S.A.W.S. Class Action Lawsuit

eVideo v. U.S.A. (Ct. Fed. Clm. 2015)

In an interesting Section 1491 class-action, eVideo has filed a class-action lawsuit against the U.S. government asking for damages based upon the harm caused by the Patent Office’s S.A.W.S. program. The Sensitive Application Warning System (S.A.W.S) is the now-defunct U.S.P.T.O. program that gave double-top-secret scrutiny to applications designated as “sensitive.”  The Agency has – up to now – refused to identify which applications fell into the program (even to the applicants themselves), although a examiners inadvertently told applicants about the designation.

The harm here alleged is all USPTO and prosecution costs in applications after they were designated under the S.A.W.S. program. Joseph Zito is the lead attorney on the case.

Docs: eVideo Complaint

Dennis Crouch

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

96 thoughts on “S.A.W.S. Class Action Lawsuit

    1. The complaint seeks compensation for torts associated with rather clear violations of 35 U.S.C. 132 (a), of 37 C.F.R. 1.104 (a), and of implicit contract related to fees. It should be fairly obvious why the USPTO has no desire to make available the list of applications that were put into the SAWS program.

      It appears that the plaintiff believes that issues of Constitutional violations, e.g., substantive due process, have to be handled separately. (I have not been able to get any expert to tell me whether a Bivens complaint would be appropriate.)

      I have to wonder whether Focarino’s retirement is in any way connected with the SAWS program and its demise.

      1. While on the one hand we should give credit where credit is due (thank you Prof. Crouch for making a rather Public display of the Office game-playing and hiding inappropriately from Freedom of Information Requests, and the ensuing attempt to moot those requests by quickly shuttering the program), we all should be very much aware that SAWS was only one of its kind of star chamber tactics inside the Office (based on admissions of the Office itself), and that more (not less) sunlight is still needed.

        And yes, there are still usual posters here that cannot seem to grasp the actual issues at play: the ends do not justify the means.

        Ever.

        1. Note that the SAWS termination announcement

          link to uspto.gov

          could be read as stating that the SAWS program will continue as an additional quality assurance check but won’t be called SAWS anymore.

          What does the applicant do if those involved in the enhanced quality assurance check flag a patent application as “to be rejected by any argument no matter how vacuous”. Will the applicant be told that his/her patent application has received this status? Will the applicant be told what he has to do to get his/her patent applicant out of this status?

          Will the enhanced quality assurance program affect large corporate interests, small business, and individual inventors equally, or is the USPTO creating purposefully or inadvertantly an IP regime, in which only large corporations have patent protection?

          1. What does the applicant do if those involved in the enhanced quality assurance check flag a patent application as “to be rejected by any argument no matter how vacuous”.

            What does the applicant do if aliens teleport into the PTO and remove all traces of his application? How do we know that’s never happened? Clearly more sunlight is needed. A camera in every room would be great.

            Of course, we must turn all the surveillance off during telephone conferences between Examiners and applicants or nothing will ever get done. Let’s be realistic, after all.

            1. Malcolm,

              Brush aside your smarmy (and ineffectual) ad hominem and you have yet to make a point.

              The “aliens teleporting” bit is not even funny and shows a total lack of wit in attempting to belittle a very real concern of Stat Chamber action – and the very basis of that type of action is entirely missing in ANY interview discussion, so your attempts to kick up dust with that non sequitur are equally disingenuous.

              Of course, this was pointed out to you previously.

              You need a better script.

            2. Just more garbage from the paid blogger MM. It is pretty clear that his intent is to disrupt any argument that does not fit the script of his employers. It is beyond me why Dennis has allowed this blog to become a propaganda machine for the anti-patent movement.

              1. It’s better than shutting out such comments entirely. While there are certain posters in both the patent hating and patent cheerleading camps that often detract from the site with petty squabbles and cryptic snarkiness, I think it’s still better to let everyone post what they like than trying to regulate the discussion too much.

                1. Abstraction,

                  Do not misunderstand – I do not call for regulation of view points. You can have whatever viewpoints you want. Rather, I call for the “regulation” of the drive-by internet style monologuing shout downs characterized by the refusal to appreciate, recognize and incorporate counterpoints made that happen not to fit in what is obviously otherwise pure propaganda.

                  I do hope that you can tell the difference.

  1. Plurality: >When is the last time the stats were updated on that website? About three years?

    How did you come up with that Plurality? How about trying to be a reasonable and fair minded person. I advised my client with what information I had. I work very hard to be competent at what I do. At the time I was working for one of the largest and best IP boutiques. But, maybe the PTO wasn’t playing fair. Maybe the PTO was saying don’t allow this application and I didn’t know that. My client didn’t know that.

