by Dennis crouch
The Supreme Court should release its Arthrex decision within the next 3-4 weeks on whether PTAB Judges were appointed in accordance with US Constitutional requirements. Officers of the United States must be nominated by the President and confirmed by the Senate; inferior Officers may be appointed by a head-of-department if authorized by Congress. US Const. Art. II, Sec. 2, Cl. 2. PTAB Judges were implicitly deemed inferior officers by Congress and appointment authority given to the Secretary of Commerce. However, in Arthrex, the Federal Circuit ruled that the Judges had significant independent authority and thus must be considered Principal Officers. The case was argued to the Supreme Court on March 1, 2021 and the court is set to decide (1) whether the PTAB judges are Principal Officers; and (2) if so, what result? The outcome has the potential to impact several thousand PTAB decisions — either by rendering them void or by confirming their validity.
The Cure: As part of its Arthrex decision, the Federal Circuit struck-out an employment protection provision as it applied to PTAB Judges; and then ruled that, without those employment protections that PTAB judges were reduced to inferior officers. The court then ruled that its on-the-fly ointment applied cure to any post-Arthrex PTAB decision.
The Federal Circuit’s recent decision in Corephotonics, Ltd. v. Apple Inc. (Fed. Cir. May 20, 2021) offers an example of the cure. [CorephotonicsDecision]. Timeline:
- 2018, Apple filed an inter partes review petition to challenge Corephotonics’ U.S. Patent No. 9,538,152.
- October 31, 2019, the Federal Circuit decided Arthrex and also issued its curative ruling.
- Then, 32 days later (December 2, 2019), the PTAB issued its final written decision in Corephotonics–siding with Apple and finding the challenged claims obvious.
On appeal the Federal Circuit applied its precedent to hold that Arthrex cured the appointments problem for any PTAB determination issuing post-Arthrex.
Corephotonics made the clever argument that Arthrex did not actually apply to the lower courts until the mandate issued in the case. In the Federal Circuit, the mandate typically issues 7-days after the time for filing of a petition-for-rehearing. Because a petition was filed in Arthrex, the mandate did not issue until 2020. On appeal, the Federal Circuit did not take the bait and instead found “no reason to depart from our holding in Caterpillar for purposes of resolving this appeal.” In Caterpillar, the court did not address this particular mandate argument, but did uphold a PTAB decision issued immediately following Arthrex. See Caterpillar Paving Prods. Inc. v. Wirtgen Am., Inc., 957 F.3d 1342 (Fed. Cir. 2020).
On the merits, the Federal Circuit also affirmed — finding that substantial evidence supported the obviousness determination. The parallel infringement action has been stayed awaiting outcome of the IPR. Corephotonics, Ltd. v. Apple, Inc., Docket No. 5:17-cv-06457 (N.D. Cal. Nov 06, 2017).
“Should a GS-14 primary get the same amount of time to examine and dispose of a case as a GS-5 noob?”
Gonna be honest with you, there is not that much of an efficiency boost based purely on your GS level save for not having to deal with primary/spe to approve the case. Especially not from 11-14. That never really made much sense to me. Either you’re doing a standard 8-10 hr search, reading the app at standard 3-4 hrs, and then writing an OA at standard 5-7 hrs or you’re not. I could make an efficiency boost in writing OAs but nowadays they want them all pretty and sht, which takes forever compared to just writing x ref shows abcd, y ref shows q, combo, motivation etc.
And your point is…what?
“And your point is…what?”
That people like yourself, and mgmt, expect a magical “efficiency boost” from 11-14. And that this is ridiculous just based on the facts of how any given examination progresses. And thus the built in expectancy increase in production system being the way it is today is wrong headed in the extreme, and is a paradigm at best based on efficiency boosts had back in the 1980’s for people as they got more familiar with shoes, and being able to write even more tiny OAs (neither of which happen today).
