Patent Quality: Where We Are

Guest Post by Professors Arti Rai (Duke) and Colleen Chien (Santa Clara).  Professors Rai and Chien both served in the Obama Administration.  

On the eve of a new Administration, it is useful to take stock of progress that has been made on patent quality over the last eight years, and particularly since February 2015, when the U.S. Patent and Trademark Office launched its Enhanced Patent Quality Initiative (EPQI).  In this contribution, we review progress to date and outline directions for the future.

Patent quality means agency decision making that is appropriate as a matter of both product and process – that is, legally correct, clear, consistent, and efficient.  Measuring correctness, clarity, consistency, and efficiency is difficult, however.  Achieving these goals can also entail significant resources – a challenge for an agency funded entirely by applicants.

When former USPTO Director David Kappos took the helm in 2009, budgetary strains and application backlog demanded immediate attention.  Even so, then-Director Kappos pushed through redesign of the agency’s IT system, gave an across-the-board increase in time to examiners, adjusted count allocation so as to reduce incentives for rework, and emphasized quality improvements through international worksharing, industry training, and the creation of the Common Patent Classification system.  Then, with the passage of the American Invents Act of 2011, the agency’s budgetary position stabilized and the stage was set for further focus on quality.  The backlog subsided, with the queue of patents reduced by 30% over the last eight years, according to statistics released by the USPTO.

Building on these steps, as well as executive actions to crowdsource prior art and technical training, the USPTO launched the EPQI in 2015. Introduced and championed by Director Michelle Lee, the EPQI comprises a group of initiatives that embrace not only the substantive goal of quality but also take seriously issues of measurement. In total, the EPQI comprises 12 different programs and initiatives. We focus here on four initiatives that have thus far yielded data: the Clarity of the Record Pilot; the Master Review Form for measuring quality; the USPTO’s case study on examiners’ use of Section 101; and the Post-Grant Outcomes Pilot.

The Clarity of the Record Pilot ran from March 5 to August 20, 2016 as an effort to train examiners on best practices with respect to claim interpretation, reasons for allowance, and interview summaries and to determine the impact on this training on their work relative to a control group.  Relative to the control group, the 125 trained examiners who examined 2600 cases averaged a 15% improvement in the clarity of their interview summary and a 25% improvement in the clarity of their reasons for allowance.  Notably, although examiners in the pilot were allowed as much time as they wanted, they reported using only about 4 more hours per bi-week than the control group.

On the quality measurement front, the PTO is using its new Master Review Form (MRF) to provide both reviewers at the Office of Patent Quality Assurance (OPQA) and Technology Center (TC) supervisors a single, comprehensive record of the accuracy and clarity of patent work products.  Historically, OPQA and TC supervisor reviews had used different criteria and only OPQA reviews were systematically recorded for identification of trends across different TCs.  Additionally, in contrast with prior quality scores used by the PTO, the quality metrics used in the MRF disaggregate product quality (legal correctness and clarity) from process quality (efficiency and consistency) as well as perceptions of quality.

Current data on product quality, focusing on compliance with the statutory requirements of Section 101; prior art (Sections 102 and 103); and Section 112, is available for reviews conducted in the 4th quarter of FY2016.  These data, admittedly self-reported, indicate compliance in about 97% of cases for Section 101; 88% of cases for prior art; and about 94% of cases for Section 112.

The USPTO’s case study on examiners’ use of Section 101, one of six stakeholder-requested case studies that the agency is currently conducting, examined a sample of 816 Office actions with an Alice/Mayo-type rejection issued between January 2016 and August 2016.  Overall, the study found that 90% of rejected claims were in fact ineligible under the USPTO’s 101 guidance.  However, only 75% of the substantively correct rejections were properly explained.  Rates of properly explained rejections rose significantly after the USPTO conducted training on Section 101 in May and June of 2016.

The USPTO Post-Grant Outcomes pilot provided examiners of pending applications that related to patents that were the subject of an AIA trial with the contents of the trial. This common-sense initiative, which ran from April to August 2016, aimed to alert examiners of highly relevant prior art, identify training opportunities, and build a bridge between PTAB and the examining corps. 44% of the 323 examiners surveyed by the USPTO reported that they had referred to references cited in the AIA trial petition when examining the child case.

Going forward, the USPTO is pursuing bold initiatives on automated pre-examination search and on revising time allocations for examiners, the latter which is the subject of a current request for comment. To carry out efficient, correct examination, examiners must have the appropriate amount of time to examine each individual application, which can vary, making these initiatives critical for improving quality.

