Fees for Delay

The typical office action rejection comes with a three month timeline, extendible  for another three months with payment of a fee. The fee escalates for each month of delay.

  • $220 – One Month Delay
  • $640 – Two Months Delay
  • $1,480 – Three Months Delay

After three months, the case is deemed abandoned and can only be revived based upon exceptional circumstances.

Here is my question: How do you decide who pays the fees?

147 thoughts on “Fees for Delay

  1. 15

    Big news today. The WTO has finally reached an agreement on vaccine waivers. I would say that the most important new development is that the agreement waives the “predominantly for the supply of the domestic market” provision in TRIPS Art. 31(f), so that nations that take advantage of this new WTO waiver may export their vaccines.

    1. 15.1

      One could imagine this agreement setting up an interesting question for the U.S. courts down the line. Under Impression Prods. v. Lexmark Int’l., 137 S. Ct. 1523, 1535 (2017) we now have international exhaustion. That is to say, a lawful sale by the patentee anywhere in the world exhausts the U.S. patent rights.

      If India manufactures vaccine in contravention of Biontech’s patent rights—even under the new WTO agreement—it still must pay Biontech “adequate remuneration” (Art. 31(h)), although the agreement (3(d)) allows that “[d]etermination of adequate remuneration under Article 31(h) may take account of the humanitarian and not-for-profit purpose of specific vaccine distribution programs.”

      So, can Pfizer still use the U.S. patents to exclude those doses from the U.S. market? Or does the “adequate remuneration” that India has paid to Biontech for every unit of vaccine manufactured for export mean that Biontech’s U.S. patent rights are exhausted?

      1. 15.1.1

        Any payment exhausts an item.

        I think though, that your angle is slightly different in that the item sold was not the patent holder’s.

        In this sense, the patent holder did not place the item in the stream of commerce.

        The payment then is not a purchase, but rather, it would be more helpful to consider it a penalty.

        Importation into a patent-protected sovereign may thus still need be addressed (note: this may be addressed in your link, but I have not ventured there yet).

        1. 15.1.1.1

          “The payment then is not a purchase, but rather, it would be more helpful to consider it a penalty.” Bingo, key statement. Deception is a legitimate practice in nature, much evidence of it. Statistically, there are always a fraction who won’t see it, until the character of the payment is considered. WTO basically imposes itself on two parties, with unsolicited counteroffers to offers which havn’t yet been made, in a sense. Its an offer to an otherwise-would-be Plaintiff, to handle things differently than had they selected the other conventional choice. Sometimes the parties might find it beneficial to heed the suggestions of the third party. Personally I don’t care for the notion of anyone meddling in my affairs. What are the choices for throwing off an unwanted transgressor ? Standing mute won’t work.

          1. 15.1.1.1.1

            I would not characterize “deception” as a fair business practice.

            Maybe you were going for “emulation”…?

            1. 15.1.1.1.1.1

              Fair is equity, and equity is fair. Wake up McFly…. deception in business practices is as ancient as the foundations of ancient Babylon ! The art of trickery ! Inventions, on the other hand, are concrete, relatively. So, much of the show’s theatrics have been boringly focused on how to apply trickery to private propertly law, IP being a mere subfraction of the bundle. easy stuff. Attacking venue choice and all the other bullcrap, just veiled attacks on personal property. When the good lawyers defend patent property rights, they are also defending their own and posterities rights ! Lets write arguments that make Elon and Bill create a side-show….. I’d prefer a slide show, but….

              1. 15.1.1.1.1.1.1

                Lol / you telling me to wake up as you doze through one of the main portions of Trademark Law — granted, as an agent, you may well simply lack the larger exposure.

                1. 🙂 What used to irk me a little, was all the trademark slander out there, so ubiquitous ! I got over it, figuring some entities are more serious about jealously guarding their IP jewels than others. Sometimes its fun to go back and look at the Hanseatic union, from which our modern conceptions of equity derive, then understand, how the Admiral used deception to bring his law ashore ! Summary judgements on writs of assistance, star chambers…. History repeats, just like what is going on now with the concept of “Danzig Corridor”, except, only the names have changed. Same pieces of land, same principles, different actors. yawn.

            2. 15.1.1.1.1.2

              Yer a little weeeenie

              1. 15.1.1.1.1.2.1

                I would beg to differ in regards to size there…

          2. 15.1.1.1.2

            WTO basically imposes itself on two parties, with unsolicited counteroffers to offers which havn’t yet been made, in a sense.

            Just to be clear, the WTO does not impose compulsory licenses. Various WTO member states can impose compulsory licenses, but the WTO is not part of that transaction.

            1. 15.1.1.1.2.1

              Thanks 12’s. I was looking at the current proposed “vaccine waivers”, which apparently nobody finds attractive other than the propositionists. I see it in the context of a camel nose under a tent wall, inasmuch as “covid vaccines” are admittedly not vaccines, so expanding the concept of interjecting a 3rd parties propositions, beyond “vaccines” is already in the works. “Where does it go? The good Lord only knows” – Billy Joe Shaver

              1. 15.1.1.1.2.1.1

                Chrissy,

                “12” is Greg DeLassus’s nom de plume. A bit of a word of warning on COVID related items: you will not get a straight (or complete) answer from Greg. He has a bit of cognitive dissonance as his professional nature (related to a Big Pharma world view) clashes with his political views (full blown Liberal Left).

                1. It is ok that you call me “chrissy” or whatever you choose. If your mind is ever around long enough to mature, it could be possible that you might at some point begin to understand that name-calling reflects more about the caller, than the callee.

                  I don’t care if “dozens” is Greg, or Linda, or Charlie since the messenger is not as important as the message. I’ve seen highly credentialed people “fired” a few times, and have known more than “dozens” of ppl with no credentials, commanding teams of engineers and lawyers, & cet. I’d bet a couple PhD engineers even signed off on the Tacoma Narrow’s bridge.

                  Its about Love my friend, and if dozens writes something, I appreciate it, even if I choose to ignore it maybe.

                  La la la, keep on having your fun, it can be therapeutic I suppose, and if you calling me names helps you somehow to “feel better” , then I’m glad for the opportunity to have helped you. 🙂

                  Just hope Stalin doesn’t come back, because if he does, I have a feeling that “no more Mr. Nice guy” might become a temporary zeitgeist. We’re due for a good purge anyway.

