The graph below shows the average number of claims filed with each patent application. I used as my sample 400,000+ original published patent applications. “Original” means that these applications do not claim priority back to an earlier filing. The trend leading up to late 2004 was a very slight (but statistically significant) rise in the total number of claims being filed. Then, in late 2004, we see a sudden drop. Over a one-month time period, the average number of claims dropped from about twenty six claims per application to about twenty two claims per application.
The simple explanation for that change is that the Patent Office dramatically increased its prosecution fees. Instead of charging $18 for each additional claim (over 20), applicants who filed on or after December 8, 2004 were required to pay $50 per additional claim. At the same time, independent claim fees were also more than doubled from $86 per additional independent claim to $200. The PTO also began charging a hefty fee for patent applications that were exceedingly long. All these forces came together to give applicants a clear incentive to forgo potential claim scope in favor of reducing the up-front fees. Since January 2004, the number of claims has continued to fall slightly (but significantly).
This change is good. Applicants will tend to drop red-herring and worthless claims. That in-turn will hopefully lead to tighter prosecution times and more clarity of claim scope.
I thought EVERYONE pretty much agreed that EPO searches were universally superior, then I took a poll and found that it was pretty much unanimous, except for e6K. He was out on the sidewalk with a wild look in his eye, shouting at strangers about how atoms fall out of wires…
Well 6k, your anecdotal evidence from your 1.5 years in your narrow niche is probably a little less probative than my 9+ years across a variety of technologies.
BTW, an RCE and a request for reconsideration are different. You’ll learn that when (if?) you make it to GS-11.
“Then you make a novelty objection and remind Applicant about Rule 137(3) EPC 2000.”
We need rules like that. I bow to your system good sir. /bow
Sometimes I toy with the idea of declining an RCE. “The examiner considered the request for reconsideration but declines to reconsider the application.”
“The PTO should stop wasting time and user fees and just ask for help from people who can provide it.”
I agree with that, frankly we should swipe their search tools and their classification imo. Still, your anectdotal evidence of their “much better” searches is just about the same as mine that it’s marginally better if at all. I have no shortage of cases where I’ll get an EPO report and I’ll go find better art. With a 10 second googling in some instances, no lie.
6K, here’s a thought. Claim 1 is lamentably vague. In the EPO you should object under Art 84, that the claim isn’t “clear”. But, when you do that to an American attorney, things can get vitriolic, because he (invariably a he) doesn’t take kindly to aspersions being cast on his drafting skills, by somebody who is not an English native speaker. So, instead, you choose an equally absurd D1, and read features of the drawings of the app, number by number, onto the text of claim 1. Then you make a novelty objection and remind Applicant about Rule 137(3) EPC 2000 . That’s the one about one shot at amendment only, and after that you need my “consent” to get your amendment admitted. Usually works a treat. AND, the more absurd the cite, the better is the response.
“Acting like EPO examiners have/find all the best art is ridiculous. If they’re citing better art it’s only from your point of view, seeing examiners here cite ridiculous art.”
Actually, no. The patent bar and applicants have been telling the PTO for years that the search results from the EPO are far better than the search results from the USPTO and they’ve just covered their ears, stomped their feet, and refused to listen.
The PTO did the same thing with the original EFS (electronic filing system). They made up some insanely complicated system that nobody wanted to use. I attended a demo of the system back in 2001 and basically every practitioner in the room told the person from the PTO, “We would never use that system.” They clung to it for a long time though. Finally, they just went out and licensed the EPO’s system. Should’ve done that in the first place.
The PTO should stop wasting time and user fees and just ask for help from people who can provide it.
Easy ride? No, nobody said it was. With the exception perhaps of me. I could think of harder jobs than this. Easily. Every now and again it’s challenging, mostly because I try to do a “good job” instead of a “job”. D1 is always D1 at the moment. EPO’s D1 is often far from the mark. FAR. You remember the case I was telling you about the other day where I missed the sub I should have been in? I used some art from the EPO to make the first rejection even though it didn’t look terribly like a good “D1” to me, but I had nothing better. The EPO examiner got all the claims with it and so did I. Then I had to go back and actually find a good D1 after finding out about the other sub come amendment time. Acting like EPO examiners have/find all the best art is ridiculous. If they’re citing better art it’s only from your point of view, seeing examiners here cite ridiculous art. Out of the not so few EPO search reports/actions I’ve perused there’s nothing remarkable about the relevance of their refs. I’ve seen outlandish rejections from them just the same as from the US. Saw one where, I swear to you, it didn’t appear that half of the limitations were even nearly/inherently/implicitly/madeupidly present much less explicitly shown.
I should also note that after having discussed this on PO it turned out that the particular EPO reference discussed above was found to be D1 when there is literally a whole sub with plenty of refs in it just like in my class. There being one notable exception. In their classification they actually call the device it’s name whereas my classification calls it some ridiculous “gobbledygook”. Explain to me how they would miss the sub when it specifically defined as the device’s NAME?
Also, I’m POed, someone spilled my yogurt in the kitchen and of course none of the places that supposedly stock it have any.
6K, Eye, It does often happen, that Applicant doesn’t know about D1 till the EPO Exr finds it for him. Then Applicant is in a hole. Things go much better, at the EPO, when the subject matter claimed is presented, from the outset, within the context of the art that the inventor found most relevant. I believe that used to be the case, also, in the US jurisdiction. Things have got so distorted recently, however, that some US firms begin their PCT cases, at the top of Page 1 of the spec, with the brief description of the drawings. You readers know it ain’t right. But juries and District Court judges don’t. That’s why you do it, I suppose.
If you’re stumbling e6K, then you’re not doing your job. If the EPO can find D1 (and D2, and D3 and D4…) why can’t the PTO?
Because someone told guys like e6K that patent examining and patent law was some kind of easy ride. Its time for you to stop daydreaming about becoming a lawyer and get to work.
Also, if the applicant would admit D1 in his background and admit it was D1 then we’d all be better off. But of course, there is no D1 until the examiner stumbles upon it in the millions of references out there amirite?
“So, if the USA were to sign up, the EPO might have to open a branch in DC, with thousands of US Examiners, all examining under the law of the EPC.”
Max, unfortunately U.S. examiners have been told, in no uncertain terms by PTO management, that they are not required to follow the law. Maybe some EP examiners would be interested in moving to the U.S. Housing prices are a bargain right now.
If the U.S. examiners were actually capable of finding D1, I think our courts would do a better job of adjudicating patent disputes. I would welcome the prospect of our courts handling cases in which the closest prior art was actually in front of the examiner during prosecution.
“Except that Examiners are real people, too, pds, including the lazy rubber-stampers who issue those software and computer-implemented inventions you love so much. Eventually they’ll learn how to do their job correctly. Then you’ll have to do the same.”
