USPTO Backlog

The backlog of pending cases generally has two major inputs: (1) how many applications are filed and (2) how fast the USPTO is at examining those applications.  The USPTO is operating faster than ever, but we also have more applications than ever.  I expect that the figures here will drop dramatically in FY2016.

206 thoughts on “USPTO Backlog

  1. 16

    Hal Wegner writes: “In fact, the tipping point has been reached where applicants routinely file too many claims and too many prior art references and then need to file too many RCE and other refilings so that the Office is largely churning paperwork and not finally disposing of patent applications.”

    Do you agree?

    1. 16.1

      For some applications, yes.

      The other piece of this that he missed is that there are now so many ways to invalidate a claim that one needs to keep continuations going….

    2. 16.2

      My pal Hal continues to write as if the applicant does not have to overcome any systematic issues with a patent office geared to a particular “policy/opinion” point of view (against innovations).

      As I have so often told him directly, as long as that continues, I will – to serve my clients fully under the law – continue to use the available legal paths to provide the protections that are due to my clients.

      Somehow, it is as if the Tafas case never happened for some people. Sadly, the mindset of limiting the applicant and ‘trusting’ the government not to abuse the process to deny patent protection without recognizing this as being inherently anti-patent continues.

    3. 16.3

      “…too many claims…”

      Amen! I’ve never seen a patent that needed more than 10 claims. More than that and the attorney is just fishing.

  2. 15

    How did the patent system even survive and prosper before software patents?

    If software, firmware, and hardware are the same thing, why do we use three words to describe the same thing ?

    How does any industry that relies on innovation succeed without patents? Hollywood?

    Is information a “thing”?

    Does founding and growing a successful software business confer standing for one to be anti-software patent?

    Should small firms that are seriously damaged by patent litigation (and prevail on the merits) just lump it as a cost of doing business in a glorious system, or should they have some moral right to compensation?

    Is avoiding examiner and practitioner layoffs a valid reason for expansive eligibility?

    CAN there be too many patents?

    1. 15.1

      A v0mitfest of canards and the same old retread fallacies from our favorite self-appointed victim.


    2. 15.2

      >If software, firmware, and hardware are the same thing, why do we use three >words to describe the same thing ?

      Equivalent. This one intention misstatement is enough to discredit you (until you issue a formal apology) forever.

      1. 15.2.1

        So they are equivalent because you say so? There are no differences, material or not to patent law?

        Formal apology? For what, offending your ideology?

        So if they are all the same thing, are thoughts, DNA, and neurons all the same thing?


          They are equivalent because people skilled in the art say they are. For example passages from Mano, who wrote perhaps the most used book on computer architecture, have been posted on this blog many times.

          Like it or not they are equivalent.


            And for those of us that actually work in this field the equivalency is quite important in claiming and enablement. Saying “software” is not eligible under 101 really means all circuits are not eligible under 101 because a part of the circuit could be put in software.

            That is why the EPO uses a technological test that focuses on the mythical concept of what is actually necessary to run the computer.

            Just unbelievable to me that people that are so ignorant of science and technology feel they can just make proclamations about real technology.


              Those who work in what field? Writing software patents?

              To those of us who work in software, nearly every person does not think circuits are the same as code, and we don’t think we are making a new machine when we give an old machine new instructions to display newly processed information.

              Yes, “the equivalency is quite important” when one wants to use a system made to protect physical objects and structures to protect virtual objects and structures.

              Too bad all the wishing in the world wont make it so: even a six year old knows the difference between a circuit and an instruction to assemble a circuit.



                Actually, equivalence in the sense that software/firmware/hardware can all be substituted for one another. In fact, I write some applications for consumer products and the designers of the consumer products are highly tuned to this issue because of how easy it would be design around a claim if one only had to put a portion of it in a chip or ROM or move a portion of the chip to software.

                I am one skilled in the art of computer science/EE and a patent attorney. I know software developers often don’t think like this, but when real products are being made they have to. Any embedded system has these issues.

                1. On that I think we may agree: firmware is usually software, but can also be executed as hardware. To that extent, I argue that if you come up with something really novel/valuable, but also really easy to copy, you should have the option to execute it in hardware and patent it, if you wish. If you choose to execute it in software, you should gain IP protection via copyright.

                  It’s infuriating when people are tarred as anti-patent when they may merely be anti-software patent. I am VERY pro patent, if we are talking about physical things in the world.

                2. Mr. Snyder,

                  I (again) urge you to talk to your attorney and have her explain to you what the different forms of intellectual property law protect.

                  It is “infuriating” when you want to expound on law when you show such ignorance of it. There is a clear reason why you are being tarred as anti-patent right here. You are being a lemming when it comes to the notion of software patents, even as you approach a proper understanding of what equivalence means under the law.

                  Quick pointer:
                  Copyright protects expression.
                  Patents protect utility.

    1. 14.1

      You have to remember Fish Sticks that the anti-patent movement believes that you don’t need capital to start a company and to carry through with an invention.

      1. 14.1.1

        They also believe that fairies keep transferring money into their bank accounts and not lobbyist.

  3. 13

    Whither India?

    link to

    Bloated development costs are perhaps the least of the problems stemming from the current system of drug research. Patent monopolies create absurd problems in paying for drugs that would be relatively cheap in a free market. For example, we are seeing state governments and insurers struggling with the $84,000 that Gilead Sciences is charging for Sovaldi, its new hepatitis C drug.
    If India adopts strong patent protections, it will likely doom the United States to maintaining a corrupt and wasteful patent system long into the future.