Going forward, one important question that remains to be fully addressed is the extent to which examination should be an “one size fits all” enterprise.  In 2011, the USPTO established a separate Track 1 process for those applicants who need decisions made quickly.  Small and micro-sized firms have filed more than fifty percent of the Track 1 applications, even though such entities only represented twenty percent of applicants in 2015. (The heaviest individual users of the system are large firms, however.) For other applicants, it may be appropriate to offer options for deferred, “Track 3” examination.

With a go-ahead from Congress, the USPTO might also make available varied intensity of examination.  Thus applications that were more commercially valuable might be subject to heightened review, by peers or others, in exchange for greater protection from post-grant challenges. Conversely, applications that were filed for defensive reasons only could pay lower fees in exchange for a promise to limit patent use.

Another way to ensure that the quality conversation continues in public is to support continued transparency and measurement of progress on patent quality. The focus should be on objective, independently verifiable metrics such as the percentage of cases with examiner-cited non-patent literature, or the percentage of cases resolved through compact prosecution – “once and done.”  Facilitating tracking of such metrics not only by examiner but by Art Unit or Technology Center could stimulate some healthy competition and also help identify best practices.

For the new focus on metrics and quality two USPTO administrators in particular deserve credit – the Office of the Chief Economist and the Deputy Commissioner for Patent Quality. Together these positions and these personnel, newly created and appointed during the last 8 years, may indeed end up being some of this Administration’s most enduring legacies on patent quality.

= = = =

For an alternate viewpoint, read Gene Quinn’s post: Patently Surreal.

79 thoughts on “Patent Quality: Where We Are

  1. > These data, admittedly self-reported, indicate compliance in about 97% of cases for Section 101…

    As long as the system continues churning out metrics like this, it will neither be reliable nor informative.

    Here’s the typical 101 rejection that I receive in about 75% of so-rejected cases:

    “Claim 1 recites the concept of [six-word summary of invention], which is an abstract idea. The remainder of the claim fails to add significantly more to the abstract idea. Therefore, the claim is therefore unpatentable under 35 U.S.C. § 101. Claims 2 through 20 also fail to add significantly more and are similarly rejected under 35 U.S.C. § 101.”

    75% of the 101 rejections I receive look like this, dressed up with generic boilerplate that is literally copied-and-pasted from some template. (I see the same language – even including the same formatting quirks – appearing in rejections from many art units.)

    This type of rejection fails to comply with Robert Bahr’s memos from July and November in several respects:

    * Vastly oversimplifying the abstract idea, in ways that don’t match or even resemble the claim language

    * Failing to identify cases that present similar subject matter that the courts have found to be invalid… indeed, many of them fail to cite *any case at all*

    * Not even attempting to explain why the abstract idea is abstract – simply characterizing it as “abstract” without further remarks

    * Not even attempting to explain why the remainder of the claim fails to add “significantly more” – simply stating that it does in a conclusory way

    * Rejecting all of the dependent claims, en masse, as failing to add significantly more, without even pretending to evaluate them individually

    Any one of these deficiencies should be sufficient to reverse the 101 rejection. *ALL* of them, taken together, should be enough to compel the examiner to spontaneously withdraw the office action and reissue it.

    And this is what I see in 75% of the 101 rejections that I receive.

    So there is no way that the USPTO is exhibiting a 97% compliance rate. Any system churning out these kinds of “quality” metrics is just a non-starter.

    1. It’s too soon to say since the report hasn’t been published, but I have a sneaking feeling we are going to find out that David Stein’s interpretation of the memos and guidance is not the one that counts.

      1. No “interpretation” required. The plain text of the memos stands for itself.

        * Vastly oversimplifying the abstract idea, in ways that don’t match or even resemble the claim language:

        Robert Bahr, November 2016: “The McRO court cautioned that courts ‘must be careful to avoid oversimplifying the claims’ by looking at them generally and failing to account for the specific requirements of the claims.”

        Robert Bahr, May 2016: “[T]he Federal Circuit cautioned against describing a claim at a high level of abstraction untethered from the language of the claim when determining the focus of the claimed invention.”

        * Failing to identify cases that present similar subject matter that the courts have found to be invalid:

        Robert Bahr, May 2016: “Citing an appropriate court decision that supports the identification of the subject matter recited in the claim language as an abstract idea is a best practice that will advance prosecution. Examiners should be familiar with any cited decision relied upon in making or maintaining a rejection to ensure that the rejection is reasonably tied to the facts of the case and to avoid relying upon language taken out of context. Examiners should not go beyond those concepts that are similar to what the courts have identified as abstract ideas.”