    So how about stop trying to make me or the company I was representing (which is one of the largest and most respected tech companies in the US) as people of low moral or ethical character.

    The reality is that I was doing the best I could for my client. Was the government playing unfairly? I think we have a right to know. And I think that it will be hard to tell without looking at aggregate data.

    Please —I know many of you are paid to blog on here and that many of you are find it funny and just so clever to join along with the paid blogger—but, please, try to fair minded.

    1. Maybe the PTO was saying don’t allow this application and I didn’t know that.

      Maybe aliens were slowing prosecution with their anti-patent ray.

    2. Night,

      I know you and I disagree on a lot, and I don’t have a problem with the USPTO having extra review of certain patents BUT…

      I definitely think you should be told what those procedures are and whether your patent is subject to those procedures so you can act and advise accordingly.

  2. I would like to see a class action based on examiners that only reject patent applications and do not allow them. Information about these scoundrels can be found on link to examinerwatchdog.com – a simple t-test can show that examiners with an allowance rate of less than 20% in an art unit with an average allowance rate of greater than 50% are outside of any normal statistical variation, and are rejecting patent applications based on an inherent bias against patents (e.g. open source). That is like letting a KKK member decide EEOC cases, or a terrorist make FAA policy.

    1. Hey Ben, I have some sympathy for you in this but you do have the avenue of appeal. The greater problem that I see is that when a patent examiner issues in invalid claim, the public has no appeal.

      In another thread, I made a suggestion that the PTO allow the public to comment on issued patents with feedback to the examiners and to the examiner’s bosses. I would like bosses to be able to fire examiners who issue clearly invalid patents, and if not that, put such examiners into retraining Siberia located in Siberia for their careers.

      1. “I would like bosses to be able to fire examiners who issue clearly invalid patents, and if not that, put such examiners into retraining Siberia located in Siberia for their careers.”

        Lol wut? Come now Ned, you as well as anyone appreciates that the PTO is not a perfect shield against the power of the entitlement put forth in 102. The mitigation offered by an imaginary man in 103 who is often supposedly barely out of imaginary school though he is all-knowing regarding his published/wellknown aspects of his art and only his art or that art related to problems inventors are solving is just not all that much mitigation in some arts.

      1. Apotu,

        The landing page of the link clearly (and prominently) states the last update was May 18, 2014.

        Had you clicked the link you could not have helped see that.

        Perhaps the Office itself should track this metric and keep it up to date….

        Your comments of late have been runnin to a knee-jerk defensive posture – I expect better from you as typically you have been one of the more thoughtful examiners posting here.

        1. I asked the question because I looked up my own stats and they were far, far out of date. They didn’t even have my art unit number right.

          1. The question you actually asked HAD the ready answer.

            If you wanted to ask a different question – that of accuracy – then you should have asked the different question.

            As it is, a question on accuracy is a better question for the particular source, albeit that question does not impugn the idea advanced by Ben Franklin in the first place.

            As I said, your posts of late are pretty shoddy and exhibit a knee-jerk reflex that I know is not sure best stuff and that you are capable of better posting. Think a bit before you post please and return to the better posting that you have shown in the past.

            1. Well, I’ll take it as a compliment that you believe I could do better.

              I’m sure you understand, though, that my reaction to a website whose primary purpose appears to be to impugn examiners’ reputations (it touts itself as a “watchdog” and it has a “most appealed” leaderboard) is going to be one of skepticism from the outset. So when I take a look and see that the data is not accurate (and whether this is because the data is old, incomplete, or simply wrong is beside the point), I think it’s reasonable that I would express my dissatisfaction.

              If a website kept statistics on patent attorneys’ rates of obtaining issuances versus abandonments, I’m sure most of the attorneys here would feel similarly irate, and justifiably so if those statistics weren’t even correct. I understand that these statistics don’t affect us as directly as they do you – we aren’t retained based on our allowance rates, while you could lose business if a potential client didn’t like the numbers published about you – it still could impact the way that attorneys deal with us, such as when deciding whether to amend, argue, or appeal. I don’t want inaccurate stats to stand in the way of an attorney calling me on the phone to try to get something resolved.

    2. a simple t-test can show that examiners with an allowance rate of less than 20% in an art unit with an average allowance rate of greater than 50% are outside of any normal statistical variation, and are rejecting patent applications based on an inherent bias against patents

      Or they just know how to do their job.

