Tafas v. Dudas: Challenging PTO Rules Potential Feburary 8th Decision

The challenge against the USPTO’s implementation of its new continuation and claim rules continues into its seventh month. On Friday, February 8, Judge Cacheris is hosting oral arguments on the competing motions for summary judgment.  Previously in this case, Judge Cacheris indicated his holding from the bench — this case may be no different.  

As I have mentioned before, at best, this case is a likely partial-winner for Tafas. The patentee’s two best arguments are (1) the illegality of strictly limiting the number of continuations and (2) retroactivity problems.  Two additional arguments are also potential winners: (3) that the ESD requirements are vague (not just costly) and (4) that the PTO followed improper procedures in implementing the rules.

Even if the rule challengers win, the PTO would still be able to implement portions of the new rule that limit the number of claims in newly filed applications.  However, the court could potentially require that notice-and-comment process be entirely redone — thus changing the timing.

• Docket & Briefs on Justia
• Polestar Amicus is particularly interesting [as discussed by PatentHawk]
• PLI’s Quinn will be blogging from the event.
• Regarding Paragraph two above, I also predicted the Patriot’s to win. . .
• One argument against the possibility of ‘splitting’ the rules is that no party has asked for that rule — both sides are going all or nothing.
• It is also interesting to consider why none of the plaintiffs or amici have been able to pursuade the Senate to include limits on PTO power in the proposed Patent Reform Act of 2007.

Comments

[M. Slonecker]

Many of the comments exchanged between practitioners and agents in threads such as this one are truly disheartening. For any number of reasons some examiners view practitioners with a jaundiced eye, suggesting things ranging from the deliberate withholding of material information to the abusive use of continuations. In contrast, some practitioners view examiners likewise with a jaundiced eye, suggesting things ranging from a bias against applicants to a deliberate abuse of the examination process in order to collect internal credits important in evaluations of their performance by their supervisors.

As long as a dialogue continues along the above lines it is clear that nothing meaningful will result in educating one another about their respective roles within the "patent system/process". Worse however, at least in my estimation, is that "buzzwords" will continue to fly back and forth without either side having agreed on just what those "buzzwords" mean and how they apply to the roles of practitioners and examiners alike.

How nice it would be to cast aspersions aside and focus solely on areas of agreement and disagreement so that meaningful discourse can occur that is relevant to pereceived problems with the system now in place and what can/might be done to address such problems in a cooperative and mutually beneficial manner. Merely by way of example, it is clear that there is a significant disconnect in understanding by examiners of what practitoners must do to avoid charges of inequitable conduct, discipline by the USPTO, etc. Conversely, there is a disconnect in understanding by practitioners what it is examiners are required to do in order to identify relevant prior art, as well as details about the tools they must use, precisely how those tools are used, etc.

I believe we all share a common goal, and that goal is grounded in the constitutional provision pertaining to the useful arts. Achieving that goal, however, is well nigh impossible so long as the two sides continue to avoid a constructive dialogue by each pulling on opposite ends of a rope.

In the immortal words of Rodney King, "Can't we all just learn to quit beating each other to a pulp?"

[anonymous but deadly]

M. Slonecker, it is more like both ends of the rope burning. It is only a matter of time when this one blows up.

I have given up. I choose to stay on the sidelines wait this out.

We need Obama to win and magically make all our problems go away. And, of course, to execute the evildoers :)

[M. Slonecker]

If there is a blow up, it will occur primarily because of the largely one-sided presentation made to members of the cognizant congressional committees. The Patent Deform Act (have I tipped my hand?) now on the table has in large part arisen from the perception held by those unfamiliar with the process that has been cultivated by "agents of deform", eg., some in academia totally removed from the process, large businesses (aka...campaign contributors) annoyed with these troublesome pieces of papers called "patents", and other special interest groups who stand to significantly benefit from such deformation. The ones who stand to lose the most are inventors, and particularly those who are rapidly being priced out of the market by the continuing rise in office fees.

