The Soaring Rate of BPAI Appeals

In two earlier posts, I discussed the BPAI reversal rate (link) and the reopening of prosecution after a reversal (link). In the reversal rate, I also looked at the historic jump in the absolute number of BPAI appeals filed. In FY2008 (ending Sept 30, 2008), the BPAI received over 6,000 ex parte appeals– concluding two consecutive years of over 35% annual growth rate in appeal filings.

Although dramatic, the reported filing increases pale in comparison to those seen in the past four months. The BPAI reports that in the period of Sept-Dec 2008, it received an average of 954 ex parte appeal cases per month. That value is well more than double the monthly average for the same span in 2007.

At this rate, the number of BPAI appeals would easily reach 10,000 in FY2009.

The planned BPAI rule changes may explain at least part of the sudden jump. In a recent presentation, William Smith of Woodcock Washburn stated that the new rules are "onerous and will significantly increase the cost of preparing an Appeal Brief." [Link]. I have spoken with several patent attorneys who intentionally filed appeal briefs early in order to beat the December 10 deadline. That deadline has now been postponed. If the rules truly are onerous, then we may see a drop in appeals once they become effective.

Comments

[breadcrumbs]

An interesting study may be one asking the applicants exactly why they are making so many appeals - aside from beating the onerous change, why do applicants feel that this path is the one being chosen?

[patent.drafter]

Often, clients want to file an appeal because the process guarantees an application will be removed from an examiner who intransigently adheres to an overbroad interpretation of claims and an implausible characterization of prior art teachings.

Unfortunately, the "substantial evidence" standard for BPAI review means that the examiner's "factual" findings re: prior art teachings (and claim scope? - whether or not the claim scope really is a question of fact) won't get a de novo review. Thus, the appeal process is likely to be disappointing - unless two APJs, or the SPE, can be convinced that the examiner has made a _really_ egregiously wrong finding of fact, or has screwed up the legal standard for obviousness or anticipation (since legal arguments do / should get de novo review).

The SPE involvement is my main reason for recommending a Pre-Appeal Brief Request for Review, where the client can summarize contentions of fact for consideration by the examiner's peer and supervisor. If the PABRR doesn't swing the app back into prosecution, filing an Appeal Brief seems more often than not to be an obligatory due-diligence step with low chance of success.

Just some thoughts from a n00b.

[Moocow]

I would've thought the spike would be greater back when the continuation rules were proposed. I personally thought it would've been malpractice to file an RCE at that point on an original application with its first final office action.

[123]

I appeal in a significant number of cases and have had a lot of success; I even tell clients that they should expect to have to appeal in order to get meaningful protection. I draft my response to a first Office Action so that I can cut and paste it into an appeal brief, because it seems to me that if you make your best arguments in that first response, and the Examiner unreasonably finds them "unpersuasive", then filing an RCE to continue arguing with the same Examiner is a waste of time and creates more PHE than is necessary.

[JohnG]

patent drafter,

There should be no pre-appeal brief conference request at all. The existence of this "route" is simply a sign of failure at the PTO. Remember also that this is Jon Dudas' baby. Let's throw it out with the putrid bath water. Make them do their job, which includes fixing the problem at the right time, that is, before finalizing the application.

[SF]

I agree with 123 and I've seen more people doing the same thing: preparing a thorough response that can be (and has been) copied and pasted into an appeal brief. Under the older appeal rules, this is a somewhat cost-comparable alternative to filing a first amendment, a second amendment with an RCE. and then a third (and even a fourth) amendment.

If the new rules ever kick in (where I think you have to have pinpoint cites to prior uses of all the arguments you make on appeal), we all will have to start preparing arguments instead of merely amendments.

[EG]

I agree with what 123 and SF say about appeals. Regarding what JG says about pre-appeal review requests, I don't agree. If you want to point out formal defects in the Examiner's rejections (often true), this is the place to do it. And if the panel conference "whitewashes" the request, another arrow to shoot in the appeal brief.

[broje]

Perhaps this jump in appeals is in response to the USPTO's new strategy of making ridiculous rejections. I've never seen so much contemptuous handwaving as in the the past four or five months.

[Leopold Bloom]

EG and JohnG are both right. Given the system as it is, the pre-appeal review is frequently the way to go. However, it shouldn't be necessary nearly as often as it is. By preventing some of the more atrocious rejections from getting to appeal, I think it tends to mask the extent of examination problems. And I wonder whether the existence of this "safety valve" encourages examiners to defer a serious examination until after it is apparent that the applicant is ready to fight...

[Sam Forces]

On a related note, Obama has seemingly named Cass Sunstein as the next head of OIRA at OMB. I believe it is the current ORIA head, Susan Dudley, whom we have to thank in part for stalling the proposed BPAI. Hopefully Sunstein will be equally thoughtful.

[Babel Boy]

"If the rules truly are onerous, then we may see a drop in appeals once they become effective."

Yes, Dennis, that's the whole point of onerous rules.

"If"?? Read them. The new BPAI rules are Halloween II, put in place to staunch the tide of appeals that was sure to result from Halloween I, the continuation rules.

And did you say "once they become effective"? Let's hope they don't. Practitioners need to review the new proposed BPAI rules even tho' they are on hold. There are serious personal consequences for practitioners written into the rules for those who screw up. Like a malpractice suit for getting the appeal deep-sixed.

We need to get behind Wm Smith, David Boundy and others who have taken a strong position against these BPAI rules and prepare for more legal action, including an avalanche of amicus briefs when the case reaches Cacheris.

These proposed rules are more disingenuous and dangerous than the continuation rules.

[anonymous]

are those statistics for docketed appeals or the many more notices/briefs that are not docketed when prosecution is reopened?

[metoo]

Just curious - what are the typical qualifications necessary to serve on the BPAI, and what does the job typically pay? No, I'm not looking to make a job move. I'm just curious.

[Malcolm Mooney]

" I have spoken with several patent attorneys who intentionally filed appeal briefs early in order to beat the December 10 deadline. "

Typical patent prosecutor: when in doubt, PANIC PANIC PANIC PANIC!!!!!!!

[Malcolm Mooney]

"We need to get behind Wm Smith, David Boundy and others who have taken a strong position against these BPAI rules and prepare for more legal action"

Is there a link somewhere where I can donate using my PayPal account?

[JohnG]

Good point about PayPal, Malcolm. What kind of support do they need from the rank and file?

[6]

OMG 900-1000 cases were appealed over the course of a whole month. The sky is falling!

