USPTO Allowance Rate

The chart below provides a new look at the USPTO Allowance rate and is calculated by dividing the number of issued patents  in a given month by the number completed cases (where the application either issues as a patent or is abandoned).  Those who have been practicing for several years will recognize the Dudas-Drop in the second-half of the last decade and the subsequent Kappos-Climb. AllowanceRate

Notes: For readability, I used a 4-month rolling average that smoothed the contours (and also made discontinuous jumps appear more gradual). The report here relates to abandonment and issuance of serialized applications.  Quasi-abandonments such as RCE filings are not considered abandonments for this data.  Continuations and divisional application filings are included — Thus, the issuance/abandonment outcome of the original application will be counted as well as that of any follow-on serialized application. The data comes from USPTO Historical Files released by the PTO’s Chief Economist Alan Marco.

93 thoughts on “USPTO Allowance Rate

  1. If you claim “an engine in a submarine” the only question I ask is “is it non-obvious to power a submersible vehicle?”

    But, since KSR, is there not also a requirement for functional improvement?

    1. Did Congress re write the law there Ned…?

      Please define “improvement.”

      Oh wait, we’ve already been on this Merry Go Round.

      Love the dialogue Prof.

  2. David Stein, I think you and I agree, that if properly claimed as an improvement to a computer or a computer system, that software improvements are eligible subject matter.

    Some posters here do not seem to grasp just how important to software patent Alice is. When one focuses on how the claimed software improves the computer or a computer system, as commanded by Alice, one can easily demonstrate eligible subject matter.

    In contrast, when the computer is only being employed to implement software — the computer is being used — then Alice commands that such is not “enough” to transform the ineligible subject matter, the software, into a “application.”

    Thus, business method patents will continue to be held ineligible, while new OSes and the like will continue to be held eligible.

    1. Ned: Yes, you and I completely agree on two general points (both of which Alice addresses):

      1) Business methods with no connection to technology, other than a tangential reference (“apply it”) or a straightforward recitation of conventional hardware and software, should not be patent-eligible.

      2) Results-oriented claiming, of the “recite a result that would require undue experimentation by a person of ordinary skill in the art to achieve,” is bad and should be invalidated. (These claims could have been invalidated under 112(b), for precisely the same reasons.) This is basically my standard as to what should and shouldn’t be allowed.

      I felt this way on both issues before Alice and even before Bilski. And I don’t mind seeing the law adjusted to achieve either result.

      I do mind that examiners and judges are using the unbounded, evidence-free invalidation toolkit of Alice to invalidate claims to actual technology that don’t exhibit either flaw. (This prompted my recent post about the contradictory, can’t-win approaches that judges are taking to invalidate claims, and the conflict with the Alice Court’s intent.) I hope that a case like Planet Blue / McRO gets appealed and the invalidation reversed.

  3. I made the mistake of thinking that for once you were asking a serious question rather than just seeking another outlet for your constant hos-tility. I will not respond to you again.

    1. You made quite a different mistake.,

      Then you compounded it with being a s1ssy. Instead of whinging, maybe look at the C R P you wrote – you really think a continuation and an RCE are equivalent?

      Grow some, Paul. C R P, if you cannot take a pointed comment, why are you an attorney?

        1. You make the mistake that I need some type of welcome from those clearly vested in the “echo system.”

          False politeness and real animosity towards the Rule of Law are just not the type of welcome I need nor want.

    1. I expect Dudas saw the PTO issuing too many invalid patents, which explains his actions. But I expect the patent bar views Dudas as an unreasoning sociopath out to get them, which feeds on their collective psychosis.

      1. Dudas stepped in as director in 2004 – just when the public backlash about “low-quality patents” was starting to take hold. Consider some of the developments during this time frame:

        * Amazon went from having its 1-Click patent issued (1999), to licensing it to Apple (2000), settling a patent infringement lawsuit with Barnes & Noble (2002), to having its patent reexamined and the claims invalidated or narrowed (2007 / 2010).

        * June, 2004: Microsoft expanded its efforts to license its patent portfolio, and made some comments about Linux as a potentially infringing product.

        * August, 2004: The EFF created its “Patent Busting Project,” specifically targeting software.

        * March, 2006: Research in Motion, maker of the BlackBerry, was threatened with permanent shutdown over a patent lawsuit from NTP – a company with no products – and only avoided a permanent injunction through a $612 million settlement. (I recall seeing some notice that NTP had originally offered to license its patents to RIM for something like $500,000, which RIM ignored – to its mortal peril.)

        * January, 2006: Richard Stallman released the first draft of version 3 of the GNU Public License, which centrally altered the popular GPLv2 license by adding an anti-patent clause.

        * April, 2006: TiVo won a $74 million verdict against EchoStar, adding to its patent infringement verdicts over other would-be competitors in the DVR space, and locking down the market to one option. (TiVo’s patent enforcement also fueled Stallman’s anti-patent efforts, since TiVo was also perceived as having “TiVoized” several GPL projects into its patent-protected product.)

        This is a period of a tremendous upwelling of negative public opinion about patents, and the rise of the “all code is math” movement. And this movement strongly manifested as extremely negative opinions of the patent office, portrayed as a group of examiners who rubber-stamped anything that came across their desks. (Here’s a 2004 Slashdot post about the “ISNOT” operator – in which the commenters, in their enthusiasm to heap more criticism on the PTO, fail to distinguish between an issued patent and a patent application.)

        Jon Dudas apparently took much of this criticism personally, and made it his mission to punish patent applicants for playing nasty tricks on his organization. No, really, there aren’t any two ways about it – that’s really how his administration perceived the situation. Year after year, I sat through presentations by the USPTO at AIPLA, in which the administrators expressed the attitude of: “The Beatings Will Continue Until Patent quality Improves.” Slide #2 of the PTO’s presentations during this time was a self-congratulatory presentation of metrics showing its progress – centrally featuring: ratcheting down the allowance rate, with an ever-lower target for the following year, which was presented as an effort to improve “patent quality.” Even more open hostility was apparent from the RCE limits that the administration wanted to push, in order to give examiners unlimited leverage in flushing unwanted applications down the drain.

        The problem, Ned, was not that Dudas wanted to improve “patent quality.” The problem was the way that he wanted to do it: by demanding that examiners push their allowance rates down to 10%-20% by any means necessary. No matter if they did so arbitrarily, such as by tossing four out of every five applications into the trash upon receipt. And no matter if these arbitrary rules made examiners so miserable that the USPTO became recognized as the worst employer in the federal government.