    By comparison, generic producers in India can profitably sell the drug for $1,000 per treatment. We would not see news articles, hand-wringing columns and editorials about whether the government and insurers should be forced to pick up the tab if we were talking about $1,000 rather than $84,000. The patent-protected price of some other drugs is even more astronomical, with many new cancer drugs being sold for prices in the hundreds of thousands of dollars.

    In addition to creating access problems, outrageous patent-protected prices give the drug companies an enormous incentive to misrepresent the safety and effectiveness of their drugs in order to maximize sales. And they act just as economic theory predicts.

      1. 13.1.1

        Is this the source of your anti-patent koolaid?

        I’ m not “anti-patent” so your question makes no sense.

        I posted the comment because (1) the global political issue is interesting and (2) the alleged costs — the apparently rising costs — of new drug development (which are used to justify the high prices asked for by the drug companies) are breathtaking. Are patents the cause of that price rise? The “progress” in drug development allegedly being promoted by the patents doesn’t seem to be driving the prices down …


          1) you are anti-patent (your anti-software and anti-business method rants are anti-patent rants).

          2) you have expressed your “interest” in a likewise anti-patent meme.

          3) the ‘sources’ here are likewise avowed anti-patentists

          Look like duck, quack like a duck…


            1) you are anti-patent (your anti-software and anti-business method rants are anti-patent rants).


            Super compelling stuff.


              Next to your ‘stuff,’ yes extremely compelling.

              And we both know that the truth of this just sets you off into one of your apoplectic rants of rage.

    1. 13.2

      There could hardly be a more bizarre and wrong anti-patent screed.

      It’s the opportunity to charge high prices for a limited time that drives new drug developments. New developments in biologics and targeted therapies may require new kinds of techniques and big funding driven by exclusive revenue for innovators is the only way to break through the drug stagnation logjam the industry is in.

      There’s a reason pharma is the biggest advocate of the patent system and this article is why.


                From Black’s Law Dictionary: having no practical significance; hypothetical or academic.

                Since “but-for” is only a single reason for having a patent system and not the only reason for having a patent system, ANY argument that leans on a premise of “but-for” as a predicate for having a patent system is meaningless.

                Glad to help you out.

      1. 13.2.2

        It is even more “too bad” that Owen’s consternation seems to come to rest on a proven fallacy: the ‘but-for’ reason of having a patent system.

        Don’t get me wrong – the ‘but-for’ reasoning is a valid reasoning for having a patent system.

        But the fallacy is in the thinking (often implicit) that the ‘but-for’ is the only valid reason for having a patent system.

        Such has NEVER been the case.

        People really do need to stop and think – critically think – why this is so.

        Doing so will help diffuse the claptrap of things like the Tabarrok curve, which falsely portrays patents as having too much value.

  4. 12

    A canary is particle physics which is no dead in the US. Shameful.

    And by the way, slave mind boys and girls

    Thank you again for the laughs.

    You can’t parody this stuff.

    1. 12.2

      So you are asserting that particle physics is healthy and receiving lots of grant money for doing research? New equipment and all….

      Or is this another one of those times when you just deny facts ’cause they don’t fit your psychotic view of the world you are paid to push.

      1. 12.2.1

        I doubt he denies it.

        But then, most of the researchers in the first place were European and Asian. And new researchers were not US residents – which makes it rather hard to get clearances to work at a US facility.

        So, rather than poor work here, they prefer anywhere else. And without the researchers, why would the government spend the money?

        The other advantage overseas has is that there are multiple contributers instead of one. And that made it cheaper for each contributer.


          Wow, jesse, you are off your nut completely. It didn’t have anything to do with funding being cut to the Chicago accelerator or Reagon cancelling the new accelerator in Texas. No.


            All politics, huh.

            Nothing related to the scarcity of researchers at all?

            Not the way I remember it actually happening.


              Scarcity of researchers? So, they don’t build the research facilities (going back to the 1980’s) and shut down other research facilities and yet the “researchers” are supposed to magically appear trained in the vapor of the nonsense of your arguments.



                Nope. But those experienced went to Europe.

                One of the problems in the US is that you need a security clearance before you get into these facilities. A lot of talent can’t get clearance.

                The facilities in the US that did exist at the time were aging out. The remaining researchers needed a bigger system – and couldn’t get it.

                As I recall, there were three major centers, Stanford, Batavia, and one in Illinois. Congress couldn’t make a decent decision, so didn’t vote for a new centralized facility. And cut the budget for the others at about the same time. So they mostly just shut down, with all their training facilities also closed. Europe eventually went with the LHC, which is where everyone went.

                New facilities overseas, new researchers overseas, less restrictions… so guess where the science went.

                1. First you say it had nothing to do with a lack of capital and then you say it was the lack of capital.

                  Jesse: you are twisted person.

  5. 11

    “drop dramatically in FY2016”

    What does the professor think is going to happen two years from now (FY2015 just started).

  6. 10

    As the U.S. Cuts R&D Spending, China Is Raising Its Stake

    “As a percentage of total federal spending, research and development is at its lowest levels since 1956, the year before the Soviets launched Sputnik. The past five years have seen a particularly sharp drop: Federal funding for R&D in areas such as medicine, defense, energy, and agriculture has dropped 10 percent since 2009, adjusted for inflation, according to a new analysis from the Congressional Budget Office. There’s no sign that will be reversed in the next congressional session.”

    link to

    1. 10.1

      I don’t understand the anxiety. Should you not in fact be delighted, when Government altogether stops funding research that is outside of national defence, Star Wars and the like? Are you saying (and this is what interests me) that it is in the national interest for the Government to fund research work, in fields like medicine and agriculture?