Oh, but wait, in 1 month, around 90 (probably around 70, but I'll give you a few) examiners did 900 actions. Why, the equivalent of the output of 90/6000 examiners actions were appealed!

OMFG ROFLMAO! The sky is falling! The sky is falling!

So JD, you remember we were talking about the percentage of OA's filed? There you have your number. Around 90 6000th's.

LOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLLOLOLOL

Maybe when that number gets up to a whole percentage point we should talk.

If my math is somewhere near correct, we're at almost 1/6 of 1% of actions being appealed. Factor in that we should really only consider finals, and you might get up 1/3 of 1%.

Congrats guys, you've really shown a light on this horrible injustice, such that it really is.

"I appeal in a significant number of cases and have had a lot of success; "

A whole 1% of your cases or what?

We went from what? .1666666% of all cases being appealed to what? .175555%?

SKYROCKETING NUMBERS! Lololololol.

Dear god this sht is funny.

D, PLEASE add in some numbers so that people get a feel for the number of cases out of THE WHOLE that you are talking about. Most are too focused on the "Skyrocketing" to realize wtf this stuff really means.

[6]

"Just curious - what are the typical qualifications necessary to serve on the BPAI, and what does the job typically pay?"

I know several spe's recently made the move up, and I don't think either of the two I know personally had law degrees so that should give you a decent idea. As to pay ... 180k? iirc.

[Malcolm Mooney]

"D, PLEASE add in some numbers so that people get a feel for the number of cases out of THE WHOLE that you are talking about. Most are too focused on the "Skyrocketing" to realize wtf this stuff really means."

I guess the question is whether the PTO is prepared to efficiently deal with the increase in absolute numbers of appeals being filed. If the numbers keep increasing as they did towards the end of last year, I imagine some shifting of PTO resources will be required. Or maybe the PTO will just put the appeals in a big pile and sloooowwwwwwwly work their way through them without shifting any resources.

[123]

The number of appeals may seem small compared to the number of rejections, but realize that a lot of clients simply capitulate rather than shovel more money into the black hole that the PTO has created. The new appeal rules will further increase the cost and so should reduce the number of appeals, but then that's the whole point isn't it? Prosecution has become a war of attrition, and innovation will suffer for it.

[Lionel Hutz]

SF wrote

"I agree with 123 and I've seen more people doing the same thing: preparing a thorough response that can be (and has been) copied and pasted into an appeal brief. Under the older appeal rules, this is a somewhat cost-comparable alternative to filing a first amendment, a second amendment with an RCE. and then a third (and even a fourth) amendment.

"If the new rules ever kick in (where I think you have to have pinpoint cites to prior uses of all the arguments you make on appeal), we all will have to start preparing arguments instead of merely amendments."

I don't understand this. If the Examiner is adhering to an unreasonable position, why would you file an RCE. I only amend claims when I believe the claims should be amended or when I consider it trivial to do so (e.g., "non-zero" angle).

Appeals and RCEs are not simple alternatives. In my Venn diagram there would not be a lot of overlap where I could use either.

[Lowly]

If you make an argument for the first time in a response after final, you will have to file a RCE to get the examiner to actually read it. That's not how it should be, but that's how it is.

[No One in Particular]

The Patent Office likes draconian solutions so I propose the following.

If my application is finally rejected and I do *not* file an RCE or appeal to BPAI:

1. I get all my money back from the Patent Office;

2. The Examiner gets no counts at all;

3. I get all my money back from my patent attorney;

4. If my application has been published I do not have the option of keeping my invention a trade secret so I get USD 1M from the Patent Office.

{ Raising shields, polarizing the deck plating}

[No One in Particular]

The Patent Office likes draconian solutions so I propose the following.

If my application is finally rejected and I do *not* file an RCE or appeal to BPAI:

1. I get all my money back from the Patent Office;

2. The Examiner gets no counts at all;

3. I get all my money back from my patent attorney;

4. If my application has been published I do not have the option of keeping my invention a trade secret so I get USD 1M from the Patent Office.

{ Raising shields, polarizing the deck plating}

[Miser]

6,

You are way off on the pay at least for the judges who have to have a law degree. Judges are on the AL scale - which tops out at 163K including locality adjustment. Though there is some bonus not included for performance.

You might be talking about the recent hires the BPAI has done at the patent attorney level for the BPAI judges - glorified clerks Most of those are hired at GS-14 and can move up to GS-15 depending on their production requirements i.e. how many opinions they draft for the judges to review - that tops out at 153K. Some of them aren't lawyers but have spent a considerable time as Examiners.

[SF]

"If the Examiner is adhering to an unreasonable position, why would you file an RCE."

Because the difference in claim scope isn't worth the delay or expense of an appeal or because the client doesn't want to pay for an appeal, but will pay for a response and RCE.

RCE's with incremental/trivial amendments are often taken as an alternative to appealing.

[SF]

"If you make an argument for the first time in a response after final, you will have to file a RCE to get the examiner to actually read it. That's not how it should be, but that's how it is."

another good point

[Malcolm Mooney]

"Prosecution has become a war of attrition, and innovation will suffer for it."

Innovation won't suffer. But patent prosecution law firms will suffer, and so will bogus technology companies who file reams of applications but never actually develop a gddamn thing yet somehow manage to attract venture capitalists.

The public, for the most part, will notice nothing except for a glut of unemployed attorneys.

[Noise above Law]

Malcolm,

Your logic capabilities are approaching the level of 6's.

""Prosecution has become a war of attrition, and innovation will suffer for it."

Innovation won't suffer. But patent prosecution law firms will suffer..."

In a war of attrition, there is MORE prosecution, not less. The attorneys make MORE money, not less. There will NOT be a glut of unemployed attorneys.

If you were really an attorney, you would probably not need this spoon fed to you.

[JohnDarling]

"We went from what? .1666666% of all cases being appealed to what? .175555%?"

"If my math is somewhere near correct..."

Your math skills are as poor as your reading comprehension.

As Dennis's post reveals, "[i]n FY2008 (ending Sept 30, 2008), the BPAI received over 6,000 ex parte appeals– concluding two consecutive years of over 35% annual growth rate in appeal filings."

So what does it mean that the BPAI "received" an appeal? What that means is that the appeal was briefed, and the examiner answered, and the appeal was actually assigned an appeal number. If the examiner re-opens, or if BPAI remands prior to the appeal number being assigned, then the appeal was not received.

