Tafas v. Dudas: Appeal and Legislation

Tafas v. Dudas (Fed. Cir. 2008).

1. CAFC Appeal: PTO General Counsel James Toupin has reportedly indicated that the PTO will appeal the ruling to the Court of Appeals for the Federal Circuit (CAFC). On average, CAFC appeals take over one year. The average is raised for “important” cases where or caess where precedential opinions are issued.  However, there is a large variance between timing of the various judges. When on the panel, a couple of CAFC judges tend to greatly increase the expected time to judgment.
2. Patent Reform: The pending Patent Reform Act includes language that would provide substantive rulemaking authority to the PTO. That provision would directly overrule yesterday’s decision. [UPDATE: To clarify, the version passed by the House (H.1908) includes additional regulatory authority. That portion is not in the current Senate bill.]

Comments

[me]

Not the current Leahy bill, Dennis. The substantive rulemaking authority was out of the last bill I saw. Even the Seante does not trust these guys.

Please double check this...

[Please tell me]

Me:
Can you tell me where can I read the current Leahy bill?

[Former Policy Wanker]

go to thomas.loc.gov and search Patent reform. 1908 on the House side and 1145 in the Senate

[Dennis Crouch]

The version passed by the House (H.1908) includes additional regulatory authority.

[metoo]

Even if the patent reform legislation passes and includes a grant of rulemaking authority to the PTO, I'm pretty sure that the PTO would have to start the rulemaking process over

[me]

True, I do not have time to look, but the House version had it and the current Senate bill does not (I think).

The Senate bill differs substantially (see patentdocs.us on both) and is likely to be either revoted on in the House, or if simialr enough might win out in conference.

[Patent Attorney]

Let's hope that this stays far away from Judge Moore.

[me]

Wouldn't Moore have to recuse herself? If she does not maybe we can get someone to bring her up on an ethics violation...what bar is she a member of now...

[Leopold Bloom]

"Wouldn't Moore have to recuse herself?"

On what basis?

[me]

Her articles were cited by the Office publicly as a specific reason for the rules changes, and in those article she specifically advocated some of this nonsense.

She and Lemley worked together...everyone knows this, right?

[Leopold Bloom]

"Her articles were cited by the Office publicly as a specific reason for the rules changes, and in those article she specifically advocated some of this nonsense."

Did she specifically advocate the PTO exceeding their authority? Maybe (I haven't read the articles), but I doubt it.

Having an opinion as to the need/desirability for any of the particular rules shouldn't disqualify her to rule on whether (1) the PTO has substantive rule-making authority and (2) whether the rules are substantive.

[me]

It should disqualify her - what ethics rules are you reading?

Judges are held to a higher standard than just us regular old lawyers, please see the Code of Judicial Conduct at the ABA. I really think Canaon 4(A)(1) applies to conduct prior to becoming a judge, especially public statements and conduct directly leading to the case before her. I guess she can argue that, but I would certainly not be her counsel, as I think she would lose...

Can you really argue she does not have a dog in this fight?

"A. Extra-judicial Activities in General. A judge shall conduct all of the judge’s extra-judicial activities so that they do not:

(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;

(2) demean the judicial office; or

(3) interfere with the proper performance of judicial duties."

[me]

It should disqualify her - what ethics rules are you reading?

Judges are held to a higher standard than just us regular old lawyers, please see the Code of Judicial Conduct at the ABA. I really think Canaon 4(A)(1) applies to conduct prior to becoming a judge, especially public statements and conduct directly leading to the case before her. I guess she can argue that, but I would certainly not be her counsel, as I think she would lose...

Can you really argue she does not have a dog in this fight?

"A. Extra-judicial Activities in General. A judge shall conduct all of the judge’s extra-judicial activities so that they do not:

(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;

(2) demean the judicial office; or

(3) interfere with the proper performance of judicial duties."

[A VOICE FROM THE FOREST]

This is just to buy the people time while they looks for other jobs. These individuals who advanced these unlawful activites of the USPTO must be held accountable.

[A VOICE FROM THE FOREST]

By the way the opinion said that a practitioner had no obligation to search. Does this not mean, therefore, that the OED CANNOT discipline an attorney for failing to reand an ENTIRE reference that is submitted in an IDS. The reading is, in essence, a search of the document for ALL relevant material. In essence could it be said that the OED would be seeking to undermine the authority of the Federal Courts by implementing the provision that practitioners must read the entire reference that is submitted in an IDS?

[real anonymous]

'"Wouldn't Moore have to recuse herself?"

On what basis?'

Her work is cited in the Claims and Continuations FR Notice at page 46718, and in one of the Pubpat amicus briefs (#228 on Justia, page 10).

From FR 46718:

"Commentators have noted that an applicant’s use of the unrestricted continuing application and request for continued examination practices may preclude the Office from ever finally rejecting an application or even from ever finally allowing an application. See Mark A. Lemley and Kimberly A. Moore, Ending Abuse of Patent Continuations, 84 B.U. L. Rev. 63, 64 (2004)."

From Pubpat's brief:

1.The Final Rules Will Curtail Abuse Of Continuation Applications Continuation applications provide applicants who have had their patent applications finally rejected the ability to force the USPTO to revoke the finality of the rejection simply by paying a fee for a new filing. Thus, as one reference cited by the administrative record in this case found, it is impossible for an examiner to ever actually finally reject a patent application so long as the applicant has sufficient financial resources to keep paying for continuation applications. Final Rules at 46718 -19 (citing Mark A. Lemley & Kimberly A. Moore, Ending Abuse of Patent Continuations , 84 B. U. L. Rev. 63 (2004)). This results in USPTO examiners who have repeatedly rejected an application facing the possibility of an endless stream of continuation applications being filed by the applicant that "may well succeed in 'wearing down' the examiner, so that the applicant obtains a broad patent not because he deserves one, but because the examiner has neither incentive nor will to hold out any longer." Lemley & Moore, 85 B. U. L. Rev. at 65. Such "wearing down " of examiners is an abhorrent abuse of continuation applications.

[Leopold Bloom]

"I really think Canaon 4(A)(1) applies to conduct prior to becoming a judge, especially public statements and conduct directly leading to the case before her."

Absurd. First, Canon 4(A)(1) clearly cannot apply to conduct prior to becoming a judge. Second, she didn't make any public statements about the case, because there wasn't a case. Third, what conduct "directly led" to the case? Stating an opinion about problems with patent pendency? Ridiculous. Fourth, the canon you cite prohibits activities if they cast reasonable doubt on the judge's capacity to act impartially. The fact that you have doubts doesn't make those doubts reasonable. Again, having an opinion about patent law doesn't disqualify you from judging whether the patent office has authority under current law to promulgate this particular set of rules.

