I’ll allow the application if you amend the independent claims to include all the features of claims 8-10,” where claims 8-10 describe mutually exclusive embodiments.
“The Supreme Court always wins that ‘conflict’, as I recall.”
Except that that “conflict” gets waged, on a daily basis, thousands of times while SCOTUS perhaps takes a handful of cases each year (and perhaps only 1 directly from the USPTO each year).
Given the propensity of SCOTUS (when dealing with patent cases) to give little concrete guidance in their opinions, the burden falls on the USPTO to figure out what they mean.
That “figure out” portion gives the USPTO a lot of clout in determing how the law is going to be implemented.
“What exactly is ‘cooperative applicant-examiner negotiation’ ?”
It is where the Examiner calls up the attorney and says “I’ll allow the application if you do X” (i.e., the USPTO looks to find common ground rather than simply reject everything).
What exactly is “cooperative applicant-examiner negotiation” ?
Thanks
Even though the Supreme Court has final authority in interpreting the law, there is no question that the PTO has tremendous power on-the-ground as the administrative agency making these day-to-day decisions and deciding which disputes to push up.
you do not know the history of the conflict between the district courts, ITC, Fed. Cir., USPTO, and SCOTUS.
The Supreme Court always wins that “conflict”, as I recall.
Surely there are more interesting parts of patent law than that.
Wow IANAE, your statements illustrate that you do not know the history of the conflict between the district courts, ITC, Fed. Cir., USPTO, and SCOTUS.
Too bad…that conflict is one of the most interesting parts of patent law.
This means how the USPTO applies the law to different fact patterns is up to the USPTO
So… you and N-Dubz think that applying the law the way the Supreme Court says is “counter[ing] the SCOTUS”?
Must be a broadest reasonable interpretation of “countering”. If you want to stretch it as far as “following and implementing”, you’d better have the term explicitly defined somewhere.
Everybody has an agenda.
Once you’ve identified someone’s agenda, the fun part becomes determining why they have that agenda and seeing whether that “why” has some basis in reality and/or the law.
There are some for which the “why” is not based upon reality and/or law. With them, the facts/law are manipulated to support the conclusion instead of having the facts/law inform the conclusion. On occasion, they are fun to debate. However, if find it is better to simply ignore them.
Thank you Just saying.
“I’m not familiar with the part of it that makes Supreme Court decisions non-binding on the PTO.”
Did SCOTUS provide explicit instructions on how to interpret, e.g., Bilski? I don’t think so. This means how the USPTO applies the law to different fact patterns is up to the USPTO and the Federal Circuit.
Of course, the Federal Circuit gets their say. However, like SCOTUS, they rarely provide explicit (and unambiguous) instructions as to how to apply their case law. Thus, this “interpretation and implementation” gets pushed down to the USPTO.
Moreover, there is Chevron deference to certain of the USPTO’s interpretations regarding statutory law. This all gives the Director considerable influence to shape the law.
Careful Just saying, that completely objective assessment may indicate that you have an Agenda in actually applying the law fairly, without any taint from third party interests.
Do you not know the APA?
I’m not familiar with the part of it that makes Supreme Court decisions non-binding on the PTO.
OK. Apparently I have to say it nicely. IANAE why did you say that? Do you not know the APA? The long history of the struggle between the SCOTUS and the PTO?
Please be specific. What about my comment would make you say that?
Oh give your nonsense a rest MM.
In case IANAE doesn’t take up the challenge, I will.
The USPTO (via the guidance of the Director) chooses what side of the issue to argue at the Federal Circuit. They can also choose what issues to appeal and what not to.
The USPTO makes thousand of decisions each day as to the patentability of individual patent applications. These decisions are make based upon how the USPTO interprets the decisions of the Federal Circuit and SCOTUS. They can choose to interpret them narrowly or expansively, and those interpretations have a tangible impact.
The rule packages that come out are a direct reflection of how the USPTO (via the Director) sees the law.
One need only look at the measurable differences in metrics between Dudas and Kappos to see the impact of the Director.
All laws (both statutory and case) are subject to interpretation (and implementation thereof) and the entity that performs both (i.e., interpretation and implementation) is the USPTO.
“let’s talk honestly about software.”
Technology … check
interchangeable with hardware … check
Can be claimed as a method … check
Can be claimed as a machine … check
Large software industry in the US … check
As such, there would be no question as to whether software should be patentable. However, there are a couples countervailing forces at work here.
1) there is a vocal number of critics that grew up in the age of Napster and BitTorrents who believe that music, video, and software should be free because they have (for the most part) obtained these items for free and are offended by laws (copyright and patent) that impinge upon their past practices. In this instance, being anti-intellectual property is associated with mindset that “things” should be free.
2) software is a BIG business with lots of $$$ at stake. While there are many innovators, there are also many copiers (sometimes both), and patents make it difficult on the copiers. In this instance, being anti-patent is simply a business decision. If you are a copier, you are anti-patent. If you are an innovator, you are pro-patent. If you are both (e.g., Google), you are publicly anti-patent while (not-so) privately spending $$$ buying patent portfolios.
It is what it is.
Obama has shown a streak of virulence towards information processing.
Is the the sort of news one finds on those “right-wing” patent blogs?
We need a strong director that favors information processing to counter the SCOTUS, Lemley, Moore, etc.
Good luck with that.
Have any of you hardcore patent t–b-gger types noticed that you are almost all older white guys? There’s a metaphor about dinosaurs that’s too obvious to mention. The times they are a-changin’.
It was Dennis who noted a couple years back that State Street was the judicial high point for the Patents Gone Wild Crowd. What’s a bit strange is that in the wake of Nutjen, KSR, Bilski, Prometheus and other decisions Kappos decided to double-down on the bubble inflation. Perhaps if one appreciates the Great Casino aspect of the patent system and the desires of our investor class it’s easier to understand why Kappos felt compelled to open up the faucet and fill the hands of the truly needy.
“that favors information processing”
…reminiscent of the Kappos’ “let’s talk honestly about software” call?
to counter the SCOTUS
I don’t think you have a strong understanding of how the court system works.
Let’s all cross our fingers. Obama has shown a streak of virulence towards information processing. I just hope that we are as lucky as we were with Kappos.
We need a strong director that favors information processing to counter the SCOTUS, Lemley, Moore, etc.
Comments are closed.