As your beloved PTO (mis)management acknowledges, 50+% of pre-appeals result in reopening. As David Boundy's analysis reveals, based on data obtained through FOIA requests, 80% of cases that are appealed are never "received" by BPAI because the examiner re-opens, or BPAI remands. So if the 6,000 appeals that are received represents the 20% that managed to run the gauntlet of "appeal-reopen-appeal-reopen-appeal-reopen-etc." what is the total number of cases that are appealed (i.e. a Notice of Appeal is filed with a pre-appeal request and/or Appeal Brief)?

Do the math. It's about 30,000.

Now try to imagine what the backlog at BPAI would be if the examiners were required to answer every brief with an examiner's answer.

The notion that the (now on hold) BPAI rules are designed to allow BPAI to more efficiently process appeals is once again nothing more than Orwellian Newspeak from the PTO. The rules are designed to discourage appeals. Plain and simple.

"The BPAI reports that in the period of Sept-Dec 2008, it received an average of 954 ex parte appeal cases per month. That value is well more than double the monthly average for the same span in 2007."

I guess a doubling in the number of appeals that are received is not skyrocketing in your mind.

Maybe it isn't. Who knows?

"Typical patent prosecutor: when in doubt, PANIC PANIC PANIC PANIC!!!!!!!"

So filing a brief before a rule change to save some time and expense is panic? That's a rather silly position. Even for you.

[SP]

"Just curious - what are the typical qualifications necessary to serve on the BPAI, and what does the job typically pay?"

"I know several spe's recently made the move up, and I don't think either of the two I know personally had law degrees so that should give you a decent idea. As to pay ... 180k? iirc."

"You are way off on the pay at least for the judges who have to have a law degree. Judges are on the AL scale - which tops out at 163K including locality adjustment. Though there is some bonus not included for performance."

"You might be talking about the recent hires the BPAI has done at the patent attorney level for the BPAI judges - glorified clerks Most of those are hired at GS-14 and can move up to GS-15 depending on their production requirements i.e. how many opinions they draft for the judges to review - that tops out at 153K. Some of them aren't lawyers but have spent a considerable time as Examiners."

There is so much misinformation here I almost don't even know where to begin.

1. A law degree is REQUIRED to serve on the BPAI or to become a patent attorney (clerk for the BPAI).

2. BPAI judges do NOT get bonuses. As a result, most SPEs get paid more than BPAI judges. Most APJs make 162900. Most SPEs make high 160s. Although APJs get a larger pension because the pension benefit is based on base pay.

3. Typical qualifications of APJs already serving on the BPAI are: (1) they were SPEs; (2) they have a law degree; and (3) they have a pulse. Typical qualifications for new APJs are: (1) have a law degree and a technical background; and (2) serve as a patent attorney (clerk) for the BPAI. The patent attorney or clerk positions are basically now used as a training ground for the BPAI to weed out the bad apples.

[curious]

the number of bpai judges needs to be increased dramatically and immediately for reasons which have been posted on this board.

[John prosecutor]

"So filing a brief before a rule change to save some time and expense is panic?"

sounds like it may be good lawyering to me.

[John prosecutor]

reminds me of the big jump in continuations filed before the new claims/continuation rules were to take effect -- just what the rules were designed to prevent -- very ironic

[Malcolm Mooney]

"reminds me of the big jump in continuations filed before the new claims/continuation rules were to take effect -- just what the rules were designed to prevent -- very ironic"

I remember watching some attorneys running around, freaking out, and freaking out their clients about how these cons just HAD to be filed.

What a waste. Keep your lids on, peeps. Those rules were DOA, sort of like Sarah Palin.

[JohnDarling]

"What a waste. Keep your lids on, peeps. Those rules were DOA, sort of like Sarah Palin."

Let me guess, you knew all along that the rules were going to be enjoined on October 31, the day before they were supposed to go into effect.

Here's your posting from August 23, 2007 at 1:48 PM on Dr. Tafas's suit.

"By the way, since some folks here are prone to label certain commenters as 'serious' and others as 'unserious' let me make a prediction: this lawsuit isn't going to get very far and, in any case, these rules or rules very similar to them are going to be enacted.

I've already made enough accurate predictions about case law decisions to establish my credentials as a serious person. I don't believe I'm going out on a limb with this prediction. Dennis is right. I'm right.

All the rest is whining, not unlike the whining you'd hear from a junkie when you separate him from his stash."

You're too funny. Not very serious. But funny.

[boo]

Well played.

[Malcolm Mooney]

"Let me guess, you knew all along that the rules were going to be enjoined on October 31, the day before they were supposed to go into effect."

I admit that I was partially wrong in the comment you posted.

But October 31 was some ways away and well before that time I learned that the "rules" were incomprehensible and internally contradictory. That is why I, as Oct 31 approached, I did not panic. There was simply no way that anyone was going to be held accountable to them, at least as of that date.

Likewise, I yawned my through the CAFC's moment of truth, never worrying for a moment that the rules would somehow become retroactively enforced.

As for my claim that "rules or rules very similar to them are going to be enacted", well, the jury is out on that one, isn't it JD?

[curious]

SF says: "Because the difference in claim scope isn't worth the delay or expense of an appeal or because the client doesn't want to pay for an appeal, but will pay for a response and RCE. RCE's with incremental/trivial amendments are often taken as an alternative to appealing."

I agree

[pds]

As someone with a fair bit of experience at the BPAI, the numbers being quoted by Dennis GROSSLY understate the number of appears being filed for the following reasons:

1) The numbers are for appeals that actually reach the BPAI.
2) MORE IMPORTANTLY, the USPTO is running about a 12 month behind in terms of getting appeals docketed.

For those unfamiliar with the process:
1) File Appeal Brief
2) Receive Examiner's Answer (2 month deadline -- no extension)
3) File Reply Brief
4) Reply Brief noted by examiner
5) Appeal docketed with the BPAI
6) Decision rendered.

Steps 5) & 6) are merely clerical. Examiners extremely rarely respond to a Reply Brief. As such, after the Reply Brief has been filed it shouldn't take any longer than 1 or 2 months for the appeal to be docketed with the BPAI. Actually, if the USPTO was really efficient, it should take more than a few days -- most of being used for the examiner to consider the Reply Brief.

Although I've had docketing notices issued within a couple months of filing the Reply Brief ... on average it is taking at least 12 months, and I'm starting to get some that are 15 months and older.

Simply put, the BPAI is artificially understating the vast increase in appeals being filed by not docketing them in a timely manner.