When you become qualified as a patent attorney, come talk to me about my job. Until then, you are little more than the uninformed peanut gallery expressing your ignorance everyday.
FYI … getting a computer-related patent is, on average, much harder than getting most any other type of patent (just one step below “business method” patents, which are the hardest to obtain). If you think examiners are “rubber stamping” software patents, then you are an absolute ignoramus.
Also, unlike you, I actually try to understand the law, not mope all the time (like you) bemoaning how all these patents are being issued. All you can make is policy arguments based upon the fact that some partner (who specialized in software) kicked your bu tt some time ago and you are still harboring resentment over it.
As for computer-related/software patents, I defend them because you attack them. Attack other types of patents, and I’ll be happy to defend those as well.
Let me guess, you are the type that has his secretary print out all the posts, you dictate your response to these posts into a tape recorder, and then have your secretary type them out.
I would welcome to the 21st century, but it looks like you are having trouble getting out of the 60s and 70s.
Mr Darling, interesting thought, to let the EPO do the search. What’s interesting about the EPO is that it does not only search but also examination, for its 34 Member States, but has no competence for post-issue litigation, which continues to be the province of the national courts of the Member States. The Administrative Council of the EPO can invite further sovereign States to join up. New Members get to stuff the EPO with a number of Examiners in proportion to the amount of business their residents file at the EPO. So, if the USA were to sign up, the EPO might have to open a branch in DC, with thousands of US Examiners, all examining under the law of the EPC. But, if there were a dispute in the USA, after issue, it would be the US courts that would adjudicate it. How does that prospect grab you? I’m not joking. Or am I?
I love it when you get that deer in the headlights look Mooney. No, you bite me.
“What about it? Obviousness has always been predicated on the legal fiction that one having ordinary skill in the art has all the relevant prior art before him or her. Giving REAL people greater access to information (e.g., the prior art) doesn’t change that.”
Except that Examiners are real people, too, pds, including the lazy rubber-stampers who issue those software and computer-implemented inventions you love so much. Eventually they’ll learn how to do their job correctly. Then you’ll have to do the same.
“Do you expect me to believe that your clients don’t come up with 100x the amount of innovations than they can actually afford to bring to you and patent?”
Most people are content to merely smoke patent crack. Here we see what happens when you shoot right into the mainline.
Sad.
SmallPeeingGuy: “Obviousness is obviousness – so what. Like a certain poster who invented everything of significance, you think everything is obvious.”
No. I think everything that is (1) enabled simply by describing it and (2) merely a virtual manisfestation of something that has existed for years in the real world is obvious. Unless you can show unexpected results.
Which you can’t.
So bite me.
“The best fix for the USPTO in my opinion is to do nothing, wait for the EP examiner to identify D1, and then issue a FAOM, preferably relying on D1.”
You’ve touched upon something that I’ve been thinking about for awhile. Specifically, what is the USPTO really trying to do with these rules. I imagine that they are not that ignorant so as to not foresee what will happen should something like ESD be put into place.
For example, suppose there is a requirement that some type of “search” be performed. The interesting question, in that case, would be what qualifies as a “search?” Perhaps the USPTO promulgates a rule that states that any search performed by an entity, certified by the USPTO, as being capable of performing the search is acceptable, and the USPTO certifies that the EPO and JPO are those entities.
In such a situation, applicants might be persuaded to file PCT, request the search be done in the JPO/EPO, and the USPTO accepts the search as being sufficient if the applicant proceeds in going national phase in the US.
Another step would be to force the examiner, in the USPTO, to treat such a search as binding (i.e., no additional “full-scale” searches), which results in a requirement for more production from the examiners.
This could be an “end around” to hiring more examiners by, in essense, having applicants pay other patent offices to perform the search.
Just a few thoughts … and I’m sure there are other permutatons that could be put into play.
“I look at it differently: lose out on some low-end innovations, in order to provide a more streamlined examination for the rest. It won’t solve the backlog alone (as I noted above), but it would help. And it would go a long way to deterring the useless patents that create PR nightmares for the patent bar and talking points for Dudas et al.”
This is a point that I’ve addressed before but you’ve conveniently forgotten already. Let me refresh your recollection:
“Your comments establish your ignorance as to how easy it is to value a patent application, [particularly] one that is in the drafting stage. Put [simply], it is EXTREMELY difficult to place a value on any patent application. Without knowing the scope of the claims that will eventually be obtained, where the market will be 5-10 years from now, what the competitors will do 5-10 years from now, or what subsequent technology may render obsolete your claimed invention, you are left with guessing.”
With that in mind, you are advocating that the decision on whether to file (or not) should be based upon pure speculation as to the future worth of a patent. As I noted before, applicants do it today because they are forced to. However, this does not mean that they (or anybody else without prescience) are capable of doing a good job.
Again, as I proposed to you before, if you think you can even reasonably guess which patents are going to be commercially viable/signficant/??? in the future. I’ll raise capital for a fund to invest in those patents.
Max,
The U.S. filing fee already includes a search fee as a component. So conceivably the PTO could conduct the search and forward the results prior to the payment of any additional fees.
The problem, though, is this: U.S. examiners are no where near finding D1 in the first search. Some (many? most?) examiners are no where near finding D1 ever. Most of the time, applicants provide the U.S. examiner with D1 from the corresponding EPO case. And the U.S. examiner ignores it in favor of the silly art they found during their search.
As EP examiners routinely (always?) find D1 the first time around, one shot at amendment after FAOM is fair. Under the U.S. examiners’ broadest unreasonable claim interpretation/most ridiculous reading of the prior art system, one shot is not fair.
The best fix for the USPTO in my opinion is to do nothing, wait for the EP examiner to identify D1, and then issue a FAOM, preferably relying on D1.
Given the differences between FTF and FTI, and between obviousness and inventive step, this won’t work in every case, but I think it’s preferable to the endless stream of silly office actions coming out of the USPTO.
Mr Darling, a clarification please. You envisage a separate fee for requesting examination. Would that be a fee for the USPTO search activity as well, or do you envisage the EPO method: search fee on filing, then publication of the app and the search report, then (and only then) payment for the process that goes on during examination on the merits. The EPO is busting its guts to get Applicants to file a preliminary amendment not later than the exam fee. They’ve wanted that since 1978 but are getting more pushy now, about getting what they want. Rule 137(3)EPC 2000 gives Applicant just one shot at amendment, after the FOAM issues. What’s the best fix for the USPTO, in your opinion?
SF,
Agreed. I was at a Bar Association of DC meeting in late April/early May of 2006 (right around the time comments were due) and it was mentioned to Mr. Whealan that the rules might be challenged. He said the PTO considered that possibility, figured their chances were 50-50, and to go ahead and take our best shot.
