Dr. Naira Simmons has published a nice short article titled: Putting Yourself in the Shoes of a Patent Examiner: Overview of the United States Patent and Trademark Office (USPTO) Patent Examiner Production (Count) System, 17. J. Marshall Rev. Intell. Prop. L. 32 (2017).
The goal of this note is to provide an overview of the system in which Patent Examiners operate by summarizing important aspects of the system currently used to evaluate the performance of a Patent Examiner.
Many patent attorneys know this system, but the article does a nice job of summarizing how it all works.
The huge number of comments on this topic include some unreasonable expectations. What anon and some others seem to expect from the PTO is the equivalent of a more than $20,000. IPR petitioner prior art search in each of the 600,000 or so applications per year, instead of the few hundred dollar applicants pay the PTO for searching. That is, with the taxpayers paying for almost all of that rather than any clients, or a huge increase in application fees. Run that 600,000 times $20,000. cost figure on your calculator. It is not going to happen because very few applicants are willing to pay that and neither is Congress.
[This is not to suggest that PTO quality reviews could not better directed to the importance of prior art search quality.]
Your reply is nothing more than a fallacy Paul.
“That is, with the taxpayers paying for almost all of that rather than any clients”
Where do the taxpayers join in on this?
Where have I ever indicated that taxpayers need to do the examination?
You post nothing but FUD.
You should be ashamed of yourself.
But that’s not what happens in too many cases. What happens is the examiner can’t find the evidence and instead of indicating the claims allowable just makes up nonsense to reject the claims because the examiner knows that there are zero consequences, and in fact only benefits, to rejecting every claim even when the rejections are improper.
Do you have any evidence for this statement?
Lets say someone else did a search for an invention and found a perfect 102. Then they handed me the application and the reference. It is still “easier” (in terms of time, difficulty and reward) for me to write an allowance than a rejection. It will take me less time to write the allowance and I will get more credit.
There are only two reasons an examiner would reject something without evidence – he is being told to by his superior or he has it in for you in particular. The latter is extremely unlikely, because you have to be a real piece before the examiner decides he’s going to essentially work for free (or spend more time working) just to stick it to you.
If you get a rejection it is either because a junior examiner is being told by his primary that the primary knows the art is out there, but the junior cannot find it, or its because the examiner honestly believes it reads upon your invention. Now it may be that he commits error in that belief, but it is an honest belief.
Let me make an analogy for you – You’re a criminal prosecutor. Imagine the cops hand you some evidence, maybe its great evidence, maybe its bad evidence. Your options are 1) try and make a plea deal, 2) try the case and 3) simply let the guy go. There’s no world where 3 isn’t always the easiest option. There’s only two things logically stopping you from picking option 3 every time – your boss might get mad, and you kinda took an oath that you were going to resolve these things properly. You never *want* to try the case from a work standpoint, but you do cause its your job. You especially don’t want to try the case if you have bad evidence or you think you’ll end up doing work for free on this case later.
Maybe on a rare occassion you decide you have an issue with this particular criminal and you’re really going to to push that case, but you know when you do it you’re shooting yourself in the foot.
My proposal is to simply acknowledge that some applications require more time for the examiner to gather the relevant evidence in an acceptable amount of time than other applications.
That’s certainly the case, but I am skeptical you can apriori quantify that time. Barring that ability, I don’t see a problem what an average. It’s not like a timer ticks down and after 31.6 hrs someone comes in and tells me “pencils down” picks up your application and ships it out the door. I’m capable of managing my time and going over on some cases and going under on others.
Maybe the time is too little (on average) for some fields. But more likely what it is is that the examiner advanced to a GS level (thus decreasing his particular average for the field) that is actually above his skill. Most likely it is that you’re dealing with a junior who has a SPE that insists something is known but because hes a supervisor doesn’t search it himself.
Do i have any evidence? Yeah. Three filing cabinet drawers full. Stop by some time and i will share some with you.