By comparison, a year ago it only took, on average, about 3 months to get an appeal docketed after a reply brief being filed.

Bottom line, the numbers are far worse than Dennis' chart makes them out to be.

[pds]

"Typical patent prosecutor: when in doubt, PANIC PANIC PANIC PANIC!!!!!!!"

From someone who obviously didn't read the rules or doesn't care about his client's money. Had you read (and understood) the rules, you would have realized that the Appeal filed on December 10th was going to cost 40%+ more than an Appeal filed on December 11th.

I guess if you don't like you clients, you wouldn't overreact. However, if I recall correctly, you have clients that ask you to do unethical things ... so perhaps I'll have to give you a pass.

[SF]

curious: The problem I've noticed (and already commented on) is that the incremental trivial amendments are becoming less and less effective, causing applicants to bleed and die patent-scope-wise by a thousand cuts. It now appears that appealing is becoming more and more appealing.

[6]

JD says: But blah blah blah, the percentage we're looking at is bigger than you think! Ok JD let's the the math for realz.

6000 in one year

6000=.20*x, x=30000 (total appeals filed based on some unofficial numbers by Boundy, but we'll accept because we believe him)

Now, we say, a given examiner produces y actions in a given year. Using numbers from myself, a lowly 9, instead of a 12 we get.

8 per biweek (avg) * 26 biweeks total = 208.

144 examiners out of 6000 perform 30k actions in a year. Now, you'll take issue with my throwing in some FOAMs to get 8 avg. But, most of my FOAMS are RCE's now so that will do, considering we're looking at an avg that includes 12's in with 9's also, so the number 208 should probably be more like 250-300 for 12's. You cut slack on FOAMs I'll cut slack on the 12's. Fairly even.

144/6000=.024=2.4%. 2.4%(and maybe we say 5% with preappeals). This number is probably artificially high still by a factor of .8 or so, but we'll let it go.

2.4% of all actions are appealed! OMFG OMFG, up from 1.2% OMFG OMFG! War of attrition blah blah!

Bottom line: Really small numbers of actions have this happen. It would be nice if D would post something meaningful to put this in perspective for people before they take the sensationalistic headlines to mean there is something severly amiss.

"You are way off on the pay at least for the judges who have to have a law degree. Judges are on the AL scale - which tops out at 163K including locality adjustment. Though there is some bonus not included for performance."

Ok ok, I said iirc, and you can look it up. If +17k is wayyyy off so sorry. Still, you know they're on the take ;)

[JohnDarling]

"I admit that I was partially wrong in the comment you posted."

Like I said, you're funny. Not very serious, but funny.

"That is why I, as Oct 31 approached, I did not panic. There was simply no way that anyone was going to be held accountable to them, at least as of that date."

What color is the sky in your world?

But yes, the jury is still out.

Actually, I will predict that Congress will actually pass "patent reform," including such nonsense as AQS's, fee setting authority for the PTO, damage apportionment, etc., before PTO (mis)management can actually write a rule package that would pass judicial scrutiny.

pds is dead on. The delay in getting cases docketed at BPAI is horrendous. Regardless of whether it's intentional, or the result of incompetence, it's horrendous.

"2) Receive Examiner's Answer (2 month deadline -- no extension)"

While this is supposed to be true, it practice it is not. I currently have a couple (maybe more) briefs that were docketed to the examiners more than two months ago and have not been acted on yet.

[curious]

Dennis, do you agree with pds' statement that "Bottom line, the numbers are far worse than Dennis' chart makes them out to be."?

[curious]

so I guess that the PTO not only needs to hire more judges but also a larger docketing staff

[6]

"Although I've had docketing notices issued within a couple months of filing the Reply Brief ... on average it is taking at least 12 months, and I'm starting to get some that are 15 months and older."

I'm going to tell you a little story about an appeal response I had to make.

Well, copying and pasting in the last action, along with putting in a whole new actions worth of explanation to make sure no judge could possibly go awry, complete with detailed figures etc, I left in two lines saying that claims 19 and 20 were still rejected after app cancelled them in his AF that I accepted into the record (I had taken 19 and 20 out of the heading). OOOOO sht no I DID NOT SAY SOME CLAIMS WERE REJECTED THAT ARE CANCELLED!!11!!!!!! Replies the docketing guy. So, I fix the action, hand it to my old spe, and he's supposed to have it scanned in to replace the old one. Long story short, last week I sent the third copy that doesn't have claims 19 and 20 rejected to my new spe, and it just showed up in my returned tab in OACS because nobody but the docketing guy knows why in the he ll anyone would possibly care if I rejected 2 claims that are cancelled and don't know how to fix it even if it did need to be fixed.

That appeal will have taken awhile.

[Lowly]

I just had an examiner call me and indicate he's allowing a case of mine. He wanted permission to enter a small examiner's amendment (a nothing amendment, really), which I gave him.

Nice to know things still work as they should on occasion ;)

[Free Agent]

"There is so much misinformation here I almost don't even know where to begin."

I have this same thought when I look at most OAs these days - which is why I find myself recommending appeal at a 'skyrocketing' rate.

[Lowly]

"I'm going to tell you a little story about an appeal response I had to make.

Well, copying and pasting in the last action, along with putting in a whole new actions worth of explanation to make sure no judge could possibly go awry, complete with detailed figures etc, I left in two lines saying that claims 19 and 20 were still rejected after app cancelled them in his AF that I accepted into the record (I had taken 19 and 20 out of the heading). OOOOO sht no I DID NOT SAY SOME CLAIMS WERE REJECTED THAT ARE CANCELLED!!11!!!!!! Replies the docketing guy. So, I fix the action, hand it to my old spe, and he's supposed to have it scanned in to replace the old one. Long story short, last week I sent the third copy that doesn't have claims 19 and 20 rejected to my new spe, and it just showed up in my returned tab in OACS because nobody but the docketing guy knows why in the he ll anyone would possibly care if I rejected 2 claims that are cancelled and don't know how to fix it even if it did need to be fixed. "

Cliff Notes: the PTO is just as unreasonable and ridiculous to its own employees as it is to applicants. Somehow, this doesn't shock me.

[JohnDarling]

"...based on some unofficial numbers by Boundy"

Guess you missed the part where I explained that he got those numbers from FOIA requests.

Typical. Just ignore the parts you can't find or rebut with actual facts or that doesn't jibe with the answer you've been told to give no matter what.

You're Mr. Doll's model examiner.

