Congressional Oversight of the USPTO

by Dennis Crouch

With the America Invents Act of 2011 (AIA), Congress handed the USPTO a central role in implementing major legislative patent reforms. Those include both designing the structure and procedure for post-issuance review and also taking the first steps at interpreting the new rules of patentability under the first-to-invent system.  For the past few decades, it has been the Federal Circuit’s assumed role to monitor and moderate USPTO activity and decision-making. However, the Supreme Court’s recent repeated rejections of Federal Circuit decisions has significantly reduced that court’s perceived strength.  Further, the express grant of authority in some areas severely limit the Federal Circuit’s review capabilities.  These factors come together to suggest that the PTO is now largely operating without direct checks on its behavior outside of the Administration.

Filling the Oversight Void: Given that members of the Republican party will soon control both the Senate and House of Representatives, I expect this gap in oversight will be at least partially filled by Congressional Oversight.  Adding to the likelihood of oversight is the partisan dynamic associated with shifting into the final two-years of the Obama administration with a high-level of conflict expected between the powerful branches of government.

Unlike Federal Circuit review, rigorous Congressional Oversight would likely not focus on merits of individual decisions but instead on policy implementation, budgetary allocations, overarching policy goals and agency activities.

House Judiciary Chair Bob Goodlatte spoke on this point a couple of months ago:

As the PTO carries out its Constitutional mission, we need to conduct appropriate oversight to ensure that our IP laws are being implemented fairly and in line with Congressional intent.

In recent years the PTO has been tasked with implementing the America Invents Act (AIA). The AIA was the most significant reform to U.S. patent law in my lifetime. I believe that it is imperative for this committee to examine the rules and procedures that the PTO has adopted to implement this important law, in particular the various post grant proceedings called for in the AIA.

Congressional Oversight by itself cannot compel the President to change course.  However, the expectation is that oversight (and the threat of oversight) will encourage a change of behavior and also raise public awareness of administrative issues.  A difficult issue is that we need to drill down beyond the soundbites and Congressional Oversight often remains at too-high a level.  A second difficulty is that none of the Congressional subcommittees are directed toward USPTO policy (or intellectual property administration in general).

The benefit of Congressional Oversight is also that it provides Congress with the opportunity to investigate and perhaps gain a better understanding of the system before passing legislative reforms.

97 thoughts on “Congressional Oversight of the USPTO

  1. Maybe congress can put 2 plus 2 together – and read stories like this:

    The dollar value of that advantage is suggested by the more than $400 billion that U.S. taxpayers have spent developing the F-35 over two decades—a number that only increases with the redesigns, delays and other costs of responding to China’s hack attacks. Chinese military and commercial cyber theft amount to “the greatest transfer of wealth in history,” said Keith Alexander, then head of U.S. Cyber Command, last year.

    link to online.wsj.com

    And consider why we still need a US patent system.

    1. The Wall Street Journal is an unreliable rag.

      Can you summarize the “logic” you’re referring to? China is hacking our computers so … we shouldn’t get rid of the US patent system, which nobody is suggesting anyway?

      1. I’m curious, what “reliable” rags do you prefer?

        Slashdot? Ars technia? Anything that aligns with your views (including the witless ramblings of the likes of jesse)?

  2. OT (slightly, as oversight does imply accountability) – but it is a start:

    fixthecourt.com/2014/11/12/release-new-campaign-launches-demand-increased-accountability-supreme-court/

    1. 6, you never cease to amaze me at how you have no grounding. One skilled in the art talks about ideas which may mean a complete invention that has formed in the inventor’s mind. That is the way inventors talk. The SCOTUS has hi-jacked a bunch of terms and given them new meanings.

    2. And little 6, go and read about the author of the article. Her coming out and saying what she has is epic. All the land should stop and ponder what we are in for after we are Google’ized.

      1. And everyone should take heed at the ruin that Google has caused many others in the quest to be the monopoly that “does on evil.” I think what they meant to have as their logo was “do nothing that is not good for Google.”

    3. Patents do protect ideas. Ideas that have been reduced to practice. Copyrights protect the expression of ideas but not the ideas themselves. Bedrock.