I’m not sure he was expecting anybody to take him up on his challenge. If he had, I don’t think he would have given the PTO a 50-50 chance.
Considering how much time and money the PTO has wasted with these rules, I hope they are not ultimately rewarded by Congress. Until competent management is put in place at the PTO, Congress shouldn’t even entertain the notion of giving the PTO any additional authority.
I agree with your proposal to have a fee to request examination. It works elsewhere. Why the PTO hasn’t proposed/asked for that is a mystery. But it does shed light on the incompetence of the current management. They ignored all of the comments they received and don’t appear at all interested in doing anything except punishing applicants.
They’ve been told over and over that the examiner production system is a huge problem and contributes to the backlog and pendency problems. They know it’s true, but adamantly refuse to change it, or even acknowledge it is a problem.
Nothing will be accomplished until the current management is swept away.
“The only explanation I can think of for the PTO’s appeal is that their strategy all along was to get shot down in court, and then go to Congress…”
They hoped they would win (they put their chances at about 50%), but they now need to exhaust their appeal to then get the leverage they need to go to Congress.
The PTO does not have authority to set fees to discourage filing. They have authority to set fees to cover the cost of examination.
“The ESD and IDS rules will drastically increase preparation costs, instead of filing fees in my proposal. So the real question is whether the USPTO will get Congress to give them the authority to demand the ESD-type analysis.”
Well, they’re certainly not going to get that authority from the court. Proposed Rule 265 will be reviewed by the Fed. Cir. in the GSK case and I think it’s likely that the court will agree that the proposed rule is impermissibly vague. We’ll see.
The only explanation I can think of for the PTO’s appeal is that their strategy all along was to get shot down in court, and then go to Congress and say, “We did the best we could, but we were blocked by the court, so now you have to give us the authority by statute if you want anything done about the backlog and pendency.”
In effect, the PTO may be deliberately trying to lose the appeal. That would (partially) explain the silliness of their arguments.
The fact that the proposed rules will have a minimal impact on the backlog and pendency is not considered to be a problem as the legal masterminds who wrote them will be long gone by the time that fact manifests itself.
“Regardless, my position is that the goal of the patent office should be to maximize the encouragement of innovation. As for me, I see that the varying effects of your proposal do more to discourage innovation than encourage innovation. On that basis, I don’t support it.”
That’s one way to look at it: maximize innovations by allowing patents to be as affordable as possible. I look at it differently: lose out on some low-end innovations, in order to provide a more streamlined examination for the rest. It won’t solve the backlog alone (as I noted above), but it would help. And it would go a long way to deterring the useless patents that create PR nightmares for the patent bar and talking points for Dudas et al.
I’d be in favor for a similarly high “request for examination fee” with a low filing fee to allow applicants to test the waters, get funding, etc. while not bogging down examination resources.
“Regardless, your proposal has about the same chance of being implemented as that of 6K’s proposal to change how the 2nd paragraph of 112 is interpreted.”
You’re absolutely correct. But the USTPO proposals leverage the same principle: make it more expensive. The ESD and IDS rules will drastically increase preparation costs, instead of filing fees in my proposal. So the real question is whether the USPTO will get Congress to give them the authority to demand the ESD-type analysis.
And look on the bright side pds, when we have the backlog under control, the gov can start paying off the 700 billion we’re about to lose, or the billions spent in Iraq by not letting the PTO keep all the fees! Hurray! The economy is saved! Iraq is conquered under our iron boot!
My proposal to change how 112 is interpreted has the same chance of being adopted as higher fees to discourage “overfiling” of applications? I didn’t realize my chances were so high. Near 100% over the long haul?
“After reading your comment twice, I believe you have made my point for me, as I found your comments to be very ambiguous.”
Actually you’re just incompetent. What do you not understand about his comments? They are very simple. Let me break it down into attorney hand hold talk that I reserve for Finals. 1. Clients determine which ideas are commercially significant enough to be considered a “priority” and thus filing worthy. Do you expect me to believe that your clients don’t come up with 100x the amount of innovations than they can actually afford to bring to you and patent? 2. This determination of significance is different than the actual exploitation that goes on down the road, what the client thinks is important in 2005 might differ radically to what actually turns out to be important in 2008. Correct?
In essence he says: the only thing that is of concern here is how the applicant feels at time of filing. It is better to make the applicant feel cautious about filing and wasting money on something that has, in their opinion, at time of filing, a very small chance (for instance .000001%) of being significant down the road.
You argue: Oh, but if it turns out that the app wasn’t comm viable then that shouldn’t have an impact on if the app issues or not.
Nobody said that it should. He said that how the applicant FEELS ABOUT THE APP AT THE TIME OF FILING should have an impact. Jes us, I don’t know how much clearer to make it for you.
Let me try in other words, if the applicant doesn’t feel the $/(% chance the invention will be significant) ratio is in their favor then they will not file, just like in today’s system. The poster you are responding to feels like this ratio is not being used right now but is a useful tool in weeding out applications that serve nothing more than as a blockage to the system.
If it weren’t for my Grandmother coming up with the idea of putting blue ink on the last parts of floss to tell you when you’re low, and my sister coming up with the disposable female urinal and both of them wanting to patent each idea then I might would agree with you that fees should be as low as possible. As is, they’re 50+ years too late and a 10 second googling told as much. I’m not too sure that applicants with similar ideas shouldn’t either a. think twice or b. fire up Mozilla. Since b is OUT OF THE QUESTION and the only way to accomplish a is to hit the pocketbook then the course of action seems clear.
“Well pds, you make the cavalier remark …. beats me).”
After reading your comment twice, I believe you have made my point for me, as I found your comments to be very ambiguous.
You share the quality with 6K (but not MM, who is better at this) of being able to write a lot without saying much.
“pds, since you don’t discuss what I write (e.g., commercial significance and the every client’s ability to determine whether its worth the risk for them to pay the fees/costs to file) and you discuss strawmen (e.g., commercial exploitation), your condescending remarks ring hollow.”
Please … parse the difference between “commercial significance” and “commercial exploitation,” as I cannot find a difference that makes my comments not relevant.
“Ramping up the costs merely makes them think twice about it, which is a good thing.”
Why is it a good thing? Why are “commercially significant” patents more important than patents that are not commercial significant? In case you didn’t realize it, patents have a wide variety of commercial significance, some of which are difficult to quantify.
You are right, however, is that clients do that all of the time. The current costs to prepare/file/prosecute a patent application is already beyond the means of many people/companies, which is why many people do not file a patent application.
Regardless, my position is that the goal of the patent office should be to maximize the encouragement of innovation. As for me, I see that the varying effects of your proposal do more to discourage innovation than encourage innovation. On that basis, I don’t support it.
If you cannot do better than “higher filing fees will reduce pendency,” then, IMHO, you are working with a weak argument.