  3. I am pretty sure that one of the applications I prosecuted was under SAWS. The client shelled out probably $50K (it may have been more) over 10 years and never got a patent. The real question with SAWS is whether or not my client was treated fairly or not. If the PTO had a non-allowance flag set on their application, then my client was treated unfairly. The problem here is that we need to see what actually occurred in the aggregate to understand what the PTO did.

    (Ned, regarding the judge stuff: did you know that Sandra Day O’Connor a former state judge has been lobbying for years now to reform the state system to one where the governor appoints state judges in a manner similar to federal judges and with a method for the public to remove really bad judges. )

    1. The client shelled out probably $50K (it may have been more) over 10 years and never got a patent.

      What are we, a slot machine?

    2. The client shelled out probably $50K (it may have been more) over 10 years and never got a patent.

      My heart bleeds! Was his belly bloated from starving all that time?

  4. What this tells us is that the system of electing judges is inherently corrupt.

    I would like to see a case where the system was challenged as being unconstitutional. It smacks of unfairness and undue influence by big lawfirms.

    1. Jefferson v. Hamilton.

      Hamilton: lifetime appointments assures integrity and independence.

      Jefferson: elections assure judges obey the people.

      Over the years, Hamilton’s views have proven to be the better choice. Electing judges not only invites corruption, it guarantees judges will not protect the minority, nor write the unpopular opinion.

      The majority of the Supreme Court clearly do not favor electing judges. Ginsburg actually cites “due process.” It is time for a constitutional challenge.

      And if this does not prevail, I think an appropriate amendment to the Constitution is in order.

      1. The majority of the Supreme Court clearly do not favor electing judges

        In their previous lives, were any of the current Supremos ever elected to a judgeship or any other public office?

        1. MM, I don’t know. But the extensive discussion of corruption in the opinion shows that much of the idealism of Jefferson that even the judicial branch be democratically elected was foolish.

          Elect presidents. Elect congressmen. But place the judicial branch out of reach of influence by anybody.

          1. Ned,

            The only way your desired system works is if there is a functional checks and balance system in place.

            Clearly, your bias to the Royal Nine exemplifies a bug and not a feature as to an unrestrained and unaccountable and out of control judicial mess impacting statutory law.

            Wake up son.

  5. INNOVENTION TOYS, LLC v. MGA ENTERTAINMENT, INC.
    link to cafc.uscourts.gov

    This is the first case that I know of where damages were awarded prior to issuance of a patent based upon provisional rights. The patent owner notified the infringer of a its “infringement” of the published application claims. The only material issue was whether the claims were changed in scope – they had been amended during prosecution. But the Federal Circuit affirmed that the scope had not been changed based upon prior cases involving reissue patents.

    On other issues, the Federal Circuit affirmed the jury verdict of non-obviousness because the infringer had been using hindsight to argue motivation, but reversed a finding of willful infringement and an award of treble damages and attorneys’ fees because the defense presented at trial that the claimed invention was obvious was reasonable.

    What is remarkable here is that an employee of the infringer was at a convention where he observed a demonstration of the inventor’s new game, proceeded to copy the game, was notified by its Chinese vendor that the game was marked “patent pending,” was notified of infringement by a letter enclosing a copy of the published application, and still its infringement was held to be not willful.

    1. The Federal Circuit needs to reconsider its jurisprudence on willful infringement. If this is not a case that describes aptly what willful infringer is, I know of no other case that lays it out better.

      I would hope that the Federal Circuit takes this case en banc, and if not, I hope that the patent owner here takes this case the Supreme Court.

      What happened here should not of happened. The defendant willfully infringed by any measure of what that should mean. And yet the Federal Circuit reversed because the infringer presented an arguable defense to validity at trial. That should not be the test. The infringer should not be able to willfully infringe based upon their own private beliefs of validity. Patents must be presumed valid under the law and one’s opinions on validity should have no weight in the calculus of willful infringement.

  6. I cant imagine that the class would be certified. The issues in each case are distinct, you’d have to argue damages in each case.

    Lol at everyone thinking that Examiners performing a quasi-judicial function can be penalized. Bigger lol at a blanket complaint that because an application was given more scrutiny that there was anything wrong with the prosecution.