                  Be nice…

                2. It is ok that you call me “chrissy” or whatever you choose. If your mind is ever around long enough to mature, it could be possible that you might at some point begin to understand that name-calling reflects more about the caller, than the callee.

                  LOL – I have already explained that growing up, “Chrissy” is what we called my brother Christopher.

                  Lighten up Francis – you are seeing “1nsult” where none exists. Take it as the playful manner in which it is delivered.

                  I don’t care if “dozens” is Greg, or Linda, or Charlie since the messenger is not as important as the message

                  Meh – only sometimes. It does help though if you are going to make a habit of posting (especially in interacting with others), to note predilections and such.

                  For example, “Greg” is an arse, who likes to pretend that he knows far more than he does, but also demands civility – even when it is undeserved, and worse, he sees INcivility when he is being merely corrected. His “umbrage” has resulted in his claiming that he uses an add-in app that blocks posts from the likes of yours truly and Malcolm (The Prophet to you), and yet, Greg — as Dozens — posted a hard hyperlink to a comment that supposedly he cannot see.

                  Also, it is worthwhile to note that Greg has a Big Pharma bias. Being observant on such (as opposed to only paying attention to the words of a post is indeed helpful.

                  Knowing when someone is full of B$ really does help – again – if you are going to be a repeat poster.

                  By the by, I DO hope that you will be a repeat poster. I most often enjoy your word play.

                3. As for “Be nice…

                  Meh – that’s over-rated. I much prefer “Be direct.”

                  Also, I do very much believe in an John Maynard Keynes “Words ought to be a little wild, as they are an as sault on the unthinking.”

                  Why in the world would I give up an advantage to task the unthinking? Just to be “nice?” Sorry, but if you think that, then you are just in the wrong profession.

      2. 15.1.2

        Lexmark dealt with re-use of toner cartridges containing patented elements and methods. The problem stemmed from Lexmark attempting (via contract) to control a patented product’s use, subsequent to its having been rendered spent. The case tells me that any such contract purporting to control the use of a product once its been spent, is either an invalid or unenforceable.

        It seems to me that if company X in India, buys 1mm doses from Pfizer and they are delivered to India, then company X in India is free to import them into the US for sale.

        1. 15.1.2.1

          From Pfizer…

          This is not about buying from and redistributing.

    2. 15.2

      Another important moving part of the prior WTO drafts that had been released to the public was relaxation of the trade secret laws. Those relaxations are considerably narrowed in this final draft. Paragraph 4 of the latest draft now provides that

      Recognizing the importance of the timely availability of and access to COVID-19 vaccines, it is understood that Article 39.3 of the Agreement does not prevent an eligible Member from enabling the rapid approval for use of a COVID-19 vaccine produced under this Decision.

      1. 15.2.1

        In other words, one may not disclose trade secrets to accelerate development of manufacturing capacity, but only to accelerate regulatory approval once a manufacturer is already up and running. Of course, any sovereign has always already had the right to relax trade secret protection data submitted to regulatory authorities under Art. 39(3)’s provisions that “Members shall protect such data against disclosure, except where necessary to protect the public…” (emphasis added).

        I have no idea, in practice, how much trade secret data has actually been submitted to the IN, ZA, etc. regulatory authorities by this point. I would suspect that no such data have actually been submitted to any other authorities than EP & US, but I could be wrong about that.

  2. 14

    OT, but I am kind of surprised that there has been no post yet around these parts about the recent call from Sen Leahy & al. to do away with terminal disclaimers as a means of resolving ODP issues.

    Does anyone know if there have been studies showing how often infringement is established against a CON (with a TD) but not against the parent? In other words, would market outcomes likely be affected by ending TD practice?

    1. 14.1

      What’s the proposed alternative to the use of a terminal disclaimer to “save” a patent with an ODP problem? Nothing?

      1. 14.1.1

        That is correct. The idea is to make U.S. ODP law more like Canadian ODP law, where you need to get all the claims that you might ever want into the first patent, because there is no second chance.

        1. 14.1.1.1

          Is there an expected benefit from such a change besides aligning with Canada?

          Sounds needlessly restrictive.

          1. 14.1.1.1.1

            I very much doubt that Sen. Leahy even knows that this would align us with Canada. His goal is simply to make the rules more restrictive. Whether this rule is “needlessly” restrictive is a matter of opinion.

            As it happens, I do not favor this rule change. For those who do favor it, however, the idea is to reduce the total number of patents that protect any given pharmaceutical franchise. Those who (mistakenly) believe that U.S. patents are a major driver of U.S. drug prices also believe that such a change in U.S. patent practice will squeeze drug prices down.

            1. 14.1.1.1.1.1

              lol – shockers that Big Pharma profits do not align with a general Sprint-Left view.

              Who would have guessed?

              oops – almost forgot: /S

            2. 14.1.1.1.1.2

              If the idea is to thin out thickets of patents, then excising from the patent statute the category CON would be effective, one might suppose. But given that no other jurisdiction has a CON provision in its statute, and yet every other jurisdiction has thickets, will eliminating the CON be effective, I wonder.

              Alternatives? How about the UK solution (4.5 year “acceptance term” capping the chance to file any and all divisionals? Or at the EPO, where there is unlimited opportunity to file divisionals throughout the patent term, but ultra-strict WD and “added matter” examination prevents Applicant from recovering from fundamentally incompetent original drafting.

              1. 14.1.1.1.1.2.1

                [N]o other jurisdiction has a CON provision in its statute…

                If you mean that no other jurisdiction calls them “continuations,” fair enough. However, the “divisionals” that one files in AU, EP, KR, etc are in no wise meaningfully different than the “continuations” that one files in US. The only major jurisdictions that I know that really have no CON practice are AR & CA.

                Alternatives? How about the… EPO, where there is unlimited opportunity to file divisionals throughout the patent term, but ultra-strict WD and “added matter” examination…

                Actually, the incredibly lax EP approach regarding double-patenting rather mutes the force of the strict WD standard as a counterincentive against CONs. The fees are the real consideration that usually stops me from filing as many EP DIVs as I file US CONs. Specifically, the fact that one needs to pay maintenance annuities for the DIV as if the DIV had been filed at the same time as the parent makes me think much longer and harder about what value we expect from the DIV.