Regardless, your proposal has about the same chance of being implemented as that of 6K’s proposal to change how the 2nd paragraph of 112 is interpreted.
Well pds, you make the cavalier remark that apps from multi-lingual Europe don’t fulfill the US “written description” requirement because they are “ambiguous”, but “quality” means “fitness for purpose” and all those European cases are probably quite fit for the purpose they were written, and probably do meet European enablement standards. The word”ambiguous” has a very clear and distinct meaning and a patent document is seldom truly “ambiguous”, even the one in Chef America. Mostly patents are just horribly unclear. A contributer above called Pen finds European women to be quite fit too (although what that has to do with the subject under discussion beats me).
pds, “If you had any CLUE as to how inventions are commercially exploited and how long it can take to determine whether or not a patent is commercially viable, you would be embarrassed to write what you did.”
pds, since you don’t discuss what I write (e.g., commercial significance and the every client’s ability to determine whether its worth the risk for them to pay the fees/costs to file) and you discuss strawmen (e.g., commercial exploitation), your condescending remarks ring hollow.
Clients make filng decisions everyday about the commercial significance of an invention without knowing whether they’ll eventually commercially exploit it or whether it proves to be commercially viable. Ramping up the costs merely makes them think twice about it, which is a good thing.
“Back at those conclusion (that Europe is great) without analysis gig again.”
Have you seen their womenz? Why always analyzing pds? Just observe.
Dear Mr. A.S.Eye,
Re: “If the pendulum swings back the right direction and patents are given teeth again, you might see applicants spending more time to search because they would want to make sure that their patent was bulletproof and didn’t get invalidated after a lot of dollars were sunk into a costly infringement litigation.”
Dead on; I couldn’t agree more…
“I think those challenging the validity of US patents should worry away at the “written description” point, till it’s taken as seriously in the PTO and SCOTUS, as it is taken here in Europe.”
Back at those conclusion (that Europe is great) without analysis gig again. Based upon what I’ve seen coming out of Europe, the written description requirement at the EPO isn’t take too serious given the ambiguous nature of the patents I’ve seen drafted by your fellow attorneys.
“The point is that the vast majority of alleged inventions are not commercially exploited, ever, because nobody is interested in them.”
I’ll partially agree with the first point, but not the second. Many inventions are not IMMEDIATELY commercially exploited because they are not ready to be exploited
For example, take the history of the light bulb. See, e.g.,
link to inventors.about.com
link to ideafinder.com
It took many decades from when the first light was produced from electricity to when Edison invented his light bulb. Moreover, to make the light bulb commercially viable, it took several other improvements by Edison (beyond his filament).
The fact that an invention to a “base technology” may never be commercially viable in the lifetime of the patent shouldn’t prevent that patent from issuing. First off, without the initial disclosure, any follow up inventions to the initial disclosure may be delayed or may never occur.
Moreover, where the invention does achieve commercial success, but by somebody else, and before the expiration of the original patent, the respective patent holders can engage in negotiations as to how to exploit those patents. In so doing, both parties can realize a benefit from their activities.
Regardless, the goal of the US patent system shouldn’t be to just reduce the backlog in the USPTO, whereby those who have the ability to pay large filing fees have a longer time to exploit their patents. Instead, the goal of the US patent system should be to encourage innovation.
“on the other hand, the extreme difficulty Applicants have, in finding any Background Art for inclusion in any new app, for setting the claimed subject matter in the context of relevant art.”
To my recollection, I don’t think I, or anybody else, has stated that it is extremely difficult (or even just mildly difficult) to find prior art to discuss in the background of the invention.
However, the sophisticated patent drafter (in the US) works in the context of the current law. First, there is no requirement that applicants discuss the prior art. The bargained-for quid pro quo is applicant’s disclosure of his/her invention for limited rights to that invention. Thus, applicant needs to describe their invention, not other people’s invention.
Second, given the ever-looming possibility of being accused of inequitable conduct, characterizing the prior art can lead to invalidation of the patent. For example, even if you are only using the exact words from the prior art, one could be accused of not discussing a particularly relevant aspect of the prior art.
Discussing the prior help may help, during prosecution, to better explain the differences between your claimed invention and the prior art. However, there is a risk involved with that discussion. Determining what to discuss (and what not to) involves a risk analysis.
“And what about obviousness?”
What about it? Obviousness has always been predicated on the legal fiction that one having ordinary skill in the art has all the relevant prior art before him or her.
Giving REAL people greater access to information (e.g., the prior art) doesn’t change that.
Thanks Eye. If you don’t mind, I’m not going to hold my breath till FTF comes in. I have a feeling my health will suffer. What I’m saying is what you have picked up, with your use of “should” and “statutory”. I think there is a statutory requirement for a written description of the invention on the filing date. I think that’s important for the health of the US patent system. I think the CAFC thinks it’s important (see the concurrent Judge Lourie) thread). I think Applicants and prosecuting patent attorneys, and those who litigate on behalf of patent owners, think it’s important to keep the “written description” requirement weak. I think those challenging the validity of US patents should worry away at the “written description” point, till it’s taken as seriously in the PTO and SCOTUS, as it is taken here in Europe. That would deliver a better balance between infringement and validity, which in turn would raise the chances for owners of not invalid claims to secure permanent injunctive relief from infringing acts.
Max,
Although your post was addressed to pds, with all due respect, what are you saying? Just because subject matter can be found quickly doesn’t mean that art related to an invention can always be found or should be found by the applicant. Its the PTO’s job to find art – let me repeat – its their JOB!
There is no incentive for most applicants to hide anything – there is just not necessarily a huge incentive for applicants to conduct a big search. There is every incentive for applicants to attempt to get broad claims legitimately allowed and the PTO’s job is to make sure that the claims that get allowed meet the statutory tests. That’s about it.
If the pendulum swings back the right direction and patents are given teeth again, you might see applicants spending more time to search because they would want to make sure that their patent was bulletproof and didn’t get invalidated after a lot of dollars were sunk into a costly infringement litigation.
First to file? Please hold your breath along with zomg…
Max,
Although your post was addressed to pds, with all due respect, what are you saying? Just because subject matter can be found quickly doesn’t mean that art related to an invention can always be found or should be found by the applicant. Its the PTO’s job to find art – let me repeat – its their JOB!
There is no incentive for most applicants to hide anything – there is just not necessarily a huge incentive for applicants to conduct a big search. There is every incentive for applicants to attempt to get broad claims legitimately allowed and the PTO’s job is to make sure that the claims that get allowed meet the statutory tests. That’s about it.
If the pendulum swings back the right direction and patents are given teeth again, you might see applicants spending more time to search because they would want to make sure that their patent was bulletproof and didn’t get invalidated after a lot of dollars were sunk into a costly infringement litigation.
