Patently-O Bits and Bytes by Juvan Bonni

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33 thoughts on “Patently-O Bits and Bytes by Juvan Bonni

  1. 4

    Imagine if our Article III constitutional judges received ANY bonuses on ANY of the bases for which the unconstitutional PTAB “judges” do.

    We’d have justice. Bought and paid for.

    Bonuses, panel-stacking, and the other PTAB shenanigans must end.

  2. 3

    Good grief, cash bonus payments to the PTAB ‘judges’ for body counts? And we pay examiners cash bonus for counts as well? So we have one half the outfit paid to issue patents and the other half paid to shred the issued patents. What a dumpster fire the AIA has created. Seriously, name another federal agency that invalidates 80% (higher?) of its own work product when challenged. I appreciate that government has a difficult time measuring subjective performance and therefore resorts to metrics like counts, but this is very unseemly. Indeed, the path of least resistance, higher counts, is without question, to simply salt and pepper the challengers 103 arguments and swallow. It’s nearly unreviewable since TSM was tossed by SCOTUS.

    1. 3.1

      Yes, the number of claims invalidated in those IPRs that are declared is high. But name another agency where the initial decisions are entirely ex parte and based on $500 or less prior art research versus claim analysis, and then subjected to inter partes trials based on $150,000. and up prior art research versus claim analysis? How can you ignore the effect that difference?
      As already noted in prior blogs, APJs do not get more bonuses or raises for initiating IPRs than for refusing to initiate IPRs, and the latter is increasing. As noted here, far more APJ work is on ex parte application appeals than IPRs.

      1. 3.1.1

        I don’t ignore it. But the real answer is higher quality examination in the first instance, under public choice theory, the PTAB will do it later attitude is encouraging higher volume on both issue and shredding. It’s a self reinforcing cycle (see public choice theory again) that is weakening the system as a whole and doing terrible damage to the Art III enforcement role.

        1. 3.1.1.1

          “the real answer is higher quality examination in the first instance”

          How do you suggest you real answer be paid for?

          1. 3.1.1.1.1

            It has been.

            You are confusing things again.

            (It does not help that Paul is kicking up dust about ‘three hour search’).

          2. 3.1.1.1.2

            I do not mean to put words iwasthere’s mouth, but I think that it would be all for the best if the search and exam fees were increased ~50%, and the funds used to buy more examiner time per application. This would not only improve the quality of examination, but also discourage some of the flakier applications from being filed in the first place.

            1. 3.1.1.1.2.1

              and the funds used to buy more examiner time per application.

              Greg continues his inanity.

              The government can — at will — change how much time they allot to the examination INTERNAL metrics.

              Perhaps it is BOTH, lack of mental capability and lack of inte11ectual honesty that plagues Greg’s posts.

      2. 3.1.2

        As already asserted in prior blogs, APJs do not get more bonuses or raises for initiating IPRs than for refusing to initiate IPRs

        Corrected – and it is noted (again) that this assertion is bogus.

        1. 3.1.2.1

          What specific evidence shows that APJs receive more credit for instituting IPRs than for denying them?

          1. 3.1.2.1.1

            It is obvious on its face. A decline to institute is a final action in and of itself. Such would necessarily have to be weighted to be equal to all other ‘action counts’ for it to be equal to a decision to institute.

            You really cannot be that dense, can you?

            Did you also clamor for “specific evidence” when SAWS was an issue?

            1. 3.1.2.1.1.1

              Um . . . what’s “SAWS?”

              Did you mean to type in “JAWS,” the movie? :-)

              Then again, since both creatures chewed up stuff they shouldn’t have . . .

              1. 3.1.2.1.1.1.1

                SAWS was an illicit government program that was long denied by those in the know (like examiners like Ben), and then the government came out and admitted not only to its existence, but confessed that it was but one of such programs, but that they were ‘retiring’ that particular program.

                The point of my reference to it is that Ben is an arse, demanding “evidence,” where no such evidence is required and all that is required is for one to engage in a minimal level of critical thinking.