What specific conduct or statements lead you to believe that Judge Moore is not capable of acting impartially in this case?

[real anonymous]

P.S. She's also cited on page 11, 15, and 17 of that Pubpat brief.

[me]

The paper you cite led to the case. Mr. Bloom, methinks thou dost protest too much. You must be a partner and don't like to hear how wrong you are...

If Moore believes continuation practice is an abuse, that is enough by itself, her public statement certainly gives "me" a reasonable apprehension of bias.

When you add the fact that her article did lead to, and was cited by the Office as a reason for, creating the rules that are the basis of the case that also violates the Canon.

You really think the Canon would be applied by the ABA so that an attorney in a case could hear that case when he/she became a judge (a reasonalbe extension of your insane argument).

You seem to differentiate between the cause of action on Appeal versus the underlying subject matter (an insane way to approach legal ethics, as the subject matter cannot be separated). I guess if the killer of the Judge's spouse appears before the Judge on Appeal the Judge can rule on the constituionality of the the death penalty in that case, as he/she is not ruling on the merits? You are a crazy man...

Finally, your silly rebuttal (remember, you started calling "me" names, you little ...) does not seem to take into account the higher standard of the Judge's conduct versus yours, where your parsing of the rules could easily lead to disbarment.

[AnonPatentAtty]

IPO has a comparison chart of the House and Senate versions of the bills:
http://www.ipo.org/AM/Template.cfm?Section=Legislative_Action_Center&template=/CM/ContentDisplay.cfm&ContentID=15580

[Veteran Attorney]

Even if there is an argument that J. Moore does not have to recuse herself, it would be unseemly if she didn't. Regardless of what you make think of her rulings, or her ability as a judge, let's give her the benefit of the doubt on this one and assume she'll do the right thing.

[Alan McDonald]

Still nothing on the PTO web site about the decision.

[Leopold Bloom]

"your parsing of the rules could easily lead to disbarment..."

Well, your latest argument speaks for itself, and needs no rebuttal.

I'm pretty sure I didn't call you names.

[me]

Leopold - no problem. Its a pet peeve of mine when litigators call others arguments "meritless" or "absurd".

[TJ]

Well, the argument that Judge Moore needs to disqualify herself is "meritless", though I'll concede it is not absurd. Saying the PTO citing her article means she needs to recuse herself is like saying that the PTO citing a dissenting opinion by her means she has to recuse herself. Or that any time a litigant cites Justice Scalia's book on statutory interpretation means that he has to recuse himself; or Breyer and Active Liberty; or Posner and his many works. Not the way it works.

People who say this is the "right thing to do" and praying for a recusal are being a little self-serving here.

[me]

"Well, your latest argument speaks for itself, and needs no rebuttal."

We can agree to disagree on what statements or actions a Judge can or should take, you seem to agree with Scalia on what he can/should say. I may think he has crossed the line...

[just curious]

TJ’s, “People who say this is the "right thing to do" and praying for a recusal are being a little self-serving here.”

Veteran Attorney’s, “Even if there is an argument that J. Moore does not have to recuse herself, it would be unseemly if she didn't. Regardless of what you make think of her rulings, or her ability as a judge, let's give her the benefit of the doubt on this one and assume she'll do the right thing.”

What’s wrong with self-serving, and serving your client’s interests?

I recall that Judge Moore is not patent-friendly, e.g., she is very much against allowing “continuations.” Why shouldn’t she recuse herself from the federal circuit bench?

[TJ]

"Judge Moore is not patent-friendly, e.g., she is very much against allowing 'continuations.' Why shouldn’t she recuse herself from the federal circuit bench?"

Because litigants are (for better or worse) not entitled to a judge who is free of opinions. They are entitled to a judge who does not have a very specific and announced biased on the precise issue in their case.

For example, if I am a habeas petitioner, I would dearly love it if various conservative judges recused themselves because they are not "habeas-friendly". I am not entitled to it.

[me]

Just curious, your arguments seems a bit disingenuous. Most cases do not have the Judge's writings in the briefs supporting one side or the other...

She may turn out to be a phonemenal judge, or not, but that is irrelevant to her need (in my opinion) to recuse herself in this case.

[TJ]

I think that comment was directed to me. Au contraie, most cases do have "the Judge's writings" in their briefs, they are called citations to cases. And where there is an intra-circuit tension in appellate cases, you can pretty much pick which line the panel is going to come down on by seeing who is on it. Doesn't mean you get to DQ the judges who wrote the cases that you don't like. Nor do you DQ the judges who dissented from the cases you do like. Nor if they gave speeches on those cases. For a recusal, you need a specific comment on your case. For better or worse, litigants are not entitled to judge-shop just because judges' votes are in some cases predictable.

[just curious]

Ok, but why is it a good thing for anybody other than infringers to have a federal circuit judge on the bench who does not like strong patents, and is against continuations which are of fundamental importance for an inventor to claim what s/he has invented and is entitled to?

[anonymous]

I think TJ's generally right.

All judges arrive on the bench with preexisting opinions about what the law is or should be on certain things.

Several of the Supreme Court Justices are former professors, as is Judge Moore. It's hard to be a professor of patent law without developing some strongly held views about patent law and without writing some of those down in in law review articles. If you're an expert in something but have no opinions about it, there's probably a part of your brain that doesn't work.

Anecdotally, Judge Moore's law review articles are cited to the Federal Circuit and other courts fairly often, and much more so since she became a judge. One issue she's written a lot about is claim construction, which is relevant somehow in almost every single patent case.

The recusal standard is a bit fuzzy, but I think it's generally unreasonable to expect judges to recuse based on their writings during their academic careers, even when those writings relate directly to the subject matter of the case. If Judge Moore had actually participated in the drafting of the rules, if the PTO had sought her advice at the time, or if she testified in Congress about it before becoming a judge, then yes, she should recuse. If, instead, the issue is just that she wrote a paper once that's directly relevant, then I think the answer is no.

[just curious]

TJ, “For better or worse, litigants are not entitled to judge-shop just because judges' votes are in some cases predictable.”

Are you sure about that? I mean, why have a trial if the judge already has a result-oriented decision in mind? That does not seem to be blind justice.

[e#6k]

"Are you sure about that? I mean, why have a trial if the judge already has a result-oriented decision in mind?"

Because it's not really result oriented, it's "my point of view on this subject is" oriented.