      1. 10.1.1

        Max what? Yes it is in the national interest of the USA for the government to spend massive amounts of money on basic research. We are in a shambles.

        Wow, the filth that populates this blog is frightening. You mean that it is no longer a given that the feds funding basic research is as fundamental to our success as building bridges.

        A canary is particle physics which is no dead in the US. Shameful.

        And by the way, slave mind boys and girls, basic research funding is a counter to patents in many ways and creates competition for the corporations. It is great for the world.


          And yet, the patents generated under such research are NOT public domain.

          We already paid for that – so why should we pay again?


              Great point, Doug.

              I do not think that it will even register as even the smallest blip of understanding with the likes of jesse, though.

                1. You want I adventure into the more nuanced terrain of Justice, while you exhibit no understanding or even care for understanding of law, one of the pinnacles of Justice…

                  Sorry jesse, you lack all credibility in your statements.


          “The filth that populates the blog is frightening.”

          NWPA, I know you have strong views and I respect that. You should be aware, I think, that this sort of language is both incendiary and unnecessary.


              Calls to reason and restraint suffer under a classic “prisoner’s dilemma” scenario, given the fact that both sides of the issue have NOT foresworn the use of mind-numbing relentless propaganda.

              When even the most basic facts (such as the equivalency of software, firmware and hardware is not recognized as a discussion starting point), it is practically inevitable for hyper talk to ensue.

              Further, it may be entirely unreasonable to expect proponents from only one side of the issue to abide by “rules of reason,” no matter how noble the desire to do so may be.

              Human nature intrudes.


                I agree it is crazy. There is a long list of basic facts such as the equivalency of software/hardware/firmware that are not acknowledged by the other side.

    2. 10.2

      China has also figured out that the way to become an R&D engine is patents.

      We are going to become a backwater country. And guess what slave minds the big corp doesn’t care because they are international now.

      1. 10.2.1

        Not exactly.

        They figured out how to use patents to milk money from other countries.

        Internally, I don’t think the patents are all that useful.

        They have a government managed industry – and just recently directed one of two companies to close that used to be in “competition”.


          Not really. China is trying to a patent system in place so they can compete with Korea in innovation.


              Well, Jesse again you just state ridiculous facts. The Chinese do have a problem with innovation. The Chinese are looking to Korea to figure out how to encourage innovation and thus want a strong patent system.

              Those are the facts. You appear to be able to fabricate anything at this point.



                So how is it that they provide the engineering to actually build the devices?

                You seem to forget who is doing what, or you deliberately don’t want to face the reality.

                1. jesse, they don’t provide the design work. Nor are they providing the innovations. You know the inventions?

                  Jesse: you are just off your nut. You seem to be bitter and weird to an extent we have seen on this board in a long time.

                2. Another painfully evident point of non-reality from jesse, who speaks without knowing, and does not realize the objective fact that the manufacturing function was off-shored first separate from the engineering function.

                  It is a wonder that the anti-side of the debate seems content to let jesse continue to speak and show such a glaring lack of being in touch with any semblance of critical thinking (and yes, Malcolm’s past comment of jesse seeming to be “on point” in grasping issues does detract from Malcolm’s credibility).

                3. jesse,

                  I invite you to understand the definition of who an inventor is and contrast that with the understanding that the person who makes an actual device at the direction of the inventor is NOT an inventor.

                  This is a basic point that you should understand in order to intelligently join the conversation.

                4. You also seem to forget the difference between “production design”, and “initial design”.

                  Production design is done at the factory to be able to actually build the devices – and that frequently requires redesigning the product.

                  You also forget that those same factories are innovating the methods of manufacturing to keep the prices down. They build more than just one product…

                5. China is doing very well in obtaining patents.

                  Your attempts to hide the fact that most patents are from overseas is quite interesting.

                6. jesse, your attempts to use the current trends in China only show more deeply how little you understand the terrain. See Sun Tzu.

                  In the December 1 – 7 issue of Bloomberg Businessweek, there is a small write up (pp30-31) on the comparative situation.

                  When you realize that China has been in the process for several years now of strengthening their patent efforts AND doubling its State expenditures on R&D, yiu should realize these are points against your views.

                  Please try to think before engaging your rhetoric.

      1. 10.3.1

        The quote on the bottom line from the Businessweek article I mentioned above:

        “American belt-tightening may mean the next big leaps of innovation happen somewhere else.”

        Like in those countries actually moving to stronger patent protections.

  7. 9

    Unfortunately it appears that patents filed in many if not most of these industries will likely face 101 problems. This will slow R&D and our economy down IMO.

    Top 18 Future Industries Most Likely to Produce Early Trillionaires

    1.) Cryptocurrency
    2.) Asteroid Mining
    3.) Instant Learning
    4.) Internet of Things
    5.) Cure for Human Aging
    6.) Flying Drone Services
    7.) Controlling the Weather
    8.) Instant Sleep
    9.) Controlling Gravity
    10.) Ultra High Speed Transportation
    11.) Controlling Time
    12.) Instant Disassembling of Matter
    13.) Human Cloning or 3D Printed Bodies
    14.) Personal Swarms of Swarmbots
    15.) Robotic Services
    16.) 3D Telepresence Avatars
    17.) Artificial Intelligence
    18.) Energy Storage

    link to


                That assumes that money is necessary before innovation.

                Which is backwards. Innovation first – money follows.

                And it takes education before innovation can take place. Currently the US education system is falling into a belief in magic and fantasy.