            2. 3.1.2.1.1.2

              “What specific evidence shows that APJs receive more credit for instituting IPRs than for denying them?”

              “It is obvious on its face.”

              This pretty perfectly encapsulates your value to this board. Thanks.

              1. 3.1.2.1.1.2.1

                My value is obvious on its face…

                Did you mean to say that?

                You are welcome.

      3. 3.1.3

        APJs do not get more bonuses or raises for initiating IPRs than for refusing to initiate IPRs…

        THIS! A million times, this. The evident purpose of the Bultman & Lopez piece is to scandalize the reader with the allegation that PTAB judges have an untoward incentive to initiate trials because they get paid bonuses for the trials that they supervise. Once you understand, however, that they get the same count for denying institution that they get for a final written decision, then you realize that the alleged “bombshell” of this story is a big nothingburger.

        The really crazy part is that the bonus policy for the PTAB is emphatically a pro-patentee policy. There were 1211 IPRs/PGRs filed in FY2020, and 7635 ex parte appeals pending in the same time interval. In other words, ex parte appeal amount to more than 85% of the PTAB’s work, and the policy of paying bonuses is much more about clearing the ex parte appeal backlog than it is about IPRs, but you have to read down to the second half of the B&L piece to learn this (and even then the authors merely hint at this point, without ever making it explicit).

        As I said, the article makes one less well informed for having read it. A waste of pixels and brainpower.

        1. 3.1.3.1

          And yet again, Greg “I Use My Real Name” DeLassus is wrong — on all accounts.

          The story simply does not accord with his desired narrative. He wishes to minimize the story by name calling, by insisting that it is self-contradictory, and that anyone who reads it is worse off for doing so.

          The problem is that Greg is simply wrong on his desired narrative and that the story is the opposite of what Greg tries to paint it as.

        2. 3.1.3.2

          “Once you understand, however, that they get the same count for denying institution that they get for a final written decision”

          I think it is likely that this is true, but I haven’t seen conclusive evidence that it is true. Are you aware of any?

          If it is truly an evidenced fact that an institution denial and a final decision are worth the same decisional units, then US Inventor’s whole “October Effect” narrative would appear to be misleading nonsense.

          1. 3.1.3.2.1

            Are you aware of any [evidence about PTAB counts]?

            Sure. IP Watchdog FOIA’ed this stuff a while ago (link below). Basically (see pg 15 of the linked document), an APJ gets 1 count for an ex parte appeal, 2.5 counts for a re-exam appeal, 4 counts for an inter parted re-exam appeal, and then counts for IPRs, PGRs, and interferences are awarded on a case-by-case basis, depending on the complexity of the trial.

            In other words, a judge really cannot game the system by instituting trial. If you institute when the case could have simply been wrapped at the pre-initiation stage, then you will just chew up time for no additional counts. The B&L insinuation that APJs are moved by untoward personal interest is just that—insinuation, unsupported by either logic or evidence.

            If anything, it is IPR petitioners—not patentees—who should be troubled by the incentive structure here. An APJ motivated purely by the desire to maximize counts should always deny institution. That way you finish the case quickly, so that you can move on to more count generating work. Also, denials of institution are not reviewable by the CAFC, so (unlike
            final decisions) your work in a denial cannot be critiqued in such a way as to motivate your reviewers to lessen the counts awarded, and the case cannot be remanded back to you in a manner that might generate more work with no additional counts.

            link to ipwatchdog.com

            1. 3.1.3.2.1.1

              “Basically (see pg 15 of the linked document), an APJ gets 1 count for an ex parte appeal, 2.5 counts for a re-exam appeal, 4 counts for an inter parted re-exam appeal, and then counts for IPRs, PGRs, and interferences are awarded on a case-by-case basis, depending on the complexity of the trial.”

              I am familiar with with that document, but it does not indicate how IPRs specifically are counted.

