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.
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?
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….
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.
“…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.
You must be a patent examiner
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?
A v0mitfest of canards and the same old retread fallacies from our favorite self-appointed victim.
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>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.
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.
Martin,
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.
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.
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.
The Practical Impact of the Supreme Court’s Mayo and Myriad Decisions on Biotechnology Patent Practices.
link to bna.com
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.
They also believe that fairies keep transferring money into their bank accounts and not lobbyist.
Whither India?
link to america.aljazeera.com
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.
Is this the source of your anti-patent koolaid?
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).
LOL
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.
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.
Too bad you don’t get that information processing is about the same.
Hardly. Most software doesn’t cost $1 billion to develop.
RH,
As I point out at 13.2.2, you are remarking on a moot point.
Let’s stay focused.
Why is that a “moot point”?
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.
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.
So we do see the heart of MM in this post.
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.
So a non-substantive response. Do you disagree with that?
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.
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.
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.
“drop dramatically in FY2016”
What does the professor think is going to happen two years from now (FY2015 just started).
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 businessweek.com
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?
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?
Bayh-Dole.
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.
Actually, I do get it.
It is legally stealing the publicly paid for research.
Way to prove that you don’t get it, jesse.
You do know that Congress passed the Bayh-Dole Act, right?
Of course.
How else do you legalize stealing?
The general notion of law eludes you, eh jesse?
The general notion of justice eludes you.
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.
Incinerate away! Maybe during the conflagration some honest statements will slip through.
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.
It is when those “basic facts” are false that problems arise.
Your ‘belieb’ system is getting in your way again, jesse.
Not in my way.
In yours.
You are doing that monologuing thing again jesse…
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.
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.
They already have no problem with that.
They also make the devices for those Korean vendors…
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.