To expound further, this efficiency boost expectation was continued in the 1990’s and early 2000’s with the “efficiency boost” from computer searching and officially word searching supposed to officially suffice as “the search”, and this paradigm was continually justified on those grounds. This was done literally to my face and other people’s faces many a time although at first for many years I did not appreciate this was what they were trying to do with their statements. Anyway, apparently people were of the opinion that everyone got such a huge boost in efficiency from comps/word searches that it was still reasonable to keep the production system as it was, increasing up the payscales, but regardless they just thought it generous to everyone (primaries included) through this period of time. This was however being done at the same time as many spes in my area did not accept just the word search as completing the search and would want you to do the sub-class as a whole. I’m sure that happened to many people. A bit of talking out of two sides of their mouths there. It might have been somewhat reasonable in the area though at the time idk. I could have really shot through the ranks np if just a few word searches sufficed back in the day and I think some spes even in my area were allowing this even back when (unfair working environment is what that is called formally in labor law). In any event, any boost that was had by switching to computer searching has long since been left in the dust by the devices getting waaaaaaay more complex, way more avg species, apps longer, way extra avg drawings, and sub-groups now gigantic, growing by leaps every year. I have two main sub-group areas to search now with the new docketing, and they’re both getting pretty huge, thankfully one slightly less than the other. Bottom line I used to could easily do nearly any app in a day if I really got in early and worked hard. Nowadays I’m super hard pressed to do that for nearly any apps. The stars have to align and either the claims be 100% ez allow or ez 102/103 found for practically the whole thing. And I assure you I didn’t get worse at searching or examining over the years.
“That people like yourself, and mgmt, expect a magical “efficiency boost” from 11-14.”
I suspect they don’t actually believe in any such boost. It’s just a convenient fiction for warding off anything which might make their jobs harder.
Just wow.
That doesn’t really address the issue. I’m talking about the “efficiency” of a GS-5 versus the efficiency of a GS-14. A GS-5 position factor is 0.55 (at least it was when I was there) and a GS-14’s position factor is 1.35.
There’s a reason for that. It’s kind of like why a 1st year associate’s billing rate is $X/hour and a 4th or 5th year associate’s billing rate is $1.5X/hour or $2X/hour. And a partner’s billing rate is 4X or 5X.
The change in position factor from GS-12 (1.0) to GS-13 (1.15) is 15%. So an examiner has to be 15% more efficient at GS-13 than at GS-12. Hardly unreasonable or unattainable. The change from GS-13 (1.15) to GS-14 (1.35) is 17%. Again, hardly unreasonable or unattainable.
If you’re a GS-14 and you “need” the same amount of time to do the same “quality” of examination as you got when you were a GS-5, then you’re doing the job all wrong. (And if you’re doing the same “quality” as a GS-14 as you did when you were a GS-5 you are most definitely doing it all wrong.)
“Gonna be honest with you, there is not that much of an efficiency boost based purely on your GS level save for not having to deal with primary/spe to approve the case.”
So a GS-5 examining his/her 5th case ever can do so just as efficiently as a GS-14 if we remove the “having to deal with primary/spe to approve the case”? Is that what you’re telling me?
“That doesn’t really address the issue. I’m talking about the “efficiency” of a GS-5 versus the efficiency of a GS-14. A GS-5 position factor is 0.55 (at least it was when I was there) and a GS-14’s position factor is 1.35.”
Yes a GS5 or 7 needs more time than a 14. They don’t know even the forms, how to write things, what’s valid 103, how to find facts etc. etc. Once you know all that though it really peaks as to how much your “efficiency” will gain. That’s supposed to happen by 11, maybe call it 12 which is the unofficial time they really want you to know those things.
“The change in position factor from GS-12 (1.0) to GS-13 (1.15) is 15%. So an examiner has to be 15% more efficient at GS-13 than at GS-12. Hardly unreasonable or unattainable. The change from GS-13 (1.15) to GS-14 (1.35) is 17%. Again, hardly unreasonable or unattainable.”
It actually is because there is little examiner efficiency gain after 11, if we suppose they actually know how to find facts, make decent 103’s etc. by 11. And on top of that it actually is because the “efficiency gain” of the examiner doing tasks doesn’t translate directly to “total application examination efficiency gain” when you’re just piling more as well as more complex and things on top as the years go by. Again, Primaries and the few others in my AU right now are feeling the pinch, I’ve never heard them piping up before but they’re starting to now as it’s becoming absurd. A primary can’t do a bunch of grunt work any faster than anyone else, so if you just dump grunt work on them their supar efficiency elite abilities don’t really help all that much in making great efficiency gains. The attorneys in my area also have noticed the increasing complexity and noted such on many an occasion over the last few years. I’ve often wondered how much the drafting and prosecution costs have gone up for these apps on avg. And likewise I know for a fact that many of the attorneys aren’t even reading all of the 102 rejections for the independent claims, much less all of the 103’s. They say they’re doing this to cut down on cost. Yeah no kidding, it costs a ridiculous amount of time to make all those rejections etc. etc. and I have no doubt it costs a bunch to read em as well. I still don’t understand how attorneys can meet their supposed ethical duty or whatever rule duty to not be submitting anticipated claims if they don’t even read all the 102’s.
“If you’re a GS-14 and you “need” the same amount of time to do the same “quality” of examination as you got when you were a GS-5, then you’re doing the job all wrong.”