        * Not even attempting to explain why the abstract idea is abstract – simply characterizing it as “abstract” without further remarks:

        Robert Bahr, May 2016: “When the examiner has determined that the claim recites an abstract idea, the rejection should identify the abstract idea as it is recited in the claim, and __explain why__ it corresponds to a concept that the courts have identified as an abstract idea. ”

        * Not even attempting to explain why the remainder of the claim fails to add “significantly more” – simply stating that it does in a conclusory way:

        Robert Bahr, May 2016: “After identifying the judicial exception in the rejection, identify any additional elements (features/limitations/steps) recited in the claim beyond the judicial exception and explain why they do not add significantly more to the limitation. The explanation should address the additional elements both individually and as a combination when determining whether the claim as a whole recites eligible subject matter.”

        * Rejecting all of the dependent claims, en masse, as failing to add significantly more, without even pretending to evaluate them individually:

        Same as above.

        Ben, can you explain where you believe Deputy Commissioner Robert Bahr to be wrong about the application of 35 USC § 101?

    2. David Stein, ” Not even attempting to explain why the abstract idea is abstract – simply characterizing it as “abstract” without further remarks.”

      This, to me, is the pith and essence of why Bilski was and still is a complete mess. That case never explained why the claims were abstract. Now even examiners are doing the same thing.

      Stinks of denial of due process.

  2. “Then-Director Kappos pushed through redesign of the agency’s IT system, gave an across-the-board increase in time to examiners, adjusted count allocation so as to reduce incentives for rework”

    This needs some serious fact checking. Under director Kappos examiners in the most difficult arts had a net loss in time. All examiners recieved a 2.5 hour per balanced disposal increase in time (i.e. 2 hrs 30 mins “extra” per round of prosecution). HOWEVER, the new count system under Kappos results in loss of .25 counts for a 1st RCE and .50 counts on 2+ RCE rounds of prosecution. The net result for most primary examiners in the more difficult arts (i.e. the ones with the most time where .25/.50 counts are worth more than the 2.5 hours) have ended up with a net loss in time to work on cases.

    As for the “redesigned” IT system, the office has paid millions of dollars to a contractor to essentially recreate the software the office already had, only now it’s “in the cloud” (except it’s not actually in the cloud). The new PE2E has no significant additional features over the old eDAN, runs slower, and so far has proved to be just as unstable. There have been no real improvements software-wise in well over a decade.

    As for the “bold” automated pre-examination search, since applicants are allowed to be their own lexicographers, anyone with any knowledge of AI will tell you that the automated pre-examination search is doomed to failure from the start. It may result in an improvement over the simple keyword frequency analysis of the “PLUS” search in mechanical arts where the inventors/attorneys all consistently use the same or similar vocabulary, but will be mostly worthless in all but a very select subset of arts.

    1. I want to say thee words to you. Just three words.

      Yes, sir.

      Are you listening?

      Yes, I am.

      Search Engine Deoptimization.

      Exactly how do you mean?

      There’s a great future in search engine deoptimization. Think about it. Will you think about it?

    2. Your focus on RCE driven count is myopic.

      That reduction is directed to “adjusted count allocation so as to reduce incentives for rework

      The part about “an across-the-board increase in time to examiners” is true as to doing the job right the first time (in other words, driving examiners to actually examine from the get-go, instead of gaming the system for the RCE gravy train).

  3. In a sharp turn of events, President-elect Donald Trump is expected to name Philip Bilden, a private equity investment firm executive with no military or government experience, to be his first secretary of the Navy.

    Remember folks: this isn’t the first time we have a ment@lly ill incompetent maniac in charge. Reagan’s brain was filled with holes for the last couple years of his Presidency. The difference was that Reagan by that time had surrounded himself with modestly competent people (albeit a lot of corrupt ones).

    The orange maniac (remember: openly and vociferously supported by many patent maximalists) is beginning his short-lived reign with the incredibly high disapproval ratings and an apparent desire to cripple every arm of the government with incompetence and croneyism.

    So who’ll be the next PTO director? Maybe some really rich guy who knows nothing about patents but who helped Trmplethinskin eliminate some “problem” with some building contractor last year. And why not?

    Also, my apologies if pointing out obvious facts about President Puppet sounds like “N@zi Germany” to all the very serious people out there who demand that he be “given a chance”. LOL Not. Going. To. Happen.

    1. ?