                1. Absolutely, Greg, but how much does it matter, that the EPO on double patenting is “incredibly lax”? I mean, all those divs, by definition, expire on the same day as the parent.

                  The point about the strict approach the EPO adopts to WD and added matter is that an FTO opinion written on the basis of the WO-A publication is just as sound for all those divs that the Applicant files throughout the 20 years from the PCT filing date as it is for the original national phase PCT application.

                  While the fees for an EPO div are indeed punishing, another reason for the relative paucity of their filings is that there is no point in spending all that money.

              2. 14.1.1.1.1.2.2

                I definitely agree with your suspicion that the proposed rule change would not likely achieve much by way of affecting pharma prices. The EP has far fewer DIVs than the US, but for all that, drug franchises whose patents are successfully asserted in the U.S. tend also to be successfully asserted in the E.U. & U.K., while patents that fail in Europe tend also to fail here. There just is not much of a reason to believe that limiting CON practice will do much to lower U.S. drug prices.

    2. 14.2

      Leahy being anti-patent (Con’s be the B A D).

      Accusations from him with zero proof.

    3. 14.3

      Does anyone know if there have been studies showing how often infringement is established against a CON (with a TD) but not against the parent?

      I suppose that a better way to ask this question is how often is a CON with a TD found valid & infringed, but the parent is not? I suspect that the answer is “not very often,” in which case the rule change will have very little practical effect on market outcomes. It would be interesting to know whether anyone has ever actually studied that question—as an empirical matter—however.

      1. 14.3.1

        in which case the rule change will have very little practical effect on market outcomes

        Bzzzzzt – wr0ng answer.

        eliminating the ability to have Continuations would drastically affect (and very negatively impact) innovation protection.

        Were you practicing (at all) during the Tafas case? the attempted power grab by the Office and its Continuations Rules change?

      2. 14.3.2

        Re several of the above comments, and any realistic legislation, what seems to bother more Congresspersons is not that much about U.S. continuation or divisional practice, since neither normally extends patent terms. Rather, it is about extending drug patent terms with what is called “patent evergreening. ” That is, later-filed applications, with later patent expiration dates, on different formulations, dosages or delivery systems for the same pharmaceuticals, allegedly not applying proper 103 rejections or obviousness-type double patenting rejections in the PTO.

        1. 14.3.2.1

          Of what you say were true, then why we do have this and not what you say?

          Serious question.

          I have seen exactly ZERO Congressmen express your viewpoint.

  3. 13

    George Carlin filter…

    … awaiting moderation.

    June 16, 2022 at 8:56 am

    OT – but 6, are you buying massively “in the low,” or are you still waiting for a b0tt0m.

    1. 13.1

      Wish I had more cash to drop but yeah I’ll be dropping a good bit here shortly. If we see another massive drop time to put some small low interest leverage on it imo (one firm has 1% interest, easy for any examiner or attorney not lifestyle expensed up to make payments on 10-20k or so).

      1. 13.1.1

        Did you escape from the Bitcoin pyramid implosion?

  4. 12

    To me when comments are turned off on a post, it means that the contents of the post are usually indefensible. The writers cannot defend their positions or their circumstances and their only defense is to claim that their critics are extremists or uncivilized.

    1. 12.1

      I tend to agree with you. As the writer(s), if you are going to post an article in a blog, then anticipate comments. As the writer(s), you don’t have to respond to any of them, but turning off the comments shows you to be incredibly overly-sensitive to criticism.

      Personally, I was looking forward to commenting on the article as it was an interesting piece of research. As I have commented many times before, it is the Federal Circuit that is the outlier — not the EDTex or WDTex. This is quote from the Department of Justice’s website (link omitted to avoid comment purgatory):
      Mandamus is an extraordinary remedy, which should only be used in exceptional circumstances of peculiar emergency or public importance. LaBuy v. Howes Leather Co., 352 U.S. 249 (1957); United States v. McGarr, 461 F.2d 1 (7th Cir. 1972).

      As described in a Patently-O article from November 10, 2020:
      Writ of mandamus is “an extraordinary remedy available [only] to correct a clear abuse of discretion or usurpation of judicial power.” Slip. Op. Note here that the standard of “clear abuse of discretion” goes beyond ordinary “abuse of discretion.” As Judge Moore wrote in dissent: “there is no more deferential standard of review than clear abuse of discretion.”

      The Federal Circuit is not giving deference to the judge’s findings in these cases. Rather, they are re-interpreting the facts to their own liking, which quite frequently leads to mandamus being granted. The article notes that “In the regional circuits, mandamus decisions on transfer of venue are almost nonexistent. (From 2019 through 2021, there was only one, total.)” This is a direct result of the proper standard being applied. A very highly-deferential standard is intended to discourage these types of petitions. Otherwise, appellate courts would be hearing these petitions all the time. However, the Federal Circuit has a clear pro-Big Tech (which is pro-infringer) agenda, which leads to many of these cases being transferred to places like NDCal, which is also very pro-Big Tech (and pro-infringer as a result).

      However, I have a problem with this part of the article:
      What should be done to alleviate these concerns? For starters, the Federal Circuit should reconsider its needlessly complex, unpredictable—and arguably meaningless—choice of law regime. (We tend to think that most lawyers and judges treat the Federal Circuit’s § 1404(a) mandamus decisions as binding, even if they are not as a matter of formal doctrine.) Instead, the Federal Circuit should simply apply its own precedent to all federal issues that arise in patent cases.
      In matters not dealing specifically with patent law (i.e., procedural matters), the Federal Circuit must apply the law of the Circuit Court. This is very basic stuff. The Federal Circuit is a patent court and they defer to the Circuit Courts on non-patent matters.

      1. 12.1.1

        I have a problem with this part of the article:… the Federal Circuit should simply apply its own precedent to all federal issues that arise in patent cases.

        Agreed. The existing rule—that matters not particular to patent law are governed by regional circuit law—is a good one. There is no reason why a district judge should have to keep two separate standards in mind—one for patent cases and one for everything else—when deciding (e.g.) when witness may be treated as hostile, or when Rule 11 should be invoked (etc).