I was about to say lol, such evidence stacks to the moon.
Really though what it is is where the signatory in question has only a half grasp on administrative procedural requirements and evidenciary burdens, finding of facts etc. etc. all mixed in with their timidity (either in their personality or instilled in them from above allegedly in some instances).
“Do you have any evidence for this statement?”
If you haven’t had to write a rejection for some signatory using a reference(s) that wasn’t even close to being evidence for the fact you’re finding as supposedly known in the prior art (or a motivation that makes halfway sense) as of x date then you’re one in 8000 examiners.
It’s rumored this kind of nonsense happens a dozen times a day per examiner in the compooter arts and similarly in biz methods. I don’t doubt those rumors. The abstract notions that are being claimed in those cases create problems with claim construction, fact finding, etc. etc. that blend into nonsense happening.
The abstract notions that are being claimed in those cases create problems with claim construction, fact finding, etc. etc. that blend into nonsense happening.
Ding ding ding!
And this has been going for decades. What formal steps has the PTO taken to change this? None. What steps will ever be taken? None.
And we all know why.
Just pull the plug already. This sh t stinks to high heaven and the entire enterprise has been turned into a farce.
The bigger problem that is not handled well is assigning the cases to the right examiner. The best prosecution comes from the examiner knowing the art and prior art to apply to the application.
I have seen NO systematic way of any such “assigning to the right examiner.”
That’s the whole thing anon. They are not getting the big things right. Not assigning cases to the right examiners. Not giving more money for better searches.
Just those two things would vastly improve patent quality.
One reason is that examiners in art units that have short backlogs can get transferred to a different art unit with a greater case backlog in which they have no experience.
If all that you are doing is managing “time” and counting widgets, that is all that you will get.
Not only does this expose the fallacy that removing “logic arts” would free up the examining corp, it also highlights the fact that metrics of the job are NOT THE JOB.
If quality examination is indeed what is desired, the current path certainly won’t get us there (and neither will Malcolm’s feelings about not protecting the single most beneficial source of innovation today – a source that is NOT beholding to some ultra rich mechanism like bio molecules – funny how he has never dealt with that dichotomy).
Two points: 1) the fact that the PTO doesn’t give examiners more time when we pay for extra claims indicates the system is broken; and, 2) the easiest way to improve patent quality is to improve searches.
MM’s point below isn’t reality. First, you can’t continue prosecution forever. There is a 20 year time line. Second, you have to narrow or change the claims often to continue prosecution. Third, examiners continue to get counts for rejecting the application.
The fact is that by the time you are in the second RCE that an examiner knows the art and it is little work for them to continue to reject an application. And, your client keeps paying.
Another point to remember is that the “universe” from which the applicant operate from is a closed and limited one since from the point in time of the initial filing, no new matter may be added.
More than that, MM’s hypothetical is absurd. There is no client that “wants to pay.”
If an examiner wants to “end the case” she has two options: 1. Cite good art and make a coherent argument or 1: Issue a Notice of Allowance.
No one pays for an RCE if there is a good rejection in front of them. There is no purpose to it.
No one pays for an RCE if there is a good rejection in front of them.
Really? Isn’t that the most appropriate time to file an RCE?
If it’s a bad rejection, you should be appealing, not feeding the beast by filing an RCE.
Point taken. I meant good as compared to the invention, not good compared to claim language that could be improved.
As long as I am making clarifications, I see now that the hypothetical was quoted by MM, so that attribution was a mistake.
“No one pays for an RCE if there is a good rejection in front of them. There is no purpose to it.”
Usually my applicants pay for the RCE and amend their claims though there was a good rejection in front of them.
An applicant’s attorney will also file an RCE even though “there is a good rejection in front of them” if they do not get the necessary approval from their client to abandon the application in time. That is sometimes a real problem among the nearly 50% of all U.S. applications that have a foreign owner and foreign patent firm in the communication loop with the U.S. firm.