                Leaving only an inflated sense of entitlement.

                1. Once again jesse posts without noticing the irony of what he posts…

                  I do believe that he his attempting to out do 6 for the title of greatest sheer lack of critical thinking skills.

                2. >That assumes that money is necessary before innovation.
                  >Which is backwards. Innovation first – money follows.

                  Where do you get this nonsense? And why do you feel the need to respond to everyone of my posts with your nonsense?

                3. jesse,

                  You continue to use that word (“reality”), and it is abundantly clear that you do not understand what that word means.

                  This is made evident by many of your posts on this thread.

                  Just because you can have an opinion does not mean that your opinion mirrors reality, much less means that you should express that opinion in an ongoing dialogue. Joining the conversation does mean that you need to understand the common ground and foundations of that conversation. You do not. Nor do you care to, as you continue to insist on posting in a pure monologue style, with your “I slept at a Holiday Inn last night” therefore my opinion is meaningful viewpoint.

                  You sir are a noisy gong, mistaken in the thought that producing noise is producing meaning.

      1. 9.2.1

        “11.) Controlling Time”

        Yep, and this little cluster of people wonders why everyone else thinks they are unhinged.

        I guess we are the crazy ones, not them. Wow. Just incredible.


          Did you bother reading the linked article, huh…?

          Context – give it a try.

          (and what is up with the “we” and “they” groupings?)

    1. 9.3

      Unfortunately it appears that patents filed in many if not most of these industries will likely face 101 problems.

      It depends on what is being claimed.

      Instant Learning


    2. 9.4

      Sign me up for controlling gravity and time….

      That equipment likely won’t likely have the 101 issues that online bingo, escrow, and form-filling may have….

    1. 8.1

      I second this.

      ‘Tis the season to go home and have some turkey…lets hear complaints about the Supreme Court and Alice after Thanksgiving.

  8. 7

    link to

    Supreme Court Justice Ruth Bader Ginsburg underwent heart surgery Wednesday morning after experiencing discomfort during exercise, the court said.

    Ginsburg, 81, had a stent placed in her right coronary artery at MedStar Washington Hospital Center. She was resting comfortably and was expected to be discharged within 48 hours, the court said.

    Best wishes to RBG on a speedy recovery! She’s one tough cookie.

    1. 7.1

      Since she is one of the 3 and one of the judicial activist on the court, I would be very happy to see her retire. Great opportunity for her to leave and let a person that has a mind trained after the 1920’s philosophy of the mind have a chance.

      Let’s go….retire.

      1. 7.1.1

        Certainly one of the worst justices in modern memory. She appears to be completely unaware of how her judicial activism has destroyed the integrity of the SCOTUS.

        Please retire. The age of iron is past and we need a modern thinker.

      2. 7.1.2

        Yes, it would be great to see the three, the new four, reduced to two. And with the republicans in control its unlikely another Stevens acolyte will be seated.

    2. 7.2

      May she live long and prosper…without her and Scalia, the Supreme Court opinions would be less dramatic.

    3. 7.3

      MM, Ginsburg is an excellent justice. That said, she should consider retiring right now so Obama can appoint a replacement who might be considered before January when it might no longer be possible for Obama to get his choice.

      1. 7.3.1

        Actually Ginsburg is perhaps one of the worst justices to ever sit on the Supreme Court. She has helped drive the SCOTUS into a legislative body and talks about her position at the SCOTUS as if she is a legislator. She doesn’t get it. Her brain is right out of the 1920’s. Please let us replace her.

        What is funny is how valuable she believes herself to be. The average American at this point sees right through these legislators and has no respect for people like Ginsburg. And yet she holds herself in very high esteem. A clear sign that there is a massive disconnect between what she believes her job to be and what it really is.

        Please. Get. Rid. Of. This. Thing.

  9. 5

    It’s awesome to see the backlog shrinking. As many “experts” in PTO bashing have noted over the years, the backlog of applications is “unacceptable” and “a growing embarassment.” Of course, those same “experts” somehow managed to convince themselves that the “real problem” was (try to believe it) “low allowance rates”.

    But let’s sit back and watch these same talking heads explode when the backlog starts to shrink and the broken overwhelmed patent system returns to something resembling a sane patent system.

    1. 5.1

      I know it is difficult, but try try try to be intellectually honest Malcolm.

      The “low allowance rates” often referred to was the inexplicable Just Say No Reject-Reject-Reject era.

      But you already knew that and you are just doing your usual “Tr011” bit here.

    2. 5.2

      When I hear people complain about alleged systemic problems like “low allowance rates” or (as in Bill Smith’s recent testimony at the House) “after final dead zones” what I think they are actually complaining about is an experience in which they felt they weren’t given a full and fair hearing by the examiner. Quite rightly, I think, it is much easier for an applicant to walk away from the PTO understanding that their application will not become a patent if they feel that they were given a thorough chance to be heard and were thoroughly and thoughtfully responded to.

  10. 4

    I’m pretty sure that the USPTO was never intended to be a jobs program for patent attorneys.

    Capable, hard-working people will adapt easily to the changes, just as they’ve adapted to all of the other changes to the patent system throughout the years.

    The grifters will find another system to grift off. And the US patent system will be far, far better because of it.

      1. 4.1.1

        Grifters exist, “anon.”

        We can have a patent system that encourages their participation, or we can have a patent system that discourages their participation.

        A patent system that grants patents on information (e.g., old displays with new information being displayed on them) or implementing ancient business practices “on a computer” is a patent system that encourages grifters to participate.