    2. 12.2

      The thread in question makes much ado about nothing. As they note, the mandamuses in question are actually being decided according to CA5 law anyway, so the fact that few of the CAFC orders are precedential scarcely matters. Even the “precedential” CAFC opinions would be swept away in an instant if the CA5 were to reconsider its standards en banc.

      Meanwhile, if the complaint is that there is a shortage of precedential opinions, I can cheerfully agree, but there the problem is scarcely unique to mandamus questions. I think that the default rule should be that an opinion be precedential. It should require affirmative steps to make it non-precedential. The CAFC’s current rules make most opinions—nit just mandamus orders—non-precedential, and this is no way to run a common-law justice system. If the rule you are imposing is good enough for party A, it should be good enough for parties B, C, D, etc. There can be a value in making some cases non-precedential, but those should be the exception, not (please pardon the pun) the rule.

      1. 12.2.1

        As they note, the mandamuses in question are actually being decided according to CA5 law anyway

        Huh?

        I thought that this very much was an opinion issue.

        1. 12.2.1.1

          oops on that auto-correct:

          opinion ==> open

    3. 12.3

      [W]hen comments are turned off on a post, it means that the contents of the post are usually indefensible.

      Why are you complaining? Are you not one of those who favor the downfall of 47 U.S.C. §230? This is the future that you want, no?

      If §230 goes, then the logical result is that comments sections will be shut down. If you do not like that outcome, why are you advocating for a change in law that will make such inevitable?

      1. 12.3.1

        Why are you complaining? Are you not one of those who favor the downfall of 47 U.S.C. §230? This is the future that you want, no?

        LOL – NO Greg, that is not the “future,” and it certainly does not reflect the underlying issue.

        You seem to have a very heavy bias clouding your ability to even appreciate why Section 230 would be AT issue.

        The only reason for shutting down comments in view of what “Section 230 may portend” is IF – in fact – the application of editing controls is done to promote a certain narrative.

        Actually, cutting out comments would give a VERY different message than the one that has been routinely ascribed to here (that a pre-ordained narrative is NOT being pursued).

        If one is “reduced to cutting out comments,” then this is an admission against interests. This would impugn the integrity of the blog as (let me check – yup, still there):

        America’s leading patent law source

        Why would any attorney look to a source known (or admitted) not to be objective?

        The answer to speech one does not like is NOT less speech – or more control of what speech is permitted.

      2. 12.3.2

        Greg, §230 is being abused to defame people. A neutral curation policy with 230 is fine. A biased curation policy with 230 is not.

        As an example, 230 with Musk’s public algorithm is fine.

        1. 12.3.2.1

          A neutral curation policy with 230 is fine. A biased curation policy with 230 is not.

          This is a dodge, not a response. At the end of the day, you either want to keep the liability shield of §230 in place, or you do not.

          Current market forces result in the outcome that you consider “biased.” Market forces can change, of course, but the baseline presumption has to be that the “biased” outcomes will continue indefinitely.

          So, with that in mind, should §230 remain in place or not? I say yes, but I gather that you disagree.

          If one removes the liability shield of §230, however, then you make a blog host potentially legally liable for the conduct of people who comment on that blog. The logical response to that new liability structure is to disable comments on your blog (why risk the liability exposure?).

          1. 12.3.2.1.1

            Count filtered already…. or maybe a George Carlin filter…

            Your comment is awaiting moderation.

            June 15, 2022 at 3:26 pm

            This is a dodge, not a response

            Well that is utter b0ll 0cks, Greg.

            Current market forces result in the outcome that you consider “biased.”

            No.

            Not even close.

            This has nothing to do with current market forces.

            Please open your eyes (yeah, I “get” that this may mean that you will have to recognize the level of your Liberal Left bias).

            1. 12.3.2.1.1.1

              I haven’t checked nor seen anything on it, but have you heard what’s the status of any class-actions which may have been filed around 230 and social media ? I’d reckon many dismissed for lack of standing, no show of damages or just failing to state the claim “correctly”. But I don’t know. It seems by now there should be some class, who feels aggrieved by restrictive censorcerors. H___, everybody seems to be “feeling” so much these days, why not.

              I bet if a group grasped control over enough material which shapes the biases of future generations, they could make the masses like or hate anyone they choose. Its too much power, and there is no other end path except extreme mischief unless its checked.

              1. 12.3.2.1.1.1.1

                Propaganda is – and always will be – the tool of the powerful and would-be powerful.

                This is so because propaganda works.

                It works because there are Sheeple out there.

                The Liberal Left depend on Sheeple – as real critical thinking rips the philosophy of the Liberal Left into pieces.

                1. Words are more powerful than any other weapon. And versatile as well, since their proper wielding can result in anything within the broad spectrum from love to death ! Its a higher-level course ! “Words as Weapons 688” !! Words can do magic ! I always enjoy your writings, and others of course too.

                2. Why leave it to “proper” wielding?

                  (no snark — given the level of 1984’ing in current society)

                3. Comments like “The Liberal Left depend on Sheeple” illustrate why this blog is better off with no comments.

                4. “It works because there are Sheeple out there.”

                  You’re at a beginner’s level of understanding of propaganda. But, better than nothing. Spoiler, it works because humans are humans with human psychology, even on top of some people being basically sheeple. This was discovered/confirmed around Freud’s time with the birth of the public relations industry and mainstream advertising (a huge amount of progress in growing those industries happened based on the same principles and discoveries about how humans work). Although it had been in use as long as writing and rhetoric etc. It isn’t only sheeple that are influenced by propaganda. And further, even if it was, the knock on effects of the sheeple being under propaganda has huge effects on the people “thinking rationally/critically” or whatever it is that you think is saving the other people.

                5. [T]his blog is better off with no comments.

                  Good news. You never need to read them. If you think that the experience is better without the comments, then you can simply refrain from clicking the “show comments” button, and they will remain invisible to you.

                6. First,

                  BobM – as you no doubt could already figure out how to read the blog without comments, a la Greg’s reminder, your post equates to you not wanting to read particular comments.

                  In that vein, and with all due respect, F off. Feel free to take your politically blindered (and blinkered) self elsewhere.

