At first I tended to agree with you about 6, 6k, 6000, etc. I actually banned him/her from commenting here because when I would post information aimed at independent inventors and entrepreneurs he would comment with what was objectively incorrect legal advice and then claim his/her superior status as a patent examiner made him more qualified. He would tell inventors that they don’t need lawyers, lawyers are the problem and they should just file themselves and let the examiner write claims for them because examiners are far superior at doing that compared with lowly lawyers. I tolerate opposing views, but do not tolerate inaccurate and/or bad legal advice.

16 year examiner’s comments were getting trapped in spam, and I couldn’t figure out why. Then when he started calling me “dude” it started to make sense. It would seem that 16 year’s messages originate from the same location as did 6k’s messages.

I police the comments as much as I can, but once you have one comment that is approved your comments go straight through without screening (except in cases where you use a banned character string, which is why “assessment” was causing problems for some a while back, or have a hyperlink, then I have to manually approve). So, I set to spam those who like making threats, use profanity, make incorrect legal statements and pass them as qualified legal advice and those who are belligerent and try and remain completely anonymous.

I realize this is censorship, but I am not about to let this site be taken over like some of the other blog out there that are simply unreadable because of the nonsense spewed in comments.

-Gene

I agree with everything you say. I do not think it is politically feasible to have examiners laid off or terminated. I understand what it is like to worry about your job. In my first law job I saw the firm I was with struggling and making cuts and everyone was afraid. I wish the PTO didn’t have to go through this. It is unnecessary, counter-productive and harms the US economy and innovation.

I think it is encouraging that Congress authorized the borrowing from the Trademark Office. I think there are some in Congress that do get it, and now they have all to some extent been informed. That should be a good thing. With a small fraction of stimulus money Congress could set up the PTO to meaningfully participate in economic recovery.

I promise to keep writing about this and work my contacts to get this issue in front of decision makers and policy makers. What you could do that would help is encourage examiners who share your view to post comments here and elsewhere regarding your fears and your ideas for making a better Patent Office and better patent process.

-Gene

I realize that the rantings of the individual who calls himself Examiner 6k, 6, 6k, or 6000 are so pervasively idiotic that even seeing “6″ and “examiner” in the same line brings to mind the image of a fool and a fool’s prattling, but the prattling that you responded to above belongs to a different examiner. “16 year examiner” is not likely “Examiner 6k”. 6, while equally ignorant, glories more in his ignorance.

“They spend an extra day searching for the best art and make an air-tight rejection? ” – Hilarious. If only this were so. Rather, we have months to years and ill-founded rejection after ill-founded rejection, stubborn ill-founded rejction appealed and replaced with an equally bad ill-founded rejection. “16 year examiner”, you might actually pay attention to the body of the complaints before denying culpability. Then again, looking at the facts before you is not a strength, eh?

1. If you don’t realize there are vindictive examiners then you don’t get around much. Lets try and keep it real. Examiners are decision makers and smart attorneys do not do anything to piss examiners off, and they give in so as to not rock the boat. It is cheaper for the client to file an RCE than to appeal, so examiners get to make all kinds of rejection mistakes with little or no review and unless an applicant is willing to spend many thousands of dollars on an appeal and wait a couple years you give into examiners looking for an RCE so they can get an extra clearance for no work.

2. “Claims miraculously allowable after filing an RCE: How in the world does this hurt a small company? What is it a few grand extra and a few more months?” — They shouldn’t have to pay the extortion of an RCE and more attorneys fees to get claims the examiner should have issued without an RCE. I’m sure you get that.

3. “7-10 years – no way you can blame second pair of eyes on that. I have those cases. Those cases have nothing in them. ” — Do you ever see what is allowed? You should check the weekly issuances, they are good reading and show that every week applications that were pending for 7 to 10 years actually issue.

4. “Dude, most “advancement of innovation” is in stuff like diapers, automobiles, oil refining, food preservation and other non-glamorous arts.” — It is truly a pity that there are examiners with this mentality.

5. “It is not in the best economic interest of the country to bend the patent system to help the small tech start-ups over the big businesses.” — Not asking for you all to bend, just do your job, which is to issue patents. Like we have discussed in the past, when you were calling yourself “6k”, the law says you issue unless there is a justifiable reason not to issue.