That I tend to agree with, I said from 11, maybe 12 up. But, even that starts to get chipped away by just throwing grunt work more and more on people. Just as an easy metric, people used to be pissed about 25 pg specs starting to come in on the regular. Now they appear to be avging around 30, or more, in my area. You can’t just keep asking for more and more dense technical reading on and on forever. Whatever slack adopting computers gave to people is rapidly going away.
“ That’s supposed to happen by 11, maybe call it 12”
See: link to patentlyo.com
What then “merits” putting any examiner beyond 11, maybe call it 12?
Serious question.
“What then “merits” putting any examiner beyond 11, maybe call it 12?”
There’s more responsibility check the pap for the specifics if you have a copy. And obviously they’re currently demanding much more production. I don’t even have a problem with expecting some extra production, it’s the basing that expectation on supposed “efficiency gains” that is ridiculous in the current environment. Again, maybe it made sense 20+ years ago (because of shoes and personal stashes of refs and you getting slightly more efficient actually made a dent in your production nums because the apps weren’t getting any different on avg) and maybe the computer revolution made things soooo much easier that for awhile everyone was skating.
To be clear, I in an ordinary situation probably wouldn’t even have a problem with this, save in the instance where they’re just dropping more grunt work on people, and where mgmt knows they need to increase the time but are corporate captured. Muh “efficiency gains” don’t really help more grunt work. Either you check all these extra refs, look over the extra spec/species disclosure, and actually address the now avg extra 4-6 limitations in just the ind, and try to get them all met by the prior art, and check all the additional verbiage for 112’s, and write it up all pretty or you do not. That making things pretty is a major time waste, that only grows, btw, between patent professionals, tho maybe it makes things look pretty for the applicants or public. The GS level doesn’t really affect all that much of that, save perhaps maybe looking over the prior art a bit faster as you understand it better, and same with reading the spec. Other than that all of the above are just routine grunt work, there is no “doing it faster” without cutting one of the above as a corner.
“There’s more responsibility check the pap for the specifics if you have a copy.”
Come’on Man – why would I have a copy?
If you want to though, why don’t you post a link to this “non-Union” Union agreement of yours.
“ it’s the basing that expectation on supposed “efficiency gains” that is ridiculous in the current environment. ”
With an attitude like that, I can see why you never left the bureaucratic government job. You would never make it in the real world.
“ and where mgmt knows they need to increase the time but are corporate captured. ”
Cue our past discussions on the (any?) value of you HAVING a union…
“Come’on Man – why would I have a copy?”
Pretty sure it’s public on the popa website, as an attorney you may as well get it at some point.
“With an attitude like that, I can see why you never left the bureaucratic government job. You would never make it in the real world.”
Has nothing to do with tude’ has to do with finding facts.
“I’ve often wondered how much the drafting and prosecution costs have gone up for these apps on avg.”
Up?
Try going down.
“And likewise I know for a fact that many of the attorneys aren’t even reading all of the 102 rejections for the independent claims, much less all of the 103’s. They say they’re doing this to cut down on cost…
… I still don’t understand how attorneys can meet their supposed ethical duty or whatever rule duty to not be submitting anticipated claims if they don’t even read all the 102’s.”
Any attorney making this admission to you is admitting malpractice and ethics violations.
Of course, I am pretty sure that NO attorney has ever actually made any such admission to you, 6.
“Of course, I am pretty sure that NO attorney has ever actually made any such admission to you, 6.”
Um no, they do, fairly on the reg. Increasing in freq. Set the 103’s aside and we have 102’s routinely not being addressed (I could send notice of non-compliance but we let them skate). I then have an interview with them about the case to propose an amendment to get it allowed. It just happens to come up that you know there were a couple of 102’s unaddressed. They’re like oh, my bad, I just read this and that one, and “didn’t notice/review that one” (it was clearly set forth ez to see). It’s all they’d reasonably have time to go over, they’re supposedly doing like 1-2 app replies a day. I know for a fact that it would take any patent professional all of 4 hrs EASY to get through even a couple of these rejections, as just understanding the ref takes that long quite often.
Beyond that, some of these guys not only don’t even read all of the 102’s etc. they don’t even read the OA at all, they just pass it over to the client who has their foreign rep look at it. Maybe the foreign rep is also a US attorney, but it’s the other guy’s name attached to the response. That’s the procedure at least two people have laid out for me that they’re following at two separate prosecution firms, for foreign clients obv. I didn’t give them too hard of a time because I dont’ know all the p’s and q’s and frankly I don’t want to screw em out of a job when they seem to be well meaning doing the best they can and that is what the app is wanting and is all they’ll pay for.