                  Second,

                  6, ah my friend, it is you that is the novice in regards to propaganda, as the “more advanced” view that you would share is the simpleton’s basic view — the degree of effectiveness is itself NOT universal, nor are the desired effects and thus – the dependency on a LACK of critical minds.

                  As I have already pointed out, this is covered in well-documented detail in the many hours of the Dr. James Lindsay podcasts. Clearly, you still have much to learn.

          2. 12.3.2.1.2

            Greg, it was not a dodge.

            A blog can curative without bias by implementing objective standards for content on the blog. I really don’t get why you don’t understand my position.

            I am against §230 remaining in its current form. I think it needs to be amended to protect only from defamation lawsuits when the content curation is unbiased. I think I gave you a concrete example in the other post, which did reference Fox News. But it illustrated how biased curation coupled with §230 is enabling the social media sites to defame people.

            1. 12.3.2.1.2.1

              Greg continues to gaslight (for him, there is NO presence of politics).

            2. 12.3.2.1.2.2

              §230… needs to be amended to protect only from defamation lawsuits when the content curation is unbiased.

              Uh huh, sure, “unbiased“…

              1. 12.3.2.1.2.2.1

                Uh huh, sure, Greg “I Use My Real Name” DeLassus (aka Dozens) does not read anything written by Malcolm or anon (not sure how then he know how to hyperlink to it)….

        2. 12.3.2.2

          Musk’s public algorithm is fine.

          I am doubtful that Musk’s ideas about curation will long endure even on Twitter. It is preposterous to imagine that Musk’s algorithms will extend a centimeter beyond fora that Musk directly controls. If Musk’s algorithms could achieve a more profitable operation, they would already be operational across the internet.

          1. 12.3.2.2.1

            We haven’t seen Musk’s idea implemented yet.

            In fact, what we have seen is power hungry CEOs with political bias delight in biased curation.

            My prediction: if Musk buys Twitter, Twitter will zoom in popularity and FB and Google will be in danger of losing their market share.

            Both FB and Google are at risk of losing their companies because of biased curation.

            1. 12.3.2.2.1.1

              We haven’t seen Musk’s idea implemented yet.

              Right, which proves that it will be suboptimal from a profit maximization standpoint. If it were profit-maximizing, it would already be in operation everywhere.

              [I]f Musk buys Twitter, Twitter will zoom in popularity and FB and Google will be in danger of losing their market share.

              (1) That is a big “if.” Musk is rather obviously trying to back out of the deal at this point. (2) The “unbiased” forum that you hypothesize already exists in Parler, or Truth Social, or Reddit. If this model of curation were really what people want, why are they not already abandoning Twitter in favor of those fora?

              1. 12.3.2.2.1.1.1

                >>If this model of curation were really what people want, why are they not already abandoning Twitter in favor of those fora?

                Not really fair as Parler and Truth Social are associated with right-wing politics. So I think they are tainted.

                Reddit–the user experience is far different than FB or Twitter. But Reddit does have a huge, huge, user base.

                We’ll see. I think Musk has it right. People want a transparent fair curation. I suspect that people at Google are not even aware how vulnerable they are with all the resentment they have engendered from their biased curation. FB is an easy target. Musk could swallow up FB in a couple of years.

                1. Reddit–the user experience is far different than FB or Twitter. But Reddit does have a huge, huge, user base.

                  Reddit estimates that it has 24 million unique daily active users. Twitter estimates that it has 208 million unique daily active users. Facebook estimates that it has 1.93 billion unique daily active users.

                  In other words, if you adjust the user experience of Twitter and Facebook to become more like Reddit, you can expect T & FB to shrink considerably. Twitter is not profitable even now, so shrinking it by ~80% will do nothing to improve the financials.

                  It is market forces that drive the current curation on T & FB (this is what you need to do to attract advertising). Whether these curation rules seem “biased” to you or not is largely beside the point. These are the rules that make it possible for a social network to run at a profit.

                  If you try to remove the §230 liability shield, you will mostly serve to incentivize Twitter to shut down and FB to move all of its people and property to another legal jurisdiction where U.S. courts cannot reach it. You will shrink the U.S. tech industry in the process (even as you increase the Canadian, Portuguese, Indian, etc tech industry), but you will accomplish very little else.

                2. Wow – more gaslighting (this one is shocking to be coming from an attorney – even Greg):

                  to shut down and FB to move all of its people and property to another legal jurisdiction where U.S. courts cannot reach it.

                  The only way to avoid reach when doing business in the US is to NOT DO BUSINESS in the US.

                3. Reddit–the user experience is far different than FB or Twitter. But Reddit does have a huge, huge, user base.
                  Reddit has very heavy self-moderation by volunteers (i.e., not officially part of Reddit). However, what gets lauded on one sub-Reddit could get you permanently banned in another sub-Reddit.

                  That being said, Reddit has banned certain sub-Reddits in the past. I suggest you search the phrase “reddit banned subreddits”.

                  Musk could swallow up FB in a couple of years.
                  LOL. Tesla’s most profitable quarter was last year, in which they had a Net Income of $3.3B. Facebook had a dismal last quarter as their net income was only $7.5B. Generally, Facebook is around $10B in Net Income/quarter. Tesla is in the extremely competitive automobile business and their are dozens of competitors entering the EV market now. Facebook has no real direct competitors. While they have competitors in adjacent spaces, no one else (of any substantial size) does what Facebook does.

        3. 12.3.2.3

          Greg, §230 is being abused to defame people. A neutral curation policy with 230 is fine. A biased curation policy with 230 is not.
          I’ve told you this before. Go over to Twitter right now and find MTG’s feed. Find Dan Bongino’s feed. Look at the feeds that they are re-tweeted. As I have mentioned several times to you already, Twitter is hardly some left-wing safe room.

          The 1st Amendment is in tension with defamation law, and it is why defamation law is fairly weak in this country. People don’t get booted off Twitter for being on the “right.” People get booted off Twitter for violating Twitter’s explicit policies — in particular, the policy that has gotten many kicked off is for violation of Twitter’s “Glorification of Violence” policy.

          230 with Musk’s public algorithm is fine
          LOL. Musk is one of the greatest purveyors of vaporware this country has ever seen.

          1. 12.3.2.3.1

            “Musk is one of the greatest purveyors of vaporware this country has ever seen.”