6. “Out of control pendency – even if caused 100% by John Doll him self by edict – is not a cause for a business to fail. Rather it was a plan (or dream) of a business, a business which as never materialized.” — You need to tell that to all those companies who lose funding because you in the PTO are holding their innovations hostage, playing quota games and acting like you know everything.

-Gene

Worried about upsetting the examiner? We aren’t babies.

Claims miraculously allowable after filing an RCE: How in the world does this hurt a small company? What is it a few grand extra and a few more months? This destroys companies? Moreover, this gaming of the system has been going on since I got here – then they were CPA’s rather than RCE’s. I was trained by a gamer. The policies of John Doll et al had nothing to do with it or making it worse – as far as I can tell.

I see now what you are saying. I don’t think you mean to say John Doll et al’s policis damaged any small companies. Rather some people had business plans which hinged on obtaining a patent. And because of John Doll, the plan was not implimentable. Or that the founders were foolish enough to invest time and money on the assumption they would get a patent by a particular date. Well in that sense, yeah they are destroying business. But most people would not consider it to be an actual business that was actually desroyed.

Our backlog is well-publicized. Anyone who is surprised to find themselves in limbo waiting for a first office action is to blame for being surprised (i.e. spending money prior to it being prudent to do so). Its like building a business in a flood plain, you can’t blame the rain for the business’s destruction. The bad planning was the cause of the destruction. More philosophically, it was never a business – it was only a pipe dream. Likewise a business that expects to get a patent within two years of filing is not a business – it is pipe dream. It is based on a dream that patent can be obtained in an impossible time frame.

4, 5, 6 years? Ok so the second pair of eyes could be blamed for that. What would it be without that? 3-5? 2-4? Wouldn’t some of the purported failed/limboed companies have failed anyways?

7-10 years – no way you can blame second pair of eyes on that. I have those cases. Those cases have nothing in them. They just keep refiling and refiling. Any business that is hurt by those cases is due to hiring inept patent attorneys not the PTO.

Your comment regarding big tech companies made me laugh. Tech/telecom makes up about 22% of the S&P 500 (i.e. the 500 biggest publically traded companies). Even if all of those want a higher bar, your initial statement of “all” big companies wanting it remains unsubstantiated. Dude, most “advancement of innovation” is in stuff like diapers, automobiles, oil refining, food preservation and other non-glamorous arts. It comes from big companies that have big bucks to do lots of research.

It is not in the best economic interest of the country to bend the patent system to help the small tech start-ups over the big businesses. The idea of David slaying Goliath is nice but it isn’t as common as people like to believe.

Out of control pendency – even if caused 100% by John Doll him self by edict – is not a cause for a business to fail. Rather it was a plan (or dream) of a business, a business which as never materialized.

I agree with you to some extent with respect to why patents are not granted. The one thing that you are missing, however, is that many patent attorneys file RCEs because it is the path of least resistance, doesn’t upset the examiner and actually plays into those who are manipulating the quota system. You would be surprised how many “non-allowable” claims miraculously become allowable after an RCE is filed. I am not saying all examiners play these games, but it is far more than the number that hard working examiners who respect the system think it is.

The most important change that Commissioner Focarino talked to me about was the creation of a Patent Ombudsman. The reason patent attorneys tolerate bad office actions is because if you complain then at least some examiners take it out on you and that only hurts the client. So yes, we could do better, but until you realize the tremendous power that some vindictive examiners possess it is likely hard for you to understand why we do what we do. If there were an Ombudsman that could be approached and who would make sure there was no retribution that would lead to a much better working relationship and less tolerance of the many unnecessary RCEs that we put up with to help examiners meet their quota.

There are a litany of examples of small businesses being damaged or outright killed by what has been going on at the PTO. We represent a number of clients that cannot raise money because there is no patent, and still others that have had licensing inquiries from major US companies and it goes no where until a patent issues. So they are in limbo, they cannot raise capital and they cannot sell or license the invention. This is caused by out of control pendency, which is in part caused by second pair of eyes and more directly Quality Review. Many examiners simply do not issue patents any more, or very few, out of fear of it hurting their review. Examiners for the most part are not trying to exceed their goals and get awards. This hurts everyone, but is particularly crippling for small businesses who are the engine that drives the US economy. So all you have to do is look around at all those applications that have been pending for 4, 5 or 6 years without a first office action, and the applications laying around without final resolution for 7, 8, 9 or 10 years. There are plenty of them and that is doing real damage to the US economy. If the PTO hadn’t caused so many problems for itself our economy would be in far better shape even with the lack of leadership and regulatory oversight that we hear about every day in the news.