I read last night an interesting article in the most recent ABA Journal concerning how the patent system is changing. Its most important point in my view is that the system is changing under judicial guidance in a direction, whether for good or bad being debatable, that calls into serious question if so-called reform is even needed for the vast majority of perceived problems with the system. An important lesson I learned many years ago is that most things have a way of resolving themselves if only you resist the urge to jump into the fray and do something...anything. I believe that lesson applies in this situation with equal force.

[T]

examiner#6k - Still waiting for the reply you promised on 2/10 for the post I made on 2/9.

[T]

examiner#6k - ooops that should read: Still waiting for the reply you promised on 2/9 for the post I made on 2/8.

[MaxDrei]

Well, I do so agree with M Slonecker, that the judges are the custodians of the system and, if they do their job properly, that can sweep away most of the ills that the system suffers today. Trouble is, the higher court judges manifestly lack any practical experience of patent disputes, and any real life understanding of core concepts like "disclosed" or "obvious". In the land of Binding Precedent, they know they are the pilots of the ship, they know how to steer the ship, but they don't know where the treacherous shallow shoals lurk. That's bad luck for the paid crew and the paying passengers, who end up fighting with each other.

[Mark Pitchford]

Examiner 6k,

Just a little FYI to help you understand why 40% of your docket has no initial IDS. That's not how industry works. These guys don't go out looking for references, reading articles, and then figure out how to alter the teachings to acheive their goals. It's quite the opposite.

They never read anything really, unless they're having trouble. That is, they identify a problem and a goal. They then set off to solve the problem. It starts with brain storming, some trial and error, and then they develop a final specification or prototype for the solution. If they're having trouble getting started in the brain storming part, they may look and see what others have done. That's the last time they look at anyone else's work. When they have a solution, the project manager then says, "Hey, I wonder if there is any patent protection available here." They send a disclosure/summary to the corporate counsel, and he sends it to outside counsel. Outside counsel writes up an application and files it. That's it. In probably 99% of your cases, there was no search. The 60% of cases with IDS's are because a couple of the inventors said, "Hey, this one article I once read might be relevant." So the outside counsel files an IDS with the article.

Understanding the reality of the situation might help you understand why your assertion that we're all just hiding the most relevant art is patenty false. We never get the art because no one has looked for it.

If there is a search, outside counsel commissions it, and will file an IDS with all of the search results. Those are the ones with over 3 references in the IDS.

[Mark Pitchford]

Examiner 6k and VA

You guys have a misunderstanding that your contentious wording is just exaggerating.

Doll's quality = reject, reject, reject philosophy is not bad in and of itself, it's the collateral damage that makes it bad.

Getting a first OA with some 112 issues (a' and the's), maybe a 101 on a computer readable STORAGE medium, and a 102 rejection that's really just looking for you to better link your elements isn't bad. Practicioners take those for what they are, an honest office action. The problem comes when you fix all of those issues, and now 102 doesn't teach everything embodied in the claims.

At this point, the Examiner should either allow, or put forth a 103 with a valid argument. The problem is that counts and time don't allow that. He can't go find that other reference and make that argument, so he holds to the 102 rejection which is now, in light of the amendments, just a bad/weak rejection. So, now the practicioner is looking at a final with a bad rejection and both parties know it's weak.

So at this point, reject reject reject has left the practicioner with two options, argue and appeal (which will usually reopen prosecution), or amend, even though you don't think you should, and file an RCE. The problem is that the amend and RCE will put you right back in the same situation with a good first OA, and a bad second. However, it's generally cheaper and the clients prefer to go a little narrower than necessary so we go with the RCE.

These new rules will continue to give us bad second actions because that underlying problem (counts and add'l searching basically not allowed) has not been addressed. They will also take away the RCE from us. That's my problem with them. They don't accomplish their "intended" goals.