    I always applaud lawyers wasting their own time and other people’s money though. Let’s just say it moves me – to a bigger house. *simpsons theme*

    1. Applicant files a 1000 page application and a claim to “The world and everything in it.”

      After a couple years the PTO rejects the application. However, the rejection was not signed. Applicant appeals and, after a year or so, wins! Yay for “due process”! Another year passes and there is another rejection, this time under section 104 (thanks to a typo). Applicant appeals and, after a year or so, wins! Yay for “due process”! Another rejection follows after a year or so, this time under 101. Applicant points to definition buried in 1000 page specification where “the world and everything in it” is defined to be “a red bicyle with a plastic strap configured to hold a portable computing device”. Another rejection follows after a year or so. Applicant is devastated.

      Applicant’s attorneys have charged (and receievd) thousands of dollars for blowing sunshine up the applicant’s behind on the phone, all the while secretly mocking him for being a desperate ignoramus.

      Surely that money lost is the PTO’s fault. Anybody can see that. It’s plainly some kind of conspiracy!

  7. Visit any of the past SAWS threads and you see the sAme ones (not someones) yammering cluelessly about the issues with SAWS.

    Go figure.

    1. the issues with SAWS

      As noted before, of all the glaring problems with our broken patent system, surely among the least concerning one is the PTO’s failure to grant the worst junk presented by the worst applicants.

      For every junk application allegedly “unlawfully” caught in the gears of SAWS, there were surely tens of thousands of equally junky applications that sailed through and (surprise!) none of those ever seemed to bother you. On the contrary, you were always (and are) far more concerned about folks pointing out how junky those patents were (and are).

      Let’s see the filed claims that Mr. “Highly Distinguished” was so desperately trying to obtain, “anon.” Go ahead and type them out for everyone. Then defend them.

      1. You keep on wanting “claims” when “claims” are completely besides the point here.

        Try to focus beyond your short script.

      2. Since you seem to have a list of all SAWS applications and were able to parse through that list and conclude that the vast majority of those SAWS applications are directed to the “worst junk,” could you please publish that somewhere so we can review your conclusion?

        Thanks!

        1. As already noted: one need only look at the industry-capturing junk claims that the PTO has been granting for years to recognize that the stuff that doesn’t get out must be truly “special.”

          Please type out for everyone the “movies over the Internet for money” claims that Mr. “Highly Distinguished” filed in 2001. You have the application number. Then defend those claims.

          You seem like a really smart guy. That should be easy for you. After all, Mr. “Highly Distinguished” is really highly distinguished, right? Surely it was the PTO giving him the runaround and not the other way around. He wasn’t just gambling on PTO oversight/flakiness and hoping to make a bunch of easy money “off the Internet”, right? I mean, nobody would ever do anything like that, least of all a “highly distinguished” person.

          1. I don’t care about the claims about the one SAWS case this guy identified. I don’t know why you keep blathering about “highly distinguished.”

            Your statement that the vast majority of cases held up in SAWS are software cases is pure conjecture. Your ignoring of the SAWS issue is an ends-justifies-the-means mentality. If that’s OK for you, great!

            But even the Director recognized the problems that SAWS imposed when she eradicated it. So what’s your point, exactly? YEAH GET THOSE A$$HOLES AND THEIR SOFTWARE CLAIMS YEAH!

            Is that all?

            1. I don’t know why you keep blathering about “highly distinguished.”

              Because that’s how the applicant characterized himself, presumably because it’s supposed to matter to somebody.

              I don’t care about the claims about the one SAWS case

              Right. Because surely this case and this type of applicant is very unusual. I mean, nobody could have predicted …

              Your statement that the vast majority of cases held up in SAWS are software cases is pure conjecture.

              I don’t recall making that statement. Where did you find that statement?

              Regardless, I’m sure there are some broadly drafted cancer and HIV-curing cases as well as communications, superconductor, business method, and perpetual motion claims. That’s because the PTO used fundamentally different criteria to flag the cases (e.g., some cases were likely flagged not because the claims were “industry disrupting” on their face but because the applicant had a legendary reputation for wasting the PTO’s time with junk claims and even junkier arguments, or because the applicant had a reputation for presenting and obtaining facially narrow claims and then asserting them broadly). And also because that data was published earlier in the year:

              link to patentlyo.com

              See Figure 1B. 1600 is “biotech and organic chem”; 2600 is “communications”; 2800 is “Semiconductors, Electrical and Optical Systems and Components”, 2100 is “software” and BM is “business method.” It’s anybody’s guess as to what fraction of the 1600, 2600, 2800, and BM claims in that data set are protecting “innovations” in information-processing logic. I’ll go waaaaaaay out on a limb and suggest 75%.

              1. More (typical) Malcolm self-FAIL.

                Malcolm talks about “it’s published” to the tune that enough data is out there by referencing to a guest post, whose authors state the opposite.