"2.4% of all actions are appealed!"

As I explained to you, PTO (mis)management samples about 4% of allowed applications (which according to them is now about 44% of all applications filed, but is really about 55-60% when you take out RCE's as "disposals") and claims that their 3.6% error rate, or whatever they claim it is, indicates "record breaking quality.

So how is it that sampling 4% of about 50% of all applications lets PTO (mis)management claim "record breaking quality", but acknowledging that about 80% of all appealed cases, which you've calculated to be 2.4% of ALL applications, are so terrible that the examiner is told to start all over again doesn't represent a very serious problem?

Can you explain that?

[anonExaminer]

Lowly writes "If you make an argument for the first time in a response after final, you will have to file a RCE to get the examiner to actually read it. That's not how it should be, but that's how it is."

Agreed, quite the sham.

Also, I've heard 6k just fills in the Request for Reconsideration section in the Advisory Action with "LOLOLOLOLOLOLOLOLOLOLOL"

[6]

"Now try to imagine what the backlog at BPAI would be if the examiners were required to answer every brief with an examiner's answer."

Ok, I'll trade you that for a requirement for applicants to respond with something besides nonsense to an OA. Or else they get a notice of non-compliance for not having properly addressed the merits of the rejection, then the app likely goes abandoned with no chance of revival. And to establish that they responded with nonsense (if they come back assuring us that what they said was not nonsense) then I get to take them to the board and CAFC. The overall backlog (and of course the bpai backlog also) might be cut in half within a year if we put those two requirements into effect.

[6]

"Also, I've heard 6k just fills in the Request for Reconsideration section in the Advisory Action with "LOLOLOLOLOLOLOLOLOLOLOL""

Now THAT is an IDEA!

[Malcolm Mooney]

"Can you explain that?"

Why do you bother asking?

Fyi, Darling, here I am on October 30th attempting to calm the squawking chickens:

http://www.patentlyo.com/patent/2007/10/patent-prosecut.html#comment-88050732

[6]

"Guess you missed the part where I explained that he got those numbers from FOIA requests."

We're taking his word for them until I actually see the docs.

"So how is it that sampling 4% of about 50% of all applications lets PTO (mis)management claim "record breaking quality", but acknowledging that about 80% of all appealed cases, which you've calculated to be 2.4% of ALL applications, are so terrible that the examiner is told to start all over again doesn't represent a very serious problem?

Can you explain that?"

Sure, 1. OPQA is bs. 2. OPQA is lighter on us than attorneys are, and this is for a number of reasons. The foremost reason is that OPQA gets hardly any time to review the case, and more than half of that goes into re-searching. Since most errors are not prior art that the OPQA person found within the examiner's search scope, that means OPQA has a pathetic amount of time to review the case.

Also, OPQA isn't out to make techincality nit picking into a job. A good many of the arguments I get are things like, "well this tech wouldn't work with this tech because temperatures are off etc". And those kinds of things will get an appeal filed, (and maybe a reopen) but OPQA couldn't give much of a rat's arse about making them.

[Leopold Bloom]

"Now, we say, a given examiner produces y actions in a given year. Using numbers from myself, a lowly 9, instead of a 12 we get 8 per biweek (avg) * 26 biweeks total = 208."

OK, so your 6000 examiners produce 1.248 million actions a year. (It's interesting that your earlier example used a productivity figure of 120 actions per year per examiner. Has productivity gone up that much in the last 4 hours?) Of course, this is based on the rate of a "lowly 9", so the total output must be significantly higher.

Many of the applications are cr*p, and can be disposed of with a 10-second Google search (raising the question of why only 8 actions per bi-week); these applications are thus disposed of with a single action. The rest are either properly searched and allowed or abandoned, typically by the second and "Final" Office Action. (Otherwise, we wouldn't call it "Final," amirite?) So, the average number of actions per application should be less than 2, but we'll say 2. Thus, you should be disposing of more than 624,000 applications per year. How come the backlog is growing?

[JohnDarling]

"Ok, I'll trade you that for a requirement for applicants to respond with something besides nonsense to an OA."

We have that. It's called Rule 111.

"Sure, 1. OPQA is bs."

Thanks. Now tell me something I don't know.

"Why do you bother asking?"

Honestly, I don't know. Or in 6k-speak, aka baby talk, OMG, IDK!!!!!!

"Fyi, Darling, here I am on October 30th attempting to calm the squawking chickens"

Thanks, Malcolm. I actually predicted that J. Cacheris would enter the injunction. I can get you some affidavits from some of my colleagues if you need them.

But to be honest, when he returned from chambers and took his seat and the first words out of his mouth were, "I'm going to enter the injunction" I admit I was as surprised as anybody.

Well, maybe not as surprised as all of the PTO (mis)managers who were also in the court room, but pretty surprised.

Thanful. But surprised.

[6]

"Has productivity gone up that much in the last 4 hours?) Of course, this is based on the rate of a "lowly 9", so the total output must be significantly higher."

I decided to use numbers that more closely approximate reality rather than giving you freebies.

"raising the question of why only 8 actions per bi-week); "

Just fyi, I do around 4-5 counters and around 3-4 finals per bi week. I still don't understand how this happens since I've only had to do 2 or 3 2nd action nonf's in my entire career. I should be down to 3 counters, and 3 finals per bi week by now. And then adding in a 4th counter is easy and should make for a promo. WHERE THE F DO ALL THESE FINALS GO? It isn't to appeal I can assure you of that.

Then on to the reasons: Because even "pure crp" applications come with deps. And because "pure crp" applications still like to make me address loads of bs arguments, AND file an AF with some bs as well. And also because even the "purest crp" of an application in my art is about 50x less "pure crp" than, for instance, a fishing pole case. Finally, because even the "purest crp" of all of them still are supposed to be thoroughly searched.

I'm going to go do another final or something so maybe I'll be ahead next week. ttyl

[Just Visiting]

"2) Receive Examiner's Answer (2 month deadline -- no extension)"

The 2 months here is the time for applicant to respond to the Answer. The rules do not impose any particular time for the office to provide an Examiner's Answer.

[pds]

Some of the numbers Dennis didn't give here, which are also interesting, are the differences between cases received and disposed.

For the first 3 months of FY2009, the USPTO received 2,888 appeals but only disposed of 1,171.

This means the backlog grew by 1,700 appeals in just 3 months (with the real backlog much greater than that).