Why enact something that won't accomplish the stated purpose, but only damage the existing system? (It will increase appeals and backlog, because we'll have to do that instead of filing an RCE in order to preserve the RCE.)

[Veteran Attorney]

"Doll's quality = reject, reject, reject philosophy is not bad in and of itself"

Yes it is.

[Mark Pitchford]

I disagree. Trial by fire generally produces the strongest metal (in the iron age anyway). I think at least one rejection is probably good to establish some dialogue and meaning. I think the philosophy quickly turns bad when your amendments are refused because "further searching is required" (but never done). That, and the examiner issues a final rejection despite the fact that the examiner's arguments can't pass the smell test following your amendments. These are problems with "reject reject reject" which point to the inherent problems (no rce's) in the proposed new rules.

[Veteran Attorney]

This is a free country. (Last time I checked anyway.) You're entitled to be wrong.

Rejecting the application to "build a record" is bullsh#t.

Read the app. Formulate and conduct search. Make objective findings of fact supported by substantial evidence re 1) scope and content of prior art, 2) differences, 3) level of skill, and 4) secondary considerations. Weigh all evidence and make sound legal conclusion. Patentability is determined by preponderance of evidence, i.e. the evidence shows/suggests that claimed invention is more likely non-obvious than obvious.

Simple.

Reject, Reject, Reject to "build a record" is, like I said, bullsh#t. You should know that by now.

[Lionel Hutz]

"How do you explain the 30% of my docket that has NO IDS AND NO PRIOR ART SECTION? What about the other 40%+ with an IDS that only has stuff from other searching offices or related apps (still having large numbers of references)? You literally could not do jack squat in my art without references."

So, the inventors should cite every textbook they ever read? If the invention involves mathematics in any way should they cite their calculus textbook?

They should be citing what they are aware that exists in the art. In most cases though, THEY HAVE NO REFERENCE. They simply know what exists and what they invented and the background describes the problem that they solved. This is especially true in the software realms. There is simply no prior art to cite.

[Lionel Hutz]

That last sentence should read, "There is simply no prior art to cite of which they are aware."

[examiner#6k]

Just to jump in right fast while I'm on but a small break: "computer readable STORAGE medium" does not make your claim fit a catagory when it's in the preamble. I see this all the time. A computer readable STORAGE medium containing instructions to cause a computer to: Retrieve x data. Retrieve y data. Compare x data to y data. Woot! You claim says: 0!

You didn't accomplish anything "in the real world" or having a "tangible" result you only compared some electricity with some electricity. 101'd. Make a printout of the comparison next time or display it to a user on a screen, but for gods sake do something. Don't even try to tell me that the preamble was required to "breath life" into the claim. Yeah, it was required to breath it over into a statutory catagory, we've all been trained to reject it already, just deal with it. You're not breathing life into the claim, we know what the claim says: get data x, get data y, compare. If you disagree with these interpretations you have bigger software fish to fry in the PTO than the examiner you're working with.

[anon]

"This is a free country. (Last time I checked anyway.) You're entitled to be wrong."

Tell me VA, does your back hurt from you constantly kissing your own @ss???

[E#6k]

And Mr. Pitchford, I know good and well how it works, I've done the brainstorming things you speak of in industry. I also know that the people working on this brainstorm will either a. consult some basic references just to narrow the specific numbers they want to use down or b. think back to all the articles they've been reading in Your Art Journal Vol 89, No. 2 and think, HEY GUYS, I'VE GOT IT! We'll use x process to make our y product better (just like they used it on z product last month in that magazine!)! Yeah Mr. manager I came up with that idea all by myself. Dmb Manager: (We should patent this idea, this is big). Yeah, it WAS big before your employee who knows nothing about legal terms of inventing mean and thinks he did a big thing (which hey, to his credit, he's one of ordinary skill, they get paid to make ordinary combinations right?).