But also a client may want to keep the application pending with an RCE or continuation for a good reason even if it looks like it will have to be abandoned later or reduced to “picture claims.” E.g., for “patent pending” scare value, PR value, product program funding, etc.
All good points Paul (no snark)
Yeah I mean I don’t mind or whatev. I esp understand there are complexities with doing any sort of business, esp gov business overseas (from their foreign country).
Very few of my apps go abandoned. Like 1%.
See 6.1.2.1.1
” and it is little work for them to continue to reject an application”
Sometimes. Depending on if your application is an ez one or if it is a technically complex, legally complex nightmare potentially with some slight new search being required.
And more work for examiners if the applicant substitutes very different claims in the RCE. Which is not unusual for applications filed with no pre-filing prior art search and no clue as to what the claims would need to include to overcome the prior art.
Yes indeed. Gotta check em all for WD support (including all the scope of all the new language they chose to use, negative limitations and all). It can get very complicated at RCE or any amendment time.
The “more work” is only marginally true, given the fact that no new matter is involved.
A proper examination to begin with – one that does more than just key word search based on claims – would have ALREADY read and understood the specification and thus would only involve marginal effort with a switch in claims at RCE.
“The “more work” is only marginally true, given the fact that no new matter is involved.”
You still have to look it over for new matter and stuff. It can get very complicated in some cases anon.
6,
As we have discussed in the past, this happens after you have already “read and understood” the application.
Often, these types of gripes come from examiners who have not bothered to do what they are supposed to do and have only done some “claim key word searching.”
Sorry – but I have no pity for such.
“this happens after you have already “read and understood” the application.”
You seem to think that the reading and understanding carries over for years on end. That’s not necessarily the case.
“Often, these types of gripes come from examiners who have not bothered to do what they are supposed to do and have only done some “claim key word searching.””
Probably true. But let’s be honest, that’s the official search guideline now so I mean, you can pity them somewhat. Most everyday people couldn’t do more than a word search in the time alotted anyway. You have to be supar skilled to be able to go through the huge amounts of info if you go beyond the ol word search.
“A proper examination to begin with – one that does more than just key word search based on claims – would have ALREADY read and understood the specification and thus would only involve marginal effort with a switch in claims at RCE.”
And you think that all of that is magically remembered 6 months down the line? Lulz.
And you think that every little detail magically stands out as being super important in every case? Lulz.
Anon you’re a utopianist re ta rd.
“A PROPER examination” *raises pinky finger* lulz.
“ magically remembered 6 months down the line?”
No magic required. Sure, there may be some effort, but I am not saying that there is zero effort.
Read my post above.
Effort?
I can’t recall when “effort” affected my memory. Either you remember something or you don’t. Sure, sometimes a helpful note to yourself can be helpful, but you’re wanting all of a thousand things to be “noted” for every application. That’s not realistic.
“I can’t recall when “effort” affected my memory.”
Maybe you should try harder.
😉
RG If you have a lawyer who wants to argue and an applicant that wants to pay, it doesn’t matter how much the examiner wants to end the case, there’s no mechanism for him to do it.
The fact that neither the PTO or Congress has done anything to fix this gaping hole in the system is a travesty.
It’s 2017. We know what vast amounts of money and an unbending desire to create chaos can accomplish when the system is plainly laid open (or worse, designed) for mischief.
Fix it.
Fix it.
A cynical person would tell you that the best mechanism the office could do to solve this issue without changing their procedure would be to allow the case but make an unmistakably clear error of law so that the issued patent could be taken down on de novo review in a court of law, to which there is a termination of appeal at some point.
If only there was some sort of legal issue the office was not fully exploring/prosecuting that would allow for a large number of applications to be taken off their docket, would temporarily make the applicants very happy and the office very rich, yet ultimately wouldn’t be subject to a clear and convincing standard of review by the public so that it could be cheaply invalidated…
Your “fix” sounds quite to be criminal – as you want to duck out of doing your job to “get it off your plate” yet sabotage what you “approve” so that it is an instant fail at enforcement time.