First to file? Please hold your breath along with zomg…
pds, a question: Do you see any contradiction between, on the one hand, your quoted “extreme ease at which students can access any information these days. There is little they cannot find in just a couple of minutes” and, on the other hand, the extreme difficulty Applicants have, in finding any Background Art for inclusion in any new app, for setting the claimed subject matter in the context of relevant art. Is it perhaps that the legal sanction for overlooking a piece of art is greater than the sanction for leaving out the prior art entirely? Is it a legal system that Promotes the Progress, and nurtures legal certainty, that gives an Applicant an incentive to 1) avoid setting the invention in the context of relevant prior art, and 2) avoid claiming the real invention, till after the FOAM. Will First to File make any difference?
Its not rocket science Mooney. And failure to exploit patents has nothing to do with whether people are interested in them.
Obviousness is obviousness – so what. Like a certain poster who invented everything of significance, you think everything is obvious. In his case we call it a mental health problem, in your case we call it arrogance, which some might say is also a mental health problem. Either way, you always seem to make your armchair sniff-o-riffic obviousness findings after the fact making you a classic hindsight reconstructionist – a slimy maggot of the worst kind. The MPEP warns us about the slimy hindsight reconstructionist and counsels us to crush him out at every turn.
I say if people are willing to cough up the PTO fees, then they must think their innovations are at least interesting to the tune of a few hundred dollars. If the PTO really wants to limit the number and quality of applications they are getting then they can raise the PTO filing fees to, say, $20,000. But then of course you would hear a whole new brand of screaming from foreign applicants and disadvantaged businesspeople and individuals. We must also answer the question “why shouldn’t uncle joe be able to get a patent that he can hang on the wall for his improved, battery powered, left handed smoke shifter with the kung-fu grip – who are you to tell him he can’t?”
If every invention was a slam dunk as you suggest it should be, there would be no need for venture capital because any barney with a fat piggy bank could bankroll a successful R&D effort, file only a commercially exploitable patent application and be off to the races.
In any 100 patent applications, its not surprising that 10 or less are commercially exploitable at any given time. Commercial exploitation alone is not the point and exploitation decisions are not costless. Thus, a decision to exploit one patent may have included a decision NOT to exploit ten others that COULD HAVE BEEN exploited. The point is that if you are in the business of making complex articles of manufacture, it is wise to have a program of filing on your technology.
Its a little like owning a firearm or gardening. You don’t own a firearm because you think it should be instantly exploitable (although, like a good patent, it should be readily deployable if and when needed) and you don’t plant a garden because you want sliced tomatoes with your sandwich.
You own a firearm for that night that you hope never comes when you hear glass break and your alarm system goes off. You plant a garden for that afternoon in late August when you pluck a ripe warm beefsteak off the vine slice it up with a little salt and Hellman’s on top and off to heaven you go.
You file an application for that day that comes ten years later when you are finally ready to release that amazing feature into your second generation product. You own the patent for the day that you hope never comes when some bozo like Mooney thinks that your years of hard work and development efforts and the resulting patent is “crap” and rips off your technology with a feeble attempt at making an inferior substitute thus threatening your profits and your brand.
“If you had any CLUE as to how inventions are commercially exploited …”
The point is that the vast majority of alleged inventions are not commercially exploited, ever, because nobody is interested in them.
“IMHO, the greater access to information provides so many more opportunities for people to innovate than there was even 20 years ago. Stumbling blocks, which once take a trip to the library and hours of research can now be resolved in minutes. Dead end investigaion, which might have been repeated time and time again, can now be recognized and skipped.”
And what about obviousness?
“Excuse me, did you just say that the existence of the Internet is making people more innovative than they were prior to the Internet?”
Interesting question … I had a conversation, over the weekend, with an administrator at a very highly regarded university and we were talking about characteristics of the current student body.
One of the points we were discussing is that extreme ease at which students can acccess information these days. There is little they cannot find within just a couple of minutes and access to a search information.
IMHO, the greater access to information provides so many more opportunities for people to innovate than there was even 20 years ago. Stumbling blocks, which once take a trip to the library and hours of research can now be resolved in minutes. Dead end investigaion, which might have been repeated time and time again, can now be recognized and skipped.
The internet now allows that 99% perspiration number to be reduced because of the wide availability of information, which should increase the time available for inspiration.
To me, this is plain as day.
“Also, the point is to deter new filings to help the USPTO cut through the backlog by being able to examine on the inventions that are sufficiently commercially significant”
Yes … we now add “commercially significant” to the holy trinity of hoops a patent application has to jump through: statutory subject matter, anticipation, and obviousness.
If you had any CLUE as to how inventions are commercially exploited and how long it can take to determine whether or not a patent is commercially viable, you would be embarrassed to write what you did.
“I usually feel like I’m dealing with someone who doesn’t give a crap and is just trying to get things done as quickly as possible so he can leave in time for happy hour.”
There are people like this, but I rarely rush anything, if I’m not done then it just gets moved to the next day. The only rush time is end of the quarter. They want to force x done, then x will be done.
“If searching is so quick and easy e6K, why do so many examiners complain that the count system is too demanding?”
Why, I’m glad you asked! So, let’s say you have an application and you just busted claim one without breaking a sweat. Now, your “job” of “examining” the “application” is about 1/22 of the way done on avg. And then let’s say further that you just get done with all 22 avg claims then you get to decide, “do I really want to search this application, or do I just want to reject it?” At which point you realize, it’s time to move to the next application, but to DO THE JOB, you’d need longer. Now, if you prefer us to be the patent application rejection office, then you should lobby congress to change our name. Needless to say, some people will keep their bs claims to a minimum so that the examiner is free to concentrate on actually finding art that does more than meet the claim limitations. Some do not. Most layers who post here insist, INSIST!!!!! that there be more than a few claims. I cite the few cases that I’ve had that have 5 or less claims as prime examples. All are rejected on very relevant, nearly, if not entirely, spot on references, or were allowed with very close art cited.
Factor in having a spec that reads like this: An embodiment of the present invention may include a part 1 and a part 2. Part 1 may also include a graded composition down until part 2 begins. Part 1 may also be integrally connected to part 2. Part 1 may also include a composition that has a spiral of chemical x winding up through it until a part 3 begins.
And there are no drawings.
Be honest, how much did you glean from spending 2 hours trying to puzzle out wtf they’re trying to say? WTF are the PARTS? Down on page 6 you’ll find out that they MAY be widgets. But nobody really knows. Reading this sht can take hours by itself. Especially if there is 40 pages or more.
Liebling, how happy I am, to find an EPO Examiner following this thread. I don’t actually see anything in your contribution that contradicts my assessment, but I do concede immediately that things will deteriorate unless all concerned (management, EPO Staff Union) strive constantly to nurture what’s already been achieved, rather than allow internal strife to damage those achievements.