        That is not how patent law is supposed to operate. Arbitrary allowance rates mean that a bunch of valuable technology will be arbitrarily denied patent protection – and most likely, it will bite every company that files more than a few patents a year. It is why we are already seeing pushback to Alice – such as the USPTO’s hypotheticals – for much the same reasons as the public backlash to the SAWS program.

        1. David: Dudas wanted to improve “patent quality.” The problem was the way that he wanted to do it: by demanding that examiners push their allowance rates down to 10%-20% by any means necessary. No matter if they did so arbitrarily, such as by tossing four out of every five applications into the trash upon receipt.

          Please let us know if you have any evidence to support these assertions, David. Like many of my peers in the grown-up arts, I did not notice any increase in difficulty in obtaining patents during the bad ol’ Dudas years.

          Here’s what we do know: the PTO was issuing incredible amount of junk when Dudas took over and it continues to do so at historically unprecedent rates. Almost all of this junk is in the “computer implemented arts”.

          Trying to explain the problems created by patents on information and information processing logic to the PTO and customers like you, David, has been an incredibly difficult task for reasons that are very, very well-known. The Supreme Court has caught on, for the most part, of course, and the CAFC is slowly learning as well.

          That is not how patent law is supposed to operate.

          Our patent system was not designed to examine patents on information and logic, much less reward b0ttom-feeding patentees who obtain such patents and file hundreds of patents against companies who actually do stuff other than push paper around (of course, the b0tt0m-feeders will sue the paper pushers, too).

          It is why we are already seeing pushback to Alice – such as the USPTO’s hypotheticals

          We’re seeing “pushback to Alice” because the PTO is under the control of its b0ttom-feeding customers who insist on obtaining the worst patents ever granted in the history of any patent system on earth. Tell us again, David: what logical aspect of driving a car (or starting it up) is patentable because the car is robotic? Share you deep thoughts with everyone.

          – for much the same reasons as the public backlash to the SAWS program.

          LOL. Seriously? There az no “public backlash” to the SAWS program. The backlash was the concern of a tiny, tiny, tiny number of patent applicants and a few academics who regularly sit around and eat sammies with those same applicants and pretend not to know what the heck is the point of subject matter eligibility. Because boys club.

          1. Prof. Crouch, does that data come in art field information?

            I am more than just a little sure that the “wealth” of the Reject-Reject-Reject era was most definitely not sequestered to one particular art unit that appears to be the bane of Malcolm’s existence.

            1. one particular art unit

              The patenting of information and logic was never limited to “one particular art unit”, “anon”.

              Is anyone surprised that “anon” still hasn’t figured this out?

              My reference to “computer implemented arts” refers simply to “arts” that were “improved upon” in some manner by throwing in a computer or the Internet. You know what I’m talking about. Bingo games … one a computer. Lotteries … on a computer. Checking for available real estate … on a computer. Making a friend … on a computer. Providing information … on a computer. Wowee zowee. Smell the progress.

              As a whole, the PTO will happily bend over and caress its rubber stamp for anyone whose claim involves a computer, a robot car, or a 3-D printer. It’s what the PTO does best. Sure, some Examiners reject some applications and the rejects come here and complain that “nothing is allowable.”

              But we all know better than that because we can see the granted patents.

              If you’ve got the evidence I asked David for, “anon”, please share it with everyone. After all, you’re the expert on the “death squads”, aren’t you?

              LOL

                1. “anon” : You have me confused with someone else – my meme is not “death squads.”

                  Right. You’re the “Gestapo” cl 0wn. My mistake.

                2. You got that wrong yet again.

                  No, I didn’t get it wrong. See, e.g.,

                  link to ipwatchdog.com

                  Comment 1: “I mean to indict the “quality program” (the Gestapo style one) ”

                  I’m happy to continue showing everyone what a dishonest hack you are, “anon.” Just say the word.

                3. Wow – that’s a great link.

                  Too bad for you, that’s a different meme for a different topic.

                  As is typical, your accusation of others fits you.

                  That meme use is not a hack by any means – it fits extremely well. Maybe you need to understand that picking an historical figure (or group) that FITS the situation is the opposite of a hack. Or maybe you just want to pretend that you can’t follow history and connect the dots (no surprise there).

                  So, figuring in that you moved the goalposts, there is no dishonesty either – except for yours.

                  What a chump.

              1. Anyone who has even limited experience at the PTO knows that art units that appear to focus on hardware are really examining software veiled with old hardware.

                Art units that do “displays” are generally doing “GUI”s as those claims are typically written “[old display bit]+[new GUI stuff]”

                Art units that do “cameras” are generally doing “[old camera bit]+[new image manipulation technique/data compression technique/etc]”

                Art units that do cell phones are generally doing: “[old communication bit]+[new communication data standard/compression standard/etc]”

                And the list goes on and on.

                The art units in TC 2600 went almost fully software many years ago.

                1. I suppose the difficulty in grasping this comes from the old USPC system.

                  The old USPC system basically shoehorned these cases into classifications based on the “old bits” I mentioned above. Which is one of the reasons it was becoming so useless as to require replacement.

                  If one is to look at the growth of software applications at the PTO like one looks at the growth of a cancerous lesion… It started as a tiny spot but has rapidly grown to the point where there is no patient left.

                  The cancer became the patient.

          2. MM, I think this is right. Dudas seemed most concerned about computer implemented patents. After all, this was the time the PTO began to fight back against State Street Bank. First it urged that the Feds decide Comiskey on 101 grounds, a grounds not even raised below. In their brief, Ray Chen argued the MOT. The PTO won, but it was not a complete victory.

            Next came Bilski, Chen again, and the MOT became the exclusive test, and State Street Bank was overruled.

            There followed years of back and forth between the Rich old guard and the Supreme Court. Last year, Alice settled the dispute. Rader then left the court. Had he remained, I think the problems with the Federal Circuit and 101 would have continued.

            Had Dudas not been there, all this never would have happened. Dudas should be given a medal. In contrast, his predecessors that allowed and promoted State Street Bank, ought to be identified and booted if they are still there.

            And I agree with you that to the extent the PTO continues to try to minimize the damage from Alice, they have it all wrong. The folks doing that need to be fired and fired right now.

            1. Except not Ned – you are drinking (way too eagerly) the kool-aid of “it was all software” when NO SUCH data has been presented.

              The malady of “if-you-agree-with-Ned’s-Curse-ade-you-must-be-an-Einstein” strikes again.