        This was made very clear to you and others many years ago. Like everyone else, you had a choice about who to cheer on and what sort of granted claims to celebrate and fluff. We are all well aware of the choices you made.



            you regularly call me names with perverted sexual connotations

            Keep telling yourself that. It’ll do wonders for your mental health.


              I notice that you don’t deny what I said.

              I also didn’t deny creating the world in seven days.

              Run with it, man.



              You do realize that a non sequitur reply like that is non responsive, right? (You not denying something nobody said just does not compare to whether or not you deny something that someone did say)


              We all know that he is using the word as it is used as a slang term in England. He has as much as admitted it before.

              So, each time he writes “fluffers” he is making a reference to a sexual act, which isn’t a very flattering sexual act. It is a person that preps another person for sex and the “fluff” refers to the male genitalia becoming aroused.

              He has been using this term for years on here and thinks he is clever or cute and that we don’t know what he is doing. I just think you are a vulgar a$$hold.


            “implementing ancient business practices “on a computer” is a patent system that encourages grifters to participate.”

            Another view is, that automating processes, especially processes that enable business and industry to operate more efficiently, produce higher revenue and create more jobs is the quintessential way to promote the progress.

            Of course if you are a left leaning, pro socialist/communist sympathizer that has never invented a single thing in his life, nor has any clue how to start and run an actual business, you probably think this entire patent system is a bunch of cr@p.


              “Of course if you are a left leaning, pro socialist/communist sympathizer that has never invented a single thing in his life, nor has any clue how to start and run an actual business, you probably think this entire patent system is a bunch of cr@p”

              Strange that the Soviet Union issued patent. Even stranger that the People’s Republic of China has a State Intellectual Property Office that continues to issue patent. It appears that socialists and communists don’t think the patent system is a “cr@p”. So why would “pro socialist/communist sympathizer” think the entire patent system is “a bunch of cr@p”?



                Truth be told, there is NO modern advanced society that would even dream of making a go of it without patents.

                But this serves your point less and merely reflects that even the most anti-personal property regimes bend their philosophies to account for reality.

                Yes, patents are that valuable.


                The patent system in the USSR that you speak of is used as a counter example of how not to issue patents.

                And interestingly the USSR system was about like the Alice decisions we are seeing.


                They may not but one that has never invented a single thing in his life, nor has any clue how to start and run an actual business, would. Just ask MM.


                Reality doesn’t matter in the age of the monopoly international corp. The slave minds will never ever see reality.


                Richard, if one is trying to enforce a patent in a system that does not have a strong legal system, your patent is little more than a piece of paper.


                Richard, think of a patent in a country without a legal system as akin to have millions in Confederate States of America bonds.


              “Another view is, that automating processes, especially processes that enable business and industry to operate more efficiently, produce higher revenue and create more jobs is the quintessential way to promote the progress.”

              I broadly agree with this view. The problem is that patent attorneys often do not do justice in claiming the automating process: either they do not understand the art enough or they wanted more than what their inventors actually invented.


                “attorneys often do not do justice in claiming the automating process”

                I think the attorneys in Ultramercial did a good job claiming an Integrated technological process. But when you have three Federal Court Judges h&ll bent on disintegrating the claims by any means necessary what can even the best attorneys do?

                I did a word search of the Ultramercialll decision and the terms “Integrate” or “Preempt” do not even appear in the document!

                The panel did not even pretend to apply the Court’s Integration Analysis and subsequent preemption inquiry.

                They just made up any law they wanted and said it was based on Prometheus and Alice, and expects everyone to just play along.

  11. 3

    – Alice kills software and “business methods” in the US. No court, or practitioner, can define ABSTRACT.

    – Myriad kills much biotech.

    -CAFC is so screwed up that odds of getting a patent found valid and infringed are quite low. So, no point in small business worrying about anything but publishing, if that.

    c’est la mort…….

    – Congress will very likely kill patent litigation with loser pays. So, no reason to play the patent game. It will revert to “sport of kings”.

    How soon can we expect layoffs of patent examiners in the US ? FY 2016 or 2017 ? Will layoffs of patent practitioners be far behind (or perhaps ahead)?

    1. 3.1

      Layoffs on both sides are coming.

      Firms will be faster in doing it, when filings start to drop off. Of course they wont call them layoffs, that looks bad and effects the firm’s reputation… It will be a series of adjustments to a new environment and a reduction of those elements who cannot meet expectations in that new environment. Stealth layoffs.

      Lots of that nonsense back in the heat of the last recession. This upcoming “adjustment” will be just a series of plays from that book.

      But the PTO wont be far behind. How will the PTO do it? Look no further than the trademark layoffs after the tech collapse.

      In a sense practitioners will be in the same boat as examiners… The practitioners wont be able to rely on the PTO as a last ditch employment backstop and the examiners wont be able to rely on the private sector to salvage their careers.

      The only difference between this and other downturns in work that have occurred in the past is that this one looks a little more permanent.

      Prepare yourself.

      1. 3.1.1

        Yes and we are getting reports of capital starting to leave some tech areas so that the technologies won’t be able to start new companies. We can expect lots of engineers to be laid off. And once the big companies realize that they can copy whatever they want it will become a game of copying like they have in Europe where few companies want to spend money to innovate.

        Expect draconian employment contracts (you won’t be able to leave your job), copying departments to get the latest of what others have done out immediately, corporate research departments to keep up appearances, etc.

        The Google shadow director Lee said there is the first mover advantage, but there is 50 years of European history that tells us that is not enough.



          Some capital may leave – but that makes room for others.