Max,
I protest, you can find me in the office much later than 16h30.
Okay, you will have difficulties to find me there at 8h00 AM.
More generally, I’ll try to comment on your niceties without blushing:
– I am “motivated to do a quality job”, but I am not sure I am much in trend in the MBA managementt era of the EPO epitomized by our dear VP a.i. Ciaran McGinley. Even if the pendulum and the message are now swinging slightly back.
– am I “given good tools to do that job”, maybe you mean the classification philosophy, and the peer developed add-in tools developed before the IT infrastructure muted to a outsourcing business. But we would be better served if the management would recognize that their job is to be leading edge software and database development managers DELIVERING ON TIME, not overcontrolling bean counters personalities loathing public service mentality (especially the public servant salary regulations for themselves).
Did I receive high quality training and supervision? The first on the whole yes, but about the last I want to mention that my supervisor was promoted at the high of the “deliver, deliver, deliver” hype at the EPO, and it feels in its personal opinion about quantity and quality…
EPO Examiners work in an environment where the science and technology is the core, and the necessary underlying law is still stripped down to those absolutely bare essentials that made it into the Convention, enacted in 1978. That’s what gives those technical expert EPO Examiners motivation. That’s the key difference, that makes Examiner management a rewarding job in the EPO, and so soul-destroying in the USPTO.
SF,I venture to suggest that 6K’s “going clubbing” doesn’t explain why the EPO gets better results. You won’t find many EPO Exrs still in the office after about 16.30 hr any day. But they are motivated to do a quality job, and are given good tools to do that job, and (perhaps most important) receive high quality training and supervision. There is definitely an Esprit de Corps inside the EPO. Not bad for a 34 Member State organisation.
If searching is so quick and easy e6K, why do so many examiners complain that the count system is too demanding?
“So you ONLY did a class/subclass search and didn’t do any word searches?”
I never said that.
No google searches? I thought you can knock out most patents in under 2 minutes with a simple google search?”
I can. New ones off the stack anyway, after an RCE or two it starts to get a bit harder to google bust the ind. Today I got back an amendment and addressed his extra elements (that got around my 102e) with a nice little 102b. What can I say? Word searching is a gamble and I get lucky 🙂
“(e.g. a capacitor will almost always be called a capacitor)”
You think that until the reference you need decided to leave it at “a bottom metal layer, an insulating layer, and a top metal layer” instead of spelling it out.
“and I’m fairly certain an EPO examiner would not have missed a few thousand 102 references like you did.”
Well to be fair I may have been being a bit dramatic. It just felt like there were so many refs, it was probably closer to 20 but still. Bottom line is I missed the sub, and that’s bad. I do however notice that the EPO classification has a sub designated specifically what I was looking for…
Pro tips on search order: Search the inventor’s name first, this takes care of any freebies. Search the general concept of the ind in google second unless it is too abstract to be of any use. Then search the general type of device in google. Once you see if there is a quick primary then you just saved yourself the 30 minutes it usually takes to find the right sub, and instead only need to verify that it is the right sub. Then, search the sub. If no luck, hit the word search in some subs you think look good. If no luck, hit the word search in the class. Finally, if no 102b’s abound, google again with your new found understanding of the terms you need. Your second google will be 100x more on point than the first. You may then consult expresso etc. to catch any stragglers since you have the best available understanding of the terminology you’re likely to get in this search round.
It’s not perfect, but it gets the job done nearly always with a fully rejected set of claims. If you’re feeling lucky you can do some databases, but usually google goes through them just as well as their search function does.
“I know that the computer has sped up the innovative R&D process.”
It’s sped up the process of document creation, that is for sure. And that would help to explain the relative ease in which excessively long patent applications are created and filed.
And of course there’s do denying that the PTO’s stance with respect to the patenting of “computer-readable media” has contributed massively to the increase in filing.
Since you seem deeply confused, perhaps you can educate yourself by looking at the following charts:
link to uspto.gov
link to uspto.gov
Assuming your bizarre theory is true, i.e., that innovation is correlated with patent filing, you think the availability of computers is what accounts for the increase in **innovation** by human beings circa 1994? How does that work exactly?
Oh wait: it works if you define innovation appropriate for patenting to be anything that wasn’t previously described before.
I seem to remember, however, some other requirements for patentability. Are you sure that the PTO’s failure to enforce compliance with those other requirements rigorously was not a factor in the bubble?
“I usually feel like I’m dealing with someone who doesn’t give a crap and is just trying to get things done as quickly as possible so he can leave in time for happy hour.”
lol … I recall 6K talking about the need to “go clubbin'” in one of his posts
Max,
You’re stating why european patent law is great. I’m saying why can’t the USPTO search and examine like the EPO?
There is another difference as well. In dealing with european examiners, I usually feel like I’m dealing with a professional who takes pride in his work. In dealing with uspto examiners, I usually feel like I’m dealing with someone who doesn’t give a crap and is just trying to get things done as quickly as possible so he can leave in time for happy hour.
I don’t know how that could be fixed…
The EPO is unique. It started from nothing in 1978. It has no court sitting on top of it, making its life impossible. It is unfair to expect any national Patent Office to get anywhere near the performance of the EPO. The original 9 EPO members are now up to 38 (if you include the Extension States). Its settled case law is now being adopted by sovereign States, in preference to their own 100 year old case law. It is big enough, and new enough, to have its own good search algorithm. Not just that. Have readers ever tried reading an EPO prosecution file, online at http://www.epoline.org. A nice feature is the opinion on patentability, that appears with the search report soon after filing. I commend it to you and to Examiners at the USPTO.
Not to be down on the US patent system or anything, but what can the EPO learn from the USPTO? If I had to compare the efficiency of both agencies, it is no contest. EPO > USPTO.
(note I am not saying european patent law is ‘superior’ to us patent law, i’m just comparing the two patent offices themselves).
I know that the computer has sped up the innovative R&D process. My guess is that the research and communication abilities of the Internet has also sped them up.
the USPTO probably has a lot to learn from the EPO as to examiner training and search tools. (And the EPO can probably learn some things from the USPTO)
“Inventionlols are about as hard to reject as it is to find the proper classification and find a good primary ref. I was quite chagrined this past week when I brought a case up as possibly allowable with my SPE that read on the better part of a subclass of 3k patents, 102 style. Indeed it was part of a technology that is a bedrock of my field, though it is a more recent one than I have a lot of training in. And the subclass for some reason or other doesn’t have in its definition the blatant thing the whole class of devices is called. Ridiculous.”
So you ONLY did a class/subclass search and didn’t do any word searches? No google searches? I thought you can knock out most patents in under 2 minutes with a simple google search?