  4. Heckuva job, PTO.

    So the madness continues, as does the non-stop shrieking by the patent everything crowd that it’s soooooooooo hard to get a patent these days. Funny stuff.

    1. MM, were you Director, what would your first edict be if you wanted to stop the PTO from issuing even one more obviously invalid patent such as those that do not claim eligible subject matter?

      1. Because the executive branch should be issuing edicts to change the law….

        …law changes that even the Court has dropped from 4 to 3 in support.

        /off sardonic bemusement.

  5. SUPREMA, INC. v. ITC
    link to cafc.uscourts.gov

    Federal Circuit, 5-4, rules that the ITC has jurisdiction to bar importation of staple items commerce that are used post-importation to induce direct infringement.

    The majority ruling was based upon Chevron deference.

    The main problem the court faced was that infringement under U. S. law is measured in terms of actions by a person or persons. But the ITC jurisdiction is over articles that infringe, an in rem concept. Thus there is no clear answer to the question presented to the court given the ambiguity. Thus they resolved the question by giving Chevron deference to the ITC.

  6. Oh look, actual data.

    Actual data that says that says that 50-80% of all applications are allowed. A stunningly high number. Moreover, the allowance rates have largely held steady despite the fact that applications have skyrocketed.

    One would think that if you had constantly climbing filings, the odds that any particular improvement would inadvertently conflict with other filings (i.e. people would, at a minimum, trip over not-yet-published filings, and that assumes perfect knowledge of prior art by applicants, something we know isn’t true) would exponentially increase which would drive allowances down.

    One would think that such a significant shift in proof of obviousness (KSR) would result in a massive change to allowances.

    One would that such a significant shift in eligibility (Alice and its parentage) would result in a massive change to allowances.

    It’s almost as if the allowance rate floats largely independently of what the actual law and facts are and instead floats upon, say, the mechanisms by which Examiners are compensated and the office is being judged. It suggests, for example, that a 103 that exists when there’s no backlog wouldn’t be a 103 when there’s a substantial one (note I’m not saying whether the 103 should be there or not according to the law). Same with an RCE carrot/stick. Same with Appeals.

    It suggests that what constitutes an invention is not a solid standard, but instead, the bottom 20-30% of advancements, relative to their peers, will be deemed to not be inventions, while the top 70%ish will be.

    If one practices in an art where little patentable discovery is actually occurring (e.g. software or business methods) that is an awful lot of badness gumming up the works.

      1. ASSume your conclusions much?

        You would be assuming. I would be applying facts and experience. One of us sees the applications and knows the office procedure. One of us was specifically hired to determine whether discovery is actually occurring.

        No please, argue that examiner’s can’t judge whether discovery is occurring. Make my point for me.

        1. You are the one attempting to argue against the numbers that do not support your conclusion.

          The first you is a Royal you.

          The second you is the personal you.

          “Make my point for me” – indeed, just not the one that you thought you were making.

    1. Sidenote – Allowance rate prior to 86-98 – 63%ish.

      Number of years where allowances were below this average since 98 – 2 or 3 (2007ish-2010ish).

      Applicants lose their minds.

      Searching has improved significantly. The law has tightened. More filings lead to more things being obvious over each other. And the allowance rate climbs.

      You’re welcome, patent litigants.

    2. It suggests to me rather that patent agents and patent attorneys are pretty familiar with the odds of getting a patent and are keeping up with the law. If the chance of getting a patent on an invention is below 50%, the patent attorney would most likely counsel the client not to bother filing and maintain it as a trade secret, while if the chance is above 80%, it’s likely the patent attorney would encourage the inventor to file broader claims and narrow them during prosecution. This would be reflected in the total number of applications filed rather than the percent issued or abandoned.

      1. If the chance of getting a patent on an invention is below 50%, the patent attorney would most likely counsel the client not to bother filing and maintain it as a trade secret, while if the chance is above 80%, it’s likely the patent attorney would encourage the inventor to file broader claims and narrow them during prosecution.

        Well let’s not use “chance of getting a patent” as the point I was making is that number is floating.

        Even if you were correct that attorneys are engaging in higher self-restraint on filings, you’re still forgetting that the number of filings continues to increase. The question isn’t how many attorneys choose to not-file, the question is how many attorneys actually file. Even if an attorney subjectively believed he was only filing less-obvious applications, the actual filing is creating more prior art than previously existed for the next attorney down the line. When the relative “gap” in teaching increases, each prior art will be more effective in rendering future art non-obvious.

        E.g. Suppose you could quantify obviousness – everything that advances the art by 5 or more points would be non-obvious. Not only does more filings mean you’re more likely to trip over some invisible art (102e) or unfound art (102a/b) within 5 points of you, but self-censorship means that more people are filing things they believe to be 10 or 15 points of advancement, so when a patent does issue it’s rendering a lot more obvious than previous patents did. The ground that might have supported multiple independent inventions would all be rendered obvious in one swoop.

        I do suspect, however, that attorneys judge by “odds of getting a patent” and not “odds that the patent they get will be valid.” Which is part of what leads to relative results – When the office is giving out 80% allowances, of course you’re going to file bad stuff, because you’re making money and making your client happy even if its terrible. Then examiners allow the top 80% and what constitutes the top 80% has gotten worse. Everyone (lawyers, office, examiners) are interested in maintaining their %s rather than fitting the facts to the law.

        1. You do realize that the purpose of the patent office is that such innovation begets more innovation, right?

          You are acting like some zero sum game and we should be “running out.”

          Another sign that you are just clueless as to how innovation really works.

          1. “anon”: you are just clueless as to how innovation really works.

            Again: this character spent literally years here using hundreds of different sockpuppets to derail the threads every time Prometheus v. Mayo or subject matter eligibility was discussed.

            But he’s a very serious person! He knows how “innovation” “really” works! Because he told us so.

    3. If one practices in an art where little patentable discovery is actually occurring (e.g. software or business methods) that is an awful lot of badness gumming up the works.

      Not all software is Planet Bingo and DietGoal, RandomGuy.

      The major software companies employ thousands and thousands of developers to work on improving “the functioning of the computer” through software. Obvious areas:

      * Computational throughput (query processing; caching; process and thread management; compiler optimization)

      * Storage density and efficiency (compression)

      * Media quality (adaptive streaming)

      * Network latency (protocols)

      * Security (encryption; malware detection; user and device authentication; permissions, such as ACL; code security; process isolation, such as sandboxing)

      * Data sharing (data synchronization; sync conflict resolution; versioning)

      * Application compatibility and management (“universal” apps; just-in-time compilation; patching, including in-place updates)

      That’s just the most obvious handful of low-hanging fruit in this area. There are dozens of other areas, and thousands of techniques being researched, that provide meaningful improvements of actual devices – all via software.