      Maybe your rants of such non-patent nature are more appropriate somewhere else…

      Or maybe the by-line of this blog should be changed…

      1. Maybe the PTO is a Federal Agency, with a Director appointed by the President, and maybe (if the Republican Congress has its way) every single employee in the Office will be subject to immediate termination upon being targeted by amendment according to the Holman Rule.

        link to thinkprogress.org

        But I do look forward to your pitiful and hypocritical whining, “anon”, next time your bff pipes up with his vapid political commentary. You’re a very serious person! And totally not a defender of a ment@lly ill President who shares your same clinical narcissist tendencies. Nope. Not you! You’re not defending anybody! And you’re a very, very serious person.

        1. We’ve gone over this Malcolm – your purely political rants are simply not tied to patent issues.

          Night Writer’s (and not my bff), ARE tied to patent issues.

          Are you really that thick?

          1. I don’t know what you think that you’ve “gone over”, “anon.”

            Also, I don’t really care.

            Like I said, go hang out in the ce ssp00l with your her0 and ment0r. Incompetence and misinformation is the order of the day there, as well as cheerleading for this me nt@lly ill psy ch 0 puppet that was installed to lead the country. Your hero v0ted for him, you know! And he’s a very serious person, just like you.

            1. Also, you yet again imply a reference to Quinn who is not part of the thread or discussion, revealing your 0bsess10n with the man.

              What is it between you and Quinn?

              Your love/h a t e mantra mirrors your own self-adoration/career denigration patterns to a T.

        2. As for “defending” anyone – that too we have been over. Commenting on YOUR indiscretions is not defending anyone.

          Your delusional state on the topic is likely linked to your “one bucket” view of anyone that does not agree with you.

          You are a prime putz.

          1. “anon”, we all know that you think you’re “above it all” with your silly rebel teen “I h@te them all” position.

            But you’re not “above it all”. You’re just as “biased” as everyone else. The biggest difference is that your biases are perfectly transparent but you lack the intelligence to realize that about yourself. Sad!

            LOL

      2. maybe the by-line of this blog

        Or you can just go read the fabulous “news” and commentary at the patent maximalist’s favorite echo chamber where incompetence and misinformation is celebrated daily, along with the awesomeness of der Trmpenfuhrer and his r@cist misogynist pals.

        I’ll see you at the march in DC, right? Because you really h@te this guy. Right, “anon”? Right?

        LOL

          1. a Donkey CRP march

            Is that like the marches that MLK, Jr led? Or the gay rights marches? Or women’s rights marches?

            Or is it more like those awesome K lan marches that you weep and cry over because “PC” folks jeer too much for your taste.

            I know, I know. It’s really hard to be a white guy in today’s America. So much “demonization”! Super awesome guys like ou and 6 can’t get any action because of all the liberal propaganda that seeped into your women’s brains. Phil Donahue must be stopped!

            LOL

            1. “Super awesome guys like ou and 6 can’t get any action because of all the liberal propaganda that seeped into your women’s brains.”

              Correction idi oto, since you have a hard time reading, we get too much sexy action. We get too little family “action”. Ordinary guys below my level in the SMV get too little sexy action and too little family action.

            2. “Super awesome guys like ou and 6 can’t get any action because of all the liberal propaganda that seeped into your women’s brains. ”

              Also I wouldn’t taunt anon too much, he’s near surely one of the guys not getting sexy action or family action. Antagonize him enough and he’ll be sure to vote T rump in short order. Or at least kindly stay home again.

              1. Too funny the both of you.

                Try less empty personal attacks Malcolm, that is, if you can be bothered to care.

                (Maybe Prof. Crouch needs to talk to you about that lack of caring thing)

    2. Trump isn’t draining the swamp.

      He is making it deeper.

      And all that brown stuff he is having trucked in isn’t mud.

      1. NOiP,

        What exactly had been any impact to patents or patent law from the – i d i o c y – and shenanigans of Trump or the media coverage of Trump?

  4. Another incredibly junky patent Rule 36’d by the CAFC today:

    FO2GO LLC v. PINTEREST, INC.

    The patentee here sued a boatload of companies that publish images based on its super awesome “server control means for parsing recipient code” … which was deemed to be indefinite. Oral argument (held earlier this week) can be heard here:

    Highlights (or lowlights, if you will):

    Patentee: “Parsing is a one-step algorithm. That’s the structure.” <— LOLOLOLOLOLOLOLOLOLOLOLOL

    Yes, it is hilarious but the CAFC is responsible for opening the door to these farcical arguments, in addition to opening the door to functional claiming of "new" code that (surprise!) was usually never drafted by the applicant (because, in many cases, the applicant was incapable of writing code for any server, much less all the servers that would be covered by the claim).