Dante has a special circle for the likes of you.
That was funny.
Your “fix” sounds quite to be criminal – as you want to duck out of doing your job to “get it off your plate” yet sabotage what you “approve” so that it is an instant fail at enforcement time.
You clearly didn’t pick up what I was putting down. I wasn’t talking about myself, I was talking about the office. I was pointing out that the office doesn’t really examine Alice rejections as it should, it requires an examiner to analogize the case to a currently decided case.
A lot on this board are happy that the office applies the Alice abstractions so narrowly. I believe you yourself applaud this.
I’m simply noticing that its rather…convenient for the office that its chosen narrow application of 101 allows it to 1) move along its docket by not making rejections that would otherwise be argued over; 2) creates satisfied “customers”; 3) gets increased maintenance fees; 4) creates the appearance that you’re doing more and more work every year and 5) avoids being the bad guy by shoving the issue onto the public and the federal circuit to handle.
Imagine if we had to analogize our 103s to decided 103 cases rather than draw our own conclusions. It too would similarly lead to vastly more allowances, happier patentees and more fees, but the clear and convincing standard would make the office’s failure intolerable.
A cynical person would note that the office just happened to make a policy choice which happened to benefit itself, pushed the negatives onto third parties, and has the very people who should be holding them to account for poor quality clapping in approval. Very lucky for them their unbiased policy choice for how to deal with Alice happened to work out for them like that.
“ I was pointing out that the office doesn’t really examine Alice rejections as it should, it requires an examiner to analogize the case to a currently decided case.
A lot on this board are happy that the office applies the Alice abstractions so narrowly. I believe you yourself applaud this.”
How very odd of you Random.
First – I applaud nothing related to the abomination of the “Alice” test.
Second – your statement, as phrased with applauding something “so narrowly” accompanied with your feeling of “properness” (“as it should”) is NOT something that anyone should take as actually applying the law properly.
I think your views on the entirety of patent law, from 103 and 112 intermingled with 101 are some of the most ill-informed views around.
Further, that you want to mix in the “clear and convincing” standard as some type of “denigration” also shows that you just don’t get the Quid Pro Quo and property aspects which form the reason we have a patent system in the first place.
Third – your statement to which I responded was MORE THAN merely “what the Office is doing,” as you are the one doing the indications exactly as to what I noted: a ‘pass-the-buck’ BUT sabotage the ‘approval.’
This has NOTHING to do with the Office “not being the bad guy” – as if the “bad guy” was even appropriate. “Work[ing] out for them like that” entirely misses the point – BOTH that such is NOT “working out,” AND that YOU are suggesting “so that it could be cheaply invalidated…” which runs counter to that very notion of property and why we have a patent system.
Examiners get all sorts of extra time to search, even when theyve botched prosecution. For example, an examiner gets more search time if they lose a pre-appeal amd reopen prosecution. They also get more time to search if they decided unilaterally not to file a reply brief.
It’s abuse of process to let an examiner start over after an applicant has been successful at traversing rejections in a pre-appeal or prior to forwarding to the board.
I have a matter that has had 5 non-final actions. Two losses in pre-appeal for the examiner, and yet again the decision has been to reopen prosecution. Such poor prosecution that not a single RCE has been filed yet, but it’s cost my client dearly to have to traverse poorly reasoned rejections.
You are wrong. Examiners receive no extra time for losing a preappeal and receive no extra time to rewrite an action 5 times. You are not informed as to how the system actually works. The examiner does not want to rewrite the action 5 times; in fact, he or she would be using voluntary overtime (unpaid) to do so and probably would prefer to allow it. So why would an examiner continue to reopen prosecution and send out actions? To stay employed. If the person signing the case (i.e. person with signatory authority) says it is not allowable, and yet the examiner can’t find art that the person signing the case says exists then the examiner is stuck. The junior examiner must create a rejection out of the best art that exists and send it out. The hope is that at some point the junior examiner will get someone with signatory authority to allow the case. All this extra work is done for free by the junior examiner; they receive zero time.