[just curious]

TJ, Consider a case where KSR issues are involved. Since the S. Ct. added “flexibility” to the obvious mix in an area that is, after all, primarily subjective, how would a judge who has preconceived views on obviousness and is not patent-friendly to begin with be able to offer blind justice if, in her/his heart s/he had preexisting personal bias.

For example, if you asked 100 totally unbiased judges off the street to opine on an on-the-fence obviousness-issue, in theory you’d statistically get a 50/50 result.

So where is blind justice? In this KSR example, the federal circuit had it right, because teaching suggestion motivation TSM required some objective evidence one way or the other.

So I ask, “Ok, but why is it a good thing for anybody other than infringers to have a federal circuit judge on the bench who does not like strong patents, and is against continuations which are of fundamental importance for an inventor to claim what s/he has invented and is entitled to?”

[Law Student (soon to join your ranks)]

Proposed IDS Rules:

Are the proposed IDS rules now on stand-by until the appeal is settled? Or, might the PTO still implement a subset of the IDS rules? The proposed rules did pass the OMB, if memory serves me correctly.

If I was Toupin, I'd test the waters with a strictly "procedural" form of the IDS rules, in accordance with an interpretation of Tafas v. Dudas favorable to the PTO.

[me]

Anon-

In the average case we agree on the recusal rules and former professors. This is not the average case and Moore has generated animosity in the patent community on exactly the issues before the court - that matters. If she were to overturn Cacheris her name would be mud to me and many practitioners - who might argue before her - forever. If many if not most of the lawyers think you should recuse, then the reasonable lawyer thinks you should (I hope you are not arguing my position is unreasonable). Or shall we take a survey?

[me]

"TJ, Consider a case where KSR issues are involved. Since the S. Ct. added “flexibility” to the obvious mix in an area that is, after all, primarily subjective, how would a judge who has preconceived views on obviousness and is not patent-friendly to begin with be able to offer blind justice if, in her/his heart s/he had preexisting personal bias. "

We agree, this has nothing to do with the Moore facts in this case.

[me]

"For a recusal, you need a specific comment on your case."

Again, in most cases I agree. This is the exception where the Judge is part of the litigation as she was instrumental in causing the rules to be proposed. Life is not black and white, and this ain't judge shopping...

[AC]

Note to self: Always cite to material written by any and all judges that I don't want hearing my case. This will cause automatic recusal.

[Just Visiting]

"the version passed by the House (H.1908) includes additional regulatory authority."

As I recall the House verion of substantive rule making included a 60 day period for Congressional review. Further, I believe the judge also suggested that the PTO didn't properly implement the procedures for substantive rule making for at least part of the rules package. Finally, there is the question of whether the grant or authority would retroactively apply to the enjoined rules even if they were enacted properly.

Lots of hurdles to overcome before legislative action overturns the judge's work.

[Anon E. Mouse]

You guys/gals calling for J. Moore's recusal are a laughable lot.

(a) Have you even read the Lemley/Moore article cited? Quote: "Limiting the number of continuations that can be filed may require an act of Congress." (citing In re Henriksen).

The article continues "The Court of Customs and Patent Appeals, the Federal Circuit's predecessor court, struck down the PTO regulation, concluding that s120 by its terms did not impose any limit on the number of continuations and that whether there should be such limits 'is for Congress to decide.'"

The paper concludes: "The world would probably be a better place if continuation applications were abolished. Recognizing, however, that the abuse of continuation practice is not as pervasive as some might think, we propose a number of means by which Congress and the courts could strengthen existing rules designed to limit their abuse while preserving the practice."

Note the absence of "USPTO" in that last paragraph.

Here, the issue in front of the court isn't whether limiting claims and continuations is a good idea, it is whether the PTO has the power to do it. Seems to me that the Moore/Lemley article correctly acknowledges the state of the law (as did the district court).

(b) Many judges hear cases where the briefs cite *cases* written by the judge. That's a much better insight to the biases of a judge with respect to the law than an academic paper exploring theoretical solutions.

I certainly don't agree with the Lemley/Moore article on what constitutes an abusive continuation, but J. Moore has not demonstrated the slightest inclination that the PTO has the power to implement the proposed continuation (and claims) rules.

The Tafas case is an Admin Law case, not a Patent Law case. It has *nothing* to do with what is the best patent policy conceivable (even from an ivory tower), and everything to do with the extent of the PTO's rulemaking authority. There's no reason J. Moore can't be on the panel that hears this case....and no reason to suspect that she'd do anything other than apply the law as it stands.

[just curious]

Anon E. Mouse, I refer you to my comment above:
http://www.patentlyo.com/patent/2008/04/tafas-v-dudas-a.html#comment-109165448

And I pose this question to you and others who may have an opinion:
Do you think Judge Moore is (A) patent-friendly, (B) patent-neutral or (C) patent-averse?

[X-Solo]

"PTO General Counsel James Toupin has reportedly indicated that the PTO will appeal the ruling to the Court of Appeals for the Federal Circuit (CAFC)."

I guess this is one way to maintain job security... file an appeal. Admittedly I'm biased, but I don't see a basis for reversible error. In the current political climate, I would think the PTO would not to appear to be wasting public money on a meritless suit.

[JTS]

So what are the chances on appeal for the PTO? Seems slim to me. The right outcome seemed apparent even before yesterday's decision, which seems very solid.

[e#6k]

Everyone seems to be ignoring the 800 lbs gorilla in the room when they spout off about how meritless any appeal might be. Dennis spelled it out for you, the weak spot in the reasoning for the case was an overbroad definition of substantive that renders pretty much any agency requirement for applicants/patrons/etc. to do ANYTHING is now substantive rather than merely procedural. There is grounds for an appeal, it is far from rock solid, but there is grounds. That definition of substantive is very open to a case portraying it as clearly in error, because frankly, it is. If the judge had gotten a bit more in depth as to what he felt in the rules is making them substantive than he did and stated it very clearly for the record then maybe there would be no grounds. As it is, he left it very broadly stated and indeed overbroadly stated.

[Lionel Hutz]

"For example, if you asked 100 totally unbiased judges off the street to opine on an on-the-fence obviousness-issue, in theory you’d statistically get a 50/50 result."

Trick question - you will never find 100 unbiased judges. ;-)

Actually, if the judge has any interest in the subject or any experience trying cases in the area, you will not find, nor should you find, an unbiased judge.

If this were the first case for a judge with very little IP experience (including book-learnin' here) the judge may be unbiased.