[CliveFenster]

E6 writes: "I also know that the people working on this brainstorm will either a. consult some basic references just to narrow the specific numbers they want to use down or b. think back to all the articles they've been reading in Your Art Journal Vol 89, No. 2 and think, HEY GUYS, I'VE GOT IT! We'll use x process to make our y product better (just like they used it on z product last month in that magazine!)! Yeah Mr. manager I came up with that idea all by myself. Dmb Manager: (We should patent this idea, this is big). Yeah, it WAS big before your employee who knows nothing about legal terms of inventing mean and thinks he did a big thing (which hey, to his credit, he's one of ordinary skill, they get paid to make ordinary combinations right?)."

As a former private-practice attorney, I met with innumerable inventors from clients large, medium, and small, corporate and academic/institutional. With the singular exception of the academics, nearly every other inventor did NOT launch his efforts along the lines you outline above.

Now in-house, I was/am appalled at how ignorant my inventors are of the prior art. Not because I want them to find it for me, but because I believe it would provide fodder for their creative undertakings and teach them what is already known -- the entire point of the quid pro quo. They hold basic knowledge that they learned in college/grad school/post-doc positions, and they hold specialized knowledge that they acquired through personal experience (e.g. lab work). As to the latter, it is not "prior art", it is the inventor's own knowledge gained through his own experimentation and reasoning. As to the former, my challenge to you: point me to *any* citation, MPEP or legal opinion, where an inventor is *required* to disclose the most common factoids in his art.

Are you aware that patentees have been punished in litigation for submitting basic information? The prevailing view is that the examiner (and rest of the world) already knows it, and a patentee submitting high-school and college chemistry books, for example, is trying to bury the examiner in references and hide something important.

[E#6k]

If by punished you mean it was determined they did not have a valid claim to stop someone else from doing x action, then yeah, I've heard of it. Was I particularly sympathetic to their cause? No. If a basic textbook just torpedoed your pt boat outta the water then you probably had no reason to be shooting your pt boat guns at someone. Be glad there's no law that punishes you for shooting your little guns at someone.
In response to your challenge, I never said there was one. My challenge to you, cite for me from the MPEP where you have to submit all art you know of that is relevant to examination (factoid, your previous work, or ANYTHING with a good date).

"Now in-house, I was/am appalled at how ignorant my inventors are of the prior art." So what makes them "believe" they have an invention then if they're so ignorant? See my very first position on the subject. Don't allow ignorant people to gain the right to exclude others with a presumption of validity after 10 hours (avg) of a search. Otherwise, if they're not ignorant, show me the art. And come on man, if it's art by them that I find, what excuse do they have? O, dur, I couldn't see how in the world that would be relevant hur hur. I guess the fact that it is the generic disclosure of their "more specific, new" invention never occured to them? Or was it you that told them they didn't need to submit it? I'll never know... but what I will know is that something needs to change and thankfully the people in power agree. Learn to not be ignorant. I had a great idea the other day for a laptop feature, 2 hours later I had art that beyond 102'd it. Gee, that was SOOOO ROUGH to search, I think I pulled a hammy. I still don't know why laptops don't have those features for sale.

[Veteran Attorney]

anon,

No. But my arm's a little sore from constantly patting myself on the back. (Assuming that's what you meant by that non-sequitur you posted.)

Mr. Pitchford is wrong. Not because that's my opinion, but because he's wrong by any objective measure. Arguing that the government should condone, heck even actively promote, illegal actions on the part of its employees is wrong.

"Trial by fire generally produces the strongest metal (in the iron age anyway). I think at least one rejection is probably good to establish some dialogue and meaning."

Let's examine this in another context. What if I say, "Quality = Convict, Convict, Convict"? Is that wrong? Shouldn't we just convict all criminal defendants? I mean, if we just convicted them once, and then made them respond to prove their innocence, their "innocence" would be stronger because it's "tried by fire." That's a great idea, isn't it?

Like I said, you really should put all of your acronyms to better use.