  3. From the article:

    “what didn’t work, big gov intervention.”

    “What we really need is big government to intervene by issuing patents!”

    Hilarious. I also like how she thinks american law assures inventors that their “successful efforts” will be rewarded. I however see no such assurances in 35 usc. I do see an entitlement program for certain eligible, novel and nonobvious etc inventions by inventors. If she wanted something that actually did what she was talking about I might be on board.

    1. Your second quote is simply not in the article. You strike me 6 as one of the modern slaves of our economy that is no longer able to think clearly. You are always worried about licking your master’s feet and have no freedom.

    2. And 6 it is shocking that you would discount reality so easily. You have a former CEO of a large tech company telling you that patents are very important to promoting innovation. She understands its actual workings. You really should take a step back and look at what is going on. It is Google that is buying people and influence to burn our system down.

      1. “And 6 it is shocking that you would discount reality so easily. You have a former CEO of a large tech company telling you that patents are very important to promoting innovation. ”

        I’ve never stated that they are not very important to promoting “innovation” as she’s using the term.

  4. Dennis: These factors come together to suggest that the PTO is now largely operating without direct checks on its behavior outside of the Administration.

    Last time I checked, there was still plenty of junk flowing out of the PTO each week and little or no sign of any remotely radical “anti-patent” activities. If anything, the PTO’s historic tendency to cowtow to the interests of its “stakeholders” at the expense of the public (and the law) is continuing apace.

    In response to Alice the PTO could have said that it was going to re-examine every pending computer-implemented application and applicants in those areas should expect major delays as a result. Or the PTO could have went on a massive hiring binge to get that task accomplished more quickly. Would voters have rushed to the polls to object? Of course not. But the “stakeholders” wouldn’t have approved. So the PTO just dipped its toe into the water and pulled a tiny fraction of apps from issuance.

    Here’s an idea: maybe these Congressional oversight guys can come up with a database and system for storing and searching the “structures” of all the “algorithms” in the prior art. That seems like it’s going to be important … unless some other obvious steps are taken.

      1. You sure about that brosef? Not as in calling it a “reexam” maybe but they do have the ability to pull ones they think were wrongfully issued don’t they? There was talk about that a decade ago and I thought they pulled a few.

        1. The PTO has statutory authority to re-examine fully issued patents in only two areas that I am aware of? Interferences for claims interfering with a pending application, and a Director requested reeexamination based on patents or publications.

          1. Paul, I have to point out that interferences are subject to a trial de novo as were the original ex parte re-examination statutes. Under Crowell v. Benson, 285 U.S. 22, 52 S. Ct. 285, 76 L. Ed. 598 (1932), it was important that the decision of the government agency was not final and subject to a trial de novo in District Court. Cf., the discussion of Crowell in Stern v. Marshall, 131 S. Ct. 2594, 2619, 564 U.S. 2, 180 L. Ed. 2d 475 (2011). At least the District Court in Patlex agreed that there was no constitutional violation for reexaminations because of the right of a trial de novo.

            But, Congress in its infinite wisdom removed the right of a right of a trial de novo in the case of ex parte reexaminations in the AIA, thus throwing the constitutionality of ex parte reexaminations in the question.

            So you are right that there statutory authority for the PTO on its own motion to review an issued patent in two circumstances, but there’s constitutional authority only in the case of interferences.

        2. 6, the Supreme Court decided that the government has authority to file a lawsuit in court for the revocation of a patent obtained by fraud. It has also decided that the government has no authority under the Constitution to re-examine a patent for validity.

          1. Ned,

            Since that same AIA removed all traces of “with deceptive intent,” do you think that an oath, supplied with deceptive intent somehow inoculates an attack on validity?

            Let’s say that the deception comes in the form of who the inventor is.

            As a second matter, let’s for the sake of argument say that you are correct regarding a lack of constitutional authority regarding the AIA aspect of some form of post grant review and rescinding of patent rights.

            How should a court react to this, given that the writers of the AIA deliberately made the entire law a take-it-or-leave-it all or nothing item when they refused the separability clause amendment?