Hand to god anon. Hand to god. Not joshing. That’s the absolute state.
If true — these firms should be facing ethics and malpractice charges. There is NO way that this type of prosecution is acceptable.
Not even for ‘pass through’ work based on foreign directions. If the firm is processing it, they do not get to skate (the proper ‘reply’ to any such ‘direction’ outside of the Office would be to fire that client).
“I still don’t understand how attorneys can meet their supposed ethical duty or whatever rule duty to not be submitting anticipated claims if they don’t even read all the 102’s.”
The examiner didn’t read them either.
I’m not sure what constitutes “grunt work” for the examiners at the PTO now, but if you’re required to do tasks that don’t actually contribute to the work product, that’s an issue for your union to deal with.
“It actually is because there is little examiner efficiency gain after 11,…”
IDK about that. GS-11’s don’t have negotiation authority, or full, or even part, sig. For a reason. There’s still plenty of room for increased efficiency.
“… if we suppose they actually know how to find facts, make decent 103’s etc. by 11.”
You can make it to 14 without knowing any of that. Seems kinda unrealistic to expect it of 11’s.
AAA JJ,
I hear you with the, “that’s an issue for your union to deal with.” but per 6, there really is no ‘effective’ Union capable of any meaningful help to the rank and file examiners.
(I ran into the same thing when examiners were whining about their “time limits,” and how they simply cannot do proper examination there under, but cannot say, “Stop, in order to do a proper job, we need ‘X.’)
“The examiner didn’t read them either.”
Uh, I mean, I wrote the 102’s. So yeah, I read them as I wrote them. And I generally glance them over.
“I’m not sure what constitutes “grunt work” for the examiners at the PTO now, but if you’re required to do tasks that don’t actually contribute to the work product, that’s an issue for your union to deal with.”
Just more flipping through and reviewing thousands of refs. Just more longer specs. Just more longer claims. Just more 112’s/objections. Just longer refs to look through. Just more evaluation of ever more obscure technical details. Just this that and the third.
And of course it “muh contributes to the work product”. Grunt work is always “contributing”. WTF are you talking about it not “contributing”?
“that’s an issue for your union to deal with.”
The union doesn’t do sht and doesn’t have the power to do sht.
“IDK about that. GS-11’s don’t have negotiation authority, or full, or even part, sig. For a reason. There’s still plenty of room for increased efficiency.”
People talk about muh negotiation authority. I have yet to perform a “negotiation”. There’s nothing to “negotiate”. Either I can allow a given proposal that they want or I cannot. On the other side yes its nice to be able to make a proposed amendment of my own without first running it by a primary, but in reality that, again, doesn’t really save more than the hour you already had to spend discussing the case with the primary. Just not seeing any meaningful savings here. At least in my art. Maybe it’s different and “negotiations” are like totally happening all over the place in other areas.
“You can make it to 14 without knowing any of that. Seems kinda unrealistic to expect it of 11’s.”
Totally understand what you’re saying, but formally it’s supposed to be known by 11. Though yes, you are correct that in real life people routinely get past 11 without knowing those things. But that is a flaw in the promotion scheme (specifically to get more money for the office), not a flaw in the reasoning for actual efficiency gains supposedly supposed to be had after 11.
“But that is a flaw in the promotion scheme”
lulz
“lulz”
I agree that it is somewhat funny but that flaw is how you get spes (and to a lesser extent primaries) that are super bad at x or y (though they are good at production etc.) that they should have known by 11 and then go on to enforce their mistaken beliefs about x or y on the juniors under them and that then leads to large headaches for you.
“Either you’re doing a standard 8-10 hr search,…”
Ten years ago you were telling us you routinely found killer, knock out 102 art with 5 second Google searches. What happened?
“Ten years ago you were telling us you routinely found killer, knock out 102 art with 5 second Google searches. What happened?”
I’ve addressed this now 100 times. I learned that using the bureacratic tool of the bri to reject claims is not that great as they’re just going to amend around that art eventually in my art because they’re only just submitting a rough meme of a claim in the beginning in most cases. Indeed, take the case I’m working on right now. They drafted a 2 line long ind claim for a device that is actually pretty hard to find in its specification disclosed entirety. I already know of a piece of art that will 102 the independent from 2 other cases I had to use it in. That art will get 4 deps as well. The deps that have more details about the structure I knew would be much harder to find. 8 hrs of searching the NPL later I finally find a citation to a ref that lets me find out the whole branch of devices that he tried to claim with the independent claim has a specific name as of 6 years ago in 2015, and there are about 30-40 designs for such floating around in back citations in NPL. Applicant of course did not tell me the name of the device he was trying to claim and I will presume he just didn’t know of the name for it as he dropped a lot of NPL right around the topic but not any of the NPL that tells the exact structure of claim 1 with its art recognized name. Further nobody as of yet in my search has any device that will have the exact sub-device structure as one of his sub-devices and will not have the exact materials for the overall device. I’m now 9 hrs in, have yet to begin EAST search as the NPL was too juicy to pass up searching (many devices one part away) and eventually yielded great results. At the cost of course of blowing the budget. But that initial ref that will get the ind under a broad construction was known at the outset and is in my personal collection (10 sec or less to find).