      Are you really going to take the position that all of this, together, presents “little patentable discovery?”

      1. There are dozens of other areas, and thousands of techniques being researched, that provide meaningful improvements of actual devices – all via software.

        Are you really going to take the position that all of this, together, presents “little patentable discovery?”

        Don’t confuse the fact that there is work being done with invention. Don’t confuse invention with the disclosure of that invention.

        Some of your items involve no invention at all. A universal app, for example, is often the kind of thing that people will spend a lot of time developing that has no inventive aspect to it at all. In fact, if someone uses the phrase “cross-platform” in their initial pitch for patentability, you should usher them out of your office immediately.

        Others may involve invention, but nobody would find a proper scope to be commercially valuable. Malware detection is a good example of this one, because what the industry calls malware detection is actually multiple independent techniques each dependent upon particular structures related to each threat they’re seeking, and the malware outpaces the patent system. Most malware detection claims submitted are just simply overbroad 112, 1sts.

        Of the remaining ones, there is little doubt in my mind that a useful disclosure could be given, and in fact in some cases it is. But not every invention that can be properly disclosed is. Nor is every disclosure supportive of a scope that the patentee would want.

        With particular exceptions (protocols, compression/encryption schemes, etc) the vast majority of software claims, like business method claims, are directed toward some broadly stated goal which is “supported” by one or two basic, often obvious examples of how to achieve it. The applicant then counts upon nebulous claim language, a poor search, superior legal counsel or bad office protocol to issue them a claim. In fairness, this reliance is often unknown to them consciously and is, in fact, justified because it keeps happening.

        The essence of obviousness is predictability – computers are unfailingly predictable. Abstract ideas are not eligible. The computer allows its user to attack a problem through multiple independent paths, so long as each path has logical backing. The combination of those three truths results in few commercially valuable valid scopes in the area of software, as most disclosures will be presented as abstract ideas and will rarely be willingly chopped down because it is so damaging to commercial viability. Most software applications aren’t based on discovery but on “good logic-ing.”Logic is rarely invention.

        Adaptive streaming is a great example. Most adaptive streaming applications (most “adaptive” anything applications) boil down to “I had this idea that you should measure something and consider that data when you stream.” Most of these will be abstract idea or overbroad independents and plainly obvious spec examples (which of course means the independents are obvious too, but the broad functional language makes that less easy to see). It is almost entirely irrelevant whether prior art actually measured the thing the inventor claimed to invent, because it remains obvious if its being used in a predictable way, which it unfailingly is. Now can you craft a valid adaptive streaming disclosure/claim? Yes, you disclose and claim the exact equation you use. Will anyone do that? No, because it’s worthless – its easily designed around. So what happens is they have their invention claimed functionally (“measuring for X/determining a stream bitrate based, at least in part on, X” or “grouping representations wherein the grouping is done in consideration of X”) and they keep adding conventional features until bad examiners say “Okay, allowable.”

        1. Thanks, Random – I will file this away as Exhibit A in my “Disrespecting Software” file.

          I’m just going to state that you must be extremely unfamiliar with what the development of these technologies requires.

          Also – the next time you’re in the market for a computer, talk to me. I’ll sell you one that’s fully equipped with Windows 3.1, WordPerfect for DOS, some version of the Mosaic web browser, a 2400-baud modem, and the America Online client on some floppy disks.

          Since computers these days typically go for like $800, I’ll cut you a deal and sell it for $750 – owing to the “very little innovation” that’s occurred in software between 1990 and today.

          1. I’m just going to state that you must be extremely unfamiliar with what the development of these technologies requires.

            hahaha, “does thou not respect my position”? See I know precisely what the development requires, at least according to the applicants. The specifications I read don’t teach anything, they just tell you what to achieve. So either the applicants are lying to me about undue experimentation or you’re lying about how much of the work is inventive. Which is it?

            I suspect the majority of work that is done is translation/scrivener’s work which, while being useful and employable, is not patentable. As to the particular techniques developed, I suppose if it was that important they would have disclosed it.

            1. The specifications I read don’t teach anything, they just tell you what to achieve.

              Then we have markedly different clients.

              Many of the disclosures that I receive present solutions to very difficult problems. And the solutions are not: “I think the computer should do (x),” but rather more like this:

              “We wanted the computer to do (x). Other companies or our previous efforts to achieve (x) led to solution (y), which doesn’t quite fulfill (x) and runs into side-problems (a) and (b). We thought we’d pursue solution (z), but in trying to implement (z), we encountered problems (c), (d), and (e). We threw a bunch of time into resolving those problems, and what we came up with was this specific architecture (w), which actually solves (x) in a different way than (z) but entirely avoids (c) and (d). We still deal with (e), but we mitigate it by doing (q). So our solution to (x) is: (z) + (q).”

              It’s engineering, in exactly the way that engineers in other disciplines speak about grappling with difficult problems in their domains, and the unpredictable and uncertain path toward a solution. And the end result is, centrally, an improvement in the operation of the device.

              That’s my client base, Random, and those are the inventions that I encounter, and much of that discussion goes into the specification. If what you encounter is different, then either you’re not reading the right specifications… or you don’t understand what you’re reading.

              Side question – under what theory could you possibly find a universal app non-obvious?

              Yes, see, it’s questions like this that reinforce my belief that you just don’t understand this area.

              The concept is straightforward. How you actually achieve that result, a variety of devices and an evolving product line with features that have to adapt one way or the other, can be an extremely difficult problem.

              Apple is currently grappling with a set of applications that are supposed to run:

              (a) On iPhones and iPads of very different sizes and capabilities;

              (b) As voice-only interfaces on car displays;

              (c) As tiny interfaces on watches;

              (d) On combinations of the above, i.e., two or more devices sharing input / output / processing / storage;

              (e) On different versions of iOS, using different combinations of features available on each platform;

              (f) Optionally in conjunction with an OS X machine (e.g., Continuity);

              (g) With various connections with other apps that are installed and communicating on the same device; and

              (h) In combination with a variety of other services (iCloud, Dropbox, Airdrop, Facebook, etc.)

              And that’s just iOS, over which Apple can exercise an extreme level of control in terms to manage this ecosystem. Consider the huge other set of problems that both Google and Microsoft encounter – since their circumstances are entirely different.

