PatentlyO Bits and Bytes by Anthony McCain

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Anthony McCain

About Anthony McCain

Anthony McCain is a law student at Mizzou where he is focusing on intellectual property; He has a background in mechanical engineering. anthony.mccain@patentlyo.com

23 thoughts on “PatentlyO Bits and Bytes by Anthony McCain

    1. 5.1

      Joachim,

      You are not the first one to note that there is a deeper (and more persistent) “rot” within the USPTO.

      I am sure that those of us who have been around awhile can provided anecdotal items to a rather long list that supports your conclusion.

      Unfortunately, I do not see a champion that can handle the situation (and I do not think even a powerful Director is enough).

      1. 5.1.1

        I have heard the the anecdotes for a long time, but I have found positive evidence from analyzing PAIR and PTAB final records of document falsification. I spoke with one former director, and he considered it serious.

        Do people take document falsification with respect to the USPTO? I have most recently been working in the financial industry. Everyone there takes document falsification seriously, and it immediately brings the FBI and the SEC to attention.

        On the other hand, Harry Markopolos took a long time to make headway with the SEC on the Madoff fraud. It should not true, but both the FBI and the SEC seem to have problems with the more technical sorts of evidence.

        1. 5.1.1.1

          I have found positive evidence from analyzing PAIR and PTAB final records of document falsification.

          Sure you did.

      2. 5.1.2

        I meant PTAB final written decisions and not PTAB final records.

        As far as I can tell, the post-grant proceedings are often decided before the Patent Owner’s Preliminary Response. Decision information before the decision is finally entered is extremely valuable to traders in corporate bonds, in equities, and in options. I look for evidence of watching to make sure that trader’s are not getting such insider info, but there seems to none.

        1. 5.1.2.1

          I look for evidence of watching to make sure that trader’s are not getting such insider info, but there seems to none.

          This is a joke, right?

          Joachim will be here all night, folks. The alien transmissions don’t stop for the holidays.

          1. 5.1.2.1.1

            I have worked a good number of years in fintech and have helped with forensic accounting or done the work myself since 1993. The appearance of morons babbling about alien transmissions is usually a sign that there is something extremely wrong with the financials.

            The stupids, who refused to see Madoff’s crimes, which were mostly in plain sight, used to ask where Harry Markopolos’ tin foil hat was that protected his brain from alien transmissions.

            The meme of the ostrich whose tiny head is buried in a hole in the sand long precedes the tin foil hat meme.

      3. 5.1.3

        I am sure that those of us who have been around awhile can provided anecdotal items

        Oh, there can be no doubt about that.

        LOLOLOLOLOLOLOLOLOLOLOLOLOL

  1. 4

    I would like to point out that McKiernan’s analysis of IPR2017-01248 (“A document published on a website was not a prior art printed publication, even when corroborated by a declaration, printout from the internet archive, and comments posted on the website, because, among other things, the testimony did not reflect that the website was publicly accessible…”) is not accurate.

    The Internet Archive capture provided by the Petitioner only showed a hyperlink which (according to Petitioner’s testimony) led to the prior art document in question (“CAP 0.5”). None of the comments referred to the CAP 0.5 document. PTAB ruled (correctly IMO) that the evidence was insufficient because it did not prove the link led to CAP or even if it was a live link.

    So in essence the Petitioner provided a dated photograph of a blanket and said “Look! This photograph proves CAP was available because it is underneath that blanket! Here is a dated transcript of a conversation me and my friends had who are standing next to the blanket in the photo!” (No mention of the CAP is found in transcript).

  2. 3

    Remember when?

    Two anonymous sources have told Efrati that Google’s self-driving car unit, Waymo, is preparing to launch “a commercial ride-sharing service powered by self-driving vehicles with no human ‘safety’ drivers as soon as this fall.”

    LOL

    S u c k e r s.

    1. 2.1

      Once you are at the PTAB it is too late to further supplement the file record with anti-101 declarations or other evidence. And appeals are getting quite expensive.

      1. 2.1.1

        My point was that the last of the listed articles glorifies some firms that got 101 rejections reversed at PTAB and did not consider that other firms may have outstanding records including avoiding 101 rejections in the first place and getting 101 rejections withdrawn during regular prosecution.

        1. 2.1.1.2

          Ah, that was not clear until this addendum but my comment indirectly supports your valid point – better to win before appeal IF you can.

  3. 1

    The McKiernan link is interesting in its treatment of prior art, and seems to show that even the PTAB may not be grasping the difference between a PHOSITA and an actual real live person.

    1. 1.1

      The PTAB in their cited decisions is simply following very broad Fed. Cir. case law on what can constitute a printed publication, but requiring petitioners to prove essential facts of public accessibility and dates. That is a separate issue from then deciding 103 after deciding the admissibility of those publications as prior art.

      1. 1.1.1

        Thanks Paul – that was understood.

        It was in the application (and noting the ‘capability’ of who would be able to find what) that my comment is ‘directed to.’

        1. 1.1.1.1

          Well, the “who” as to uncovering citeable “printed publications” is no mere POSITA. It is apparently a super-diligent librarian or prior art searcher with unlimited resources to check every publicly indexed publicly accessible book, thesis or other document in any library in the world, or, prove its public dissemination – e.g., non-confidential product service manuals. But that is not the same thing as proving that such a citeable “printed publication” is material to POSITA obviousness test.

          1. 1.1.1.1.1

            Well, the “who” as to uncovering citeable “printed publications” is no mere POSITA

            Not correct – by express definition.

            Period.

      2. 1.1.2

        There’s a bit of a “Rose by another Name” smell about this topic.

        Your “printed publication” and your “public accessibility” tests might have in common with Europe’s “made available to the public” test more than I supposed until now.

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