            Technically true, but gd his car company looking nice. And his rockets lead the industry in a whole lot of ways.

          2. 12.3.2.3.2

            WT, you haven’t address the substance of my argument.

            And I don’t think you understand what Musk has in mind or the possible huge upside to providing a neural forum.

            And your comments about Twitter are laughable. Notably Trump was thrown off Twitter while others who had done similar acts were not (even terrorist states were permitted to stay on Twitter) and the Hunter Laptop was forbidden on Twitter. Additionally, there have been many stories of notably people that have been shadow banned on Twitter. Etc. Twitter is off-the-scale biased in their content curation and this couple with 230 often results in defamation.

            My guess is that you are getting your news from the legacy media, which has gone fact free for some time. I’ve told this to you before but I will repeat it. Learn a lot about a few news stories. Write down in an spreadsheet the facts of the stories. And then watch as your legacy media does not report all the facts but only facts that fit their narrative.

            Musk does have a vaporware game with the fully drivable car. But I don’t think the moderation algorithms will be as difficult nor as life threatening so they are likely to get written much faster.

            The proof will be in the pudding. I’ve made my predictions.

        4. 12.3.2.4

          Down below, MM is arguing with Anon. I gather from the quote that MM gives that Anon considers it a given that Prof. C. is running the moderation policy around here with a bias against Anon. MM, meanwhile, considers that Prof. C.’s moderation policy is biased against MM. For my part, I think that Prof. C. runs a fairly content-neutral policy, with no particular bias against any viewpoint.

          These conflicting perceptions demonstrate that assessment of “bias” is subjective. There is no “bias-meter” that we can plug into an internet forum and establish that it is or is not “biased.” With that in mind, what does it even mean to say that “[a] neutral curation policy with 230 is fine. A biased curation policy with 230 is not”? “Biased” according to whom, Night Writer? Why should the law care about NW’s idiosyncratic views on “bias”?

          1. 12.3.2.4.1

            Bzzzzt – another wr0ng answer.

            I know for a fact that posted rules here are NOT followed in a neutral manner.

            That being said, I would agree that the good professor (in MOST instances) does attempt to be neutral.

            But it is abundantly clear that he is NOT universally successful on this accord, and that there IS an overall “desired narrative” that is promulgated through the editing controls.

            As for Malcolm (MM as a more recent “s0c k puppet”), it is well known that he employs a “One Bucket” approach, and that ANYTHING not extreme “Sprint-Far-Left” is placed in that bucket.

            His claim of “bias” just is NOT the same as my ‘claim’ of bias.

            But you be you, Greg (recognizing that your usual “I Use My Real Name” may be Count Filter inhibited)

          2. 12.3.2.4.2

            On second thought, maybe Greg is using “Dozens” as a thin veil to “protect” his claim that he does not read EITHER of Malcolm’s or my posts….

            (pssst Greg – no one ever believed that)

          3. 12.3.2.4.3

            Wrong! You’re biased. I’m not.

            1. 12.3.2.4.3.1

              With your comment below, I do wonder if this is an attempt by you to take a snide shot.

              Maybe you should step back and consider the ongoing interactions without your own “anti-anon” bias.

              I have posted that everyone has biases. I certainly have never said that I am bias-free.

              My bias is most definitely pro-innovation (and pro-innovation protection).

              Here, I point out that Malcolm’s bias (especially in view of his infamous “one-bucket”) is simply – but vastly – different than my bias.

              Your snide comment then is rather petty.

              But it fits you, eh?

      3. 12.3.3

        Re comments: the logical response is have one org do the publishing stuff and another provide the comment (and or blogging) “platform.”

        Or more simply, use Disqus and its clones. WordPress and its clones. BAU for almost everyone.

        1. 12.3.3.1

          Sure. Even if Profs. C & R were to disable comments on this site, there is nothing to stop people from creating a forum on some other bulletin board to discuss PatentlyO articles. The user experience would be a bit clunkier, but it would hardly be a catastrophe.

          Of course—as we can see from the present 12.X thread—the mere fact that comments were turned off on today’s posts by Prof. R does not actually stop anyone from commenting on them. The commenting merely moves elsewhere. Nevertheless, the mere fact of having to take the conversation elsewhere evidently seems to bother people, as evidenced in #12, 12.1, & 12.4.

          1. 12.3.3.1.1

            All will find, that section 230 is irrelevant when they eventually come around to the opinion I seemingly-bombastically stated a short spell back. Why ? Because, Stalin Says So. All these petty arguments, …. yawn….

            1. 12.3.3.1.1.1

              Careful of such sharp tongue in cheek (unless you are into that type of piercing).

              1. 12.3.3.1.1.1.1

                ugh, I was trying to be abstract with whatever I was claiming, and obviously failed. If you ever want to know why Myriad was wrong, just ask !

                1. LOL – not that I need it, but I am curious as to why you think Myriad was wrong.

                  (very little snark – I really would be interested in your viewpoint)

          2. 12.3.3.1.2

            That would be something like Dissenter (RIP?). Disqus and WordPress, OTOH, are thoroughly mainstream.

        2. 12.3.3.2

          OC,

          Or more simply, use Disqus and its clones. WordPress and its clones.

          Will not get you there, as I will tell you from direct experience here on this blog, these t001s will NOT help you avoid non-consistent application of forum rules in order to shape a preferred narrative.

          1. 12.3.3.2.1

            “these t001s will NOT help you avoid non-consistent application of forum rules in order to shape a preferred narrative”

            The “narrative” is that this place is mostly filled with glibertarian w a n K e r s with the legal reasoning skills of a typical Ferderalist Society snail mucous inhaler.

            The good news for you, Billy, is that “narrative” isn’t likely to change given the blog’s sponsors and Dennis’ own strange predilections.

            1. 12.3.3.2.1.1

              Translation:

              “Wah, that anon guy always wrecks my feelings-based arguments, and if ‘The Narrative,’ would be properly employed according to the fastest-sprint-left guidelines, anon would not be allowed to wreck me like he does.”

              1. 12.3.3.2.1.1.1

                This is one of your funniest post ever. In case you are confused, I am laughing at you–not with you.

                1. Lol / you mistake my disdain for you and your ability to choose to “jump in” at the most odd times with some confusion on my part.