              You seem to think that “Universal” app means: “The general concept of designing an app that can somehow adapt to these circumstances.” In fact, attempts to design a “universal” application run into thousands of specific problems, each requiring a lot of careful thought and work to traverse. And the resulting platform has thousands of solutions, each providing specific functionality to address a small piece of this puzzle.

              Dismissing all of this as “the concept of a universal app” is like dismissing the entire field of automobile engines as “the concept of an engine powered by fuel and driving some wheels.” Somehow, I don’t see many arguments that there’s no innovation automobile engines, or that they’re not entitled to patent protection.

              1. I think that he just wants a pizza.

                And to only give out patents for serendipity, pure accidents, unthinking A-ha’s and maybe that good old stand by Flash of Genius.

              2. David Stein: either you’re not reading the right specifications… or you don’t understand what you’re reading

                LOL.

                There he goes again.

                Remember folks: this guy needed to have Prometheus v. Mayo explained to him five hundred times and it’s still not clear that he understands what the case is about.

                1. says the guy who could not understand “effectively” in that certain other decision…

                  Or integrated…

                  Or even knowing the exceptions to the judicial doctrine of printed matter, still insists on dissembling…

                  Oh my.

              3. David: the resulting platform has thousands of solutions, each providing specific functionality to address a small piece of this puzzle.

                Pray tell, David: what percentage of claimed computer-implemted “innovations” are limited to specific operating systems?

              4. So our solution to (x) is: (z) + (q).”

                This is the only part of that paragraph I care about, because you don’t get bonus points for talking about failed research paths or the prior art, as neither of them are your claimed invention. So I said “most people say to do X” and your response is “I say to do X + Y.”

                At least X+Y is nominally an algorithm, so that is better than most. Once we have an algorithm then we talk about whether its claimed in sufficient detail so that one of skill can immediately visualize the form. Obviously we can’t talk about this in the abstract, but just as a two-step method likely isn’t in enough detail to be patentable, I’m skeptical a two-step innovative algorithm is. But yes I agree that’s better than most.

                Apple is currently grappling with a set of applications that are supposed to run: (a) On iPhones and iPads of very different sizes and capabilities; (b) As voice-only interfaces on car displays; (c) As tiny interfaces on watches;

                A, B, C are claims to individual interfaces (assuming you segregate out the interfaces in A) which would all be individually patentable. In all likelihood A/C are obvious because your format for the interface will be logical and therefore obvious over prior art. B may be obvious for the same reason but the actual voice recognition aspects may still have some chance to be allowable.

                (d) On combinations of the above, i.e., two or more devices sharing input / output / processing / storage; (e) On different versions of iOS, using different combinations of features available on each platform; (f) Optionally in conjunction with an OS X machine (e.g., Continuity); (g) With various connections with other apps that are installed and communicating on the same device; and (h) In combination with a variety of other services (iCloud, Dropbox, Airdrop, Facebook, etc.)

                D-H are per-se obvious. D/E is kind of the heart of per-se obvious. Translation isn’t an inventive act. F is the same, and additionally would require a claim limited to “an OS X machine” which isn’t going to taken from a commercial standpoint. I would force them to add it, they would say no, and we’d go up on appeal.

                The act you’re performing in G/H isn’t invention, it’s re-inventing their wheel. Your argument isn’t that you invented your app, or their app, but that you modified an app to have a new relationship (i.e. your novelty is in the combination) but your new relationship is either entirely derivative of a previous feature (you’re calling the same features they did) or your new relationship is logically based which will make it obvious. Automatically calling features that already exist is not inventive.

                In fact, attempts to design a “universal” application run into thousands of specific problems, each requiring a lot of careful thought and work to traverse.

                When you say “careful thought” you mean, as I said above “good logic-ing” which is generally not inventive. When you say “work” you mean coding/bug squashing, which is not inventive.

                Somehow, I don’t see many arguments that there’s no innovation automobile engines, or that they’re not entitled to patent protection.

                Apples and oranges of course, because the automobile industry is smart enough to come to me with particular structures, which is what the patent laws are set up to answer. Rarely does the computer industry. Rather the computer industry comes to me claiming any structure that achieves a functional result, which is significantly less likely to be an invention because the contribution to the art in a functional claim is the logic that the result in a particular situation is useful, which is likely clear from the logic anyway.

                Let me put it like this: If the automobile industry routinely came to me with claims like “an engine capable of getting 600 miles to the gallon” rather than the particular structure that achieve that result, that industry would also be tarred by me as being non-inventive. Even a lay person would know that you’d like a 600mpg car, and the claim isn’t limiting itself to a particular structure. Note that I don’t care whether the 600mpg car actually exists, or is being sold, or is being touted by people on the internet how much better it is than engines from 20 years ago – I only care if the means for achieving it is taught and a proper scope is claimed.

                Nobody in their right mind would think that because you came up with a particular engine that achieves a result you should be entitled to all engines that achieve that result, regardless of how they go about achieving it. That’s been the law, btw, since Morse. The exact opposite seems to be the case for software people, who routinely expect to be given “all ways” of achieving something rather than disclosing and claiming their particular way and leads to disclosures and claims that are broad and vague (and therefore useless). I can understand their dislike, because their particular means are likely not commercially valuable and easily designed around. That is not my problem, take it up with the constitution or the inventor of the computer.

                1. Random, but the PTO issues patents claiming results All The Fricken Time. These patents cause havoc. And for the life of me, I could never get our litigators to focus on the issue in court — you tell me who was boss?

                  PTO, look for this:

                  The prior art in tremendous detail, with the novel subject matter claimed as a result. It is easy to craft such claims, but the PTO is not skilled at all in detecting them.

                2. ( s i g h ) – good “logic-ing” is the same as good engineering.

                  No wonder you are in the Office – you never did spend any time in the re@l world, did you Random?

                3. Again, you’re missing the point, in a way that demonstrates your unfamiliarity with software.

                  I provided the list above, about the different facets of “universal” apps, not merely to show the results – I provided it to demonstrate the complexity of the problem.

                  I’ll analogize it to a different area of technology that you might actually respect:

                  “The inventors created an engine for a submarine.”

                  “That’s not technology. You’re just taking any old kind of engine and dropping it into a submarine.”

                  “No, not at all. A submarine engine has to deal with a range of problems that you don’t get with automobiles – like the increased viscosity of the water, different heat exchange problems, and corrosion.”