[CyberTech]

Overbreath is not necessarily reversible error.. for judicial economy reasons alone, my bet is that if appealed, the CAFC will affirm the decision and attempt to more clearly define in dicta what is substantive law in light of the USPTO's authority as granted by Congress. In this respect, the District Court was correct in stating that the USPTO was not granted the authority to change the status quo for filing as provided by statute.

[Chenery II]

e#6k-

The CAFC may affirm the decision of the Dist. Ct. under any rationale supported by the record. Thus, even if the CAFC finds something in the rules to be merely "procedural," all of GSKTafas's alternative arguments must still be disposed of as well. Does not look good for USPTO.

[me]

"Note to self: Always cite to material written by any and all judges that I don't want hearing my case. This will cause automatic recusal."

Note to AC: Learning to read might be a better use of your time.

[e#6k]

"The CAFC may affirm the decision of the Dist. Ct. under any rationale supported by the record. Thus, even if the CAFC finds something in the rules to be merely "procedural," all of GSKTafas's alternative arguments must still be disposed of as well. Does not look good for USPTO."

Of course they "may" but they're generally not so lazy as that, nor should they be. I would say they will likely attempt what Cybertech states they will try to do. Problem with that though is that in so doing they'll overrule the district court because frankly, the rules, though having substantive side effects are per se procedural in nature, and there is little controversy over this that I'm aware of, and if you can point me to any portion in the rules that are not specifically related only to procedure then I will be much obliged. They are that way by design, the PTO took specific care to craft them in just such a manner, for the all but express purpose of making them not substantive. The District court read "procedural rules that have substantive side effects" into what constitutes "substantive rules" it's as simple as that. Funny how many lawyers ha te it when a result oriented jugement comes down on their side, but they fail to see one as being such when it's in their favor.

[Gwen]

Is there any PTO rule that doesn't “affect individual rights and obligations?”

[e#6k]

I don't see people up in arms about rule 1.111 telling you what you must do to submit a complete reply or else have your application abandoned. I'm not sure if I see why someone thinks that placing a requirement on what you must do to file an RCE would be so far removed from this. Or, for that matter, many of the other rules. Apparently they're all substantive and we had no right to implement them. You guys should totally challenge them.

[e#6k]

Precisely my point Gwen, some people on here, and apparently in the world at large don't seem to understand that, in context, the decision that handed down the "affect individual rights and obligations" quote was referring to any rule that specifically, within the rule itself, countermanded a "right or obligation" already legislatively codified (presumably). I.e. say, making a rule that says simply "Applicants may not obtain patents", or even simply "Applicants may not request further examination". This is a far cry from the very craftily worded new rules. The people will come around after the appeal sets it all out.

We have a lot of rules that prempt "shall be granted a patent" in the legislated code based on how the procedure must be carried out, and they are procedural but they have very real substantive side effects if you fail to comply with the procedure. The District is in error in this case unfortunately.

[Doc]

e#6k:

Patent practitioners who actually studied the new rules last fall detected numerous problems (which the Patent Office in effect admitted to with its October 10, 2007 clarification). Therefore, I would say that the rules were not so "craftily" worded. More importantly, Judge Cacheris would (and did) agree.

[CaveMan]

Leopold Bloom always seems to be an apologist for the wrong side...

[Overton Park]

"Of course they "may" but they're generally not so lazy as that, nor should they be."

e#6k - I think the point is that there are other problems (vagueness, faulty notice-and-comment outgrowth rulemaking, exceeding Chevron deference, etc.) with the rules. The CAFC would have to jump all these hurdles to overrule Cacheris.

[Malcolm Mooney]

"the PTO took specific care to craft them in just such a manner"

The rules were flipping arbitrary and incomprehensible, ex6k. If the rules were actually reasonable and drafted so that they made sense and gave practitioners some assurance that Examiners would actually be able to make sense of the rules themselves, we might not be having this discussion right now.

But the reality is that the rules were appallingly poorly thought out. Essentially the PTO just gave the middle finger to the entire world and defended its actions with vapid appeals to the emotions of people who didn't understand what was at stake. Professionals saw right through it. What's even more difficult to believe is that prior to the "final rules" there were "proposed rules" that were, to be put it bluntly, i*diotic and/or insane.

I think many people thought (and still do think) that some changes to the rules would help stop certain abuses. But my gob only the most pessimistic among us realized how poorly prepared the PTO was to tackle such an assignment.

[e#6k]

Ok Doc, since there are so many numerous problems that make the rules substantive, please, point me to even one place that is substantive in nature, that makes the rule a per se substantive rule, it only becomes substantive as a by product of non-compliance with the procedure, or inability to comply with the procedure. This is the same as any other rule we have on the books as far as I'm aware. For example, if you fail to reply completely, you have 1 month to do so, then it's abandoned, I'm yet to hear qqing about this, though it is rumored if I lay this rule down on an applicant they will qq. I'm nearly 100% certain you cannot point me to a section in the rules that is actually substantive in nature (I haven't seen any parts myself, and I'm not too bad at reading). It would be instructive for all the readers of the blog to see the specific passages that are substantive.

numerous problems in a rule /= substantive rule. Numerous problems with substantive side effects /= substantive rule.

[e#6k]

I'll give you "incomprehensible" MM, but arbitrary? Hmm, I'm going to have to disagree with you there. They're not arbitrary as you're likely trying to imply they are. As to setting the limits at a few RCE's and 25 claims, you're right, they're arbitrary in that respect, arbitrary in their generosity. I.e. they were so generous they decided to give you a very generous buffer for f ups, and filing large numbers of claims. You're not "entitled" to a dmn thing out of this system unless you can comply with the procedures. You know this.

"But the reality is that the rules were appallingly poorly thought out." I'll give you that too, but they still did it as best they could, the whole matter is very complicated if you're going to build in generosity. I won't say they were the best for the job, but they did the best they could. Could it be done better? Very likely. Do we live in a perfect world? No? Hmmm.

Anyway I've gotta finish up this dang amendment. It's so hard to pick a piece of art when you have 4 pieces of art all showing some aspects past the ind. but none showing all of them. It's like, write up the 102 on the ind. 4 times and then hit each dep as they come. So rtarded.

Oh, and hey, come to think of it, nice strawman, good thing I battled it/chased the red herring. Address the issue please, was the ruling of them being substantive correct or incorrect?

[Federally Circuitous]

Does this appeal even go to the CAFC? The questions involved here are admin law questions, not unique to patent law (except that the (non)-enabling statute is the patent statute). Why wouldn't this appeal go to the DC Circuit?