                  Here, for example, your laughing AT me is most odd.

                  It is beyond clear that Malcolm and his emoting simply do not hold a candle to my retorts, and yet for whatever reason YOU feel compelled to jump in.

                  Laugh away my friend — that is your every right to do so.

                  Just don’t YOU confuse your choice of laughter as any indication that your feelings reflect reality.

    4. 12.4

      I agree that closing comments is a bad look, but it’s a bit rich for one of the posters who spurred such closures to be complaining about them.

      1. 12.4.1

        Ben,

        Just who are you suggesting to be “one of the posters who spurred such closures“?

        Do you have a link to this supposed ‘spurring?’

      2. 12.4.2

        “spurred such closures”

        You mean by doing things like calling out posts on ethics as being hypocritical when the biggest ethical problem in law right now is corruption where law professors and others are taking money from big corporations and then producing content as if it is academic content?

        Or do you mean me calling Lemley for academic dishonesty in publishing papers with obvious untruths that were calculated to enhance his political positions against patents?

        1. 12.4.2.1

          No, I meant calling out posts of uncommented data as being unethical. It seemed to me there was an increase in closed threads starting with that event.

          Though if you want to dig deeper, I suppose your accusations of judges having mental problems or insinuations of other posters harming children are also reasons why a guest poster would ask for comments to be disabled! No one wants to give a speech at the Zoo when the chimpanzees are within throwing distance.

          1. 12.4.2.1.1

            No, I meant calling out posts of uncommented data as being unethical.

            You — rather badly — miss the point.

          2. 12.4.2.1.2

            Ben, again misrepresenting what I’ve commented and trying to smear me with “child harm” comments.

            Typical nonsense from you.

            1. 12.4.2.1.2.1

              Is it ig n0r ance or malice?

            2. 12.4.2.1.2.2

              Lucky you that Crouch deletes your worst comments, eh?

              Maybe he’d step in and settle this if you asked him to do so.

              1. 12.4.2.1.2.2.1

                Deletes my “worst comments”? Cute again where you are implying that “worst comments” are deleted because they aren’t true rather than because they offend the judges or posters of some of the content.

                That’s right. Some of the things going on are serious. Some of the posts violate academic integrity codes of the universities where the professors work. The judges on the CAFC are terrible where they are more concerned with reducing the patent right than creating a workable body of case law.

                So, my comments do go to the heart of extreme behavior of some in the patent world. And, as such, offend the ones that my comments are directed to.

                That has nothing to do with he veracity of my comments.

              2. 12.4.2.1.2.2.2

                So again as typical of your strategy. You are make you typical disruptive retreat where you lose arguments but attempt to smear me in the process and to confuse anyone that may be coming along for the ride.

                What a nasty little man you are Ben. And little in the sense that your concerns are not with the greater good or finding truth but in pushing an anti-patent agenda.

              3. 12.4.2.1.2.2.3

                As a final point, what a nasty person you are for trying to smear me with “child harm”. You know very well that the anti-patent forces on here have accused me of felonies with zero evidence of “child harm”. You know very well that I had to push it to the point of actually writing a defamation complaint against two of the posters on here for the 100 percent unfounded defamatory comments against me to stop.

                You have no ethics.

                1. I’ll just note that none of these replies asked Crouch to speak up on whether he had ever deleted posts containing such insinuations.

                2. I’d say you actual epitomize the problem. You constantly throw around accusations against me with no consequence. You applaud and encourage open defamation against me. Per se defamation actually with statutory damages in some states.

                  And the game is to just discredit me with no consequence for false statements. 230 has definitely been part of creating this atmosphere.

              4. 12.4.2.1.2.2.4

                Lucky you

                I am reminded of the sequence starting at about 2:28 of this Shawshank Redemption clip:

                link to youtu.be

  5. 11

    When reporting the OA to the client, specify the date you want their instructions. The client will presumptively pay the fee if they don’t respond by that date. HOWEVER, be flexible and whenever possible, don’t take an extension if you don’t really need one.

  6. 10

    OT, but American Axel was denied cert. This does not surprise me as there are so many oddities around this case.

    1. 10.1

      Maybe the Court did not like the government’s brief?

    2. 10.2

      You are mistaken. The case has been distributed for conference next week. No decision has been taken yet.

      link to supremecourt.gov

      1. 10.2.1

        This case is just begging for Cert. with all the Amici. Its a little exciting to see so much opining. I ask myself whether the current claims define that which is abstract or not, and also…… how could I write a claim to that invention so it is absolutely unequivocally non-abstract. Mental calisthenics. I bet they grant Cert., another opportunity as this doesn’t seem likely to come around for a while.

        1. 10.2.1.1

          Ariosa v. Sequenom was the perfect vehicle for the SCOTUS to rein in the worst post-Mayo/Myriad/Alice excesses. There were many, many amici for that case as well, but the SCOTUS took a pass. If they can pass on that case, they can pass on this one as well.

          American Axle divides my head from my heart. My heart wants to believe that American Axle will be the Diehr to Mayo’s Flook. My head, however, knows that no good comes from the SCOTUS involving itself in patent law (if I had my way, I would amend Title 28 to remove the CAFC from the SCOTUS’ certiorari jurisdiction).

        2. 10.2.1.2

          Yu v. Apple was the better vehicle as the technology was more easily understood. However, the parties of Yu v. Apple made it a terrible vehicle for clarifying the law.

          I bet they grant Cert., another opportunity as this doesn’t seem likely to come around for a while.
          If they don’t grant Cert, there will be plenty of opportunities in the future, as the Federal Circuit will be further emboldened to kill patents deeper in the electrical/mechanical fields.

      2. 10.2.2

        Looks like you are right Greg. Sorry about that. Bad information.

        1. 10.2.2.1

          I almost made the same mistake this morning. Law360’s headline (“The U.S. Supreme Court on Monday quietly rejected yet another petition that attempted to staple a patent eligibility loss to the widely watched American Axle case”) surprised me. If you actually read the article, however, you will see that they were talking about Ameranth v. Olo, not American Axle v. Neapco.