[anon]

"Mr. Pitchford is wrong. Not because that's my opinion, but because he's wrong by any objective measure. Arguing that the government should condone, heck even actively promote, illegal actions on the part of its employees is wrong."

So I take it that every application that you have ever filed in the PTO is/was worthy of a first action allowance?

What exactly is your alternative? Allow, allow, allow, allow? Rubber stamp everything that comes through the doors of the PTO?

[anon]

"Doll's quality = reject, reject, reject philosophy is not bad in and of itself"

"Yes it is."

Only for those incompetent patent attorneys who don't know how to draft an allowable claim.

[T]

examiner#6k - I understand nonresponsive examiners. I deal with them every day. But, why did you SAY you would respond, when you had do intention of doing so?

[Veteran Attorney]

Please show me where in any of the posts I've made on this thread I stated that my alternative is allow, allow, allow, or that every application I've ever filed is/was worthy of a first action allowance.

I stated very clearly that patent examination should be conducted according to the law, i.e. 35 USC, 5 USC and the years of binding precedential decisions.

Examination conducted according to the law is 1) objectively determining the facts that are supported by substantial evidence, 2) weighing all of the facts/evidence/arguments, and 3) making a sound legal conclusion by a preponderance of the evidence.

Conducting examination according to an unwritten policy of "Quality = Reject, Reject, Reject" is a violation of applicants' due process rights. If you're as "educated" as you claim to be, you would understand that. There is simply no credible argument that can be made that a system that puts the answer (i.e. reject no matter what) before the gathering and weighing of the evidence is lawful. None.

Your inability to understand these very simple concepts is truly sad. You've wasted a lot of time accumulating a bunch of worthless acronyms. Congratulations.

Just remember 2+2=5. You'll be much happier that way.

[Veteran Attorney]

Please do tell us, anon, what you do in the following situation, because your answer, no matter what it is, will be fascinating.

You pick up the oldest new case on your docket, you read it, you formulate your search, you conduct your search, you determine the closest prior art, you objectively determine the facts (i.e. resolve Graham's four factors - 1) scope and content of prior art, 2) differences between prior art and claims, 3) level of skill in the art, and 4) any secondary considerations), and, applying all of your education and experience, you make an sound, objective, factually and legally supported conclusion that the claims are allowable.

What do you do?

Do you prepare the Notice of Allowance and turn it in for counting? Or do you make a BS rejection?

Can't wait to hear your answer.

[CliveFenster]

I'm not at all talking about invalidation of claims based on the cited textbook. Your response tells me you are not particularly aware of the lives patents lead for the seventeen or so years after they leave the USPTO and especially when asserted against another.

I would suggest that you reach out to your favorite dictionary.com for the definition of "ignorant". I did not use it in the college bar sense (as you seem to approach conversations on this board), but as "lacking knowledge or information as to a particular fact; uninformed, unaware." That is to say, the inventors largely are unaware of the published prior art. They know the general state of the art. They have a good feel for what's been done before from a commercial perspective (i.e., they haven't seen, read or heard about the product they're trying to invent) because that's the business they're in. And most corporate inventors are not publishing papers; the only prior art of their own you may find would be prior patents and published applications.

I initially had typed a much longer reply, but then I realized it was a waste of my time to write it, and most of the board's to read it. They already know what happens in litigation, and they already know the behavior and prior art knowledge of the typical inventor. You clearly do not and, to be frank, I don't think you care to know. The knowledge would challenge your position, and your postings indicate that you're willing to view such information only as something to be attacked because it doesn't fit your patent-prosecution world view.

[Lionel Hutz]

E#6k wrote "If by punished you mean it was determined they did not have a valid claim to stop someone else from doing x action, then yeah, I've heard of it. Was I particularly sympathetic to their cause? No. If a basic textbook just torpedoed your pt boat outta the water then you probably had no reason to be shooting your pt boat guns at someone."