[MR. PETITIONS]

The PTO had no choice, but appeal. Failure to appeal would have prejudiced the PTO's arguments in a likely Court challenge of the IDS rules and Appeals rules and would have made some Congressional staffers take a 2nd look at some of the ill-conceived and embarrassing provisions currently included in HR1908 and SR1145. A loss on appeal a year from now is far better than a concession now is probably what the PTO leadership thinking was.

[CaveMan]

The problem is that the rules as they were presented create certain undefined conditions within a family such as when a parent is abandoned or issues. Its as if an entry level systems analyst, knowing nothing about patent practice, sat down and tried to "design" a solution. Probably one of those snotty 22 year old MBAs with nothing but a sense of entitlement going for them.

[real anonymous]

"They are that way by design, the PTO took specific care to craft them in just such a manner, for the all but express purpose of making them not substantive."

e#6k, you're kidding, right? The rules were so sloppily crafted as to their effects (for example, presuming claims in divisional applications filed under 35 USC 121 to be patentably indistinct) it wasn't even funny.

Why don't you take our quiz on the effects of the rules (with hypos starting at question 11). You seem smart to me - I'll give you a gold star if you get a 60%. :-)

http://www.nipra.org/ddpatents074.htm

[Just an ordinary inventor(TM)]

Dear Mr. Malcolm Mooney,

I admire your post, and the improvement in your comments is remarkable, an inspiration to us all. No really, I do; no need to wait for the other shoe to fall ’cause there is no other shoe, at least not this time— it is a great post.

I do, however, miss some (about 50%) of your humor and its unique style/presentation. Truth is we all need a good laugh now and again, especially America’s patent attorneys who tend to be too serious too much of the time. Laughing is good for one’s mental and physical health.

BTW, I bet anybody $100 that 6k is actually a high (meant in both senses) PTO mucky-muck asshole.

Re: Mr. examiner: On another thread, a real examiner, named “examiner,” was able say “a disproportionate number of posters here are assholes” (and not be blocked). Bravo Mr. examiner. Your comment was exemplary; you are a big man in my book. However, I disagree; the number of assholes here is aptly proportionate :p.

Regarding your thought that the “disproportionate number of posters here are … raving egomaniacs” I have to say, you got that right. If any of you swellheads got a problem with that you can line up and kiss my patootie.

[Just an ordinary inventor(TM)]

Here is Mr. examiner’s full comment:

“@metoo: You're remarkably sensitive to insults for someone who posts on this blog. From what I've seen, a disproportionate number of posters here are assholes and/or raving egomaniacs; excuse me if I expect the population here to be a bit thick-skinned. But honestly, if I offended you, I'm sorry.
Posted by: examiner | Apr 03, 2008 at 01:40 AM “

BTW:
I am thinking of giving up inventing for another similar profession, stand-up philosopher, as defined in “History of the World: Part I (1981)”:

Dole Office Clerk: Occupation?
Comicus: Stand-up philosopher.
Dole Office Clerk: What?
Comicus: Stand-up philosopher. I coalesce the vapors of human existence into a viable and meaningful comprehension.
Dole Office Clerk: Oh, a *bullsh-t* artist!
Comicus: Hmmmmmm...
Dole Office Clerk: Did you bullsh-t last week?
Comicus: No.
Dole Office Clerk: Did you try to bullsh-t last week?
Comicus: Yes!

[Anon E. Mouse]

Federally Curious:

Good point! We're so used to everything going to the Fed. Cir., we forgot to read the statutes....

Why not 4th Cir? Which statute would give DC Cir jurisdiction?

[Patent Medicine]

"Anyway I've gotta finish up this dang amendment. It's so hard to pick a piece of art when you have 4 pieces of art all showing some aspects past the ind. but none showing all of them. It's like, write up the 102 on the ind. 4 times and then hit each dep as they come. So rtarded."

I think that about sums up everything I need to know about you. I can now skip every post you write in the future. Thank you.

[lower]

I'm not sure the definition of a "substantive" rule is overbroad. Judge Cacheris cited to the U.S. Supreme Court, Federal Circuit, and D.C. Circuit as to that definition, i.e. covering all of his bases.

The main argument I see here is "then all procedural rules are substantive because they affect a right and/or obligation." Let's not go to extremes. Any rule will have some substance and some procedure. The question is how you label it. Here, the Continuation Rules did not say, "here's how we're going to implement a Congressionally passed law." They were a means of making the law without going through Congress. That's what made them substantive rather than procedural.

E6K's example of abandonment is a bad one b/c the rules there implement 35 USC 133, which says if you don't prosecute in six months, the application is abandoned.

[Just an ordinary inventor(TM)]

Please pardon jumping around a bit, but on the other “Tafas v. Dudas” thread, “PTO's Proposed Limitations on Continuations and Claims are Invalid” thread, Mr. Patent Attorney asks:

“And, has anyone else thought that Judge Moore probably has her sights set on the Supreme Court? Her actions are all probably geared to trying to nosey up to the Republican party.
Posted by: Patent Attorney | Apr 03, 2008 at 07:06 AM “

Above, my alter ego, “just curious” (although I recall that there may be more than one “just curious” commenters) posted this question to Anon E. Mouse et al., which question takes on new meaning in light of Mr. Patent Attorney’s question/concern (about Judge Moore maybe headed for the Supreme Court):

“And I pose this question to you and others who may have an opinion:
Do you think Judge Moore is (A) patent-friendly, (B) patent-neutral or (C) patent-averse?”

Mr. Anon E. Mouse's comment above about Judge Moore,
http://www.patentlyo.com/patent/2008/04/tafas-v-dudas-a.html#comment-109178486

was rather in-depth, serious and scholarly; however, for some reason I can’t quite put my finger on, I don’t necessarily agree with Mr. Mouse's import— my “jury” on this is still out.

One of my jumping around philosophies is this:
A strong American patent system is good for We the People in the US of America, but not what the big organized international cartels and international members thereof want (you know who I mean, e.g., in particular, I won’t name names but its initials are C.i.s.c.o.), and therefore We the People would be best served by patent-friendly Justices favoring a strong American patent system, and disfavoring globalizing, unitizing, pasteurizing, neuterizing "harmonization."

[Federally Curious]

Anon E. Mouse, thanks for catching the mistake - I was tired and forgot that this was a VA decision, not a DC decision. Point is the same, though - I'm not sure that this appeal goes to the CAFC. Which would make moot the question of Moore recusing herself.

And to the poster who said Moore's got her eye on the Supremes: in 25+ years of the CAFC, no one's ever gone from the CAFC to the SCOTUS. (Haven't checked if anyone went from the CCPA to SCOTUS.)