            Will a court take that anti-too-big-to-fail stand and nullify the entire act?

            1. While anon, I personally think there are ways to make re-examinations constitutional – limit them to requests by the patent owner’s or with patent owner’s consent, and/or provide an nonconsenting patent owner a right to have a trial de novo with the right to a trial by jury if the PTO rules adversely. Ditto, IPRs and other postgrant reviews. With respect to IPRs and postgrant reviews, it would be better if they were conducted in the first instance in an Article III court and to a jury. The PTO could provide an expert report for the court.

              I don’t know what to say about deliberately lying about inventor ship. However, I don’t think the Constitution will permit the grant of a valid patent to a non-inventor.

              1. Ned – consent has never received been identified as a “fix” wrt to separation of powers deficiencies. Art III / sep of powers are institutional safe guards that the private litigant cannot be expected to protect.

                Note: Schor does not identify consent as a method for Art III waiver.

      1. Agreed. The quality of rejections and the quality of allowances. In my opinion, the patent office average quality has dropped substantially. The Patent Office needs to be reformed.

        1. Bad examiners cost applicants a lot of money and thereby strengthen the patent trolls that are ready to take a (big) share to cover costs.

          I find it fairly easy to identify bad examiners in my field just by looking at PAIR.

          A real patent reform would make it easy to recover damages from incompetent examiners via a Bivens action.

          1. Then the question becomes how to make sure the examiners don’t allow crap patents just to avoid a Bivens action.

            Examiners should have at least as much grounding in epistemology as they have in technology.

            If it were up to me, I would make examiners study Kant’s Critique of Pure Reason and test them on it.

            Of course, some might consider that to be cruel and unusual punishment.

            Kant understood the problem and published Prolegomena to Any Future Metaphysics. This work would probably be sufficient for most examiners (except for those on the 101 committee).

            Examiners likely to encounter programmable or program-executing devices should probably have a good grasp of Church’s lambda calculus.

            1. You know what this is about is modernizing examination. I am sure it will take people with more creativity and sincerity than you to come up with solutions.

  5. One particular Comgressman in that July oversight committee meeting demanded that Lee not harm innovation just because that innovation came in the form of software.

    Lee artfully dodged and NO ONE held her feet to the fire.

    That’s not effective oversight by any stretch of the imagination.

    1. One particular Comgressman in that July oversight committee meeting demanded that Lee not harm innovation just because that innovation came in the form of software.

      I’m not aware of any evidence that Lee is doing that.

      Lee artfully dodged

      Let’s see the complete exchange so we can evaluate this so-called “artful dodge.”

      How would you have responded differently? Would you have pulled out a floppy disc and given it a big wet sloppy kiss to prove how committed you were?

        1. I have posted the link and the time stamp within the link previously.

          Then it should be really easy for you to find it again and support your allegation.

          Pay attention.

          Why? Are you doing something other than just insulting people?

          1. I could – but why should I when you could just as easily paid attention.

            Insulting..? You are doing that projecting thing again Malcolm. If you actually paid attention (or cared) you would see that the vast majority of my posts contain substantive discussion points (while the rest are in direct response to the flodsam that you and those of your ilk gurge and regurge). If you ever simply accepted the valid counterpoints and integrated them into the dialogue, you would not see them so much. Your choice.

              1. I am counting the give and take multiplicity of replies as a “post.”

                Several of these extended interactions are driven by the context and players that I am attempting to teach.

                You can’t hold that against me.

    2. I saw that anon. Another thing they did was when they brought up the backlog at the board, they didn’t even make her give them numbers or discuss the failure to reduce the ex parte appeals.

      It was clearly a very softball session. Google bucks at work.

  6. I certainly hope that going forward that the Congressional oversight is better than the glad-handling, own-agenda-obsessed nonsense that permeated the July discussion with Miss Lee.

    1. anon, I have no confidence that congress will listen to patent holders. They have been obsessed in the last few years in undermining the patent system as a whole at the behest of infringers who don’t like being sued.

      When confronted with a PTO gone amok, justifying its abuse of power on the grounds that the ends justify the means (the gravamen of the Solicitor’s argument in Cuozzo), I am going to politely suggest that congress will only grin and be pleased at the end results achieved.