                The actual headings of the linked post:

                SAWS Impact
                – Reduced Allowance Rate
                – Extended Prosecution of Patents

                Concerns and Oddities Surrounding SAWS
                – The PTO is Not Recognizing the Impact of SAWS
                – The PTO is Hiding its SAWS Classifications
                – SAWS Violates Proper Rule Making
                – SAWS Violates Due Process

                Our Call to the PTO: Be Transparent about SAWS

                As I said: the sAme ones yammering cluelessly.

                1. I’m still looking for the comment where I stated that “the vast majority of cases held up in SAWS are software cases”. Did you happen to find that quote while doing your spiffy research? Let everyone know

                  Whether or not the authors believe that the data in Figure 1 is, in fact, representative of all SAWS-impacted cases, it’s hardly unreasonable to expect that to be the case. Broad industry-capturing business method claims and broad industry-capturing computer/Internet related claims are exactly the kind of cases we’d expect (and hope) the USPTO to be keeping a very close eye on. With respect to the former, I’d go further and hope that by now the USPTO would have in place procedures for efficiently stuffing such claims in the applicants faces without little ado or effort. It should not require much more if the games that applicants inevitably play are pre-addressed (e.g., ridiculous arguments about analogous art).

                2. Did I say that you said that?

                  Hint: no.

                  But nice non sequitur to what I actually posted, along with a reminder of your usual windmills including (gasp 😉 computer claims which DOES reinforce the fact that you have said that all software is de facto non eligible – which is clearly incorrect in law and in fact.

                  Maybe instead of your usual diatribes, you might want to try to get close to the actual topic of this thread… Near 40% of all posts here and you have yet to say anything on point or remotely accurate.

            2. MM usually has no point other than all “software patents” (whatever those are) are “bad”. Every once and a while, he’ll have a post about something that’s not software and on point, but it’s rare.

  8. Should be interesting to see what (if any) documentation comes out from this suit, although I question the viability of a class action. If the class is defined as anyone who had an application get designated as SAWS, the plaintiff will have a tough time showing that their own alleged delays or additional costs are really typical of the class members.

    There’s also the possibility that some class members may oppose the class designation because of the potential for disclosure of their own still-unpublished applications (a serious enough thing that they lobbied Congress to remove from a recent patent reform bill a provision to report broad statistics on still pending pre-GATT applications).

  9. There are losses associated with excessive delays forced by the SAWS program. Money is more valuable earlier than later while a patent may become much less valuable if not granted in a timely manner. The plaintiffs should seek much more than compensation for extra prosecution costs.

    Bivens Complaints with personal and punitive liabilities against USPTO officials might quickly result in a list of the patent applications that went down the SAWS black hole.

    Patents are a Constitutional matter.

    The Supreme Court created a private damages action against federal officials for constitutional torts (civil rights violations), which are not covered by the FTCA. In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the Court held that the Fourth Amendment gives rise to a right of action against federal law enforcement officials for damages from an unlawful search and seizure. Since a Bivens action is brought against a federal official in the official’s personal capacity, it is not considered to be an action against the United States and therefore is not barred by sovereign immunity. Bivens is not a general tort law. The plaintiff seeking a damages remedy under Bivens must first demonstrate that constitutional rights have been violated.[Davis v. Passman, 442 U.S. 228 (1979) ]

    Bivens suits have been acknowledged by the Court as having more of a deterrence effect against federal officials from committing constitutional torts than the FTCA. This is chiefly because a Bivens suit is a personal suit against the official, and punitive damages are recoverable. The government is substituted for the defendant in FTCA cases, and the FTCA does not allow punitive damages. Thus a Bivens defendant is at risk of personal liability, including punitive damages, while the government pays all damages in FTCA cases. Procedurally, a plaintiff is entitled to a jury trial in a Bivens action, but not in a FTCA case.[Carlson v. Green, 446 U.S. 14 (1980) ]

    The main defense for a federal official in a Bivens action is official immunity from actions for damages. There are two types of official immunity available as affirmative defenses: absolute and qualified.[ Butz v. Economou, 438 U.S. 478 (1978)] Absolute immunity is granted to judges, prosecutors, legislators, and the President, so long as they are acting within the scope of their duties. Qualified immunity applies to federal officials and agents who perform discretionary functions, but may be overcome by a showing that their conduct violated a constitutional right.[Harlow v. Fitzgerald, 457 U.S. 800 (1982) ]

    1. Joachim, but this is a suit against the USA. All it asks is for a return of fees, including attorneys fees paid, for prosecution under SAWS.