          MS is very good at copying – but that is why they are always late to a market. Copying ALWAYS shows who is following whom.

          Cant leave a job also means you can’t be fired either.


            Wow – you really think that “can’t leave a job” means that you cannot be fired…?

            The utter absence of logic is staggering.


              If you can be fired, then you can leave the job.

              Simple as that.

              Otherwise it is called slave labor.


            jesse: >>>Some capital may leave – but that makes room for others.

            This statement evinces an ignorance of the capital markets for start-ups.


              Night, it is reality.

              What happens is that it becomes cheaper to start a business.

              No need for a lot of expensive overpriced lawyers.

              It becomes possible to start a business in a dorm room, basement, or garage again.


                Nice dream jesse. But, that is not the consequence. Instead what happens is that start-ups that need capital can’t get it. All of the basement start-ups that you are likely referring to relied on capital from investors to get going.

                1. Those that are manufacturing real physical devices will still get backing.

                  Those attempting with software don’t need it. Granted, it is nice, but determining what is good software is not as easy as with real devices. And junk patents are only useful for fraud.

      2. 3.1.2

        What “huh”s of the world aren’t telling you is the connection between patents and innovation. Most large companies now use patents as a way to manage innovation. Is it worth a patent? What are those guys doing? Let’s get the patent guys to write it up. Etc.

        It is going to be a very hard, hard lesson for the US when innovation dies and we are left with these large monopolies like Google that have no motive to innovate.


          Although I don’t hope to get a Google monopoly, given the ridiculous amounts of innovation it already produces and how much it arguably already monopolizes, I struggle to see why you believe they will stop innovating if they do become a true monopoly.

      3. 3.1.3

        Of course people like huh and MM that are making their money burning it down are the most loathsome.

        And the second are the great thinkers like Lee who has no real experience in what she talks about. Or the Google judges that are ignorant of science and patent law and yet are put on the one bench where understanding science is important. Or the judicial activist professors like Lemley that don’t care about the law, but get their way through back doors and dark shadows because in the light of the day you can’t end patents without a hue and cry of those that understand the incentives they bring.


          And we will be left with engineers becoming b***** employees and large monopolies doing draining the middle class more.


            Engineers have already left.

            That is why so many are being imported (and the US isn’t getting the best even then).



              How is your emigration paperwork to China or India coming along?

              What do you think of the relative pay scale for coders such as yourself there? Ready yet to put your “money where your mouth is” and work for “the joy of it all” (while the Big Corp 1% owners laugh at your koolaid swilling all the way to the bank)?


                I’ve always worked for the joy of it all.

                and yes, been happily underpaid (as compared to others).

                And since my work was under either GPL or MIT license, I’m not worried.


          “Of course people like huh and MM that are making their money burning it down are the most loathsome.”

          I am making money responding to these posts because [google]?

          Man, your grip on reality must really be slipping. If you went to a psychiatrist and walked him/her through the logical process you use on this board to build up your conspiracies, they would instantly know that something is wrong.

          Maybe that’s what happened to this blog… A couple of unhinged people have embedded themselves and drown out all other conversation.

          Regardless, just because someone disagrees with you, doesn’t mean they are a paid to do so.

          I cant speak for MM, but my hunch is that he isn’t paid either.

          This paid blogger accusation throwing of yours really needs to come to an end. Along with anon’s “if you were a real attorney” line of garbage logic.

          In either case, its been fun, but I have other things to do than continuously throw back illogical accusations of [paid by google] and [you aren’t an attorney].

          Get some help buddy…


            Dear huh,

            Please do not mischaracterize my posts. There is no “if you are a real attorney” line of garbage.

            First – why is it that you do not confirm whether you are an attorney or not?

            Second – attorney ethics are real – and should be treated seriously, not dismissed as you attempt to do so.

            Third – taking both points above, the point of my post was not “garbage” – the point was a valid point for you to consider what the priority of fealty is for attorneys.

            That you kick up so much dust and choose NOT to answer is already an answer.

            As for “drowning out” – again you are aiming at the wrong crowd. Perhaps you should pay better attention as to who is asking others to engage on the points of law, and who is monologuing incessantly on any and every thread about the “evi1s” of software and business method patents or that actually enforcing patents must be “bad.”

            Yes, you are creating the perception that you are on Malcolm’s side. That comes from whom you wish to complain about while remaining silent when certain others engage in far worse rhetorical tactics here.


              There is no “if you are a real attorney” line of garbage.

              And “anon” never, ever tells lies just to please himself.

              Too funny.


              As for “drowning out” – again you are aiming at the wrong crowd.

              Says the guy who flooded this blog with dozens of posts a day under an equal number of ever-changing pseudonyms for years, all the while lying about doing so, until he was busted by Dennis.

              Too funny.


                Both of your comments are out of place on the “new” patently-o.

                And any comments from you about sockpuppets is rich considering how you are the blogosphere’s biggest hypocrite on the matter, whining about how they are the worst thing ever, yet still engaging them to this day at Patent Docs (that is until Dr. Noonan slammed you on your “transparency.”

                1. you are the blogosphere’s biggest hypocrite on the matter [of sockpuppets]

                  Remember folks: this same guy “anon” who got busted for his relentless sockpuppetry here (and his lying about it) is also the same guy who runs around here telling people that “I’m accusing him of what I do.”

                  But I’ve never done anything remotely similar to what “anon’ did here for years. He knows that.

                  There’s a word for people like “anon.” He knows that, too.

                2. This bizarre cybsertalking c r e e p who calls itself “anon” seems to have gone off the deep end again.

                  Nobody could have predicted.