      1. Not that the two “alternative” parties are exemplars of non-contradiction and integrity, BUT why are Republicans not lining up in support of a traditional value of the Right: property rights?

        This to me is counterintuitive.

        Are patents too “intellectual” or “intangible” for them?

        1. Most of the politics has to do with the successful campaign showing that the patent system is being overwhelmed by trolls in a way that hinders economic development.

          In the background, there is a growing sense and understanding of patents as part of the growing regulatory state rather than as pure property. To the extent this new metaphor takes hold, you can expect traditional republican idealists to move away from strong support for patent rights.

          1. Campaign should be called propaganda campaign.

            Who coined the term “patent tr011” and why?

            It was a member of Big Corp and it was not for the benefit of the public.

            The witch hunt was debunked non-partisan agency using the Lemley-supplied data (as opposed to the partisan White House propaganda.

            Further point towards this of course is the flea on the tail of the dog wagging the dog of “gee any litigation MUST be bad” scare-mongering.

            Make no bones about it, the patent system is – and has been – under ideological attack for some time (by more than one ideology).

            (with only a partial jest, you are not paranoid if they really are out to get you)

          2. I am not for trolls by any measure (especially since being an in-house attorney for a company sued by a troll), but don’t trolls bring money to the trolls themselves and therefore help the economy? Entire publicly-traded companies are trolls. Doesn’t the litigation itself help the economy?

            I remember seeing a report on Fox stating that Citizens United was great for the industry that produced political ads. Doesn’t litigation by trolls fall into the same vein?

            (And I think Citizens United was a horrible outcome, and can’t stand trolls, but I prefer logic and many arguments by politicians aren’t logical.)

            1. don’t trolls bring money to the trolls themselves and therefore help the economy?

              This “argument” applies equally to any activity wherein one party benefits financially.

              It’s also important to remember that “the economy” is just one of many considerations that enter into the passage of reform laws. Moreover, trolls aren’t necessarily US citizens.

              I remember seeing a report on Fox stating that Citizens United was great for the industry that produced political ads. Doesn’t litigation by trolls fall into the same vein?

              Ask Chris Wallace.

            2. don’t trolls bring money to the trolls themselves and therefore help the economy?

              Trolls (and other litigants) move money from one person’s pockets to another’s. This activity doesn’t produce goods or services itself, and so to the extent it consumes goods services, it is reallocating those goods and services to unproductive activities. So no, trolls don’t “help” the economy, they are a drag on it.

              I remember seeing a report on Fox stating that Citizens United was great for the industry that produced political ads.

              Of course Citizen’s United was good for the industry that produces political ads, just as patent litigation is great for the industry that conducts patent litigation. That doesn’t mean it’s good for the economy, though.

              That these activities are a drag on the economy is pretty intuitive, when you think about it. In the patent litigation space, you’ve got courtrooms full of really bright people spending countless hours producing papers and arguments that move money around but add nothing to the sum total of what people can eat, drink, or otherwise enjoy, i.e., utility. Imagine if those same people and same hours were devoted to designing more efficient machines, developing more efficient processes for producing food or improving healthcare, or even to producing games, novels, or other items for entertainment.

              The situation is arguably worse with the Citizen’s United/political ad industry scenario. There, the expenditures are worse than just non-productive, they’re directly devoted to increasing the opportunities for rent-seeking.

              1. I would daresay that your view on “producing goods and services” alone is far too shallow and ignores the enabling effects.

                To wit, patents are negative rights ONLY – and there is no (intellectually serious) doubt that patent systems promote innovation.

                1. there is no (intellectually serious) doubt that patent systems promote innovation.

                  That depends on the details of the patent system in question.

                  All “intellectually serious” people understand that, “anon”.

                  Welcome to the discussion.

                2. Seeing as you have offered nothing of substance to the discussion, it is inappropriate for you to be welcoming me.

                  Perhaps then, you care to actually say something of import concerning those details…? Maybe something intelligent about the Kondratieff K5 innovation wave?