      3. 10.2.3

        Yes, and since you brought up the long pending American Axle cert petition which might finally get decided this month, note that the opposing-party Neapco filed a supplemental brief responding to the Solicitor General’s arguments. Neapco reportedly argued, inter alia, that the Solicitor General’s recommended question to decide was a question not even addressed in the Federal Circuit decision being appealed from since the Federal Circuit panel majority explicitly addressed only the “natural-law” exception and remanded the undecided “abstract” question back to the district court. [These are different “unpatentable subject matter” grounds based on different prior Sup. Ct. decisions, and an argument against granting cert.]

        1. 10.2.3.1

          Interesting point. I saw on the docket that Neapco had filed a response, but I confess that I did not read it. That does seem a worthy point for the SCOTUS to consider when weighing whether to grant cert. As NW notes above, there are all sorts of weird points that should weigh against the Court taking cert. on this one.

        2. 10.2.3.2

          As Greg (and many others) have noted, this is just not the best case — unless of course the Court chooses this case to wield the Kavanaugh Scissors (as such, the Gordian Knot could be cut without messing with the messy particulars.

        3. 10.2.3.3

          Interesting Paul.

        4. 10.2.3.4

          But of course we all know whatever the issues were below, the Scotus will feel quite comfortable doing whatever the F they please. Making any fact finding that suits them. Resolving any issue that suits them.

          It will be quite a wild show if they take American Axel.

          1. 10.2.3.4.1

            Possibly, they’re clear up uncertainties surrounding this “natural law” topic.

            My new hand-held flashlight invention….. it uses the Nernst equation, gravity, the Gibbs expression, Ohms Law, Kirchoff’s loop law, and more. Are those laws “natural” ? 300 years ago, Hooke’s law was unknown….

            Just figure, what needs to be done to further devaluate IP rights, and chances are good, that the course taken will operare along the lines of such an outcome – its been the trend for a while, and nothing is probably going to change it.

            Statistics are good, one can say with about a 96% certainty, that cert will not be granted in any given case considered ! I can be correct 95+% of the time, by predicting “no, they won’t grant on this one” !!

  7. 9

    Is the new director filling up executive spots with her appointees?

    1. 9.1

      Probably get a much better idea what to expect from her based on any new hires.

  8. 8

    The government should pay it, or greatly reduce these senseless “late fees” b/c they wrecked the currency, as the “founders” warned. Why, it seems like only yesterday the filing fee for a US utility case was just….. $65 back in 1980.

    When does “inflation” become hyper ? Wait and see !!

  9. 7

    I don’t get the question. If the client is at fault, the client pays; if the attorney is at fault, the attorney pays.

    If what you want to know is, “Are there lawyers who pass this cost on to the client even when the lawyer is at fault?”, then that’s the question you should have asked.

    Yet more proof (as if any more was needed) that academics are out of touch with reality. But it explains why this blog has so little in the way of practical information on it.

  10. 6

    Agree with all the comments to date.

  11. 5

    In addition to the fee, you can loose patent term extension. Even if the firm can eat the extension fee, it cannot give the patent term back. For this reason, I think the law firm is very rarely the cause of the delay, the client requests the delay, and the client pays the fee.

    1. 5.1

      No, you can’t lose patent term extension for taking extensions of time. You can lose patent term *adjustment* for taking extensions of time. Compare 35 USC 154 to 35 USC 156.

      1. 5.1.1

        Some people see the adjustment as their god given all natty entitlement rights.

        1. 5.1.1.1

          OTOH, a pending application can be more valuable than an issued patent… at least for a client with limited budgets.

          1. 5.1.1.1.1

            Great point OC – but I think that 6 only wanted to be able to use his “entitlement” line in his typical derogatory manner towards patent applicants (forgetting as he so often chooses to do that a Quid Pro Quo is in place, which distinguishes patents from other forms of government entitlements — he likes to twist the phrase “an applicant is entitled to”).

  12. 4

    For whatever an in-house perspective is worth, I agree that if the client is dilatory in getting back to the outside-counsel, then a reasonable client should expect to pay the extension fees. If the client is not reasonable on such points, an outside counsel is better off without such a client.

    Back when I had outside counsel, however, I never gave them instructions with anything less than two-weeks to go before a due date. With that sort of lead time, I expected that responses on my cases would be filed by the due date. I care at least as much about the effect on PTA as I care about the fees.

    If an outside counsel thinks “I can take as many extensions as I like so long as I swallow the fees,” that outside counsel will not long work on my cases. I have fired outside counsel for a track record of taking extensions without my prior approval.

    1. 4.1

      Put another way, it should almost always be the client paying the extension fees, because it should almost always be the client who is reason why extensions are necessary.

    2. 4.2

      > I have fired outside counsel for a track record of taking extensions without my prior approval.

      TBH, we’re generally OK with extensions as long as counsel pays. Or at least, we recognize we pay below market average, and if we want competent counsel, need to be somewhat accommodating here.

  13. 3

    How is this hard? If the client fails to respond to reasonable requests to provide feedback or instructions (and has been informed this may result in extension of time fees), fees should be squarely on the client’s shoulders. Otherwise the attorney eats it.

  14. 2

    If a client sends instructions say the day before the three month from office action date, such as extensive changes to my draft response , then if I cannot get it filed the next day due to having to make those changes and/or others cases on my docket for that date that need my effort, then the client will be charged for the EOT. But I will try my darndest to get it filed the next day if at all possible.

  15. 1

    Here is my question: How do you decide who pays the fees?
    My delay, I pay the fee. Client’s delay, client pays the fee.

    That being said, I haven’t had to pay an extension fee for a large entity (the vast, vast majority of my work) in a very long time (probably going on a decade).

    That being said, I knew an attorney who was on the hook for paying extension fees in the order of many tens of thousands of dollars over the course of a year.

    1. 1.1

      +1

    2. 1.2

      … I would add that this arrangement is in writing, acknowledged by the client.

    3. 1.3

      +1 but I do have some late fees.

      I think one situation that comes up for me is that the client overloads me with applications (like here are 5-15 applications we need done tomorrow) and then the office actions are done one month late and I end up eating the late fee.

      1. 1.3.1

        Certainly, I can “give space” to how one manages their own sets of clients (eating fees that the client really should pay), and for some clients, this might be considered as type of “loss leader,” but I would definitely aim to make this the exception rather than the rule.

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