What I think will be the eventual (positive) result of this huge backlog at the USPTO is that the APJs at the BPAI will soon tire of doing a "second examination" for the examiner so as to affirm rejections. It is far easier for the APJ's to reverse than it is to affirm.

My hope is that the BPAI will start remanding analysis-deficient rejections back to the examiners and start looking for ways to agree with applicants.

Even with all the hiring the BPAI has done, they are still getting woefully behind. With a disposal rate at about 400/month going back 15 months, the USPTO is now 14 months behind. However, when the undocketed appeals are considered, they are probably well over 24 months behind.

I wouldn't be surprised if a reply brief filed today doesn't get a decision until 3 years from now.

[6]

"We have that. It's called Rule 111."

WTF, why can't I use that on all the myriad of bs arguments they submit? Oh, that's right, because any arguments at all are considered fulfilling your obligation no matter how ridiculous. Give 111 some teeth, and let me hold its leash.

[6]

"The applicant’s or patent owner’s reply must appear throughout to be a bona fide attempt to advance the application or the reexamination proceeding to final action. "

^ See that? Rampant non-enforcement of that = backlog.

Although, to be sure, many times their reply is a bona fide attempt to get me to issue them a final action. They want to spout nonsense, so they get a final action. We need to amend the rule so it says:

"The applicant’s or patent owner’s reply must appear throughout to be a bona fide attempt to show the application is in condition for allowance."

[pds]

"2) Receive Examiner's Answer (2 month deadline -- no extension)"

The 2 months here is the time for applicant to respond to the Answer.

------

I should have made it clearer ... "(2 month deadline to respond - no extension)"

On average, I'm seeing an appeal get responded to by the examiner in about 3 months.

[Leopold Bloom]

"Just fyi, I do around 4-5 counters and around 3-4 finals per bi week. I still don't understand how this happens since I've only had to do 2 or 3 2nd action nonf's in my entire career. I should be down to 3 counters, and 3 finals per bi week by now. And then adding in a 4th counter is easy and should make for a promo. WHERE THE F DO ALL THESE FINALS GO? It isn't to appeal I can assure you of that."

That's fascinating, but it doesn't explain why the backlog is growing in spite of the fact that your calculations suggest a disposal rate of over 600,000 applications a year.

[pds]

"That's fascinating, but it doesn't explain why the backlog is growing in spite of the fact that your calculations suggest a disposal rate of over 600,000 applications a year."

6K would be better served to compare the following numbers for applications receiving a final rejection:
1) the number of applications receiving RCEs
2) the number of applications abandoned
3) the number of applications with an amendment that gets entered and results in an allowance
4) the number of applications in which a new office action was issued.

Comparing the number of appeal briefs to total number of actions is entirely misleading. Not all actions (i.e., first actions) are even appealable. As such, those numbers are not relevant. Similar issues exist for applications in which a large number of OAs have been issued prior to appeal --- these situations also skew the numbers.

[Paul F. Morgan]

Re: "2) Receive Examiner's Answer (2 month deadline -- no extension)"
---
[Was I practicing on a different planet?]

[6]

"That's fascinating, but it doesn't explain why the backlog is growing in spite of the fact that your calculations suggest a disposal rate of over 600,000 applications a year."

Well, we have those 60k that are being preappealed and appealed for one thing. Wasn't it 540k disposed of cases that Dudas said we did in the last fiscal year?

[6]

"Comparing the number of appeal briefs to total number of actions is entirely misleading. Not all actions (i.e., first actions) are even appealable. As such, those numbers are not relevant. Similar issues exist for applications in which a large number of OAs have been issued prior to appeal --- these situations also skew the numbers."

That's why we're using me as an example. My being below a 12 makes the FOAMs that I do merely reflect an extra final a primary does. We negate the large numbers of OAs cases by assuming me, who has only had one case go over 3 actions, and that was because I felt generous.

[anon]

123 said:

"I draft my response to a first Office Action so that I can cut and paste it into an appeal brief, because it seems to me that if you make your best arguments in that first response, and the Examiner unreasonably finds them "unpersuasive", then filing an RCE to continue arguing with the same Examiner is a waste of time and creates more PHE than is necessary."

When would you ever *NOT* "make your best arguments in that first response"???

[SF]

"When would you ever *NOT* "make your best arguments in that first response"???"

because the best arguments may require a detailed analysis of the spec and the cited references, which some clients are unwilling to pay for

also, some attorneys worry about estoppel that comes with arguments -- the problem is that minimal arguments too often have a minimal effect

[anon]

"When would you ever *NOT* "make your best arguments in that first response"???"

. . . because the best arguments may require a detailed analysis of the spec and the cited references, which some clients are unwilling to pay for

. . . also, some attorneys worry about estoppel that comes with arguments -- the problem is that minimal arguments too often have a minimal effect

Agreed. So the Patent Examiner is supposed to make his/her "best rejection" with the first Office Action, yet the attorney may or may not provide the best arguments in response . . . but the backlog and problems at the PTO is completely the fault of the PTO . . . RIIIIIGGGGGHHHHTT.

[pds]

"Agreed. So the Patent Examiner is supposed to make his/her "best rejection" with the first Office Action, yet the attorney may or may not provide the best arguments in response . . . but the backlog and problems at the PTO is completely the fault of the PTO . . . RIIIIIGGGGGHHHHTT."

Applicants are supposed to point out the errors in the examiner's rejection. There may be 20 errors but all the applicant needs to do is establish a single error made by the examiner regarding the independent claim.

No need to grind the examiner's nose into it when it isn't needed.

[anon]

"Applicants are supposed to point out the errors in the examiner's rejection. There may be 20 errors but all the applicant needs to do is establish a single error made by the examiner regarding the independent claim.

No need to grind the examiner's nose into it when it isn't needed."

That's not what the previous poster said. I'd agree that one argument would be sufficient IF that argument is the "best argument," however what I see alot of times is "Exr has not made a prima facie case . . . period". Thus, if that's your one argument that you are submitting, then you shouldn't be surprised to get a second action final rejection. In that case, any subsequent RCE/appeal that includes other/better arguments that are later found persuasive is NOT the fault of Exr "extorting" RCEs out of the Applicant. It is the Applicant failing/delaying to do what should have been done in the first place.

[pds]

"That's not what the previous poster said. I'd agree that one argument would be sufficient IF that argument is the 'best argument,'"

It doesn't have to be the best argument. It just has to be the argument that gets the job done.

If the applicant files a RCE + amendment after you make it final, then you, as the examiner, probably did your job correctly. If the application files a notice of appeal, then perhaps you didn't.

