Patently-O Bits and Bytes by Juvan Bonni

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

1. 4

   A junior patent examiner has approx 38 hours to process a case from start to finish. Many patent attorneys do not have that much time to draft a case, and drafting is a time-consuming process.
2. 3

   “not appreciating the lack of adequate time, tools, resources and incentives for PTO examiners”

   Article: “To some extent, this is understandable. Examiners only have a few hours to review each application, and they can hardly be expected to run complex experiments to check the applicants’ claims.”

   While they clearly “appreciate” (recognize) the time constraints, they probably do not “appreciate” (being grateful for) the time constraints the way that patent prosecutors do.
   1. 3.1

      This was supposed to reply to #1.
   2. 3.2

      >>they probably do not “appreciate” (being grateful for) the time constraints the way that patent prosecutors do.

      Another canard pushed by the anti-patent people. Quality attorneys that do patent prosecution want great prosecution. The higher the quality the prosecution is the more valuable their work is.

      Patent prosecution where claims are allowed randomly means provides a quality patent prosecutor little opportunity to add value. (As well as all the policy issues of wanting only quality claims to be allowed. Notice too that the anti-patent propogandist imputes no values on the patent prosecutor.)
      1. 3.2.1

         Time constraints affect things other than prosecution quality. A meaningful increase in examiner time would require a meaningful increase in fees. Even the most virtuous prosecutor appreciates lower PTO fees.
3. 2

   The Nazer article seems to be nothing more than his lay opinion that the patent system is broken because the PTO lacks the resources needed to determine, ex parte, whether the disclosure content of a patent application in the chem/bio space is enabling. It has been clear since the dawn of time, for anybody who knows anything at all about patent law, that every PTO in the entire world labours ineluctably and inevitably under this handicap. Nevertheless, some jurisdictions do succeed in maintaining a functional and useful patent system that succeeds in promoting the progress of the useful arts, by setting up opportunities for inter partes review which are fit for purpose.

   I regret that Nazer missed an opportunity to question the extent to which the “C+C” presumption of validity promotes technological progress.
   1. 2.1

      Thank you for your bug-a-boo on the C&C item, a rather worn-out hobby horse of yours.

      Please consider the thousands of instances of presented counter-points as having been presented to you yet again.

      (and thank you in advance for respecting the Sovereign choice that has been part and parcel of the STRONG US patent system)
      1. 2.1.1

         You again urge that the US patent system is uniquely STRONG. I wonder though, how many patent practitioners besides you consider that the notion of an inter partes review of what the PTO issues is one that inherently adversely impacts a patent system that is STRONG.
         1. 2.1.1.1

            The strength is not the IPR.

            Clearly.

            It is the important stick in the bundle of property rights of the presence and level of the presumption of validity.

            And rest assured, there are many that feel this way (even the Court – see i4i).
   2. 2.2

      Nazer is a lawyer
      1. 2.2.1

         …advocating for the Efficient InFringer Front….

         
4. 1

   “Theranos: How a broken patent system sustained its decade-long deception” asserts that “the patent system also played an important, and often overlooked, role in the situation. The USPTO gave out patents much too easily, giving Theranos early credibility it didn’t deserve. Theranos then used these patents to attract staff, investors, and business partners. The company would last for 10+ years and burn through half a billion dollars before the truth finally emerged.” Further arguing in this article that the PTO failed to challenge “utility” – as to whether the devices being patented would actually work.
   If this was really a major motive or excuse for the massive lack of due diligence in this giant “sucker list” it evidences a serious lack of education among those groups as to what patent application examination, especially of medical devices, normally consists of. Essentially, it is confusing the functions of the FDA with those of the PTO. Plus, confusing enablement tests with utility tests, and not appreciating the lack of adequate time, tools, resources and incentives for PTO examiners to challenge ex parte assertions made within or about patent applications on those two topics. The article admits the PTO did a good job of examining for and applying prior art.
   1. 1.1

      So what you’re saying is that the people who write for Ars Technica don’t know sh!t about patents. Or anything else.
      1. 1.1.1

         No such generalization made, and the issue is INVESTOR patent sophistication.
         Also, did you note that this article is labeled “Op-ed” and the author is listed as “DANIEL NAZER, EFF.” Is that the “EFF” I think it is?
         1. 1.1.1.1

            Paul,

            The concluding line of the article give it away:

            “Daniel Nazer is a senior staff attorney and Mark Cuban Chair to Eliminate Stupid Patents at the Electronic Frontier Foundation. This op-ed does not necessarily represent the views of Ars Technica.”

            It’s a “double-down” of consider the source.
         2. 1.1.1.2

            Original reply caught in the George Carlin “Bad Words” filter…

            Paul,

            Your question is answered if you go to page 2 of the article, as the article concludes with the provisio of:

            “Daniel Nazer is a senior staff attorney and Mark Cuban Chair to Eliminate St u p1d Patents at the Electronic Frontier Foundation. This op-ed does not necessarily represent the views of Ars Technica.”

            I love the “not necessarily” caveat, as this is clearly a double down of anti-patent rhetoric.

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