      1. All it asks is for a return of fees, including attorneys fees paid

        Pretty sure I could have saved this guy a lot of attorney fees.

        But his attorneys were surely glad to keep taking his money in exchange for peddling his junk to the patent office.

        It’s what patent attorneys do, every day. All of them? No. But most of them do, at least for some fraction of their clients.

        Of course, we patent attorneys are not supposed to talk about this. Right, “anon”? We’re supposed to be “zealous” on behalf our clients. Surely a really smart patent attorney can always come up with some fancy way to describe, say, how to determine the order of two objects moving on a conveyer belt in such a way that it seems sooper dooper “techno.”

        Same with delivering some information over the Internet (wow!!!!) in exchange for money (wow!!!!!) at a designated time (truly beyond belief). That was an ancient concept in 2001. Maybe Mr. “Highly Distinguished” Here (btw — I’m just as “highly distinguished” as this character, as are most people who had a successful scientific research career for any modest length of time) didn’t know that because he was getting senile. Maybe his lawyers were born in 1999 and didn’t know what the Internet was until Mr. “Highly Distinguished” invented it before their own eyes.

        The point being is that these guys threw junk at the PTO for a decade because they were being paid to do so by a guy who was hoping to make a gazillion dollars off the junk patent. That didn’t pan out. So a grifter does what a grifter does: find someone else to sue. After all, it can’t possibly be Mr. “Highly Distinguished”‘s fault that his bag of gold wasn’t at the end of the rainbow where he was promised it would be. So many other people got super rich off the Internets with the help of their patent lawyers. It’s all sooooooo unfair that Mr. “Highly Distinguished” got shut out of the game. Boo hoo.

      2. Ned: All it asks is for a return of fees

        If he’d hired some better attorneys and listened to them he could have saved a lot of fees.

    2. Patents are a Constitutional matter.

      You have no Constitutional right to a patent.

      1. Some aspects of SAWS may have violated criminal law

        THE TAINTED SAUSAGE WAS REJECTED BY THE FDA BEFORE FORM 281 WAS SIGNED! CALL THE POLICE!

        You guys are unbelievable.

      2. and have thereby poisoned a process rooted in the Article I, Section 8, Clause 8 of the US Constitution

        The Constitution grants nobody a right to a patent. Patents only happen because Congress passed a law authorizing it. They could repeal 35 USC tomorrow, and any new patent applicants (and arguably current ones) would have no recourse.

        1. I think that you are arguing a strawman, Apotu.

          Constitutional matter is not the same as constitutional right, and yes if Congress wiped away patent rights tomorrow we would not be having this conversation- that does not change the fact that patent rights DO exist under the statutes written by Congress through the authority of the constitution.

          Much like voting rights – once established, you DO have to deal with them and all of the constitutionally related effects.

            1. I agree with anon. The Constitution specifies an inventor’s right that Congress has power to put into effect. I will check with some of the Constitutional law experts with whom I consult, but possible abuses by USPTO officials seem to come within the purview of the various SCOTUS decisions related to Bivens.

  10. From the complaint: The eVideo applications include claims involving systems and methods for providing video on demand. The systems and methods involve … the Internet, computers operated by a user, a video decoding device of a user, and a payment from a user for video content.

    The 09/840,869 application on this “hot new technology” was filed (try to believe it) on April 25, 2001. Not 1981. Not 1991. But 2001. The adults in the room will recognize a wee problem.

    Would it surprise anyone if there is inequitable conduct involved with the prosecution of this application that goes far, far beyond any “bad behavior” by the PTO? Unfortunately the claims — which we can rest assured are junk — are not presented in the brief. All we know is that the claims were rejected and appealed, then rejected again, then appealed, then rejected again, then appealed, and so forth.

    News flash: when the appeals board at the PTO reverses a decision about a rejection, it doesn’t mean that the applicant has been treated unfairly. How do we know that is the case? Because we know that for years — particularly when it comes to “hot” compooter-implemented “technology” — the PTO has had its collective head up its arse for decades and bends over backwards all the time for whiny, entitled, non-innovative, jump-on-board-and-grab-the-cash applicants like Mr. “Highly Distinguished” Inventor here whose real beef should be with his attorneys (but no doubt they covered their behinds while they “serviced” him).

    One thing I do agree with in the brief: there is a “class” of applicants in the computer-implemented arts worth keeping an eye on.

    1. The claims are easy enough to see via PAIR, but the applications are 09/840,868 and 13/333,840.

      Why can’t there be a non-obvious statutory invention that relates to video on demand?