    1. 1. A method for making methanol comprising:
      directing a methane containing gas and steam to a steam reformer to form a first syngas stream and directing at least a portion of the first syngas stream to a methanol synthesis reactor;
      directing a methane containing gas and oxygen to a partial oxidation reformer to form a second syngas stream and directing at least a portion of the second syngas stream to the methanol synthesis reactor;
      recovering unreacted syngas from the methanol synthesis reactor; and
      directing at least a portion of the recovered unreacted syngas to a hydrocarbon synthesis reactor.

      link to patents.google.com

      Ooooo directing gas….suuuuuupeeeer inventive…. pipes (and MM) haven’t been directing methane for since ever….

      LOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOL

    2. Speaking of der Führer, one of his hallmark innovations was the big lie, propaganda – fabricated falsehoods and smears – that were leaked to the press by the government and especially by the intelligence community so that they had an air of legitimacy. What president, actually within the last week, leaked to the press Soviet propaganda regarding a certain president elect?

      Gotta love the big lie. Got especially love those who continuously smear the victims of the big lie in favor of protecting der Führer.

      1. “Speaking of der Führer, one of his hallmark innovations was the big lie, propaganda – fabricated falsehoods and smears – that were leaked to the press by the government and especially by the intelligence community so that they had an air of legitimacy. What president, actually within the last week, leaked to the press Soviet propaganda regarding a certain president elect?”

        I know right? The modern parallels are just, whew. If I were MM and his lefty buddies I’d be less than thrilled with muh media reporting lies.

        1. Modern parallels of propaganda and what Malcolm does (and has done nearing now 11 years on this blog alone) have been pointed out previously (even down to the German fellows name and specific tactics).

  5. Typical junk that was rule 36’d today by the CAFC:

    UTILITY ASSOCIATES, INC. v. DIGITAL ALLY, INC.

    On July 27, 2015, the USPTO invalidated substantially all of the claims identified in Utility’s ‘556 Patent, a patent which, according to Utility [the patent owner], covers all mobile surveillance systems capable of capturing video, audio, and other data.

    Try to believe it. How did it get out of the PTO in the first place?

    Here’s claim 1:

    1. A surveillance system for an emergency response vehicle, comprising:

    a device for capturing at least two of video, audio, and data information, said device provided in the emergency response vehicle, and

    a server for digitally integrating the captured information into one data stream and storing the data stream in the emergency response vehicle,

    wherein said server is operative to transfer the data stream from the emergency response vehicle to a second location.

    Just more functional junk, putting emphasis on the information content of the data and, even more bizarrely, on the purpose assigned to some “vehicle” (wowee zowee! Becuase it makes such a huge difference!). What an incredible pile of cr@p. Heckuva job.

    So what steps has the PTO taken to ensure this will never, ever happen again? Answer: nothing. Absolutely nothing.

  6. >>Arti Rai (Duke) and Colleen Chien (Santa Clara).

    Why are people like this given voice? Why are they involved in policy? Both are anti-patent judicial activist that generate abstract nonsense to justify burning down the patent system. I have criticized Chien’s work in detail before. Her numbers and work is removed from reality.

    Ethics is the answer. It is time to start going after people who fabricate “facts” and leave out important information.

    1. Just reading their nonsense is like entering the 1984 novel. Jabber this and jabber that so we have to “fix it” which means secretly add some more weakening policies to make Google happy so they will continue to give Obama Google Bucks.

      Please. You know, any objective logical analysis of their work would conclude the two of them should be punished for ethics violations just like Lemley.

      1. Just reading their nonsense is like entering the 1984 novel.

        LOLOLOLOLOLOLOLOLOLOLOLOLOLOL

        Stay away from drugs, kids.

        LOLOLOLOLOLOLOLOLOLOLOLOL

    2. It is time to start going after people who fabricate “facts”

      LOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOL

      You just gotta love these fresh scripts from the rightwing ntj0bs. Keep the laughs coming, NW!

      LOLOLOLOLOL

      1. It is time to start going after people who fabricate “facts”

        I forgot to ask: is this before or after you publish your video of Mark Lemley eating a roasted baby?

        LOLOLOLOLOLOLOLOLOLOL

  7. Until the PTO makes even the tiniest effort to either (1) standardize the claiming of logic performed by a programmable computer, or (2) eliminate such claims from the system entirely (a better option) the system is going to continue to swirl down the t0ilet. Everybody loses, except for the b0ttom-feeding scriveners. Everybody loses because the system will have choice but to diminish the ability of everyone to assert their most-likely-junky piece of paper. This isn’t a prediction, by the way. Just a fact.