                  “Still not technology. I suppose you’re thinking of claiming it like: ‘An engine that works better with the viscosity, heat exchange, and corrosion properties of water.'”

                  “Er, no. My point is that a lot of work had to go into the engine to come up with a design that properly dealt with those problems. Our invention is this specific design.”

                  “Don’t care. It’s all just obvious to me. Any work that had to go into that engine, it’s just design choices and busywork. These are mundane details heaped on top of the concept of a submarine engine. Not technology, hence no patent.”

                4. …thus the loveliness of the “Gist/Abstract” sword.

                  Just like Ned is doing in his comments, when you “Gist” away any inconvenient claim elements that get in the way (i.e., that show that you are not dealing with something TOTALLY in the mind), then what your invention is “directed to is this (undefined, except it means “whatever” “We” want it to mean) “Abstract.”

                  Such is the way of the anti-nominalist.

                  One (rather serious) problem with that: there is no limit to the application of such “logic,” and any – and even every – thing can be “Gisted” away that is “inconvenient” and one can always arrive at a point for which the invention is being “directed to” is this (undefined) “Abstract” thing.

                  There is no “Rule” left there when the “exception” has no limits.

                  What we owe the Court is to slam on the gas pedal and bring the Court’s “logic” to its full extent in order to show just how bad that “logic” is.

                5. The prior art in tremendous detail, with the novel subject matter claimed as a result. It is easy to craft such claims, but the PTO is not skilled at all in detecting them.

                  I agree – the PTO should not have to “detect” what is new or specific about the case. I generally loathe patent applications that provide no context: “Fig. 1 shows a method comprising: ABC. We claim: ABC. Done.”

                  However, for whatever reason – production metrics, or culture, or both – examiners are often not good at “detecting” what is laid out for them, plain as day.

                  Every case I’ve ever written has a specification that goes like this:

                  In technical field (Field), people often try to do (Result) by using (Old Technique) involving steps (ABC). Here is a diagram showing (Old Technique). However, several problems may arise from (B), such as (Problems). These problems are significant because (Reasons).

                  Instead, (Result) can be achieved in (Field) by using (New Technique), which involves new steps (DEF) instead of (B). In contrast with (Old Technique), doing (DEF) in (New Technique) may avoid (Problems) because (Reasons).

                  Here is a diagram showing (New Technique), and specifically (DEF). Accordingly, we claim: A method of (Result), by (ADEFC).

                  In the context of (New Technique), element (D) can be implemented in a variety of ways, such as (Variations). It might be advantageous to use (D1) instead of (D2) because (Reasons). (Repeat for E and F.)

                  In addition, further extensions of (New Technique) may involve additional elements (GHIJKLMNO), with helpful diagrams showing these variations…

                  Despite this description – I’d estimate that, during my first interview with an examiner, maybe 30% of them have an understanding of the point of the application. The rest often start the interview with: “So you’re claiming (Old Technique)?”, or “Can you explain to me how your invention differs from (Old Technique)?” … where it’s clear that they have barely looked beyond the claims and the abstract.

                  I’ll go on the record as stating that examination quality has significantly improved over the last five years – but I believe that there is still a lot of room for improvement.

                6. I’ll analogize it to a different area of technology that you might actually respect:

                  “The inventors created an engine for a submarine.”

                  “That’s not technology. You’re just taking any old kind of engine and dropping it into a submarine.”

                  That’s NOT technology, and it’s unfortunate you don’t see this. The difficulty in putting an engine in a submarine is that a submarine is differently structured than a car and has access to different resources (for example, a car can easily get air and expel exhaust). The problem necessarily entails particular limitations as to structure. You seek to strip out all of those limitations but still benefit from the complexity in your argument.

                  If you claim “an engine in a submarine” the only question I ask is “is it non-obvious to power a submersible vehicle?” the answer to that is unquestionably yes and it’s not inventive at all. What you have to claim is a particular structure, because by relating the structure the complexity of the situation emerges.

                  “Er, no. My point is that a lot of work had to go into the engine to come up with a design that properly dealt with those problems. Our invention is this specific design.”

                  Ignoring the “I worked hard give me a patent” bs line of thinking – look, here’s an invention. Software never gets to this point. Instead what software says is like this:

                  “My point is that a lot of work had to go into the engine to come up with a design that properly dealt with those problems. But then I thought ‘Well, won’t I just have to compete with other people who spend a lot of hard work to design a different submarine engine?’ and then I thought ‘How about I not talk about my particular engine, but I try and find some way to get all submarine engines?’ Then I don’t have to worry about competition no matter what. How about I just talk about the problems I solve instead of the manner in which I solve it.”

                  That kind of thinking results in the “particular engine” never being relayed, but instead a claim based upon results.

                  “Don’t care. It’s all just obvious to me. Any work that had to go into that engine, it’s just design choices and busywork. These are mundane details heaped on top of the concept of a submarine engine. Not technology, hence no patent.”

                  At least when people disclose a particular manner we can get to this question. It may entirely be that a software claim is a mundane means attached to an abstract idea. That is not invention. Your problem seems to be with the law. You don’t get a patent for having a good idea and going about in a mundane way. I didn’t make that rule, but that is the rule.

                7. people often try to do (Result) by using (Old Technique) involving steps (ABC). However, several problems may arise from (B), such as (Problems). These problems are significant because (Reasons).

                  Instead, (Result) can be achieved in (Field) by using (New Technique), which involves new steps (DEF) instead of (B). In contrast with (Old Technique), doing (DEF) in (New Technique) may avoid (Problems) because (Reasons).

                  Accordingly, we claim: A method of (Result), by (ADEFC).

                  In the context of (New Technique), element (D) can be implemented in a variety of ways, such as (Variations). It might be advantageous to use (D1) instead of (D2) because (Reasons). (Repeat for E and F.)

                  Yay, good. Though again, ADEFC really means claiming DEF. DEF may or may not be in enough detail based upon particular situations.

                  This is, however, not typical. Because people take the second para and the fourth (and methinks you do as well, if you have clients who dislike competition) and go on to say:

                  “Elements D E and F can be implemented in a variety of ways, including any of matching D1….Dx with E1….Ex and F1…Fx. It should be noted that any of D/E/F1…x are EXAMPLES. In short, there are lots of solutions to Problems, and I’ve given many EXAMPLES. I claim A(the solving of Problem)C.”