FYI -- if I don't amend after 1st and you go final, there is a 95%+ chance that I'll appeal -- however, I'm not the norm (fortunately for most examiners).

[curious]

pds says" "FYI -- if I don't amend after 1st and you go final, there is a 95%+ chance that I'll appeal -- however, I'm not the norm (fortunately for most examiners)."

How does the PTO usually respond, pds? Withdraw rejections and issue new ones? Allow application? Or let the Board decide?

[Noise above Law]

anon,

To use your example, an applicant states that a prima facia case has not been made. Examiner replies to the applicant's poor office action response to the extent that yes I have made a prima facie case and goes final. Applicant supplies other/better argument and examiner is persuaded.

I do not think any delay is entirely the fault of the applicant. Granted the applicant responded poorly for whatever reason. However, the examiner's argument is none-the-less bogus, else there would be no persuasion. So at most the applicant is responsible for a working delay of what - an hour of an examiner's time to copy/paste the statement "applicant's argument has been considered and is found to be not persuasive" into the previous Office Action, stamp it final and send it out, and a overall time delay (in which other applications are NOT affected) of up to six months? This seems hardly like extorting anything except an easy count for the examiner. Further, the frustration, delay and battle of copy/pasting a paragraph by the examiner does not seem to compare to the same level of frustration, delay and battle to make the examiner realize that cited references simply don't apply, or mean what the examiner thinks they mean, or overcoming any of the other myriad bogus excuses thrown out in the reject-reject-reject philosophy.

Dealing with "some attorneys worry about estoppel that comes with arguments" is a very real concern and an ethical duty of the advocate. Such games as 6 has portrayed as repeating nonsense and trying to get the advocates head spinning so they say something that the office can play "Gotcha" with, or deciding which law that should apply and which should be ignored as lawlol, or holding back the best reasons for denying patentability, or making applicants go to appeal "because he can" instead of doing the right job of best references in a compact prosecution are without a doubt much more prominent a reason for the backlog.

[pds]

"How does the PTO usually respond, pds? Withdraw rejections and issue new ones? Allow application? Or let the Board decide?"

All of the above. My favorite is when the examiner offers up, for allowance, a dependent claim that I didn't even argue.

[anon]

"Further, the frustration, delay and battle of copy/pasting a paragraph by the examiner does not seem to compare to the same level of frustration, delay and battle to make the examiner realize that cited references simply don't apply, or mean what the examiner thinks they mean, or overcoming any of the other myriad bogus excuses thrown out in the reject-reject-reject philosophy."

Your comment is premised on the assumption that EVERY single Office Action coming out of the PTO is somehow a "bogus" rejection.

[SF]

"FYI -- if I don't amend after 1st and you go final, there is a 95%+ chance that I'll appeal -- however, I'm not the norm (fortunately for most examiners)."

Imagine what would happen if applicants routinely appealed, say, 20 percent of their cases. Forget the backlog of the initial examination. The appeal backlog would be a sight to see!

I wonder if that would provide the right motivation for the USPTO to rethink their reject-at-all-costs mindset.

[beenthere]

For many years I have tried to work with, rather than against, examiners as much as possible. I have had a lot of success. However, I have found that, over the last few (5 or so) years, there has been an increase in first action rejections that just don't meet the legal or MPEP requirements. It's still a minority of cases, but no longer a rarity.
I do have to say that things today are a little better than the worst period of around 2005-2006.

In particular, I have seen an increase in rejections on 102 or 103 that simply don't have all of the claim elements. So, if the action does not make the prima facie case that's all the response that is needed. No reason to spend the client's money or create estoppel or increase risk if ineq conduct.
That's all I argue and I do it in the form of argument that pastes into an appeal.
Amending sets you up for 2nd final and opens the door to the examiner setting up more issues for appeal.
If the examiner tries to go final without my making any amendment, I just move the argument into an appeal. Since I haven't let the issues grow, it's straightforward and cheap. Pretty much 100% reopen at that point.
To be fair, I don't do it where the examiner has a reasonable position and I try to call to work out something so things don't spiral.
If everyone did this, there would either be a LOT more appeals or an improvement in 1st actions.

[curious]

"Imagine what would happen if applicants routinely appealed, say, 20 percent of their cases." The examiners would miss their RCE gravy train.

[curious]

beenthere writes: " I don't do it where the examiner has a reasonable position and I try to call to work out something so things don't spiral."

Are you able to work things out?

My experience is that the last five or so years it is very difficult. Before then the examiners were willing to work things out -- give and take -- you end up with what you are probably entitled to.

[Noise above Law]

"Your comment is premised on the assumption that EVERY single Office Action coming out of the PTO is somehow a "bogus" rejection."

No, my comment stems from your example in that you are persuaded.

All too often that persuasion is followed by new rejections equally poorly made.

anon, the point being that in your example, even if the applicant does as you say, the delay and impact due to the applicant is minimal.

The view expressed by beenthere:
- "In particular, I have seen an increase in rejections on 102 or 103 that simply don't have all of the claim elements. So, if the action does not make the prima facie case that's all the response that is needed. No reason to spend the client's money or create estoppel or increase risk if ineq conduct." is dead on.

This is what happens when you have a team of raw new-hires and you drill them in the mantra of reject-reject-reject without respect for the Law.

[123]

Anon, if the Examiner hasn't established the prima facie case, then asserting that IS the best argument and no other arguments need be presented. No matter how much the PTO would like to shift the burden and make applicants prove patentability, practitioners have a duty to avoid unnecessarily creating PHE. The PTO is concerned only with patentability, but we have to consider enforceability as well.

[123]

Beenthere, I share your frustration. I'm seeing more and more OAs in which an examiner simply repeats the language of each claim element and follows it with a pincite to a reference, implicitly asserting that the element is disclosed. Of course, the same language is never actually present in the reference, and the examiner gives no explanation of how he thinks the seemingly irrelevant discussion in the reference corresponds to the claim element, so I can't do anything but argue that the examiner failed to make a prima facie case.

[MaxDrei]

Good insight 123. I think this is a key difference between prosecuting before the PTO of a common law jurisdiction (US, UK) and doing it in a civil law jurisdiction (Europe, Japan, Korea, China). I think patent attorneys in civil law countries don't understand the pressures on common law attorneys-at-law, and vice versa. EPO examiners certainly don't have any idea how common law litigation works, and perhaps some Exrs inside the USPTO also don't really get what life's like, outside, in the "real" English common law world. It is all very well EPO teachers coaching USPTO people to replicate EPO success in "Mastering the Workload" except that EPO work procedures and applicant management techniques won't always work, when transplanted into the common law landscape in which the USPTO has to function.