      1. Why can’t there be a non-obvious statutory invention that relates to video on demand?

        Love the strawman, JM. Instead of wasting everyone’s time with inane questions please just type out the claims for everyone so we can all have a laugh.

        Thanks.

            1. Nice attempted deflection.

              The question was put to you, and for obvious reasons you should be the one to answer it.

              I merely take away your attempt at dissembling with a strawman. By no means whatsoever should that action serve as a substitute excuse for you to not address what Joachim puts to you.

              Please provide a direct and inte11ectually honest answer. Try to use those short declarative sentences that you are always on about.

              Thanks.

      2. JM: The claims are easy enough to see via PAIR,

        Anyone wonder why Mr. “Highly Distinguished” didn’t put the claims that he filed front and center in his brief?

        I don’t.

    1. It’s a fishing expedition, not unlike the patent application itself.

      I’d love to see those claims. Charging money for information delivered over the Internet? Yowza. Sooper techno stuff. Really revolutionary for 2001.

      LOL

      1. Due process? Does one have a right to due process during examination?

        Pretty sure that Mr. ‘Highly Distinguished’ was given all the due process he deserved and then some.

        I applaud the PTO for not granting his junk claims. I’m sure I’m not alone.

        1. Did you read the complaint? The examiner told the inventor that the matter was beyond his control. That admission tells us that there was not due process during examination.

          1. The examiner told the inventor that the matter was beyond his control. That admission tells us that there was not due process during examination

            No, it doesn’t.

              1. Let’s try to talk plain English here.

                The applicant is entitled to fair treatment that serves the ends of justice (as opposed to defeating those ends).

                What’s “fair” and what “isn’t fair” is dependent on the specific facts.

                The additional procedural safeguards instituted under so-called “SAWS” do not seem unfair to me. It’s perfectly “fair” and in the service of justice — for all — for the processing of certain applications to be slowed down for more careful review if, according to the agency’s reasonable discretion, the claims are both unlikely to be granted and likely to be industry-disrupting if they are granted.

                What the PTO has done to the patent system by over the past couple decades by granting thousands upon thousands of junk patents to lawyers trying “get rich off the Internet” strikes me as incredibly unfair and unjust.

                I just don’t have any tears to shed for the alleged “due process” concerns of this tiny, tiny handful of otherwise perfectly wealthy and privileged citizens whose junky applications — and there’s no question that most of them are junk — were allegedly unjustly delayed by the so-called “SAWS” program of the PTO.

                I understand this is a patent blog but it’s still bizarre to see how worked up some of the richest people in the world get over some rich guy not getting richer. Meanwhile, government agents kill or cripple the poorest people in the country without “due process” and “freedom loving” Presidential candidates are blaming that on poverty. Good grief.

                1. “It’s perfectly “fair” and in the service of justice — for all — for the processing of certain applications to be slowed down for more careful review if, according to the agency’s reasonable discretion, the claims are both unlikely to be granted and likely to be industry-disrupting if they are granted”.

                  But that’s not how SAWS function. Based on publicly available information and policy statements to the PTO, SAWS mandated an additional level of review to determine whether there are grounds that the examiner missed that might disqualify the allowance of such patent. To reject or slow down the issuing of claims, examiners must set forth reasons under 101, 102, 103, 112, and any other statutory basis for doing so. SAWS itself does not provide examiners with the grounds to slow down the issuance of claims or reject the claims.

                  The SAWS process is functionally equivalent to a Quality Assurance Specialist reviewing examiner’s actions for errors, except with a panel of supervisors and primaries. Neither program notifies the applicants that their claims are being review by additional examiners.

                2. Richard: The SAWS process is functionally equivalent to a Quality Assurance Specialist reviewing examiner’s actions for errors, except with a panel of supervisors and primaries.

                  As a practical matter, the extra scrutiny is likely to slow things down. I didn’t mean to suggest that the program simply moved applications into a “do not examine” pile.

                  Neither program notifies the applicants that their claims are being review by additional examiners.

                  That’s because there’s no due process” issue there, just as there isn’t a “due process” issue when a judge asks an “additional clerk” to review my brief for citation errors without notifying me.

                3. MM, examination is on the merits. SAWS seems to add a political layer. That is the problem see, if any.

                  One can respond to a legal argument. One cannot respond to a political argument.

                  We shall see.

                4. Let’s try to talk plain English here…
                  that serves the ends of justice (as opposed to defeating those ends).

                  That’s some pretty NON straight forward English for “whatever means to get to the desired ends”

                  It’s absolutely amazing the level of spin that you constantly employ Malcolm.