                  A(the solving of Problem)C becomes the independent, of which any of D1/E1/F1/…x may be dependents. Other claims will routinely go as follows:

                  1. Method – A(solving P)C
                  2. 1, wherein solving of P further comprises D2
                  3. 1, wherein solving of P further comprises F1
                  4. 1, wherein solving of P further comprises E4
                  5-19…Mixing and matching of above
                  20. 1, further comprising elements GH

                  Not one of these constitutes an invention, they are all 101 rejections. Because we have to make a 103, we reject Claim 1 by teaching AD2F1E4C. We then demand that Claims 2-4, 20 be moved into Claim 1 for it to be allowable. Applicants lose their mind.

                  There is no invention until 2-4 get moved into 1. Further, because we showed the 1-4 combination in our 103 of 1, either you attack the 103 or you take it as a baseline as to what else needs to be added to make something allowable. Instead, when we tell people you have to move 2-4 into 1, we get the response “Why would I do that, it doesn’t require new references and it doesn’t get me closer to patentability.” Sure, it doesn’t if you’re going to ignore 101. Consequently, we have to make the 101 rejection as well. Then you fight us on the 101 rejection saying you’re entitled to claim A(solution P)C.

                  Again, note how detailed the disclosure is, because most people won’t give D1…Dx (as you’re admitting they are equivalent and have just bought yourself extra art to use against you). They may give D1 or if we’re lucky D2, but most often only give D’ which is the effect of using D1. Therefore you might not get ADEFC but will get A(generalized D)(generalized E)(generalized F)C, which suffers from the same problem as A(solving P)C.

                  I never see claims to ADEFC without browbeating someone for 6months+, and often not even then. Clients wont allow it.

          2. David Stein: I’m just going to state that you must be extremely unfamiliar with what the development of these technologies requires.

            ROTFLMAO

            Great “argument”, David. But we’ve seen this before, many, many, many, many times already.

            1. Sort of like the one you use too, isn’t it…?

              Of course, you use it without any notion of even bothering to be knowledgeable in the first place.

    4. RandomGuy,

      This is not a direct reply to your observations but the notion that everything that can be invented has been invented pops up from time to time. I vaguely recall that before the Wright brothers, the head of the Smithsonian, who was no scientific slouch, was of the same opinion. Similar sentiments, often incorrectly, have been attributed to other notables.

      It just ain’t so. Check out US 8,910,322 for DRAIN CHAIN SYSTEMS AND METHODS FOR CLEANING DRAINS. See http://www.drainwig.com.

      I have needed one for a very long time. Why didn’t I think of that?

      1. This is not a direct reply to your observations but the notion that everything that can be invented has been invented pops up from time to time.

        Oh I certainly don’t believe that. There’s plenty of invention going on, it’s just that abstract ideas are not invention and unfortunately most software claims that are commercially valuable are abstract ideas.

        1. The thought of software is not software.

          You really do have to have a machine component and manufacture in its own right to change a machine – Your “change by magic” fails – try using the proper patent doctrine of inherency and see that your “view” requires ALL future programming to be “already in there.”

          Your “logic” fails.

          1. The thought of software is not software. You really do have to have a machine component and manufacture in its own right to change a machine – Your “change by magic” fails – try using the proper patent doctrine of inherency and see that your “view” requires ALL future programming to be “already in there.”

            Hahaha, well the thoughts in my head are not the same thing as the words on the paper either. That doesn’t change the fact that “writing it down” is a non-inventive act. Neither is “coding.” There’s ample caselaw that states that transcription is simply scrivener’s work. This might be why you don’t understand 101.

            One commonality I’ve noticed between you and Les and David is that you all think that because there is in fact a difference that the patent laws appreciate or even recognize that difference. I don’t need to rely upon “magic” to understand how words got into a blank book and changed it. That doesn’t mean the act of writing confers invention upon the change.

            see that your “view” requires ALL future programming to be “already in there.”

            No, my view just has to recognize the truth that putting it in there is a conventional, non-inventive act when you’re not claiming to have invented a new programming language. If you’re going to rely upon conventional programming languages as part of the enablement of your invention, then you have to accept that POSITAs are versed in that programming language.

            That’s kind of a basic tenant – the reason you’re not required to disclose your code is because there’s an assumption that if you simply tell POSITAs the algorithm they can always write the code themselves. Take away that assumption and the enablement of every patent that doesn’t disclose their particular code will fail. I’m surprised you’re in favor of killing every software patent anon.

            1. That doesn’t change the fact that “writing it down” is a non-inventive act.

              critical error on your part: not every piece of a claim must be “inventive” on its own

              Neither is “coding.” There’s ample caselaw that states that transcription is simply scrivener’s work. This might be why you don’t understand 101.

              Whether or not “scriviner’s work is entirely besides the point of WHAT it is – again, you look before you leap and it is you that entirely misses the meaning of 101. It is beyond belief that you seek to lecture on that which you do not comprehend.

              there is in fact a difference

              Thank you for that admission against interests. When your understanding catches up with your admissions, we can talk again (for the first time) in a meaningful manner.

              and changed it. That doesn’t mean the act of writing confers invention upon the change.

              Your notion of “conferring invention” is most odd. There is NO need to “confer” invention, as Congress stripped out the power of the Court to set the definition of invention in 1952. When they ripped apart the single paragraph and broke that into multiple sections AND ADDED 103, they did so with an express purpose. This is well documented. I suggest that you set your Belieb system aside and catch up to history.

              Take away that assumption and the enablement of every patent that doesn’t disclose their particular code will fail. I’m surprised you’re in favor of killing every software patent anon.

              Nice strawman – except for the fact that you err at the start, what you say here has no bearing whatsoever. In fact, to the level that you are correct here, this SUPPORTS software patentability. Way to give yet another admission against your interests (and not even recognize it to boot)

              You really should brush up on your Sun Tzu before attempting to engage in battle.

              1. critical error on your part: not every piece of a claim must be “inventive” on its own

                If the idea is not inventive, and the book isn’t inventive, and the act of writing isn’t inventive, where does the inventiveness come from?

                If the abstract idea is not inventive, and the conventional non-transitory computer readable medium is not inventive, and the act of coding isn’t inventive, where does the inventiveness come from?

                You either need a new element or a new interaction of elements. When you admit the medium isn’t new, and you admit the interaction (the writing or coding) isn’t new, the novelty you’re hanging upon is the abstract idea, which by law is insufficient.

                It is beyond belief that you seek to lecture on that which you do not comprehend.

                I agree it’s pretty silly to lecture when you clearly don’t understand. Scoreboard.

                There is NO need to “confer” invention, as Congress stripped out the power of the Court to set the definition of invention in 1952.