And to be fair to young me, I actually believed the ta rds spouting that the claims “herp R da invention” (see AAA and his cult). Obviously if they “were the invention” then amendments wouldn’t be getting allowances in nearly all cases.
This is the last time I answer this question for you AAA.
I don’t think that he was looking for an actual answer (other than that you were full of it back then).
“I’ve addressed this now 100 times.”
You’re as full of it now as you were then. And just as clueless.
I am getting a sense of bureaucrats wanting promotions (and raises) for merely “being there long enough,” and simply not recognizing the actually having improved your game is a core requirement.
“I am getting a sense of bureaucrats wanting promotions (and raises) for merely “being there long enough,” and simply not recognizing the actually having improved your game is a core requirement.”
Anon dude, of course you get somewhat better, but you’re supposed to be that good at basic things by 11 or 12. Further, that getting better doesn’t really matter if they just put more work on you. What is so hard about this in your mind?
It is not i that is missing the point here of ‘of course, you are expected To get better and handle more work [in the same amount of time]’ — that’s the point that AAA JJ is making.
“Do you think a doctor who is doing his 200th heart transplant is going to do it faster than a doctor doing his 1st?”
Nothing I’m suggesting contradicts this! First you falsely accuse me of attacking a strawman, and then you waste our time doing just that. You should be embarrassed.
“Your argument rests on two assumptions: 1) the examiners will use the additional time to do more searching; and 2) they will find better art by doing more searching.
Both assumptions are incorrect.”
If you consider this an “argument” it’s no wonder you’re so frustrated with examiners!
Regarding 1) you seem to be confirming that you think no examiners would use the additional time to search, which is another way of saying “all examiners are bad.” I am confident that you are wrong about this, though to be clear I wouldn’t say 100% or even 80% of examiners would use the extra time for searching. Regarding 2) this is pure speculation, and contrary to common sense. Ask yourself if you want that heart surgeon to do your bypass in X hours or X-1 hours.
It doesn’t seem likely that your response will warrant any further responses, so I’ll include a few AAAJJ style “arguements” that you can pretend are responses to your future arguments.
“Your prepositions are false.”
“No, you.”
“I’m rubber and you are glue, anything you say bounces off me and sticks to you.”
Bah. Intended as a response to the bottom comment thread.
” Ask yourself if you want that heart surgeon to do your bypass in X hours or X-1 hours.”
I want my heart surgeon to do it correctly. If he/she can do it correctly in X-1 hours, why would I want him/her to spend X hours on it? Is the extra hour going to make it better?
“The OA’s would still be 3, 4, 5+ reference combinations acknowledging the absence of 2, 3, 4+ features with determinations of obviousness based on taking of Official Notice that it would be inherently obvious to optimize the prior art through routine experimentation and optimization of changing size and shape after duplicating and rearranging the parts.”
Eh if I earnestly search in some kinds of cases for double the allotted time I can maybe 10% of the time find a better primary/2ndary or a nice 102. Just keep going through thousands of refs and you’ll stumble on a good one occasionally. How many cases do you get with that kind of rejections being made for the independent claims anyway in terms of percent of the total rejections?
Still waiting for reply on this 6.2.2.2.3 :
link to patentlyo.com
You will never have an answer from him, 6.
Leastwise one that actually attempts to engage on the merits.
You have entered his zone of “No Thinking Allowed.”
How about we address this
link to brookings.edu
maybe with some reparations.
I don’t mind at all.
I mind even less as long as anon is paying me.
Do you have any plan for 20-30 years after “reparations” are paid, call it 25-35 years after the payments commence? Or will we just leave it up to black people to resume being “oppressed” and having 1/10 of the wealth judged by “typical” fams?
Further, I personally don’t much think we should pay reparations based on the white-black wealth rates. I think we should have to pay reparations based on the asian-black wealth rates. This being because obviously, if asians, as an “oppressed minority” have achieved such high levels of wealth, then surely the white people COULD HAVE achieved those same high levels of wealth, so the nums should be based on that gap. That is the calc should be based onthe hypothetical white wealth potential nums that didn’t actually materialize but surely should have been achievable by whites, as demonstrated by asians. I’m sure you will agree.
