Materials from Tafas/GSK v. Dudas: Challenging the PTO's new Rules

Documents:

• Supporting Preliminary Injunction and Restraining Order against PTO:
• File Attachment: GSK Amended Complaint.pdf (132 KB)
• File Attachment: GSK Brief Supporting a Preliminary Injunction and TRO.pdf (106 KB)
• File Attachment: GSK Reply Supporting PI.pdf (76 KB)
• File Attachment: Tafas Support For PI.pdf (34 KB) 
• File Attachment: AIPLA Supporting PI.pdf (157 KB)
• File Attachment: Elan Supporting PI.pdf (74 KB) 
• File Attachment: Hexas Supporting PI.pdf
• File Attachment: PhRMA Supporting PI.pdf
• File Attachment: BIO Supporting PI.pdf
• File Attachment: Sen. Schumer Asking PTO to Back Down (1376 KB)

• Opposing Preliminary Injunction and Restraining Order:
• File Attachment: USPTO Opposition to GSK Motion for TRO-Injunction.pdf (228 KB)
• File Attachment: PTO Oppose AIPLA.pdf (75 KB)
• Declarations:
• File Attachment: Helfgott Declaration.pdf (461 KB)
• File Attachment: Hetz Declaration.pdf (340 KB)
• File Attachment: Magen Declaration.pdf (376 KB)
• File Attachment: Kappos Declaration.pdf (77 KB)
• File Attachment: Manbeck Declaration.pdf (776 KB)
• File Attachment: pto.motiontostrike.manbeck.dec.pdf (71 KB)
• File Attachment: gsk.motion.oppose.strike.manbeck.pdf (50 KB)
• File Attachment: pto.rebuttal.brief.manbeck.declaration.pdf (82 KB)
• Other:
• Analysis proving that the rules have no significant economic impact
• Zura
• Quinn
• PatentDocs

Comments

[Malcolm Mooney]

"Actually, the Schumer letter does refer to the "representative claims" concept that was in the 06 rules but not in the Aug 21 rules in a later paragraph, so it is slighly inconsistent."

I noticed that as well. But it surely wasn't worth raising in an attempt to discredit the Senator's letter. Then again, when you ain't got nothin' ....

[me]

Ummm, I guess it depends on how broadly you read "understanding". Ever been an Associate who wants to bill 2200? It is read narrowly, very narrowly. Basically, you pick up a deep pocketed client family and then figue out how the rules apply to it while learning the rules. And then you bill it and your partner is very happy. Sorry Malcolm, quotes too complex for you tonight?

[real anonymous]

"Actually, the Schumer letter does refer to the "representative claims" concept that was in the 06 rules but not in the Aug 21 rules in a later paragraph, so it is slighly inconsistent."

So perhaps Senator Schumer assumed the final rules would follow the proposed rules, because otherwise they would have needed an additional comment period (which they did not have). Yes Senator Schumer, that's a good argument against the rules too, I think.

[me]

Malcolm-

Wish you could have been there. She was a litigator from the school that argues every point, no matter how weak, and it really hurt her credibility.

[me]

Real Anon-

There was also a long talk from the PTO about how these August 21, 07 were a logical extension of the Jan. 06 rules. GSK dealt with it by saying that that was wrong, and they would detail it to the court in their winning summary judgement argument.

[Malcolm Mooney]

"Ever been an Associate who wants to bill 2200?"

No. In fact. I've never met a prosecution associate who billed that much that wasn't a jerk or a liar or both.

[me]

Not a jerk or a liar myself, but I think you get alot of readers to agree that you are, both.

You are old then Malcolm, all Associates today need to bill 2000 plus if at a good firm, and 2200 or more to make non-equity. Is this good for the prfession? I think not, but...

Note, I did hope to sit next to you today - your ascerbic wit would have been hilarious in real time.

[me]

Oh - and I did both prep and pros AND litigation. I think it the only way to be a truly good patent attorney.

[Malcolm Mooney]

"all Associates today need to bill 2000 plus if at a good firm, and 2200 or more to make non-equity."

Please don't stop sharing your fascinating secrets for becoming one of the exalted members of the "non-equity" elite at a "good firm." I mean, that's the meaning of existence for many young associates.

Are you sure there are no other techniques for succeeding? What about endless ingratiating or brown-nosing or outright treachery? Have you ever known any associate to successfully employ such methods on his/her way to "the top"?

[reaches for notepad]

I'm all ears, friend. Spill.

[me]

Not very detail oriented are you old man? I am in house and didn't like the competitive nature of the battle. You sure can't handle it, but you sure can dish out. That is a true sign of a partner who has been there too long - you get used to your BS being taken as meaningful truth.

I also never lied about anything, but you can go research it. I am sure an old guy like you has little else to do.

Have fun with that notepad - today the true intelligents are into computers.

[me]

The secret is...

call Brad Winters and get the 48 Rules...

[Jeff Spangler]

THE ORDER GRANTING THE PI AND JUDGE CACHERIS'S OPINION ARE POSTED ON THE HOME PAGE OF MY WEBSITE AT JeffreySpangler.com .

[me]

Thanks Jeff!

They are also at www.patentdocs.us

[JohnDarling]

Take it easy on Ms. Wetzler from DOJ. She had a pile of dog poo dumped on her desk and was told to convince the judge it was a rose bush.

[me]

I certainly would agree that she was given dog poo. Short of that, she was not prepared! If I am asked to argue an area of law I do not know in an incredibly visible case, I view it as an opportunity. She seemed to view it as burden. And she said that over and over agsin.

The bigger question is how to get the gov to admit there whole scheme is illegal, and requires a real review by good outside attorneys. How they did not know they were screwed before they entered court says something....

I was there! How did the PTO send the DOJ to the lions? What were they thinking? Do they have ANYONE with outside expereience?

[JohnDarling]

Me,

I was there too. The PTO has very few people with outside experience. I think I know just about all of them. And they're all too smart to argue for the legality of the new rules.

A lot has been made of the PTO not getting a "patent attorney" to argue on its behalf. Why? Who could they have possibly gotten to argue that case? There isn't a single person with a registration number, or one who used to have one and gave it up for the easy life at the PTO, who could have turned that dog case into a winner.

JD

[anon]

I attended the talk that the Whelan clips are taken from. During the talk he unashamedly stated he had never prosecuted a patent before the PTO himself. Yet another example of folks in high level positions within the PTO without patent prosecution experience.

[me]

John-

I agree for folks on the outside, but don't all these folks inside get a number for just showing up for a few years? Are not the folks like Rolla and Doll inside career folks? It might explain the idiocy, and first year arguments, made today.

[me]

Thanks John - amazing how little experience the PTO has with patent law.

[Jeff Spangler]

This case seems to reinforce why the PTO should be led by registered and experienced patent practitioners like Todd Dickinson, not copyright guys like Lehman or Hill staffers like Dudas. The Bushies and the career hacks had their heads handed to them today, and need another dose with the IDS rules. Who will step up to that challenge?

[anonbiotech]

Jeff:

I think the folks over at FEMA might be up to the challege. I can predict their strategy: Instead of having a real press conference - oops, I meant hearing - they can recruit PTO lackeys to act out the parts of PTO and GSK attorneys, and the judge. The arguments will be scripted and the opinion pre-drafted to ensure that no one makes a mistake. Sound like a plan?