                You’re welcome to sue me for infringement in a court that holds this view, if you can find one. Hopefully it won’t fall under the appellate review of the Supreme Court though.

                I suggest that you set your Belieb system aside and catch up to history.

                I suggest that you set your Belieb system aside and catch up to reality.

                Nice strawman – except for the fact that you err at the start, what you say here has no bearing whatsoever. In fact, to the level that you are correct here, this SUPPORTS software patentability.

                Pointing out you can argue to solve the 101 issue by introducing a 112, 1st issue does not hurt my “its not patentable” argument as you must surpass both 101 and 112 for validity.

                1. That AccuseOthersOfThatWhichMalcolmDoes does not work for him.

                  Why do you think it will work for you?

                  Broken Scoreboard” right back at you.

  7. I should note that the abandonment data only includes non-provisional utility applications (no design patents, plant patents, provisional applications, PCTs, etc.).

  8. Dennis, “the Dudas-Drop [vs. the] Kappos-Climb” is the kind of clever levity this blog could use more of.

    I would also be curious to see comparison of this % rate of allowances over the years to total allowances, to see how well the number of total allowances per year correlates to the large increase in the total number of patent examiners in recent years. [Versus changes back and forth over the years between a PTO management philosophy that “quality means reject everything” to “we are here to serve the public [applicants] and reduce the backlog.”
    Also, from all the doom and gloom comments on this blog about several recent Sup. Ct. patent decisions [which we can all agree are not pro-applicant in several respects], one would think there might be a big dip in the recent allowance rate on this chart, but there does not seem to be?

    1. Clearly Paul, you are not paying attention. many of my posts have that clever levity.

      Of course, you have to be open to views outside of the “echo chamber” to appreciate that.

    1. For examiner performance measures (and other stats as well), the filing of an RCE has traditionally counted as an abandonment/refile — resulting in points for the examiner. When the USPTO reports allowance rates, it usually counts RCE filings as abandonments.

  9. …not sure of the value of “peak-smoothing”…

    Seeing the jaggedness of the data would be more helpful than harmful, as such simply “is what is.”

        1. The low point on the chart is reported for July 2009 — According to the USPTO, that month saw 12415 issued patents and 17887 abandoned applications. The 17 thousand figure is more than two-thousand more abandoned cases than any other month on record. I do not know the explanation.

          1. Thanks – that is excellent additional information

            the darkest before the dawn…
            or maybe a conflux of applicants merely worn down… (in contrast to the canard of wearing down an examiner)

          2. It doesn’t quite track; but, the nadir of the stock market in recent years was March of 2009.

            The Patent Application Backlog Reduction Stimulus Plan didn’t became effective until November 27, 2009.

          3. I’m think that spot represents a change that happened in internal policy where examiners were told that we’re not supposed to sit on abandonments and use them as we need them to fill in/smooth production, and that we should send notices of abandonment when they happen (so people cleared their “bank” of abandonments).

            1. Pure B$.

              In the height of the Reject-Reject-Reject era your explanation is that examiners had a bank of unused rejections…

              You quite evidently were not an examiner at that time.

              The “change in policy” is quite clear from the start of the downward trend – and then another change when Kappos came in and had to state “Quality does NOT equal reject.”

  10. I am surprised by both the pre-1998 level as well as the pictured jump in 1998.

    Also, the lowest point in the Dudas drop was nearly 10% lower.

    Methinks that some (unstated) assumptions are in play, as this is a decidedly different picture from past historical records.

    1. As to the “subsequent Kappos-climb“…

      Let’s dissuade the chum effect and note that “Quality does not equal Reject” was the most immediate driver of the jump – as opposed to the notion of rubber stamping Accept-Accept-Accept – which is equally as bad as Reject-Reject-Reject.

      1. …and it should be noted as well, that a fair percentage of the climb can be attributed to either (or both) stopping the gamesmanship on applications artificially suppressed and cherry picking to hit numbers (counting divisionals and continuations are such cherries).

        1. Dennis,

          Along the same lines, your graph shows trends and the percentages indicate the chances for success. However, it does not answer a slightly different question, namely, what are the chances of obtaining at least one patent? Inclusion of continuations and divisionals overstates the odds because if a parent application is allowed, a continuation or divisional is more likely to be allowed as well. Can you provide the same for original applications only, excluding divisionals and continuations? Put another way, how many applications are abandoned with no patent issuing?

          1. That raises some interesting questions.
            First, I suspect that the now very extensive use of RCEs has substantially reduced to number of true old-fashioned continuations to a quite small % of all applications, which would not substantially affect allowance rate data?
            Secondly, while divisionals are undoubtedly far more common, they come in very different “types.” Some are forced by improper examiner claim restrictions and the inability to get timely petition decisions reversing them, while some are really claiming completely different inventions, and should be treated for allowance statistics purposes as if they had been separately filed. Some are vigorously pursued, while others are abandoned once generic claims are allowed in the parent case, especially if the divided-out claims can be put back into the allowed parent case. And some so-called “divisionals” [and “continuations”] ought to be rejected for lacking requisite full 112 support in the parent or grandparent application specifications for their new claims.
            So, how can all this fit accurately into allowance rate analysis?

            1. Why would you presume “substantially reduced to number of true old-fashioned continuations to a quite small % of all applications

              Having continuations open should be expected to be accelerating, not decelarating.

              1. Because an RCE can accomplish most of what a continuation does [allow further prosecution with amended claims and/or new evidence] more easily and with less cost. Unless the overriding purpose is to deliberately obtain greater delay to provide a longer time to add or amend claims to cover later developed products of others, taking advantage of the lack of PTO docket control by original filing date. I can only guess that the latter may be what you meant by “having continuations open should be expected to be accelerating, not decelarating.” It is now a well known litigation tactic [which makes it more vulnerable] but certainly not standard practice for applicants, especially given the patent term loss it generates.

                1. Maybe the “ecosystem” would be a bit healthier (and less of an “echosystem”) if the coddling wasn’t so one-sided…

                  “Words ought to be a little wild, for they are the assault of thought on the unthinking.”

                  – John Maynard Keynes –

                  As it is, the “politeness” is exalted at the expense of the thinking.

                2. …except if your impoliteness is constantly regurgitated by the likes of Malcolm, whose ever abiding snark has been present for nine years running (long long long before I started posting here).

                  I sooooo look forward to the even handed and objective application of editing rules and seeing those posts deleted.

                  /off sardonic bemusement

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