Still further AAA, what do you think about my idea of transferring some of the white ownership in patents (as well as potentially part of hispanic and asian ownership in patents) to black people? At least upon issuance of the patent.
Your “if by Asians” is as applicable to blacks as to any other group.
Unless of course YOU are being racyist.
…and if you are not being racyist, then this is more of a “class” thing, as sure as heck I have not had any benefit of any inheritance, as far back as the lineage of all of my folk in the US has gone (which is traceable to all four of my grandparents, who themselves had not inherited anything in their native country).
You cannot fight an identified
E
V
I
L
by partaking in that very same
E
V
I
L
“as sure as heck I have not had any benefit of any inheritance,”
I know right? I used to think I’d be getting inheritance but unless my dad dies in the next 30 years that looks somewhat unlikely in terms of dollars actually being left. Much less the fact that if there be any dollars to inherit by the time he does die I’ll be super old anyway, and rich myself (mainly from anon’s payments to me on account of slavery), so it’d just be a tiny drop in the bucket by that time.
The boomer’s ability to fritter away the largest wealth from the most prosperous time in US history is truly astounding. It’s all the hedonism and individualism.
6, your post is mindlessness exemplified.
“and rich myself (mainly from anon’s payments to me on account of slavery),”
I would not count on any of that.
Period.
“The boomer’s ability to fritter away…”
1) why the attempted ageISM?
2) it’s not Boomers that would be most guilty of “frittering away”
3) inheritance – and lack thereof was expressly noted as may be coming from my forebears — and thus most definitely not Boomers. I received nothing to be frittered away.
You miss — on all accounts, and not by a little.
“1) why the attempted ageISM?”
It’s not ageist to state a fact that boomers are, as we speak, blowing the hugest fortune ever had on the face of the planet by any demo in the history of the world. And despite people talking up the huge amounts supposedly to be left, they are by far the biggest retirement spending generation ever, by leaps and bounds.
“2) it’s not Boomers that would be most guilty of “frittering away””
That’s literally not what the numbers say bro. And many don’t even want to leave inheritance.
link to seattlebusinessmag.com.
I’ve seen lots of articles on the topic.
You were being sold, 6.
“ U.S. Trust Insights on Wealth and Worth was based on a nationwide survey of 457 adults…”
You can read a lot of such “advertisements,” and not come close to understanding.
“not leaving” and “blowing a fortune” are two vastly different things.
If you happen across that reference again, please share it. I am curious if it is “pretty much the same” by engineer standards, or by physicist standards.
I wasn’t really thinking of validation rate as the metric of choose when I predicted substantial improvement. I was thinking more along the lines that the worst quarter or so of patents either wouldn’t be issued or would be issued with much tighter claims. I see why invalidating rates is the better metric, and I am somewhat at a loss to mentally model how invalidation rates could remain the same if the worst quarter were taken off the field. The obvious explanation would be that those patents are never litigated, but I don’t think that’s true. I feel rather confident those game patents from the other post are in the bottom quarter and would’ve been issued differently under 2x examination time.
Anyways, if the invalidation rate really is as insensitive to examination time as you suggest, perhaps we should halve, quarter, or decimate examination time. If 2 hrs gets the same results as 20, no sense charging applicants for 20.
Intended as a response to 1.3.4.2.
“or decimate examination time.”
A pure registration system would save innovators nearly 4 Billion dollars annually (pretty much nearly the entire operating budget of the Patent Office).
I actually linked the reference on a past PatentlyO thread, but bless me if I can retrace my steps and find that thread. If I stumble on it again, I will let you know.
Anyways, if the invalidation rate really is as insensitive to examination time as you suggest, perhaps we should halve, quarter, or decimate examination time. If 2 hrs gets the same results as 20, no sense charging applicants for 20.
I do not find this line of thinking convincing. Or more precisely, it is possible that halving would not materially affect outcomes, but I would be surprised if quartering (or more) did not have a discernible adverse effect.
“I do not find this line of thinking convincing. Or more precisely, it is possible that halving would not materially affect outcomes, but I would be surprised if quartering (or more) did not have a discernible adverse effect.”
So then do you think the times are in a particular sweet spot? How fortunate that the examination times set in the 70s remain so appropriate today!
So you find examination time to be not too long, not too short, but just right?
Can you appreciate how that may generate a certain degree of skepticism, given how the examination times are basically 50 year old numbers?
So you find examination time to be not too long, not too short, but just right?
Something like that, yes. I am skeptical that there are many opportunities for practically obtainable improvement that have not already been seized at this point in the history of the U.S. patent system.