With respect to big companies wanting a low bar for non-obviousness, that is simply not the case. Throughout the tech sector, in particular, they want to make it harder, not easier, to get patents. Do some searching online and you will see many anti-patent stances taken by major tech companies, and this gets used by the anti-patent crowd to say “see, even they think patents are too easy to get.” This completely misses the point. Large tech is in league with the anti-patent crowd because that will help them insulate their dominant position. Without the ability for start-ups to receive patents they will never be able to challenge the US mega-companies who enjoy dominance, and that is not good for the advancement of innovation, and not good for the economy.

-Gene

Yes I too would like to see the damage – any damage. My point of view is that when a patent is not grated, it was because 1) the invention was not novel, 2) it was obvious, 3) it was not enable, and/or 4) the examiner gave lousy office actions, but the attorney was a lousy advocate for their client and failed to demand a proper office action. The attorney, rather than demand proper office actions, prefer to complain to clients about the examiner and suggest the expensive solution of file RCEs.

I guess when they get a bad steak at a steak house, rather than complain to the chef, they order the chicken and hope it is better than the steak. That, or they order another steak.

Most of us – just like chefs – want to do a good job. We really do. And we also want the slackers among us to be fired. If an examiner is grossly inept, attorneys have a moral duty to inform the SPE or group director, and not just file an RCE and hope for things to get better.
In other words: my point of viewis that if a startup goes belly-up from having to file many RCEs it is because of a poor attorney or because there is no invention in the application. John Doll et al had little to do with it.

I would like to see at least one real example where a small company was damaged by Doll et al (or second pair of eyes).

And to your question: no I never wondered that. My impression is many big companies want a low bar for non-obviousness – for example big pharma.

…Playing around with the numbers provided for the USPTO daily intake versus what was expected provides some rather shocking projections. Let’s just say the the Congressional action so far is a small drop in a staggering bucket of red.

If the Office revenues continue to drop at a similar rate of decline during the second half of the year as has happened in the first half, the emergency action on the behalf of Congress will seem quite meaningless to the necessity of furloughs or even down right layoffs.

Consider: even with all of the cutbacks in programs, overtime and the ilk, the Office needed emergency funding in the first half of the year that saw a 14.7% miss on revenue (137.8 million calculated from an estimated 802.3 million versus a projected 940.1 million). The bailout loan to be repaid being roughly half of the miss seems a bit inconsequential if the boat isn’t turned around IMMEDIATELY.

If the rate of revenue drop continues at the SAME PACE, the miss will widen in the second half to a 27.5% miss, or a 21.2% miss for the full year (402.9 million calculated from an estimated 1,500 million versus a projected 1,903 million). The required end of year bailout, assuming no more cuts would need to be 6 times as much already given, or five times more if the current bailout is for upcoming needs rather than current needs.

IF the rate of revenue drop doesn’t accelerate.

IF Congress is willing to provide all of these funds.

How deep would the cuts go if Congress says “no more”? How deep if Congress ponies up half?

I wish you could see the damage that Doll et al have caused for start-ups and small businesses. If you want to focus on corporate America that is fine, but not allowing patents for the engine that drives our economy (i.e., small businesses) is like cutting off your nose to spite your face.

With respect to your lawsuits comment, I have to tell you that you are 100% wrong. Large companies do not sue each other over patents. What all of this has done is solidify large companies and make it impossible for small companies and small businesses to get patents, which are frequently used as a shield. Having a patent is like having a nuclear weapon. When you have one the other side needs to think cautiously about how to proceed. Without patents a small business is nothing but a target, and it might as well be hunting season.

Don’t you ever wonder why all the big companies want to make it harder to get patents? They want it harder for innovations to be awarded patent protection that they might ultimately have to pay for when they steal.

-Gene