    As long as the actual “innovation” that is being performed to arrive at a claim is performed primarily by lawyers playing linguistic games to avoid ancient prior art that everybody knows about, the patent system will end up primarily as a money funnel into the pockets of those lawyers and the professional grifters who make a living by exploiting weaknesses in the government agencies. Those grifters, of course, are going to be having a field day under the orange maniac. Maybe they’ll find another more fruitful playing field? Highly doubtful.

    1. MM, your post made me think. An analogy are defense contractors who milk the system for all its worth.

      It appears that any government program dolling out privileges or money can be abused by sharp practice. That is why the whole idea that inside the PTO that they are “serving” customers is so backwards and wrongheaded as to be obscene. The PTO represents the American economy that can be damaged by malfeasance. It is the ethos of the PTO that most needs reforming.

  8. For an alternate viewpoint, read the post of a guy who’s been wrong about pretty much everything important since forever

    Comedy gold right there.

    Overall “patent quality” is directly proportional to the amount of “do it on a computer” g@rbage, “use logic to determine this” g@rbage, and “communicate this species of information over trendy communication technology du jour” g@rbage.

    The PTO continues to pump out reams of that g@rbage and it has taken precisely zero practical steps to deal with the problem, relying instead on the worst patent attorney “stakeholders” to advise them on how to make those “stakeholders” as happy as they can possibly be without attracting too much attention to their relentless and (ridiculous) scriven-drive whack-a-mole games.

    Here’s just one of a zillion easy ideas: make it clear to the b0tt0m-feederz what technologies are old and therefore off-limits for milking via scrivening and/or loading the claim with “new” but ineligible subject matter. It shouldn’t be too hard. After all, the PTO is sitting on a lot of prior art teaching what programmable computers are capable of doing (not that anybody except the PTO and the CAFC has been confused about that for the last half-century).

    1. MM, agreed.

      The PTO needs to pay special attention to all applications that include the term “configured to” or the like and/or that include processor, computer, or the like in the claim.

      1. And why is that?

        Why doesn’t the PTO need to pay special attention to all applications that include the term “screw” or “fastener” or “plate” or “spring” or “resilient member.” Did you guys get scratched by the leads of an 8085 when you were kids?

        Why the bias against processors?

        1. Do you also object, or perceive as ‘bias’, the de facto differentiation between the predictable arts and the unpredictable arts?

          1. I so often see “predictable” misapplied that I hardly know where to begin.

            Then I realize that Ben is a rather dull examiner who so often parrots the anti-software patent mantra of Malcolm, that I realize that with Ben, it just does not matter. Predictably, Ben will spout the anti-patent line.

        2. Why the bias against processors?

          Nobody’s “biased” against “processors.”

          The issue is claiming utterly predictable uses of old information-processing machines that were created for the sole purpose of processing information.

          Nobody ever suggested that programmable computers couldn’t process video data. Or copyrighted video data. Or copyrighted video data that was “authorized”. Or copyrighted video data that was “authorized” by entry of a password into some “remote” server. Nobody ever suggested that computers couldn’t do any of those things because it was perfectly understood that computers can process any data that they are instructed to process by people who (wait for it) write instructions.

          The only people who pretend to be confused by this are a tiny class of patent attorneys, a class that comprises most of the least technically skilled patent attorneys who ever practiced law. B0ttom-feeders, mainly. And mostly Republican, faux libertarians and quasi-anarchist types who care about one thing and one thing only: their own personal wealth. They’re gross examples of human beings for the first part but they breed like crazy when the swamp gates are opened to them. And, man, but they whine like crybabies. They’re never satisfied.

          1. Let’s take one slice of the Malcolm rant and expose (not difficult to do) some of his typical duplicity:

            The issue is claiming utterly predictable uses of old information-processing machines that were created for the sole purpose of processing information.

            IF you are objecting to uses of an old machine [Old Box], try understanding what happened in 1952 when Congress penned 35 USC 100(b):

            “…includes a new use of a known process, machine, manufacture, composition of matter, or material.”

            IF you are objecting to not use, but changed machines or manufactures that change machines (given that you always run away from explaining how [Old Box] without change somehow has new capability), try on 35 USC 101:

            “or any new and useful improvement thereof,”

            Try pounding a little law, or failing that,

            Try pounding a little facts,

            Instead of your usual pounding the table.

          2. “The issue is claiming utterly predictable uses of old information-processing machines that were created for the sole purpose of processing information.”

            The issue is claiming utterly predictable uses of old fasteners, lumber and sail cloth that were created for the sole purpose of fastening, providing structural framing and harnessing airflow.

            If you look at processing in the abstract, sure, processors were made to process data. But they were not made specifically to translate spoken word to text. To do that, a dumb processor needs to be configured.