No, he did not mean that. He meant that they were punished for submitting non-material references or for trying to play hide the salami with an actually relevant reference.

And you clearly have never worked much in a non-academic setting outside the PTO. Because the OP was correct. Most of the inventors I work with are very ignorant of what goes on in the prior art. EVEN OUR OWN sometimes. A number of times our internal review system has had to reject inventor's submissions because they came up with a solution that someone had come up with for a different product 10 years earlier. These guys are problem solving and looking forward. If it wasn't part of their schooling or their lab work, they likely do not know about it.

[examiner#6k]

My bad T, I'd thought you were the guy looking for an example application and I posted the example in the wrong dudas thread. Anyway, in re http://www.patentlyo.com/patent/2008/02/tafas-v-dudas-c.html#comment-100583786

Yes, I've read the rules, and considered their consequences. You've asked what happens when you get 15 allowable claims? One of three things.

1. You submit an ESD beforehand (or maybe after) anticipating that this application is so special that you would go outside the realm of normal prosecution and independentize all your allowables, rather than taking one limitation and moving it up, or at worst, splitting the claims in two groups and putting limitations as necessary. This requires some forethought on your part. You might also want to file seperate apps and hope they're not deemed obvious.

2. You take the restriction requirement the examiner tried to impose at the beginning because your claims are all directed to 17 different embodiments of the same genus i.e. a species, or in the alternative, maybe a combination/subcombination. (otherwise the restriction would probably have gone through even if you didn't like it)

[examiner#6k]

3. You amend in such a way as to leave you with 5/25 claims.

Someone peruses the ESD for blatant errors, then I look it over and make the final call if it gets past them. I don't particularly have a habit of rejecting anything out of hand and am very reasonable, hell I might even consider an afterfinal if I see jesus himself in the amendment you submit. There will be no argument so far as I'm concerned, either you do it as will be directed or you don't get the benefit of it, the first 5/25 of your app are still valid and I won't cancel them.

[examiner#6k]

I need an ESD like I need a second behind. All I really need apparently is inventors who are not ignorant (which by the way Fenster I specifically used ignorant in my previous posts how you used it) of their fields work to submit apps. But, the ESD will discourage people from filing apps with so many claims it takes an hour to just read them and instead I can read for an hour about why his deps make no difference in the case. See the rules for what they are man, not their effect on you. We know we can find art, we also know that some applicants aren't being forthwright with the art they submit as art, and finally we know we don't want to find art on every "inextricably linked" unrestrictable species in your application for 1000$ (or two counts). All this is doing is helping to target three or four birds with one stone. (why a fourth? We want to up fees. Not for more money, though that be nice, we want a larger barrier for bs. Won't give us fee setting authority? We'll make it cost more to file a bad app anyway, pick your poison)

In summary, be glad we let you submit dep's at all (and have them examined, if not for that then we wouldn't give a darn what you put in dep form it could be 5/1000 and I wouldn't care if all 5 are allowed) and that you still have an outrageously cheap option if you wish to take it.

[examiner#6k]

Oh, Clive and Hutz, yeah right, I understand quite well what's going to happen to it. I realized you probably weren't talking about the art invalidating it, but that the art blew it up in any fashion. Though, I'm pretty sure based on some of the big boys sending me refs that you can't be punished for submitting bad refs, they send tons of horrid ones not even in the same field hardly.

I also know the types of people you're talking about very very well. I met them all through school, all my profs just about WERE them before they were profs, and I know several of them personally. Sure, they don't always go out and find a piece of art that teaches them what to do explicitly, but in a very large portion of the cases they do get training in some form or fashion, from the job, or from journals. Sure, they're hugely ignorant of the art in some cases. Maybe even all the cases that I say at least some of them are not being on the up and up disclosure wise. Maybe, and lets assume for a second that it is completely 100% true. What then? We see the whole other side which I've particularly pointed out several times. Ignorant people in their art do not believe they have an invention. They believe they made something and that's it. It's only through comparison with what came before it would they have any clue, even the faintest notion of if they have an invention, much less a full blown belief that they have an invention. Up until the point of comparison it remains just you excersizing your ordinary skill.