[MaxDrei]

Just seen your second posting, 123. What that USPTO Exr is doing is replicating EPO style, which style is entirely fit and proper for Europe. Europe is a sort of "On your Own Head Be It" or "Caveat Emptor" world. If Applicant chooses to push ahead to issue, ignoring the Examiner's helpful pointers to locations in the docs from which adverse parties (say big corp's team of forensic litigators adducing punchy evidence from real technical experts) might launch obviousness attacks, well then patent owner after issue can hardly complain when some stern patents judge revokes his patent. Not so in the USA, eh?

[Babel Boy]

IQ = 6 said,
"nobody but the docketing guy knows why in the he ll anyone would possibly care if I rejected 2 claims that are cancelled"

It seems to you are missing an important aspect about the way the system works.

Should the applicant's patent -- or a continuation that becomes a patent -- eventually be litigated, the file wrapper will be dragged into court.

Those two claims that were canceled by the applicant and entered by you but that you asserted for the recorded as being rejected may be used against the application as some sort of estoppel, preclusive effect, Festo, who knows. Even if he prevails on the issue by showing the court you sccrewed up, he still has to pay his suits to argue it. You have sccrewed him even after he's beyond your normal powers to sccrew him.

You take a pretty mellow view of your own negligence. "Oh, durn, the docketing clerk is messing this all up. Why doesn't he just ignore my mess and move the case along?"

This is precisely the cavalier examiners' attitude practitioners defend their clients against every day. It is reassuring to know that there are clerks within the PTO who are helping us. And, to be fair, I know that there are many fine examiners who would never think to ask the question: Why doesn't the clerk just ignore my mess and move the case along?

[Babel Boy]

IQ = 6 said,
"nobody but the docketing guy knows why in the he ll anyone would possibly care if I rejected 2 claims that are cancelled"

It seems to you are missing an important aspect about the way the system works.

Should the applicant's patent -- or a continuation that becomes a patent -- eventually be litigated, the file wrapper will be dragged into court.

Those two claims that were canceled by the applicant and entered by you but that you asserted for the recorded as being rejected may be used against the application as some sort of estoppel, preclusive effect, Festo, who knows. Even if he prevails on the issue by showing the court you sccrewed up, he still has to pay his suits to argue it. You have sccrewed him even after he's beyond your normal powers to sccrew him.

You take a pretty mellow view of your own negligence. "Oh, durn, the docketing clerk is messing this all up. Why doesn't he just ignore my mess and move the case along?"

This is precisely the cavalier examiners' attitude practitioners defend their clients against every day. It is reassuring to know that there are clerks within the PTO who are helping us. And, to be fair, I know that there are many fine examiners who would never think to ask the question: Why doesn't the clerk just ignore my mess and move the case along?

[JohnDarling]

"If Applicant chooses to push ahead to issue, ignoring the Examiner's helpful pointers to locations in the docs from which adverse parties (say big corp's team of forensic litigators adducing punchy evidence from real technical experts) might launch obviousness attacks, well then patent owner after issue can hardly complain when some stern patents judge revokes his patent. Not so in the USA, eh?"

Max, your advice presupposes that the "pointers" one receives in USPTO OA's are "helpful" instead of just the usual result that a word search of some claim terms has produced a reference that happens to have some of the same words as the claims being examined.

So no, it's not usually the case here in the U.S.

[sinecureseeker]

reason 1 for increased appeal #s: new UNTRAINED examiners again unleashed on the public; 2 no comprehension of limits on rules by examiners, wherein they arbitrarily continue exams by 'CUT AND PASTE' technology, not even considering proofs/arguments presented; 3 inappropriate application of prior art. i have filed almost 60 appeals in the last 5 years, vs 0 for the first 15 years of practice. to date 56 have been decided and i have won them all, in all different arts. does not say much for quality of uspto exam, if one person (not a rocket scientist by any means) can beat them consistently. the intelligence of the pto seems to be concentrated at the board...not out in the trenches.

[anonExaminer]

123 writes "I'm seeing more and more OAs in which an examiner simply repeats the language of each claim element and follows it with a pincite to a reference"

Detailed claim mapping to the references takes an inordinate amount of time and skill in the art, both of which are in short supply here (at least in my art).

I honestly pity you fellas outside the USPTO when I see some of the junk that gets shoved out the door. I keep a stack of printed out actions in my office labeled "Gems of Ineptitude" including such classics as rejecting an application based upon its PGPub to others where the Examiner hilariously has no grasp of the English language.

[John prosecutor]

the size of the BPAI needs to be increased significantly and soon.

[pds]

"such classics as rejecting an application based upon its PGPub"

Priceless ... absolutely priceless.

I bet the examiner was slapping himself on the back for finding such a knockout 102 reference. However, what would have been worse is if the examiner rejected some of the claims under 103.

[anonExaminer]

pds writes "However, what would have been worse is if the examiner rejected some of the claims under 103."

Which is exactly what the Examiner did: http://www.bustpatents.com/dumbOA.pdf

Classic.

[Noise above Law]

pds,

I have an active application with exactly that situation.

[Lowly]

Oh good god, the examiner who did that was a PRIMARY?

[JohnDarling]

You owe it to yourself to review that application, 10/982,469.

The species restriction is based on the claims, not on the embodiments. Ugh. If I had a nickel for every one of those that I got. I'd be a certified gozillionaire, even in this economy.

The original OA was responded to, and the error in the citation of applicant's own published app was noted.

A new OA was mailed 6/26/08. Applicant responded 8/18/08.

The PAIR record still lists the status of the app as "Non-Final Rejection Mailed 6/26/08." The 8/18/08 response has not been docketed to the examiner lo these almost 5 months later.

But according to 6k, all of the responses are docketed to the examiner the same day they are filed, iirc. amirite? omg, it's totally fubar!!!!

$1B+ of applicants' fees spent on the "paperless" patent office and they can't even get a response entered and docketed in less than 5 months.

Simply disgraceful.

[fisher ames]

according to PAIR, the examiner got right back on track in the very next office action, so the name and shame stuff on this board seems gratuitous and counter-productive. to pillory an examiner over every isolated lapse only will encourage examiners to make a zillion backup rejections and objections to make sure something sticks.