I know I’m no examiner, but when I perform a search, I usually start with word searches, depending upon the technological field. Word searches are great for fields where the words are standardized (e.g. a capacitor will almost always be called a capacitor). Subclass searches are nice for fields where the words are made up (ie. software, some mechanical devices, etc).
With respect to searching, the USPTO should completely copy the EPO. Train its examiners to search how the EPO examiners search, use the same software the EPO examiners use. EPO searching is effective and I’m fairly certain an EPO examiner would not have missed a few thousand 102 references like you did.
“The population of the US in 1910 was about 90K, it is now 300K.
Currently, about 85% of Americans complete high school. In 1910 it was only about 20%, where women and minorities were exceptionally underrepresented.
The Internet makes knowledge readily accessible for anyone.
I would say that Americans are orders of magnitude more innovative than in 1910.”
Excuse me, did you just say that the existence of the Internet is making people more innovative than they were prior to the Internet?
I’m calling parody here.
“”commercially insignificant applications” — is this a new patentability test?”
No.
“commercially insignificant applications” — is this a new patentability test?
“If, as you think, that a simple search (without even knowing the claim language) would be sufficient to persuade an applicant not to file an application, then those applications that are now filed should be easily disposed of in an a single office action from the USPTO. ”
I never said that you didn’t need to prepare a claim.
Also, the point is to deter new filings to help the USPTO cut through the backlog by being able to examine on the inventions that are sufficiently commercially significant (as shown by the applicants’ willingness to pay a higher filing fee) without having to waste *any* counts. Of course, the USPTO still needs better management and more incentives for retention. The increased fees could help fund the incentives.
“However, I HIGHLY DOUBT that the backlog is the result of those applications that are abandoned after the first office action.”
The issue isn’t whether the ideas could be easily rejected. The point is to weed out commercially insignificant applications, whether the ideas are patentable or not, before we waste any counts.
Currently, the commercial significance level indirectly set by the filing fees (combined with prosecution fees) is too low, motivating applicants to file shot-in-the-dark applications. With a search, the client can better make business decisions whether the costs of preparation and filing are worth it.
You can talk all you want about the uncertainty in predicting the future value of patents, but clients make business decisions about filing every day. And if they don’t know whether their invention might be worth an extra $10K in filing fees, aren’t they in the wrong business?
In the end, the USPTO will get Congress to give them the authority to ask for an ESD, which will cost at least $10-15K on average to have a US attorney to prepare (or review if prepared by an offshore service). When that happens, the “patent bubble” to which Mooney refers will burst.
“I was quite chagrined this past week when I brought a case up as possibly allowable with my SPE that read on the better part of a subclass of 3k patents, 102 style.”
Let’s see …. an examiner, a (should be) expert in the field of searching in his art, completely misses a boatload of 102 references.
No disrespect to 6K, I applaud his honesty.
However, this is an example as to why pre-searches searches aren’t the panacea for all things wrong at the patent office.
We are dealing with imperfections in both the search tools and in the LANGUAGE itself. One word may have different meanings and two people can use different words/phrases to mean the same thing. Because of the inherent uncertainty associated with the language it becomes difficult to perform a search when you are using search terms that could differ from how the prior art described some portion of the invention.
The BEST searchers don’t just write good search queries, the best searches KNOW the art they are searching. The problem with all the proposals for pre-searches is that outside of foreign patent offices, nobody is going to be able to perform a search that (should) have the level of detail that could be provided by a patent examiner.
If a pre-search is providing an inferior search, why perform it when it is very costly, will reduce filings (not just of “bad” patents but of patents with merit), and will likely not provide the benefits being attributed to it?
“http://www.patentdocs.net/patent_docs/2008/09/senator-kyls-pa.html”
I told you guys to be careful about objecting to this past years patent act. Just wait till this IC stuff gets on the table. 10 mil made me lol. Frankly I would have expected that type of fine already though. I mean, you’re defrauding the public when you commit IC right?
”
I still don’t understand how a government agency that is fully funded by the fees it collects can seek to make its customers go away. Either the fees pay for an examination, or they are insufficient. If they are insufficient, raise them until the PTO has enough money to hire the needed number of examiners.
“inventionlols” as our buddy E6K calls them ought to be easy to reject.”
I’ll tell you why lowly, it’s because $$$ alone doesn’t make new examiners. They have to be trained. And if you think the training is b ad now, just imagine what would happen if they tried training even more with less SPE’s/Primaries to get the job done.
Inventionlols are about as hard to reject as it is to find the proper classification and find a good primary ref. I was quite chagrined this past week when I brought a case up as possibly allowable with my SPE that read on the better part of a subclass of 3k patents, 102 style. Indeed it was part of a technology that is a bedrock of my field, though it is a more recent one than I have a lot of training in. And the subclass for some reason or other doesn’t have in its definition the blatant thing the whole class of devices is called. Ridiculous.
In any case, let me address the issue at hand. The avg claims went down according to D’s graph. And strangely enough, although I haven’t brought it up as much on here lately I noticed recently that it seemed to me that the cases I was working on involved what seemed to be a little less claims than what I was used to. Turns out, at least by my anecdote, D’s chart is likely right on. Still, while 22 down from 25 is a step in the right direction it still leaves much to be desired. Also I should note that my individual experience is probably also in large part due to my working on a lot of RCE cases that are already restricted instead of fresh ones that need restricting. That’s what I had chalked it up to until I saw this graph anyway.
Also, D, ha te the new format. Classic PO plz.
Finally, pds, is your answer to the backlog to simply found “Examinerville” and have it reach 15k pop over the next 5 years?
“Also, patent examiners should be much more efficient that outside searchers because they are much more expert in their technologies and have better search tools.”
LOLOLOLOLOLOL, have better tools? I wasn’t aware only examiners could access http://www.google.com . Oh, wait, maybe you were referring to EAST? WEST? What are you referring to? The only resource I have that they don’t (that I’m aware of) is having a good relationship with people that know the classification. And guess what? They can call the primaries for searches also.
Great thread everyone. I see it a bit clearer now. Outside the USA, the writer of a patent application needs to have defined the invention BEFORE filing the app at the PTO. So pre-filing searches are also feasible. Uniquely in the USA, there is no requirement to define the invention before filing. So, no point in searching. Just spew out on to paper upwards of 50 pages about everything under the sun to be found in your “Best Mode”, add an absurdly broad main claim, toss into the PTO, then sit back and wait for the Exr to search. Only after all that does one start to define the invention. Courts, Legislators, WAKE UP. What sort of a crazy, skewed legally uncertain, investor-deterring system is that?
SF, from your comments I would guess that you work with corporate clients who have internal development capacity and significant funds to develop products from ideas.
Individuals and small companies have neither. They file priority documents very close to conception of the invention to stake their claim and to be able to discuss an invention with experts, sub-contractors and investors. The bottom line is that even 2 years is not enough time to find adequate funding for much of anything.