[Just an ordinary inventor(TM)]

Dear Mr. Patent Medicine,

I hope I’m not cast as the proverbial “pot calling the kettle black” (:p) but you will find that the annoyance level reading Patently-O drops to near nil when you do exactly what you postulated: “I can now skip every post you [6k] write in the future. Thank you.”

You may be interested to note the wager I offered above:
BTW, I bet anybody $100 that 6k is actually a high (meant in both senses) PTO mucky-muck asshole.

Also, in this comment, I posed a possible invention:
http://www.patentlyo.com/patent/2008/03/patently-o-bi-6.html#comment-108575488
“How about this for a software invention: A type of ‘spam’ filter but instead of spam, it searched for spelling and or grammar errors, and upon counting say, a dozen in a given submission, or a number which is determined in part or solely by the length (e.g., word count) of the submitted comment, to automatically, w/o human intervention, issue a ‘reject’ to the would-be poster. (If I decide to file an application, I understand I have a year to do so and claim priority to this comment posted today, but only in America, right?)
(Or would this invention of mine be considered an unacceptable “profiling” scheme against those who are mentally-challenged ?) (o^õ)”

If by chance this invention of mine patently panned out, I would have the better part of a year to file it. Would anybody care to offer this ordinary inventor free advice regarding its potential patentability?, and or its possible utility?

過 好 一 天

只 是 一 個 普 通 的 發 明（技 術 備 忘 錄）

[A VOICE FROM THE FOREST]

Ok let me get this right. Doll drags his feet about providing to the examiner's what they had rightfully wrought, a pay raise and then the management of the USPTO is wasting money appealing what is clearly the correct decision. Look if we don't hold the management of the USPTO personally and professionally liable, we might be faced with this again. The political and professional carreers of these people must be ended or at least placed at risk. Mark my words we WILL pay for our complancey in the future.

[Patent Attorney]

I think that this all plays into Dudas's hand. He wants substantive rule making as part of the reform package and wants a card to play for why he hasn't "fixed" the PTO. He can just say, look Congress, you want me to fix the problems, but you haven't given me the authority to do so.

Do any of you really think this case means anything to Congress? You are lost in your own myoptic vision of what matters. Dudas is laughing at all of your comments. He hasn't been spanked by the court. The court has issued him a ruling saying look Congress if you want the problems fixed give me the authority to do so. Dudas is going to wave this opinion in Congress's face. I would guess that few of you have ever had much supervisory authority outside of law.

What you guys seem to not realize is that Bush/Big Corp./Shill Dudas/Shill Moore have us in a pretty good position. The Congress is calling for reform because of the pendancy "problem" and the number of lawsuits "problem." And the Supreme court believes the Hollywood version of what an invention is. Roberts is a shill for big corp and doesn't care about case law unless it suits his needs.

The big corporation lobbyist are killing us and all we have is old case law and Rader (and probably Newman and couple of other old hands) on our side.

Without someone with the appeal like Rich we are going down, unless Bush and his ilk are replaced. My guess is that McCain will be more of the same. Romney is the only politician that I have heard that seems to understand patents. Probably because he has worked with start-ups.

Moore is going to rip into patent law like a buzzsaw into wood. She will do anything---is my guess--to try to get a Supreme court appointment from the Republicans.

[JustAnExExmr]

Posted by: Malcolm Mooney | Apr 03, 2008 at 12:13 AM
"I think many people thought (and still do think) that some changes to the rules would help stop certain abuses. But my gob only the most pessimistic among us realized how poorly prepared the PTO was to tackle such an assignment."

You can count me among that minority.

Titanic Operator: Hey, I see an Iceberg.
PTO Upper Management: Just keep going. We'll just limit the size of the iceberg.

[Alan McDonald]

In my humble opinion, Moore has zero chance at a Supreme Court appointment. Patent law is not significant enough to get her a spot and she has no record on the BIG constitutional issues that would get her past the conservative talk show hosts (remember the last potential appointment?)who would worry that she doesn't have the "right" stuff. Where are her opinions on the death penalty, abortion, etc. that would proove she wouldn't be the next Souter? The CAFC just doesn't provide the caseload to groom a Supreme.

[Michael R. Thomas arguably the worlds only inventor of signifence.]

Granting the authority to create rules as desired by Pto is a blank check for more inventor frauds and constrictions of incentives to create stieffling human advancement depending on who the person deciding is.Anti-inventor legislation already proposed is already sufficient to to stop any sembalence of fairness.I have an idea make the worlds only inventor the person to determine the new rules!

[Michael R. Thomas arguably the worlds only inventor of signifence.]

Granting the authority to create rules as desired by Pto is a blank check for more inventor frauds and constrictions of incentives to create stieffling human advancement depending on who the person deciding is.Anti-inventor legislation already proposed is already sufficient to to stop any sembalence of fairness.I have an idea make the worlds only inventor the person to determine the new rules!

[gauntlet]

JAOI,

Take a look at stupidfilter.org. Close enough?

[Just an ordinary inventor & also now sitting-down philosopher(TM)]

Dear Patent Attorney,

Re:
“Moore is going to rip into patent law like a buzzsaw into wood. She will do anything---is my guess--to try to get a Supreme court appointment from the Republicans.”

That’s what I was worried about. I hope & pray you are proven to be wrong. Judge Moore is young, beautiful and brilliant – why would she want to sell out We the American People when she grows up, and away from the sickly influence of elderly, wrong-minded mentors.

* * * * *

Dear A VOICE FROM THE FOREST et al.

Regarding your spectacular comment on this link:
http://www.patentlyo.com/patent/2008/04/tafas-v-dudas-a.html#comment-109256114
comprising:
“So I say to you my fellow citizens, be careful about letting the Constitution of the United States of America to be undermined by the necessities of business and economics. There are greater pursuits than profit.”
Posted by: A VOICE FROM THE FOREST | Apr 02, 2008 at 11:01 AM

Your comment added fuel to my fire; my passionate patriotic patent philosophy is this:

I consider the patent community in America to be a perfect microcosm in which to explore the results of International Big Organized Business IBOB hijacking our three branches of government.

By way of example, consider this hijacking embodiment:
What CISCO Systems, Inc. did was the tip of the iceberg. If We the People can hold Cisco fully accountable for their actions to the tune of revoking their license to practice, in one fell swoop, We the American People will have accomplished what needs to be done for openers. Ooops, maybe one two too many too Early.