              It is NOT the time to blog that matters – at all.

              It is the tactics used and the abdication of dialogue and the replacement of dialogue with monologue that matters.

              Excuses for not engaging – and denigration of those calling for engaging are the indicators to be aware of.


                denigration of those calling for engaging are the indicators to be aware of.

                The bizarre thing is that this guy “anon” really thinks that he isn’t a complete hypocrite.

                1. I have always maintained that I will post by any set if rules that I see objectively and uniformly applied.

                  Your “history” Malcolm, preceding mine here by several years, shows that my comments on this matter are accurate – no matter how painful that might be for certain people, or no matter how inconvenient that is for whatever set of “folks” you think that you are addressing.


            The people that should not be taken seriously are judges that are appointed on the bequest of Google and law professors that have no care for our judicial system.


            And in-house you strike me as one of these dweebs that has a full belly and doesn’t know the bigger system. Never been really challenged or vetted. Not much to offer to an intellectual conversation.


            judging by the amount of time he spends on here his employer is certainly paying him to read/write comments on this blog.

            Or I have acquired the skill of readinig and writing very quickly, like many attorneys, especially when I’m reading and writing about a subject I’m very familiar with.

            Gee, I wonder which is closer to the truth.

            How many attorneys does your company pay to write comments on blogs?


              “Or I have acquired the skill of readinig and writing very quickly”

              Seriously, how much skill does it take to apply your “cr@p” analysis?
              According to your logic all you do at 101 is look at a claim and if it involves computers and/or helps a business, gasp, make a profit, it’s cr@p. And such a proposition would be laughable if we didn’t just have three Federal Judge s just do this very thing in Ultramercial.


            Perhaps we should start referring to you as a paid blogger for pharma? Before tech got involved in lobbying for patents, pharma was there. Under your logic, since you agree with their positions you MUST be their shill. And maybe we should start calling any judge appointed to the fed cir pre-2008 as a “Eli Lilly Judge”? Because $$$.

            No. Because that would be ridiculous.


              It would be ridiculous because it ignores the reality of how patents have become very political. It ignores the vast amounts of money that Google has been pumping into lobbying.

              It also ignores the reality of the judicial activism that has happened over the last three years.


              So, yes Jane, reality counts.

              The judges that Obama has been appointing are abysmal. No interest in science. No interest in patent law. But, they just know that patents are bad so they get appointed and we are seeing the results with outlandish rulings on their part.


              And seriously is it so bad to ask for a judge that is qualified? A judge that has actually practiced patent law? That has expressed an interest in science at some point in their lives.

              Seriously. We just got one. Thank you Obama, but I suspect he only did that because he was replacing Rader and knew it would cause a hew and cry if he appointed another Google judge like Taranto.


              And Jane, I have predicted pretty accurately most of the big cases and most of what has happened including that “abstract” was going to be used to take out patents. I figured that out when Rader mentioned it in Bilski.

              I can do this because I know what these people are. I don’t kid myself.



              Don’t bother using logic responding to NWPA, he is well past that now.

              NWPA is now nothing but another paranoid conspiracy theorist. And a legend of one given his self proclaimed track record, at least in his own mind.

              The only thing that can help him is a frank discussion with a trained psychiatric professional about his thoughts.

              But logically working through his issues on an internet forum? No way. Waste of time.


              Sure huh. And Google isn’t spending more money than any other corporation to influence Washington. Sure. That is from the front page of the Financial Times.

              Fact is that I deal in reality. And quote outside sources, which are not responded to.

              Example: that during the AIA there was a massive effort to bifurcate patents. The people on this blog denied this and said the type of things huh did and then ole MM posted a video of one of the anti-patent lobbyist discussing the bifurcation effort and how well known it was.

              So, please huh and whoever Jane and the rest of you nut balls. How about responding to outside sources? I posted an article from the Washington Post on how patents have become political. I posted an article from a physics professor from Stanford discussing the conservation of information. Etc….

              My themes are backed by outside reputable sources.


              Your huh and Jane are backed by what? The propaganda of the anti-patent movement.

              Shameful slave minds is what you have.


              By the way Jane, Obama said that he believed there was a problem (the biggest problem he faced as president he said) and that he was going to do something about it himself.

              So, Lee and the Google judges and the patent judges being appointed to burn it down is not fanciful in any way.

              Man, you people have slave minds.

      4. 3.1.4

        Prepare yourself

        And how would one do that (in your opinion)?

        The lawyers…? They will be fine – plenty of trade secret and employment agreement work to be done. So who do you think will be really shafted by this trend? Who do you think needs to “prepare?”

      5. 3.1.5

        I don’t think any changes at the PTO will be quite so drastic as you suggest. There is still a large backlog in most areas, so many of the examiners could be transferred to different art units and trained in the new technology. I suspect the first change will be that the PTO stops hiring for certain areas, and any remaining glut of examiners can probably be dealt with by attrition.

    2. 3.2

      One way I can tell that you lot are not real is that you don’t know what the key event is that will indicate the fall has come. Those of us that are real patent lawyers know. It hasn’t happened yet. There are signs of weakening.

      But, you marshmallow burners –burn baby burn–are ignorant little tw*ts and we can tell that because you don’t even know what to look for in the down fall.

      1. 3.2.1

        Night – it has been happening ever since the 1980s.

        There is just no real sense in starting a software business in the US. They have been getting stomped by the incumbent monopolies for years.

        The only reason Google made it was that they couldn’t be stomped in the usual manner. And Google recognized the power of open source. They back it, and support it.