Regarding your 11:54 posting, my experience is very different.
In retrospect it is easy to say how bad a given invention is, but rarely does an Applicant know the commercial significance of an idea without a significant investment in R+D.
As for clogging up the system. There are two types of unnecessary applications:
not novel ones which can easily disposed of or insignificant ones which don’t bother anyone.
Sorry, you have already provided the reason. Excellent.
Thank dennis. There is sudden drop from 2004 to 2005. Why in 2005? Can you through some light on the analysis
Senthil
http://indiapatents.blogspot.com
Malcolm 3:34PM:
The population of the US in 1910 was about 90K, it is now 300K.
Currently, about 85% of Americans complete high school. In 1910 it was only about 20%, where women and minorities were exceptionally underrepresented.
The Internet makes knowledge readily accessible for anyone.
I would say that Americans are orders of magnitude more innovative than in 1910.
“LOL … if your idea isn’t worth $50K, it doesn’t matter if you’re rich or poor. No rich man would waste the attorneys fees to collect the $50K. No poor man could find a contingency fee lawyer to take the case.
As I noted above, file a provisional with a low filing fee, if you can’t raise venture capital to pay for a $50K utility filing fee, maybe your idea isn’t that great.”
Ahhh …. ignorance is bliss. If only great ideas could be vetted after a single year (your provisional only gets you 12 months). Let me make a proposition to you … if you can reliably tell me which applications (18 months after filing, i.e., after being published) are going to be money makers and which ones are going to be failures, I’ll put together a bankroll for us to fund a portfolio that will make offers to buy out the good applications.
If you’ve got the talent to consistently pick those winners, I wouldn’t even require you to put up a single dime into the investment pool.
Picking winners, particularly early on, isn’t as easy as you think. If it was that easy, I would be seeing more patent attorneys take an interest in their client’s company …. client’s just LOVE!!! to pay you in shares of their own company.
Personally, I don’t know of any patent attorney that has made any real money from engaging in such a practice. Personally, I would kick any partner, in the a__, for taking client stock over cash.
“There you go again.”
That may have worked against Carter, but I’m no Carter and you are no Ronald Reagan. Speaking of politics … Palin is a lot funnier after a couple of drinks.
“No. You don’t get it. I’m not talking patent quality. I’m talking about deterring preparation (and filing) when clients see what’s already out there. You don’t need a USPTO-quality search to know whether you should file. I also didn’t say that you didn’t need claim language. I said you didn’t need to write a spec.”
I would enjoy playing chess against you, you think maybe one move ahead. If, as you think, that a simple search (without even knowing the claim language) would be sufficient to persuade an applicant not to file an application, then those applications that are now filed should be easily disposed of in an a single office action from the USPTO. After the first office action, all of those “easily” disposed of applications should be abandoned. However, I HIGHLY DOUBT that the backlog is the result of those applications that are abandoned after the first office action.
This is the flaw in all the arguments about the so-called “bad” patents. Bad patents are EASILY invalidated or EASILY rejected. The toughest applications to write claims for, prosecute, and examine are those at the very edge of patentability/unpatentability. THESE are the patent applications that take up the most time, yet these are the patent applications that aren’t going to be helped be pre-searches, because once the time and investment has been made, the application will be filed as long as their is a colorable chance of getting the patent application issued.
What many forget is that the cost already spent isn’t just the cost of preparing the search or preparing the claims + preparing the search. Instead, the cost also includes what is spent developing/marketing the product embodying the invention.
Many of us complain about the ivory tower academics whose ideas don’t even pass the sniff test for those of us who have to live with the reality, not the theory.
The same also applies to the many examiners who have a tunnel-vision view of the issues. They see the issues from one point of view (i.e., how can we reduce the backlog) without thinking about how their solution affects the big picture.
“You realize of course that, as an objective matter, the number of alleged “inventions” filed with the USPTO that turn out to be crap is at an all-time high. What’s that about, pds? Please explain.”
Easy … the number of a__holes in this world is at an all-time high. The number of serial killers is probably at an all-time high as well.
Hmmm … let me wonder why …. hmmmm … this one is really tough …. hmmmm …. oh yes, the population is at an all-time high, which means that the number of X (which is typically a percentage of population) is also at an all-time high.
Let’s see, when we apply that logic to patent applications … hmmm …. let’s see …. hmmmm … what did we get? …. oh yes, when the number of patent applications is at an all-time high, the number of “crap” applications is also at an all-time high. Hmmmm … it shouldn’t take me to explain that, but then again, your talents for detecting obviousness appear to be focused on patents and not on common sense.
We already know that you aren’t a patent attorney. Did you actually go to engineering school or get any type of math/science/statistics background?
Keep tossing up them gopher balls MM.
Socialist naysayers like Mooney think business itself is a lottery – they h8te seeing others actually making money. Heck, life is a lottery to begin with and there will always be bitter apples like Mooney in every barrel.
[Maitre’d]
“Bitter party of one your table is ready, Bitter party of one…”
[Mooney to himself while fiddling with his Birkenstocks almost dropping his crack pipe]
“Ooops that’s me, better go before some fat cat in a suit and shoes beats me out…”
pds “Yet again, you don’t get it. The backlog is a reflection of … the desire to have patent protection in the US, as opposed to elsewhere”
Oh, we get it, pds. We get it.
“a lot of innovation in this country and abroad”
There you go again. The circular argument, with your head in the sand.
You realize of course that, as an objective matter, the number of alleged “inventions” filed with the USPTO that turn out to be crap is at an all-time high. What’s that about, pds? Please explain.
PDS wrote
“Regardless, the backlog, in itself, is unimportant. What IS important is that innovation be fostered. Reducing the backlog can attribute to foster innovation by giving inventors more patent term (and quicker). However, reducing backlog at the expense of reducing the number of filings (e.g., by substantially raising filings fees) is counterproductive to the OVERALL goal of the USPTO, which is to foster innovation.”
Thank you – you have captured the larger, and what I would consider the more important, focus of innovation. More innovation neccessarily begets more patents and more work for the Examiners. Yes, more applications all things being equal, also mean more garbage.
Thank you also SF. While I do not agree with your points, I appreciate your civility in defending those points.
Malcom, I realize that you like to rile people up, especially those with equally ardent positions, but try to realize that your counters that merely attempt to degrade the opponent and contain only hand-waving at the opponent’s argument makes your effectiveness, well, rather impotent. The fact that you cannot see this is more disturbing than any quip or putdown that you throw on the message board. You might try backing up your points with substance rather than proclamations.
Now Malcolm, I thought we agreed that you would get rid of that crack pipe. And stop playing on the Internet and bothering those busy patent attorneys, your buddies are ready for you in the play room at the checker board.