                3. I would daresay that your view on “producing goods and services” alone is far too shallow and ignores the enabling effects.

                  I would daresay that my view on producing goods and services is generally consistent with the last couple centuries or so of mainstream economic thinking, and also takes into account at least a high-level view of the more modern thinking around public choice theory and rent-seeking. Would you like to share your deeper views, or be more specific as to which of my statements you disagree with?

                  For what it’s worth, my definition of “troll” litigation is litigation involving unjustifiable claims of infringement, as in the troll demanding a toll to go over a bridge that he doesn’t own. I’m not by any means condemning all litigation – some amount of it is necessary to enforce the system.

                  To wit, patents are negative rights ONLY

                  I know that you’re fond of saying it, but I don’t see what difference it makes, from an economic analysis standpoint, that “patents are negative rights ONLY.” Could you explain, please? Patents add to the cost of production of goods and services. It also seems pretty clear that at least some of those costs are unjustifiably added to the cost of production of goods and services, even if there is disagreement about how much falls into this category.

                  … and there is no (intellectually serious) doubt that patent systems promote innovation.

                  I think that the statement that “patent systems promote innovation” is probably true, standing alone. Patent systems also impose costs, however. So, the real questions are whether the benefits from those innovations outweigh the costs and whether the particular patent system that we have is optimal. I don’t think it’s any more intellectually serious to ignore the costs of the patent regime than it is to ignore the benefits.

                4. Perhaps then, you care to actually say something of import concerning those details…? Maybe something intelligent about the Kondratieff K5 innovation wave?

                  Okay that made me laugh out loud. I’m sure it wasn’t intentional but still — thanks!

                5. DamH,

                  It is more than a mere fondness – much more, as it is critical to keep in mind for ANY – macro or micro – economic generalist as the nature of patents, being as I describe simply IS, and must be accounted for.

                  There is no sense of my picking any argument with you here – much as it appears that you want one.

                6. If only patent trolls did “enable” something not previously enabled then nobody would likely have called them a troll in the first place. But remember most of them are relying on all computer functions being preenabled in order for their app to have enablement for the claims.

          3. Look at Google. They stated their biggest fear is innovation. They are a company that is most famous for being a monopoly with little to no innovation.

            Google maps they took from other companies, Google docs are a shabby rip-off of Microsoft, etc…

            They want no patents so they don’t have to innovate but can consume others innovation or stay on top and kill all innovation.

          4. Dennis –

            The question isn’t one of pragmatics (or even politics) – the question is one of whether “patent validity” may be resolved with finality by an Article I administrative tribunal. Where resolving sep of powers considerations, pragmatics / politics are not at issue (though J. O’Connor attempted to with mixed results in Schor to build “soft” factors into the analysis). Instead, it is the nature of the right in question that controls.

        2. why are Republicans not lining up in support of a traditional value of the Right: property rights?

          First, both of the major parties have an equal interest in “property rights” generally. After all, nearly all of their constituents own some property and many of them own real estate. Second, as Dennis has noted, patent rights are more like “government granted licenses to sue other people and take their money” than your typical property right (e.g., your “right” to own an AK-47). As such, they don’t fit neatly into the “property rights” frames that the Republican party has created — and they never will.

          It’s also extremely important to recognize that hardly anybody in the US owns patents. And of the tiny, tiny fraction of people who do own them, an even smaller fraction is capable of being marketed to the public as some sort of unfortunate “victim” whose “rights” were trampled on. On the contrary, it’s far easier for nearly everyone to sympathize with the people on the losing end of a rotten patent suit — that became even easier when patent trolls began sending out thousands of threatening letters to ordinary business people.

          The failure to recognize this simple equation and do something constructive about it was truly a massive blunder by the self-identifying “patent apologists” who long for a return to the glory days of, say, 2005. Rather than castigate the patent trolls, the “patent apologists” defended them (“it’s legal!!!” “presumption of validity!!!”). Well, now the apologists can enjoy the reaping the whirlwind. Those days are fading away and they aren’t going to come back.