        The incumbents don’t understand it and tried to force it out of use – and failed. Tried to patent it out of existence… and that failed.


          What I have seen save software companies is patents. I’ve seen it stop Microsoft. Google’s patent probably stopped MS from directly copying the site.

          Jesse: I don’t know what your experience is, but mine has been extensive.



            MS did try to directly copy. Did you forget they were copying the Google responses when users made queries while using Windows?

            MS just isn’t very good at it, and Google is very good at staying ahead.

            If they weren’t, Bing would be a bigger success. As it is it just breaks even.



          Once again you exhibit an ignorance of how patents work.

          You cannot “patent out of existence” and force someone from their own innovations.

          You are doing that parroting of the anti-software mantra without critical thinking thing again.


            Then you have been deliberately ignorant – MS has been using bad patents to threaten any company that makes anything with Linux in it.

    3. 3.3

      At this juncture, software and other method patents need their own form of patent. Something separate from utility patents that explicitly allows for functional claiming and has a statutory framework that you can lean against without it falling over.

      How can this be sold to Congress?

      By making it a lot shorter term-wise than normal utility patents (think 5 or 7 years) AND substantial infringement exemptions for end users.

      This would be seen as reasonable and prudent. But much of that patent bar is neither, unfortunately.

      Instead there are calls to remove patent law from appellate jurisdiction of the Supremes… Not going to happen.

      There are calls to remove section 101. Not going to happen.

      In the end, this is turning into a simple choice between something or nothing. And right now nothing is winning.


          That you appear compelled to add this thought SHOULD trigger the recognition that the Court is not reading a map, but instead is writing a map.

          Have you brushed up (yet) on the differences between statutory law and common law?

          Are you willing yet to reveal whether you are an attorney and share which state oath you have sworn too? Do you yet realize that your unwillingness to do so weakens your credibility?

          And please spare us the dust kicking of “that must mean that only attorneys can speak” as it does not. In no way am I saying that non-attorneys cannot have opinions (even informed opinions). So let’s not attempt that obfuscation.

      1. 3.3.2

        Software is not a method.

        Executing software is a method.

        This is not a difference that can be glossed over. This is a statutory category difference.

        Once again, obfuscation and ignoring of baseline facts (software is a manufacture) helps no one.

        The Act of 1952 already allows functional claiming – and yes, allows such outside of 112(f) which is an option for purely functional claiming.

        This is the law NOW – why is huh seeking something else?

        Further, why is huh seeking a partition that offers weaker protection than what is available under the law now, with weaker time and even greater Infringer Rights provisions?

        That he calls this “reasonable and prudent” only shows that he does not understand what those words mean.

        Yes the call to remove the Supreme Court’s appellate jurisdiction is a long shot. But it is a shot with a far firmer legal basis.

        Be careful of your ‘nothing’ gambit – as we see with the “Gist/Abstract” sword, the ideological ploy will not be limited to the single art field and that radiation zone you seek to invoke will bite you in the a$$.

        As it should.

        Important lesson for you to (still) grasp: the ends do not justify the means.


          Justice Sonia Sotomayor: “It sounds like you’re trying to revive the patenting of a function”

          That didn’t bother you at all?

          Even without that, this is a judiciary that has already demonstrated that it is opening hostile to the patent bar, and you think they will be your best buddy when it comes to 112?

          No. We have a problem, and closing your eyes and screaming wont make it go away.

          This is why no one takes you seriously. As another poster rightly said… You are nothing more than a bellweather for where the law wont be headed.

          We need ideas to move this conversation forward. Not just more complaining about the Supremes. And that is all you have done is complain. Complain. Complain. Or try and resurrect your grand hall experiment or new machine or any other of a litany of old hat that doesn’t change the fact that Alice happened and your theories are worth nothing.

          Maybe my idea wasn’t a winner. I can accept that. But we need something realistically implementable, and relatively soon.

    1. 1.1

      I expect that the figures here will drop dramatically in FY2016.

      Reminds me of the adage: be careful of what you wish for, as you might very well get it.

      Kondratieff’s Fifth Wave may have crested prematurely prompted per propaganda.


            do you even know who Kondratieff is

            Sure. Here’s his wiki entry:

            In economics, Kondratiev waves (also called supercycles, great surges, long waves, K-waves or the long economic cycle) are supposedly cycle-like phenomena in the modern world economy….

            Long wave theory is not accepted by most academic economists …. Among economists who accept it, there has been no universal agreement about the start and the end years of particular waves. This points to a major criticism of the theory: that it amounts to seeing patterns in a mass of statistics that aren’t really there.

            No wonder you love him so much.



                So now huh is the little bozo cheer leader. Well how about if you want to be a real person that you start responding to real substantive posts and not with glib little comments. Slave boy.

                1. As much as it hurts, Anon2 had a post awhile back that explains this:

                  This is just not an objective forum.

                  For at least eight years and running.

    2. 1.2

      So far I don’t see it. I think the reality is that patent applications have become so ingrained in the process of innovation in this country that it will take some more undoing of the patent system.

      The blow of a company like Google announcing they will no longer file patent applications would ki11 the system, but that may never happen. Instead we may end up with a mutation that leaves patents around for the monopolies to use to beat up the small guy.

      1. 1.2.1

        “leaves patents around for the monopolies to use to beat up the small guy”

        Which is what the software patents are used for now.

        Usually referred to as “extortion”.

    3. 1.3

      I meant I was wondering why Dennis felt the figures would drop dramatically in 2016 instead of 2015?

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