            The only people who pretend to be confused by this are a tiny class of patent attorneys, a class that comprises most of the least technically skilled patent attorneys who ever practiced law. B0ttom-feeders, mainly. And mostly communists and quasi-anarchist types who care about one thing and one thing only: revolution and taking what other people have earned.

            You and the other famous Putin worshiper should get along just fine.

            Dasvidany

      1. Do you know what protons, neutrons and electrons “are capable of” doing…?

        Serious question: other than the two or three l0wlife tr0lls who hang out here and who never saw a “do it on a computer” patent they couldn’t embrace, is there anyone out there who is remotely compelled by “anon”‘s ridiculously st 00 pit “argument”? I’ve never even been able to figure out what “anon” is trying to advocate when he spews nonsense about his magical box of protons. Is it just one of these zombie “arguments” the maximalists are always trying to make, i.e., “everything is obvious!”, “everything is abstract!”, “everything is indefinite”?

        If so: sad.

        But not as sad as “anon” voting for Bernie Sanders as a “protest.”

        LOLOLOLOL

        Priceless stuff.

        1. Hey Malcolm – as pointed out many times now, the “ridiculously st 00 pit “argument” is NOT my argument, but rather is the basis of your own mantra.

          I just throw it out there because you are just too dim to see that what you v0m1t forth is exactly that same “ridiculously st 00 pit

          1. the “ridiculously st 00 pit “argument” is NOT my argument,

            Try to believe it, folks.

            But “anon” isn’t a l y ing s@ck of shirt.

            Nope. He’s a very serious person! We all have to pay attention to him.

            Meanwhile, the crickets are chirping. Where’s “anon”s super serious friends to come lend him a hand?

            1. But “anon” isn’t a l y ing s@ck of shirt.

              Where is this dammnable “l i e” Malcolm?

              Yet another accusation from you of others of that which you do.

              Calling something that is not a l i e a l i e is itself a l i e.

  9. I can’t find where the 101 case study has been publically released. Are Rai and Chien ‘associated’ with the Obama admin via USPTO public relations positions?

    1. ” Professors Rai and Chien both served in the Obama Administration. ”

      “From 2009-2010, Rai served as the Administrator of the Office of External Affairs at the U.S. Patent and Trademark Office (USPTO). As External Affairs Administrator, Rai led policy analysis of the patent reform legislation that ultimately became the America Invents Act and worked to establish the USPTO’s Office of the Chief Economist. Prior to that time, she had served on President-Elect Obama’s transition team reviewing the USPTO. ”

      link to law.duke.edu

    1. Yes, I had thought the “gold plated patents” academic idea had finally died from reality exposure. But I see here: “applications that were more commercially valuable might be subject to heightened review, by peers or others, in exchange for greater protection from post-grant challenges.”
      The reality is that only companies being sued or threatened with suit or large royalties will pay for really thorough prior art searches, claim charts and other explanations of their relevant teaching disclosures, etc. Also, naturally and rationally greatly preferring to assert that prior art and its explanation in an inter partes proceeding, not an ex parte proceeding they are shut out of.

      1. P.S. As strong evidence, at least 80% of IPR petitions are filed by companies already sued for patent infringement on the subject claims. The remaining 20% are largely by companies that have had their customers or their competitors already sued on that same patent, or are otherwise sufficiently threatened by it to go to make that decision to go to that expense, and take the risks.
        The AIA already provided a new system for “peers or others” submitting prior art against published pending applications. It is a bust – an insignificant number of claims have been cancelled by what few such prior art submittals have been made.

  10. I guess if you repeat ‘enhanced patent quality initiative’ enough times, somebody somewhere will come to believe it means something.

  11. These remarks are all fine and interesting, but I am not sure that they really speak to patent “quality.” The real measure of patent “quality” is “does the patent survive validity challenge?”. The patents coming out of today’s PTO will not likely see challenge in statistically meaningful numbers for several years yet, so we will not know the “quality” of today’s work product until then.

    1. Bingo. With exponentially increasing amounts of available prior art to search, yet no increase in examiner prior art searching time, and newly increased examiner time demands for 101 and 112 examinations, true patent quality cannot increase. A high percentage of patent claims in IPRs and lawsuits will continue get shot down or withdrawn in view of material prior art missed in the application examination. Yet that is not even considered a PTO quality metric.
      Nor are Corporate efforts to get prep and prosecution work done as cheaply as possible, with no or inadequate quality control, helping patent quality.

      1. With exponentially increasing amounts of available prior art to search, yet no increase in examiner prior art searching time, and newly increased examiner time demands for 101 and 112 examinations, true patent quality cannot increase.