          But let’s look on the bright side! Asset seizure reform is a contemporary example of a very important property right issue that affects far, far more people than, say, a decrease in one’s ability to shut down a competitor with a patent:

          link to thinkprogress.org

          Both Democrats and Republicans have been working together to reform asset seizure “programs”. Interestingly, some of the most problematic areas are in East Texas:

          link to texasobserver.org

          This quote from a dissenting judge on the Texas Supreme Court struck me as weirdly congruous with some of the discussions we’ve had about patent trolls here here (the reference to “Alice” is the icing on the cake):

          A generation ago in America, asset forfeiture was limited to wresting ill-gotten gains from violent criminals. Today, it has a distinctive ‘Alice in Wonderland’ flavor, victimizing innocent citizens who’ve done nothing wrong.”

          1. There IS a political ideology that does NOT have an “equal interest in ‘property rights’ generally.”

            That ideology has been shown as a matter of factual record to have made – and established – a foothold in a particular sector of the American landscape.

            Kicking up dust with the “apologist” label fools no one.

            Wanting strong patents becuase strong patents lead to vigorous innovation (which quite naturally leads to ever more patents) is a good thing – no apologies necessary.

            1. Wanting strong patents becuase strong patents lead to vigorous innovation (which quite naturally leads to ever more patents) is a good thing – no apologies necessary.

              Okay you convinced me: never, ever apologize for anybody that does anything with a patent! That is a great way to get everyone to support even more expansive patent rights than ever before! After all, it’s really been working wonderfully for the self-identifying “patent apologists” so far. Keep it up. Also don’t forget to accuse people who disagree with you about the awesomeness of expansive patent rights of being “socialists” or anti-American or anti-business. That will really inspire others to join you.

              There IS a political ideology that does NOT have an “equal interest in ‘property rights’ generally.” hat ideology has been shown as a matter of factual record to have made – and established – a foothold in a particular sector of the American landscape.

              You seem to be struggling to make some kind of an important point here. Can you spit it out in English, perhaps, instead of dancing around it? Ask someone to help you if you can’t find the words.

                1. I am not the one struggling Malcolm.

                  Sure seems like it to me. You wrote a whole paragraph about some unnamed “political ideology”, using capital letters and everything, and somehow you forgot to name the ideology, or the “political sector” where this ideology “established” itself.

                  Maybe you just forgot what you were typing about. Or maybe your own thoughts embarass you sometimes.

                  [shrugs]

                2. What “seems to you” is most definitely a “you” problem.

                  You would be much better off owning your “you” problems instead if trying to project those problems on others.

          2. Thank you MM.

            Very interesting… very sad.. but interesting. I suspect we have common ground regarding government contravention of civil/individual rights… at least in the particular context of asset forfeiture.

        3. Well anon, I agree with you that this whole “administrative state” thing more than undermines patents. It undermines our entire constitution.

        1. Judge Rich is responsible for some of the most poorly reasoned and short-sighted patent decisions in this country’s history.

          Another Rich is the last thing the country needs.

          1. Uh, like which one MM? Rich is responsible for modern patent law. If he was still alive, he would have taken care of the minor problems we had without using it as an excuse to burn our system down, which is what the likes of you are advocating.

            1. NWPA: Rich is responsible for modern patent law.

              Indeed. Somehow you failed to notice that “modern patent law” was recently re-written in response to some massive failures.

              if he was still alive, he would have taken care of the minor problems we had

              He did a pretty poor job of that when he had the chance.

              A quintessential example of the allegedly “brilliant” Judge Rich completely missing the boat is well-known: his much-derided decision in In re Bergy where he argues that considerations of the prior art have no place in an eligibility analysis. That was indefensible nonsense and the Supreme Court put it to bed once and for all in Mayo v Prometheus.

              You simply can’t have a healthy patent system if the PTO and jurists aren’t allowed to look at a claimed “innovation” and compare that innovation to the prior art to determine whether the claim effectively protects ineligible subject matter. When you put that restriction on a patent system, you effectively turn the entire eligibility issue into a lawyer’s drafting game. That seems more obvious now than ever, of course, but it was obvious to a lot of smart people for decades. Judge Rich wasn’t one of those smart people.