            1. MM, assume you are prosecuting a case. You are on appeal from a final rejection of anticipation. Rather than affirm on that basis, the board cites a second reference, finds the claims obvious, and affirms the examiner without remand. You have had no opportunity to present any evidence or argument against this grounds of rejection.

              Have you been accorded due process?

              1. You are on appeal from a final rejection of anticipation. Rather than affirm on that basis, the board cites a second reference, finds the claims obvious, and affirms the examiner without remand. You have had no opportunity to present any evidence or argument against this grounds of rejection.

                Have you been accorded due process?

                No opportunity? Not even an appeal to the CAFC? That would seem unfair, as would someone from the PTO burning my house down because I filed a brief with too many pages.

                On the other hand, if the rejection is appropriate, I should be happy that the PTO saved me from paying the issue and maintenanc fees on a junk patent.

                1. And the basis for the Fed. Cir. appeal? That the board was wrong? You bring in your expert witness before the Federal Circuit? Is the panel going to swear your expert and witness his cross examination? What about the PTO’s right to respond?

                  What about the requirement that the Federal Circuit must review on the record for substantial evidence?

                  MM, come on now.

          2. Hard to argue that hypothesis given that the original claims in the parent application was rejected by the examiner, affirmed by the BPAI, rejected again under res judicata, and while BPAI reversed the examiner on res judicata but nevertheless entered 103 on the recommendation of the examiner, which finally persuaded the applicant to cancel the original claims and file completely new claims after 10 years of back and forth.

            A more likely reason for the admission, if there was actually something that could reasonably be construed as such an admission, would be that res judicata as result of BPAI decision put the patentability of the original claims out of the examiner’s control.

            The big problem in this case is for the plaintiff to demonstrate causation, whether the 10+ year prosecution was due to SAWS or due to their over aggressive attempt to claim pretty much the idea of video on demand, of which both the examiner and BPAI (now PTAB) deemed the claims unpatentable given the prior arts.

            1. Richard, I checked the record as well; and it does appear that prosecution was continuous. There were no long delays that I can see.

              Reading the examiner’s answering brief filed in 2010, the claims on appeal were actually broader than the claims on appeal in a prior appeal where the Board affirmed the examiner on obviousness grounds. Thus the issues on appeal in 2010 were the same issues that were finally determined in the prior appeal.

              If this is correct, it suggests there was no denial of due process in this case.

              1. Agreed, denial of plaintiff’s patent was due more to a quite reasonable obviousness rejection under 103 rather than some blanket denial by SAWS.

                Even if there is a class of plaintiff that was harmed by SAWS, this particular plaintiff is not a particular good one in view of the prosecution history.

  11. OT: link to scotusblog.com

    Held: a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds does not violate the First Amendment

    5-4; Roberts joined by Sotomayer, Kagan, Ginsberg and Breyer

    1. Boy, that’s an interesting set of votes that CJ Roberts assembled there. Kennedy could likely have received four votes for his position, and Breyer could probably have gotten four votes. Only Roberts could get 5 votes.

      I think that this could be a pretty important case.

      1. I think the “First Amendment” arguments against the Florida rule were desperate.

        You read Kennedy’s dissent and you’d think that there was a much more prohibitive rule at issue. Wanna-be judges personally asking lawyers or potential litigants for money so the judges can be put on the bench certainly does undermine “the integrity of the judiciary”, as would a Supreme Court opinion holding that judges were no different than the ordinary elected representative who is, thanks in part to Citizens United, presumptively bought/sold by/to the highest bidder.

        1. Except for the obvious differences, you might have a point.

          Perhaps if you tried using short declarative sentences in your attempt to make a point, you might have better luck.

          1. Then again, this involves the code of ethics which you might not be able to integrate into your “point” (short declarative sentences or any type of sentences)

        2. …as would a Supreme Court opinion holding that judges were no different than the ordinary elected representative who is, thanks in part to Citizens United, presumptively bought/sold by/to the highest bidder.

          Yeah, the part of the opinion that said that politicians were different because they’re supposed to be “responsive to the preferences of their contributors” was interesting. The consequence of that distinction is that judges can’t ask for money, because it might be seen as being in return for favors, while politicians can, because it’s the nature of their job to perform favors…

          I thought Scalia’s dissent was, not surprisingly, off track. He complains that these restrictions were unheard of until a mere 43 years ago and, predictably, suggests that because we didn’t do things this way in 1812, we can’t do it now. He ignores, however, that before about 43 years ago, there was no need for judicial candidates to raise huge piles of money for campaigns.

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