Can you appreciate how that may generate a certain degree of skepticism, given how the examination times are basically 50 year old numbers?
It is all for the best if some are skeptical of my contention. That is how we achieve improvement. That said, the current arrangement constitutes the product of over 200 years of cumulative learned experience. It should not be intuitively surprising if this represents something like the best reasonably obtainable outcome.
Pretty sure that he was aiming to apply a different rationale for the number of hours point there, Greg.
Perhaps something whiny like “there is so much MORE information out there to be checked” (while not taking into account the many higher multiples of computing improvement that one would make in any actual fact to fact comparison)
“I am skeptical that there are many opportunities for practically obtainable improvement that have not already been seized at this point in the history of the U.S. patent system.”
As far as I can tell, there’s been no effort to meaningfully adjust examination time. There’s been a few across the board increases of a handful of hours, and the “new” system effective calculates new time allowances based on averages of the old system.
This sounds remarkably like the joke about the economist who walks by a $100 bill on the ground because if it was really there, someone would’ve grabbed it by now.
This sounds remarkably like the joke about the economist who walks by a $100 bill on the ground because if it was really there, someone would’ve grabbed it by now.
What I said should remind you of that joke. The typing of it triggered that joke in my mind. If you think that I am bling to a $100 bill lying on the sidewalk, then I hope that you are able to pick it up (as I said, that is how we improve things). You work there, so I expect that you would have better eyes than would I to notice such benjamins-lying-on-the-ground.
I’ll get on it as soon as I get promoted to Junior Deputy Assistant Commisioner.
The only response you’ll ever get on this is, “We need more time!!!!!” but they have no explanation how giving more time is going to improve examination. The argument is premised on the notion that examiners will find better art with more time.
They won’t. Because they have zero incentive to find better art.
Of course all of the examiners are on record here as claiming to be “experts” in the art they examine. Yet for all of their expertise they need more time. Ever more time. Never enough time. They need infinity time to find the best art. Trust them. Given infinite time they will find that killer 102. Every time.
Of course there’s one examiner that posts here who claims he routinely finds killer, knock out 102 art with 5 second Google searches. Every case.
But he needs more time too. Because…
“Something like that, yes. I am skeptical that there are many opportunities for practically obtainable improvement that have not already been seized at this point in the history of the U.S. patent system.”
Mgmt literally confirmed to my face that they have the businesses/applicants in the driver’s seat when it comes to determining how many resources to put towards examinations in total. So I’m not sure why you would believe what it is you are believing here.
Mgmt literally confirmed to my face that they have the businesses/applicants in the driver’s seat when it comes to determining how many resources to put towards examinations in total.
I think that you are confirming my hypothesis (1.3.4.3.1.2, pt. #3 below). It is possible, however, that I am not fully understanding your carefully unintelligible pidgin. If you care to make your point in plain English—I expect you know how to if you care to do so—I am sure that I am not the only one who would be interested to read it.
Management, specifically the drew hershfield guy, told me directly, via a virtual town hall question, who it was that was indirectly controlling how many hours applications are getting allotted for consideration (how much $$$ is going towards examination of x, y, z applications). It is the applicants/inventor community. The applicants/inventor community say they don’t want to spend more on examination. So thus, Drew Hershfield and his upper level management bros, do no increase examination time because they are doing what the applicants/inventor community want. As this is verified, by upper management, to be the case, I’m not sure why you think that there’s like “totally not that many opportunities for practically obtainable improvement”. It’s very easy to see what the opportunities are. They just cost money. And management doesn’t want to do them because the applicants/inventors don’t want to pay more.
Specifically its the corporate clients in many technology sectors that don’t want to pay more btw.
because they are doing what the applicants/inventor community want. As this is verified, by upper management, to be the case, I’m not sure why you think that there’s like “totally not that many opportunities for practically obtainable improvement”. It’s very easy to see what the opportunities are. They just cost money. And management doesn’t want to do them because the applicants/inventors don’t want to pay more.
Thanks for your clarification. Based on what you just wrote, I think that you and I are basically in agreement on this point. When I wrote “ opportunities for practically obtainable improvement” the “practically obtainable” was intended to exclude measures that senior management do not want to implement. To my mind, it is impractical to try to implement a change in an administrative agency if the bureaucratic agents necessary to implement the reform can kill it with a foot-dragging death-by-1000-cuts along the way to implementation.
If you consider that those sorts of measures qualify as “practically obtainable” (as you would use those words), fair enough. Feel free to substitute another phrase in place of “practically obtainable.” I think that you know what I mean, in any event.
“was intended to exclude measures that senior management do not want to implement.”