“So why would an examiner continue to reopen prosecution and send out actions? To stay employed…
…then the examiner is stuck.”
THAT is why you have POPA.
Your moniker is more than a bit ironic in that you supposedly have this knowledge that you indicate Bluto to be missing, and yet whine about how powerless you are to NOT DO THE RIGHT THING.
On top of all that – you too make the mistake of confusing the metric of your job with what your job actually is.
“THAT is why you have POPA.”
Um spoiler bruh, I’ve been looking into the inner workings of POPA and they’re complicit in such system.
Plus, I’m not sure that technically would be part of why we have POPA. POPA just deals with the overall working conditions as a matter of general bargaining, one-off cases like that typically aren’t really addressed. They could perhaps bargain for the examiner to get more time, but ultimately the statutory authority is vested in the management/signatories (that get their signatory power from management). POPA has no say in what ultimately happens to any application. If mgmt abuses their power relative to a given application then it falls to still further up the chain mgmt to hold them to account (nearly never happens). This is what JD et al. used to btch about constantly.
“Your moniker is more than a bit ironic in that you supposedly have this knowledge that you indicate Bluto to be missing, and yet whine about how powerless you are to NOT DO THE RIGHT THING.”
What is the “right thing”? They’re hired as a non-signatory, (or a primary that is having the spe get involved in their case for whatever reason) to simply write up the OA for the signatory to send out under their authority.
“On top of all that – you too make the mistake of confusing the metric of your job with what your job actually is.”
Their job as non-signatory is just to write the OA once the final decision on the disposition of the case is arrived at by the signatory in the case (after the signatory has advised them).
“and they’re complicit in such system.”
That is not a spoiler, 6 – that is just a sign that you all need to marshal what is going on in the organization that exists for your benefit.
“POPA just deals with the overall working conditions as a matter of general bargaining,”
If that does not control your work measures – and given how SO many confuse the work measures with the actual job itself – then you all are even more to blame for your own predicament.
“What is the “right thing”?”
Signatory authority does NOT change the object of examination. If you do not know what the right thing is, GET OUT.
“ just to write the OA once the final decision on the disposition of the case is arrived at by the signatory ”
Decidedly NOT. Unless of course that signatory has done the examination (and everything that must go with a proper examination). You DO NOT get a pass on a “soldier following orders” line of B$. Yes, it might be “uncomfortable” confronting a superior who has merely “sniffed” at something – but technically speaking, you are still a professional and you technically have POPA to back you up for any untowards action from a superior.
“That is not a spoiler, 6 – that is just a sign that you all need to marshal what is going on in the organization that exists for your benefit.”
It’s only for some benefits though bruh. It isn’t for the “benefit” of taking away/usurping mgmt’s legislatively granted powaz.
“If that does not control your work measures – and given how SO many confuse the work measures with the actual job itself – then you all are even more to blame for your own predicament.”
You’re confusing, or at least letting bleed over, legislatively granted mgmt powers/responsibilities (of mgmt) with working conditions. At most popa could get examiner’s more othertime to write the fallacious OA for the signatory. They (popa/non-sigs) cannot usurp mgmts powers. Although yes mgmts powers does “control” working conditions to a large degree. But they get a lot of flexibility.
Plus you have to remember, most voting popa members (they have to pay each year to be able to vote for leadership of POPA) are signatories themselves so they have every desire to keep the power in their own signatory hands.
Perhaps if the non-signatory examiners had their own small union “against” mgmt/signatories (because really in reality signatories become mgmt writ small when they get their sig) then you might have a point. So long as POPA is filled with primary examiners as the voters (and indeed I think primaries are now the majority of examiners as a whole iirc at least in some TCs) then they will vote to keep their own power. Duh.