              And just so it’s perfectly clear: I really could care less about the fact that some people love Judge Rich, just like I could care less that some people think Rader was some kind of “savior.” Why should I care? Chiz, “anon”s “pal” Hal Wegner, Crouch, Q, Noonan, Aharonian et al. … these are just people who have ideas and who share them. Some of their ideas are good and some of their ideas st i nk to high heaven. Nothing that any of them say should be held aloft and praised simply because they said it. And that’s doubly true for those folks who managed to completely biff on the biggest issues and who still (apparently) don’t “get it”.

              1. Nonsense. You mean like now with Alice where a 102/103/112 analysis is done by a judge in his/her head and then they proclaim whether the claims are eligible?

                Rich understood that if you put in prior art analysis into 101 that you would eviscerate 102/103/112.

                1. Malcolm, you are aware that the reasoning in in re Bergy was subsumed into – and was judged to be the law of the land in – the Chakrabarty case, right?

                2. Rich understood that if you put in prior art analysis into 101 that you would eviscerate 102/103/112.

                  But somehow he failed to understand that if you put the 101 analysis into 102 and 103, then you eviscerate 101.

                  Yeah, he was really “smart”.

                3. Malcolm, you are aware that the reasoning in in re Bergy was subsumed into – and was judged to be the law of the land in – the Chakrabarty case, right?

                  “anon”, you are aware that your silly questions loaded with incoherent quasi-legal babble aren’t worthy of a response, right?

                1. Recently rewritten?

                  Maybe you missed it.

                  link to en.wikipedia.org

                  The Leahy–Smith America Invents Act (AIA) is a United States federal statute that was passed by Congress and was signed into law by President Barack Obama on September 16, 2011. The law represents the most significant change to the U.S. patent system since 1952,

                2. I did not miss the AIA – I did miss how you explained how this all tied in to the AIA in support of your position here.

                  And yes, the shovel is (still) clutched in your hands.

          2. Poorly reasoned?

            Seeing as you refuse to fully join discussions here and show little to no understanding of effective reasoning (if you have the law, pound the law; if you have the facts, pound the facts; you? You pound the “policy/opinion” table), your immediate opinion is given its due weight of Nada.

              1. And Dennis I want to ask you seriously why you think it is not a valid question? I was on this blog saying that I could tell that Google was pushing lots of money to end patents. I said that now for about 2 years. The FT article finally confirmed what I was saying that Google has become a bigger donator than Goldman Sachs and we all know the influence that money has had on the banking system.

                Now why isn’t it a valid question to ask how it is that someone with a first rate education (MM) can spend 10 hours a day blogging? Isn’t it valid to ask where this is coming from given that you have even posted jobs for professional bloggers on this website? Shouldn’t we seek to understand the influence of the money?

                1. I would also point out that when I raise this question that MM threatens to get me off the board, uses profanity, uses the N word, etc. He becomes mean and threatening, which should not be a reason to back down from the question.

                2. NWPA: I would also point out that when I raise this question that MM threatens to get me off the board, uses profanity, uses the N word, etc.

                  Right. I’m just all over you with the N word, NWPA. How desperate are you, man?

                  Maybe the problem is that the person you accused of being a “paid shill” (with zero supporting evidence) has already responded and told you that he/she is not a “paid shill”. And yet you keep making the accusation, over and over and over again.

                  He becomes mean and threatening

                  Booga booga! Give me a break.

                3. MM where then do you get all the time to blog for 10 years?

                  10 hours a day/six days a week/ for a period of 10 years.

                  No visible means of support I think the term is that justifies warrants.

                  And it is nice that you playing nice now, but you have made threats that seem to be quite real.

                4. NWPA, if MM is being paid by Google, nothing short of being banned by Dennis would stop him… as long as he can, he will continue to say what he wants to say. If he is paid by Google so what? Free speech is not limited to “unpaid” speech. Ideas, funded or not, are to be judged on their merit not their source.

                  In any case, if you disagree with him the most you can do to counter the effects and consequences of what he says here (whether or not this is a hobby or a career for him) is to rebut his statements persuasively and rationally.

                  Others will have to judge for themselves what they think.