Well in that case then yes, all opportunities for increasing quality are off the table lol.
“To my mind, it is impractical to try to implement a change in an administrative agency if the bureaucratic agents necessary to implement the reform can kill it with a foot-dragging death-by-1000-cuts along the way to implementation.”
I do not disagree with you, however I would simply note that the answer to that conundrum is likely not to give up all hope, it is to simply replace the “lolsenior” mgmt. with people ready to do the job and get results. However, I do have to admit that replacing the senior mgmt with people that are ready to get results may well be a detriment to the overall org in other areas.
I think that modern automation techniques need to be employed to help examiners and I continue to think that the more educated and expert the examiner is in the area they are examining the better the results.
“I continue to think that the more educated and expert the examiner is in the area they are examining the better the results.”
I agree with this. Though the office was never great at assigning examiners to AUs, the actual matching of examiners to applications is gearing up to get much worse.
The new docketing system is essentially an overwrought mechanism for moving work to examiners who are not familiar with a subject matter. In the near future, you will have the pleasure of working with an examiner who has only done 5 actions in that area (Actions! Not applications!), and yet the office formally deems them so qualified in that subject material that they need no extra time.
Enjoy!
Where is your union in all of this?
“Enjoy!” indeed, as most all of us simply are not going to let Examiners make their problems to be our problems.
“The new docketing system is essentially an overwrought mechanism for moving work to examiners who are not familiar with a subject matter.”
Idk about that, it seems to be dropping me huge amounts of the same kinds of cases. Literally I am now a 2 trick pony almost. Super specialized. And I actually am finally getting to develop myself a nice little cache of art that I have at my fingertips for the meme tier claims that seemingly everyone and their grandma all want to claim. I have one combo of parts that apparently like 4x (just in my apps alone) have all thought they invented over the last 3-4 years.
This is my prediction after listening to the oral arguments.
My prediction is 5-4 that the AIA is unconstitutional because the patent judges are not inferior officers. Note that I predicted that cert would be granted on this. And my predictions have almost always been correct.
The remedy is going to be to give the director plenary review. They will pencil it in and say that Congress did it for the Trade Mark judges. They may strike out the review language and say that Constitutionally that the director has plenary review even if it is not in the statute. That way they would not have to use their blue pencil for anything other than striking text.
Breyer/Kagen–I think it is vile that justices would even contemplate that citizens should be subjected to the tyranny of petty judges with little recourse. Just think of the dystopia these two would put us in. Large government that determines what you get and don’t get and petty judges making those decisions where you have no recourse other than accept their judgments.
(note that you can be for many liberal democratic policies but still want people to have freedom and rights).
I think the scheme that Breyer/Kagen want of an administrative state that rules our lives is in direct contradiction to the Constitution and the Bill of Rights. They are totalitarian communists. I know that sounds strong but if you look at the end game they are playing we would all end up in a system where the lower 90 percent of us would become slaves to an administrative state. Let’s hope that the USA lives through the tenure of these vile people. Sotomayor is probably in this with them.
The reason that we have such turbulence in this country is that there truly are nation changing things that are happening. Having an administrative state with such power over the individual is in direct contradiction to everything the Constitution and Bill of Rights stands for.
And really try to understand that there is a difference between providing services like health care and social security and removing people’s rights of redress. I am fine with social programs but that doesn’t mean I am fine with my rights as an individual being removed as part of it. Breyer/Kagen are into a power game of trying to create a totalitarian state.
Other predictions?
Ben? 6? anon? Greg? Max? Topless swimming boy. And so forth…
Wondering Words (WW)?
I think that it is safe to predict based on the oral arguments that the decision about the unconstitutional configuration of the PTAB will be 8-1 or even 9-0. All of the justices seemed confused, however, about what should be the remedy. None seemed particularly taken by the CAFC’s resolution, but neither was there a obvious claim consensus alternative.
I would not be surprised if they were to affirm the CAFC, if only because there are no great alternatives. I also would not be surprised if they were to reverse the CAFC’s remedy and install another remedy. The CAFC’s remedy is, after all, appalling in its willingness to utterly re-write the statute. In other words, I really do not have a prediction on the only point where a prediction is interesting.
Sorry. :/
“The CAFC’s remedy is, after all, appalling in its willingness to utterly re-write the statute.”
Wow, if even Greg notices this…
I predict that the Supreme Court will get it wrong.
They will not be able to get out of their own way.
Appreciate the offer bro but I have no opinion on this here. If I was to just fly by the seat of my pants it’ll probably get determined to have been screwed up in how it was implemented but then get magically fixed by the court somehow through arcane legal magick.