“Signatory authority does NOT change the object of examination. If you do not know what the right thing is, GET OUT.”
The “right thing” changes based on who you are id iot who doesn’t understand “power”. If you’re the low man on the totem pole then the “right thing” is dictated to you by the chief (based on the chief’s views). You are not empowered to oversee your ol boss man/chief (just like you cannot challenge them in open combat for leadership of the AU, which I think should probably be reconsidered lol). In our white cis hetero patriarchy it’s up to the chief’s chief (the director) to oversee the mid-level chiefs and keep them in line. Very little of this happens, as at most companies. They have enough on their plates without constantly pooping/spying on their chiefs under them. Not to mention each TC director has like a gazillion spes it seems like, making effective oversight practically impossible even if it were attempted.
You really need to learn about dominance hierarchies. I recommend jordan peterson vids on youtube.
“Decidedly NOT”
You need to discuss that with the SPEs, TC directors, the ADCs, the commissioner, the undersec, Trump, and the merican people in that order. That’s the heirarchy of “calling the shots on what gets sent out”.
Right now, they disagree with you.
“You DO NOT get a pass on a “soldier following orders” line of B$. ”
Actually explicitly do by agreement/law. The law requires a collective bargaining agreement. The collective bargaining agreement requires the PAP. And the PAP has in the handbook that nothing that the SPE tells us to do can be called as a quality error on our part.
So yes. We do. Although your OCPD would never allow you to accept this.
“Yes, it might be “uncomfortable” confronting a superior who has merely “sniffed” at something – but technically speaking, you are still a professional and you technically have POPA to back you up for any untowards action from a superior.”
Bruh we “confront” them all the time. Lulz. Sometimes it works sometimes it doesn’t (as in the signatory will change their minds). But POPA doesn’t have any say in what gets sent out in an OA re re.
You can’t just refuse to write OAs forever, workflow and production measurements kick in and create problems that appear on the surface as not being a problem with the content of the OA but a problem with your “hur dur performance”. Plus, if they’re really not generous they’ll bitch about “insubordination” as a “conduct issue” and write you up/fire you over that.
You really don’t get how power works anon.
“ And the PAP has in the handbook that nothing that the SPE tells us to do can be called as a quality error on our part.”
Examination Quality….
Anon’s popa trolling should really be ignored. It is even worse than his SAWS conspiracy theory.
Truth. It’s like he just fundamentally doesn’t understand what is going on.
My Ben,
What is this conspiracy that you think that I am on about?
Please be specific.
Yeah Ben – that’s what I thought – mindless sniping from you.
It’s like if YOU close your eyes, then the SAWS debacle never happened….
As a former Examiner, this is exactly the situation I was put in. When the SPE said it was not allowable, I had to cobble s**t together over and over. My allowance rate was less than 10% as result, when other art units typically were in the 40-50% range.
Maybe you can share that evidence with Random…
(the guy who will make statements without even bothering to check the filewrapper, and yet turns around and wants evidence that practically anyone with any experience would easily accept at face value)
Do you think I, or my client, care about that? People aren’t okay with mediocrity even if you can concoct a reason to explain it away. Examiners should not be allowed to rectify poor searching and examination by allowing to them to conduct additional poor searching and examination. If a loss at the appeal and/or pre-appeal stage occurs, where the result is “reopening” prosecution for the PTO to get another bite at the apple, the applicant should be refunded their appeal fee.
Quite opposite of the canard of “wearing down the Examiner” the fact of the matter is that the asymmetric cost structure – ALL costs borne by applicants – very much creates a wearing down of one particular side.
The USPTO has the rather one-sided advantage of balancing its budget entirely by virtue of funds from innovators – no matter at all on the quality of actual examination.