                  This IS the moral outcome of a free society. MM is PART of that freedom.

                5. Very very well stated Anon2.

                  But as you so aptly – and subtlety noted previously regarding objectivity here, such efforts to “counter” are not always equally permitted.

                  Of course, there are potential consequences to this – in several different aspects, but this site after all is NOT a true microcosm of US freedom, is it?

                  In truth then, this site does NOT have to have MM as PART of that freedom.

                6. NWPA,

                  If true dialogue were the ultimate aim of this forum, then the repeat drive-by monologues would be dealt with.

                  I would love a mechanism that would force the repeating monologuers to NOT be able to ignore the valid counterpoints of law and fact. But forcing integration of such would stifle the ability to proselytize the agendas to be proselytized. Logical conclusions, no matter how unwanted would have to be faced.

                  Such would effectively END the debate.

                  Do you think that is really wanted?

            1. Seeing as you refuse to fully join discussions here and show little to no understanding of effective reasoning

              Instead of insults maybe you can explain to everyone how it is possible to systematically eliminate claims that protect ineligible subject matter without (1) determining whether an element in the claim recites ineligible subject matter and (2) comparing the other elements in the claim to the prior art.

              I’ve been asking you and the Mayo-nayers to do that for many years. I’ve never gotten the answer. Why? Simple. Because it can’t be done.

              Did Judge Rich know this and pretend that he didn’t know it? Or did Judge Rich’s giant brain just fizzle out when the issue arose? That’s for historians to decide, I suppose.

              The weirdest part of all of that, of course, is that when it comes to printed matter doctrine under 102/103 suddenly “claim dissection” is permitted and nobody blinks … even where 103 expressly talks about evaluating the “claim as a whole”! So it’s not as if it’s a really difficult concept to grasp. It’s very simple, in fact.

              But Judge Rich couldn’t figure it out.

              1. Your desire is a bizarre result of you not understanding patent law, history or the limitations that I have often presented concerning your pet theory.

                But you never want to go there, no matter how many times I have asked.

    2. Rader could have saved us but instead self immolated. Don’t forget that I posted on this blog a link to the Financial Times that said that Google was the number one giver to politicians in the U.S.A. (with Goldman Sachs number two.)

      Google doesn’t want patents. It is not good for them. They live by having lots of money and giant infrastructure. Count on the Google bucks buying off everyone on that committee.

      1. Rader could have saved us

        Who’s “us”?

        Rader was doing a pretty horrible job of “saving” the broken patent system before he imploded … unless by “saving” you mean stepping on the gas as he drove off the cliff.

  7. Dennis, yes indeed, the USPTO is way beyond control at this point. All one has to see is what it did to the patentee in In Re Cuozzo Speed Technologies, LLC. 14-1301, the very first IPR. Oral Argument Nov. 3. The Board first found that the petitioner had not raised a substantial new question of patentability for claims 10 and 14, then used the references cited to create their own new ground for unpatentability, and ordered trial. This converted the proceedings into the PTO represented by the Board v. the patent owner. The petitioner even dropped out after a settlement.

    The whole issue on appeal is whether the PTO Board is entitled to act as an advocate rather than decide the case before them on the facts and grounds alleged. The statutes seem to say what the Board did was ultra vires. The Solicitor contends that institution decisions are completely unreviewable, even if the Board orders trial on a ground not alleged in the petition.

    The reply brief by Cuozzo is especially compelling.

    1. Ned: The whole issue on appeal is whether the PTO Board is entitled to act as an advocate rather than decide the case before them on the facts and grounds alleged.

      As a citizen of the country, I’m perfectly comfortable with the PTO re-examining and eliminating junky patents that were brought before the PTO for re-examination. I think that’s true of most people.

      It seems to me that is the PTO’s job. If it were up to me, I’d go even further than this and allow the PTO to initiate its own re-examinations of patents, or at least to issue advisory opinions alerting the public to invalidity issues in patents that it has mistakenly granted.

    2. Yeah I thought the pto could reopen proceedings or pull the patent at will anyway. They did that a few years ago id thought. A couple of times iirc.

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