        I am not sure that is true. Yes, the amount of art to search is increasing, but so also is the sophistication of the search tools. It is an empirical question whether the quantity of art is increasing faster than the sophistication of search tools, or vice versa, but my bet would be on the idea that search tool sophistication is outpacing art volume. If that is the case, then it is possible for an examiner to do more in a given amount of time. The real problem is that the PTO does not necessarily have the incentives to improve patent quality (at least not on the front end).

        1. My bet would be that you’re wrong. Even if there is merit to the ‘sophisticated’ next-gen techniques (which I have yet to see demonstrate any utility beyond finding the low hanging fruit), the office will have to continue to rely on human crafted, human sifted searches to avoid the obvious counterpart to Search Engine Optimization.

          1. My bet would be that you’re wrong.

            Could be. My supposition above is based purely on my own experience. My experience may not be representative.

      2. “With exponentially increasing amounts of available prior art to search, yet no increase in examiner prior art searching time, and newly increased examiner time demands for 101 and 112 examinations, true patent quality cannot increase.”

        Well, there HAVE been improvements in search tools. I don’t think they are rummaging through “shoes” any more.

        1. Exactly. Just like how there HAVE been improvements in software subject matter eligibility… since 1972. So no issues on that front, huh?

  12. “Relative to the control group, the 125 trained examiners who examined 2600 cases averaged a 15% improvement in the clarity of their interview summary and a 25% improvement in the clarity of their reasons for allowance. ”

    15 % improvement in clarity? How is that measured? With a jeweler’s loop and opinion? Some sort of lazer and photometer?

    What was the baseline clarity level? What is it now? What are the unit of measure? How many units is clear as mud? How many units is crystal clear? What percentage is between mud and crystal?

      1. Well, frankly there isn’t anything about an Office Action or any Examiner generated paperwork that couldn’t be clearer. But yeah, when you have any agency or organization report on their own improvement they are going to report improvement. Here I suppose they had some panel read 100 interview summaries and indicate if they thought they were clear. Then a few months later, after some program was initiated, they had the same or other panel read a different set of interview summaries and indicate if they thought they were clear. And now they are reporting the difference in those reported numbers as an improvement in “clarity.”….

        Managers and consultants… can’t live with ’em, pass the beer nuts.

        1. Les, you have a very good point there about the agency commenting on its own performance. Perhaps we ought to have the OEI* provide comments.

          *Organization of Efficient Infringer’s

          1. When the point is “the agency commenting on its own performance,” and the agency is the USPTO, and the performance is purported quality, the reason why Kappos came in and with one of his first pronouncements exclaimed “Quality does not equal Reject” was explicitly because the Office had been using Reject Reject Reject as its method of “Quality,” and had actually boasted of such with its infamous “allowance rate down to the 30-40% range” graph.

            That graph was used by USPTO inside lifers to highlight their internal view of “Quality.”

            And yet, revisionists persist in attempting to reframe this historical fact or otherwise impugn the removal of this historical fact from pertinent discussions (and graphs 😉 ).

            1984 is alive and well, thank you very little.

            (The royal you, which does at times include the personal you, Ned)

        2. [W]hen you have any agency or organization report on their own improvement they are going to report improvement.

          I am sure that this is true, but it seems to me that the reality here is even worse. Not only is the assertion of improved quality self-serving, it transparently trespasses against the Wittgenstinian maxim, “whereof one cannot speak, thereof one must be silent.”

          “Quality” in the case of the PTO means “allow the allowable claims and reject the unallowable ones.” If the PTO were operating at 100% quality, it would never be reversed on appeal. All ex parte appeals by rejected applicants would be upheld (meaning that the office was never rejecting an allowable claim), and all invalidity defenses against charges of infringement would fail (implying that the PTO had never allowed a claim that was not valid)*.

          Of course, that means that we do not know about the quality of the PTO’s examination in a given patent until years later, when it has had a chance to be challenged in court. It will be years before the stuff receiving notices of allowance in 2015, 2016, or 2017 actually gets litigated in any statistically meaningful quantity. Therefore, it is impossible to know right now how the quality of the PTO’s present work product. Anyone at the PTO saying “we appear to be doing fine quality work right now” is merely blowing smoke. The most that they can meaningfully hope to say is “we hope our work is high quality, and we have not reason to suppose that it is not.”

          * To be very fair, even in a world where the PTO makes the correct call 100% of the time, they will end up granting invalid claims every now and again. After all, pre-AIA §102(d) & (e) allowed for art to come into existence after grant that did not exist at the time of filing, and the PTO cannot be expected to make a rejection over art that did not exist at the time of examination.

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