This is another reason why metrics of the job of examination should not be confused with the actual job of examination.
There is nobody stopping inventors for shopping for legal counsel that is paid according to the same standards as a junior examiner. Find someone who will work for free after the first non-final.
Yet again you confuse the metrics of your job with the job itself.
Just because the Office measures you in a certain way does not make your actual job to be so. It is a fallacy to say that your “first non-final is free.”
As to ANY comparison with what an attorney charges, feel free to change your job and change the actual agreements in place. Your analogy is a fail on so many different layers.
“Examiners get all sorts of extra time to search, even when theyve botched prosecution. For example, an examiner gets more search time if they lose a pre-appeal amd reopen prosecution. They also get more time to search if they decided unilaterally not to file a reply brief.”
Not likely. ANY ‘extra time’ is at the SPE’s discretion, and most SPEs are quite tight. I strongly doubt any SPE is rewarding second non-finals with extra time.
Had one similar. Over 6 years the examiner issued four non-finals and three finals, the first two finals were successfully petitioned, a third successful petition overturned an improper holding of abandonment. The applicant filed an appeal brief and prosecution was reopened, so the applicant maintained the appeal – the applicant died while it was still pending.
How many interviews did you initiate over those 6 years?
And your point is…what?
“For example, an examiner gets more search time if they lose a pre-appeal amd reopen prosecution. ”
Not to my knowledge. You get no more “counts/credits/time” for reopening.
“They also get more time to search if they decided unilaterally not to file a reply brief.”
Again no more time/credit/counts given for that.
You just mean they can spend more of their own time or steal some from the avg of other cases.
Examiners get all sorts of extra time to search, even when theyve botched prosecution. For example, an examiner gets more search time if they lose a pre-appeal amd reopen prosecution. They also get more time to search if they decided unilaterally not to file a reply brief.
Neither of these statements are true. You get X number of hours for a case. If they ask for an interview and you grant it yet get an extra 1 hr for the interview. If they ask for a preappeal conference you get 1 hr to do the pre-appeal. Beyond that you do the case. Any additional search is uncompensated time, whether it is losing a pre-appeal conference and reopening or unilaterally deciding not to go forward.
You act as if this a problem, when it is anything but that.
Not “ending the case” is throwing money at the PTO for basically no work after the initial work.
You seem to want to imply that the old canard of “wearing down the Examiner” is not a canard.
I cannot think of anything easier than accepting money and sticking with a well founded examination.
Your “gaping hole” is just not there.
Your “travesty” is just not there.
Your “gaping hole” is just not there.
The inadequate size of your … “imagination” … is well known to everyone, “anon.”
Your “response” says nothing.
Try again (and try something other than va pid add hominem)
Pardon the Potential (re)Peat:
Your “response” says nothing.
Try again (and try something other than va pid add hominem).
This just isn’t reality. First, you can’t continue prosecution forever. There is a 20 year time line. Second, you have to narrow or change the claims often to continue prosecution. Third, examiners continue to get counts for rejecting the application.
The fact is that by the time you are in the second RCE that an examiner knows the art and it is little work for them to continue to reject an application.
Reality.
“The fact that neither the PTO or Congress has done anything to fix this gaping hole in the system is a travesty.”
Something similar to the EPO’s oral proceedings would be a great addition to the USPTO’s procedures. The legal eagles in OPLA and the solicitor’s office should use all that awesome brain power of theirs to find a way to write rules to implement such a procedure that are consistent with section 132(b).
Of course, the PTO won’t do that because when you consider who is really gaming the system the most, applicants or the PTO, the answer is clear: the PTO is gaming the system more with its endless “appeal, re-open, appeal, re-open, appeal, re-open” shenanigans. Not to mention the well documented shenanigans of “get reversed totally by the Board, ignore the MPEP, and re-open.”
So yeah, Lemelson and Hyatt are gaming the system. But their shenanigans pale in comparison to the PTO’s.