But the concept is now out of the bag. My patent portfolio, which took me most of my life to build, for example, has been cut to shreds, in contributory part by Cisco. I am among who knows, at this point anyway, how many myriad thousands are in my class (as in action) of inventors? And my pending patents won’t (A) issue at all, as they would have not too long ago [as the preponderance of the evidence indicates], and (B) if they do issue, they won’t be nearly as valuable. Why?; in my opinion in part because Cisco contributed to the unlawful and unscrupulous bad mouthing of a particular class of inventors, and it accomplished its mission I’ll bet even beyond its callously premeditated expectations.

In all of American history, when was any inventor thought of as a horrid creature? People maybe thought of inventors as a bit daft, but in sort of a good way. Lemelson gamed the system, yes, and he got away with it for a while, until some of America’s finest patent attorneys killed the Lemelson scam. And a handful of others maybe got more than reasonable, but, all told, untold thousands of self-employed inventors got screwed by IBOB — where is the balance?

It is my contention that the now-defunct blasphemous Cisco Patent Troll Tracker blog unduly, unfairly and unlawfully contributed to the ongoing turmoil facing the American patent system, and Cisco should atone for its sins: by way of punitive damages, no more license to practice anything in America, and divvy up its worth to the myriad thousands of American and foreign self-employed and otherwise employed patentees who have suffered damages. Well, even I think it may be a bit ambitious on my part to advance this idea, but an example should be made of Cisco to rein in IBOB and put its constituents in it their proper place, serving We the People and not just feathering their greedy executives’ beds, executives who raid the corporate coffers before the shareholder get theirs.

What’s Cisco contributed to the damage of the American patent system (and my patent portfolio) is a microcosm in which We the American People can START TO TAKE BACK OUR GOVERNMENT AND reconstitute The United States Constitution.

There, now I said it, and I feel better, much better, for expressing these, my fieriest opinions.

And here is the irony of it all: By no stretch of anyone’s imagination am I, Jaoi, a patent troll— I’m Just an innocent bystander who got screwed nonetheless by Cisco et al's. shenanigans!

This is Jaoi(TM) and I stand by this my passionate patriotic patent microcosm message.

[johng]

Thank you "A VOICE FROM THE FOREST | Apr 03, 2008 at 09:28 AM" It's good to see someone else that understands the dirty work that must be done, now.

[Just an ordinary inventor(TM)]

Dear gauntlet,

Re:
"Take a look at stupidfilter.org. Close enough?"

Thanks for the heads-up: As Larry David might say: pretty, close, pretty, pretty close.

I like this from stupidfilter.org: "The solution we're creating is simple: an open-source filter software that can detect rampant stupidity in written English."

[Just an ordinary inventor(TM)]

Dear johng,

Re:
“It's good to see someone else that understands the dirty work that must be done, now.”

You got that right.
I hope I speak for the majority when I say, Patently-O has a true-blue Hero!:

Let’s raise a toast–
three cheers for our Hero, A VOICE FROM THE FOREST

[curious]

@JAIO: How exactly did the Patent Troll Tracker screw you over if you are just a small independent inventor? Maybe I am missing something here...

[anonymous]

JAOI, what have you invented?

[GP]

Jeez, I love the use in the Moore article of

"continuations can "wear down" an Examiner and force him/her to issue a broad patent claim even though none is deserved."

Her ignorance of the system cannot be better shown.

Examiners LOVE continuations. Love EM. Almost as much as RCEs.

File that Con, art search already done, if the claims are narrower, DP rejection, 1 count, get the TD back in the first response, 2 counts.

Sweet.

I said it when she was first appointed - she's dangerous because she's got just enough knowledge to sound convincing in her "expertise."

[Just an ordinary inventor(TM)]

Dear Mr. curious,

Re:
“How exactly did the Patent Troll Tracker screw you over if you are just a small independent inventor? Maybe I am missing something here...”

My patent portfolio was worth more before Cisco’s highly problematic anti-patent activities. And my pending patents will also suffer. We are talking serious money damages. Why do you ask for clarification? Do you want to initiate a class action?

* * * * *

Dear Mr. anonymous,

Thank you for asking,
“what have you invented?”

However, please allow me to answer with a question:

If I may be so bold as to assume you are an attorney, and I then ask you, who do you represent?, can you think of fair reasons a professional such as yourself would be reluctant to answer?

I, an inventor by profession for some forty years, also have fair reasons (different but related reasons) why I am reluctant to answer you question directly. I’d like very much to answer—what inventor wouldn’t like to disclose his inventions— and maybe someday I will have the unfettered prerogative to do so.

That said, I am happy to address your question this way: over my 40 year career I probably have something over fifty patentable inventions disclosed in my published patent portfolio; I’ll characterize two:

1) a super simple invention that took me some 20 years of specifically trying to invent, and which finally hit me in a flash in a dream – an invention that went undiscovered for centuries; and

2) an invention that required about a year of continuous up-till-dawn struggle and research by me and my co-inventor’s to ultimately make the break-through, only to discover it have already been invented. It was nonetheless a more-than worthwhile journey.

I’d bet most inventors, like myself, don’t measure success in dollars; we measure our success in part by accomplishments and by contributions we make – the intellectual legacy we leave our progeny et al.

[Just an ordinary inventor & sit-down philosopher(TM)]

Dear Mr. anonymous et al.,

I would like to ask a follow up question, below, stemming from these thoughts which I wrote for my family’s Christmas card:

I believe in the collective sanctity of humanity. Together, we comprise power greater than one. Sanctity is achieved through principled Biblical behavior and by helping one another.

Here’s the question:
What could be more rewarding than having a purpose in life such as creating “new and useful” systems, methods and apparatus for others to benefit from?

I hope that satisfactorily answers your question.

[agent007]

It's remarkable that the proposition that the claims and continuation rules are merely procedural is still being defended.

The RCE and continuation rules "merely" set forth circumstances under which these submissions would be accepted. However, the net effect was a hard ban.

Similarly, the claims rules "merely" set forth additional procedural requirements if the claim limit was exceeded. However, the net effect was a hard limit.

PTO management was well aware that these rule changes amounted to hard bans and limits.

Their strategy makes perfect sense --- try to get these substantive rule changes made by providing a procedural fig leaf. It it works in court, great. If it doesn't, go whining to Congress for more authority.

The PTO's official position that these rule changes are merely procedural is simply a fairy tale, and it was most gratifying to see the rules shot down in court for precisely that reason.

[bierbelly]

"If Judge Moore had actually participated in the drafting of the rules, if the PTO had sought her advice at the time,"

I guess we'll never know if they did, in view of their claim to privilege.