That's my position, and there's really nothing reasonable to be said (or has been thus far on this site) in opposition. Oh, excuse me, I forgot "QQ searching is too hard (expensive)!". And I say that in the most respectful manner possible.

I've gotta get back to work I'll be here late anyway :(

[JohnDarling]

Clive and Lionel,

The proposed continuation/claim examination rules will never go into effect, so worrying about their impact is a waste of energy.

Unfortunately, all of the time, money and effort that PTO (mis)management caused us to expend between 8/22/07 and 10/31/07 is gone.

It's a write off. (To quote another classic Seinfeld episode.)

Keep filing those 300 claim apps!

[T]

examiner#6k -

Thanks. Now I can see you don't really want to have a serious conversation.

1) It was 17 allowable.

2)Re: "You submit an ESD beforehand (or maybe after)" No, the new rules are arbitrary and capricious and do not allow for the ESD to be filed after the first office action. So, the solution you offer here is to always file and ESD, which you need like a second behind...so, Mr. Dudas et al. are clearly lying (as is the habit of the whole "born again" Bush administration) when they assert that it is just to help prosecution.

3) There was no restriction requirement. Dependent claims are found allowable if placed in independent form every day.

4) There is no way to amend to achieve 5/25 and receive as broad protection as the examiner recognizes the inventor is entitled. To receive that requires 17/0. Remember,these claims have been examined and found to be allowable. But the arbitrary rules prevent 12 of them from being placed in independent form, which would require no further examination. It isn't even clear to me why placing dependent claims in independent form requires the payment of additional independent claim fees. Accordingly, the new rules represent an unconstitutional taking.

[CliveFenster]

E6: "Sure, they're hugely ignorant of the art in some cases. Maybe even all the cases that I say at least some of them are not being on the up and up disclosure wise. Maybe, and lets assume for a second that it is completely 100% true. What then? We see the whole other side which I've particularly pointed out several times. Ignorant people in their art do not believe they have an invention. They believe they made something and that's it. It's only through comparison with what came before it would they have any clue, even the faintest notion of if they have an invention, much less a full blown belief that they have an invention. Up until the point of comparison it remains just you excersizing your ordinary skill."

They are ignorant of the written prior art, not of the state of the art. People in the business of developing colorants for polymers or textiles have a sense for what's been done or, more importantly, what's not been done. *To their knowledge*. They figure out a way to use a pigment in an polymer environment that, to their knowledge, it hasn't been used in before ... they conclude they've invented something. Or they remark that they aren't aware that it's ever been done, and then the patent attorney concludes they've invented something (because, unlike you, we work with these people and consider them honest until proven otherwise).

While it may be good practice, there is no legal requirement that an inventor perform a search of the art before filing. For smaller companies, it just isn't done, except perhaps for the inventions thought to be of greater value to the company. (Actually, I've worked for clients ranging from the largest international companies to the smallest start-ups. Across the board, my general observation is that no searching is done.) Even if it were done, we've already discussed the great variation in searching and weeding through the search results. There is no reason to assume that the inventor who does search will find the best art or the same art that the Examiner finds; in fact, there is every reason to believe the opposite. That variety makes neither a cheater or liar, though.

[CliveFenster]

"Oh, excuse me, I forgot 'QQ searching is too hard (expensive)!'."

You admit on the one hand that you absolutely KNOW some bit of information to be out there but can't find it. On the other hand, you expect every inventor to find the most relevant art without undue effort. If (when) he fails -- in your subjective view based on the results of your search -- you accuse him of deliberately hiding art of which he is aware or, oddly, of not deserving a patent because he's ignorant of the "true" art that you found. I can't resolve the contradiction or the "reasoning".