              IPRs being handled on a case by case basis is extremely open ended. It could mean that IPRs are credited a flat rate amount whether or not they are institutited, based on the complexity of the initial filings. Alternatively, it could mean that after the terminal decision, the case is reviewed and credited based on the complexity, with an institution generally being considered ‘more complex’. We simply don’t know in the absence of the referenced “PAP support document” on AIA trial crediting.

              And if a denial of institution is considered to make a case significantly less complex… there could be something to the assertion of ‘bonuses for institution’.

              I think it’s more likely than not that a denial of institution is given full credit based on the analogous office policy
              of giving an allowance full credit despite being “less work” than a rejection and subsequent allowance. But I do not believe this document provides evidence for that conclusion.

              1. 3.1.3.2.1.1.1

                [I]f a denial of institution is considered to make a case significantly less complex… there could be something to the assertion of ‘bonuses for institution’.

                This is a perfectly fair point. As a matter of apodictic reasoning, I will not take issue with your response. I think you are giving the B&L position the benefit of more doubts than they deserve, but you are free to do so if it pleases you so to do.

                1. …apodictic…?

                  In other (and direct) words, Greg is wrong in what he asserted, but still feels how he wants to feel.

                  That he then SPINS this as ‘allowing’ Ben to hold a position ‘if it pleases’ is a sign of being an arse and being inte11ectually dishonest.

    2. 3.2

      Good grief, cash bonus payments to the PTAB ‘judges’ for body counts?

      Do you consider it untoward to pay APJs bonuses for clearing the ex parte appeals backlog? That is most of what the policy is about, and it appears to be working (pg. 2 of the link below).

      link to uspto.gov

      1. 3.2.1

        I consider it untoward for you to be so blatantly obtuse as to the point at hand.

        No one said that other things were part of the measure.

        The do have to wonder just why you feel SO compelled to obfuscate about this IPR measurement point.

        1. 3.2.1.1

          … other things were not a part of the measure.

          (minor correction)

  3. 2

    Has anyone ever produced any evidence on how exactly decisional units are credited to APJs in IPRs? The “October Effect” referenced by the Bultman article and pushed by US Inventor seems just as likely to really be a “September effect” analogous to the September-October allowance rate discontinuity seen with Examiners if institution denials are credited more than institutions.*

    *And if that seems ridiculous, remember that First Action Allowances are credited more than FAOMs!

    1. 2.1

      *And if that seems ridiculous, remember that First Action Allowances are credited more than FAOMs!

      In the instant moment perhaps, but is this true for a ‘net’ per application effect?

  4. 1

    The Bultman & Lopez piece casts more heat than light. They spend the first half of the article insinuating that there is a problem, and then the second half of the article (if you read that far) explaining that it is all much ado about nothing. I feel marginally dumber for having read the whole thing.

    1. 1.1

      I am skeptical of their assertion that APJ bonuses range up to $36,000. To be clear, I have no firsthand knowledge or insider access to whether or not this is accurate.

      The report they reference for the $36,000 figure (top result of a Google search for “Administrative Conference of the United States Judge Bonuses”) is a survey and does not appear to be based on any direct personnel data.

      On the other hand, US inventor has released FOIAed documents that indicate the largest APJ “bonus” is $10,000, with there being an additional possible performance based “APJ pay adjustment” ranging from -1.375% to 5% (see link to usinventor.org, “various documents”). That pay adjustment appears subject to other salary caps, but it appears impossible for an APJ to receive more than $19,000 in bonus compensation.

      1. 1.1.1

        There is nothing wrong to be skeptical about numbers, and the report has plenty of caveats (murky and the like).

        That being said, the larger point persists.

    2. 1.2

      then the second half of the article (if you read that far) explaining that it is all much ado about nothing.

      This is false.

      There is no such “nothing” insinuated, as the takeaway is clear that there IS a problem, no matter how you look at it.

      Greg “I Use My Real Name” DeLassus is either a fool or a deceiver.

      Or both.

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