[Anon E. Mouse]

Federally Curious,

It looks like both complaints (Tafas and GSK) alleged jurisdiction in part under 1338. So it looks like it goes to the Fed Cir.

[Tom Dodd]

Amen 007...I vividly remember the first speech given by Toupin to a committee meeting at the Spring 2006 AIPLA meeting in Chicago. He said, "I cannot envision a single circumstance where such a petition (permitting a 3rd cont. or 2nd RCE) would ever be granted," referring of course to the procedural fig leaf- there was quite literally dead silence in a room filled with over 100 attorneys at this unabashedly definitive statement. Toupin also stated he didn't care if there were 5 million negative comments (instead of about 500), stating- "these rules are going into effect whether you like it or not."

Funny how their own words always come back to haunt arrogant wannabes.

[JohnDarling]

I saw John Whelan speak at a BADC meeting in April or May of 2006 and the legality of the rules was questioned and he said, "We've thought about that, and we think we have a 50-50 chance, so go ahead and take your best shot." (That's slightly paraphrased, but not much.)

Thank you to Dr. Tafas and GSK for a great shot.

[big hairy rat]

"an invention that required about a year of continuous up-till-dawn struggle and research by me and my co-inventor’s to ultimately make the break-through, only to discover it have already been invented."

There is much to be said for doing a prior art search.

The frequency of independent discovery is one of the reasons I am sceptical about the the usefulness of the patent system.

[Just an ordinary inventor & sit-down philosopher(TM)]

Dear Mr. rat,

I thoroughly agree with you and I begin to run searches almost as soon as I get serious about most ideas. (BTW, for many ideas, google is more broadly telling than uspto.gov searches.)

However, sometimes an idea is so powerful I prefer to write about it no matter what I think I might find, e.g., an energy invention: I had an energy-generation idea not too long ago, and I wrote about it even though my phenomenal prosecution patent attorney was confident prior to any searching that it would probably be old hat. By writing about it, however, I discover some nuances that might still be valuable—I haven’t abandoned the idea, but more pressing staying-alive matters often interfere with pressing intellectual pursuits.

The lesson to be learned in this regard is that, nothing is as powerful as putting pen to paper – you never know what else will be produced, what lies lurking, waiting to jump out at you on the next sheet. Most superficial ideas yield much more after pen-to-paper in depth thinking. Schools such as Bard High School Early College, BHSEC, in Manhattan insist students write every day in almost every subject— I highly recommend such schools.

In regard to my “invention that required about a year of continuous up-till-dawn struggle and research” only to discover it had already been invented: there was no way to prior art search it.

That invention was in the coding error detection field, and neither my co-inventor, an amateur mathematician (which he had taught me described a serious by not professional mathematician) nor I, a more-than-capable logician but with no math skills beyond a good, basic high school education, had any idea of what we had, of if we had anything, until we made the break through.

We had early-on working together invented a power mathematical research tool which we successfully used to analyze a few sticky questions in an ongoing fifteen-year project that led from one logic/mathematical challenge to another. Using our analytical tool, we proved that a potentially powerful and concise error detection & correction algorithm I postulated was so close to perfect, but no so, it made us nuts for a while. He finally made the mathematical breakthrough which to this day I don’t fully comprehend how he did it – he said it related to some kind of hyperbolic curve! Sounded silly to me, but he found the essentially simple yet perfect algorithm so close to what I initially postulated is was uncanny.

Only some time later did we find out it was discovered decades earlier, and that it was a seriously important invention back then. Despite the prior invention, the journey we took was nonetheless exhilarating and more than worthwhile to both of us.

The point being that neither of us had the prerequisite education to begin to know what to search, nor could we have afforded to hire the talent we could have consulted with even if we had known what to ask.

I understand in mathematics some of the great break-through have been made by pure novices not unlike myself. That has always fascinated me, how one can invent in a field in which he is not a phosita, a person having ordinary skill in the art, nor does it affect patentability how an invention is made or comes about (35 USC 103 says Patentability shall not be negatived by the manner in which the invention was made).

I expect you can understand why I do not share your skeptism “about the the usefulness of the patent system.”

[pds]

"There is much to be said for doing a prior art search."
Not much of a help when you don't know what the invention is. Moreover, once spending 1 year to come up with a solution, the cost of preparing/filing the patent application was probably the least of their concerns. Also, prior art searches do not help if the prior art was filed within 18 months of the search.

"The frequency of independent discovery is one of the reasons I am sceptical about the the usefulness of the patent system."
Perhaps the reason for multiple independent discoveries is that the patent system provides the incentive for many people to invent. Such a simple concept, yet the anti-patent crowd continually ignores it. They think the frequency of invention will remain constant if the patent system is weakened/abolished. Communism was a failed experiment, and I doubt it will work for inventions.

BTW: The frequency of multiple independent discoveries is way overstated. All one has to do is look at how infrequently interferences are declared.

[curious]

--frequency of multiple independent discoveries is way overstated-- I agree. Derivation is far more common

[real anonymous]

I think poor Rat was backed into a hole, and what were hearing is more convulsion than logic. Yes, Microsoft or others could pay for an independent-invention "study" to "back up" the hypothesis resonated by Rat... but I suspect the anti-patent powers have little room for wiggling against the Paris Convention, even if they hold the Constitution and the wisdom of the Founding Fathers in disregard in comparison to their own, or their own interests, in order to maximize current profits.

And we'd be the only country in the world without patents (proving how dum ROW is, eh Rat? Just kidding, Max.)

Viva $$$!!!

[Just an ordinary inventor(TM)]

Dear Mr. rat,

I had another thought regarding your sound advice about prior art searches being a good idea:

I recall going to the Math Building at Columbia to look for an out-of-print book a math consultant recommended regarding an earlier aspect of our work (my patent attorney had retained the consultant). I found the dusty book (copied it page by page since it wasn’t a lending library and the book was unavailable at the 42nd Street Library), which was Greek to me, and mostly unintelligibly to my co-inventor.

However, even so, I’ve found that by reading the text between the formidable formulae, I can sometimes catch the drift, and at times that has proven sufficient for my purposes.

The lesson being, don’t be put off searching even if you are not a phosita.

[Just an ordinary copyright holder(TM)]

"I found the dusty book (copied it page by page since it wasn’t a lending library and the book was unavailable at the 42nd Street Library)."

You what?!?!

JAOI, never complain about anything, ever again. Don't complain about big companies lacking respect for patents and patent law, or trying to subordinate IP laws to profit and convenience, for you are just as guilty.