My understanding is the Commissioner is appointed to a five year term.

I wasn’t referring to Mr. Spar. My sources tell me that Rolla wrote most of the rules. Maybe my sources are wrong.

It’s a shame he got mixed up in that fiasco?

That’s revisionist history. Those rules were written with the intent of screwing applicants and practitioners to cover up for PTO (mis)management’s abysmal performance in managing their work. Nobody got mixed up in that fiasco. They all participated of their own free will.

Who are you referring to, Bob Spar? Spar was a helpful type at the OPLA and used to help applicants with all sorts of odd problems. It’s a shame he got mixed up in that fiasco.

I still don’t understand why Doll is back as Commissioner. Doesn’t the Commissioner have to be appointed by the Secretary of Commerce? Was this done again, or are there some interim rules at play? Maybe someone can have him removed on these grounds.

Let’s hope the new people that go up there are better.

I also agree with you that most cases have something allowable disclosed. Probably 90+% do. Of course, getting it into the claims is sometimes another story.

I do think that it would be helpful if cases based on foreign apps are actually proofread & edited after filing & not wait for the examiner to proofread it. It would help make understanding the cases a bit easier.

thanks,

LL

He is John Doll. I don’t have any problem expressing my opinions with regard to Mr. Doll’s tenure at the PTO.

I have seen him speak several times. In my opinion, he is arrogant and hostile towards applicants and practitioners.

I’ve also read the interviews that he’s given to various publications. He states that it is his opinion that patent application quality is poor, and that is the reason for the lower allowance rate. He is wrong. He never presents any evidence of this “poor” application quality other than his opinion, which is meaningless as he simply has no idea what he is talking about. Practitioners draft, and prosecute, applications to serve their clients, and they do so in response to the requirements of the statute, the code, and the precedential decisions rendered by the reviewing court, i.e. the Federal Circuit. We do not draft and prosecute applications to serve the interests of the Patent Office. Examiners, and PTO (mis)managers, are not our clients. We also do not do the things we do simply to annoy the examiners and the PTO. Yet so many over there think we do. I wonder where they got that attitude from.

We are willing to be as cooperative as we can while still fulfilling our professional responsibility to represent our clients as zealously as we can within the bounds of the law. Mr. Doll has absolutely no understanding of this because he’s never done what we have to do. I’ve seen him whine about the breadth of claims submitted, the number of claims submitted, and the number of references submitted. All of those things are done because, in our professional judgment, they are necessary to fully protect the client’s interests. What does Mr. Doll not understand about that?

Instead of keeping his mouth shut, he has been running it far too much. And the result is that he has instilled an unwarranted and very damaging hostility in the examining corps towards applicants and practitioners. You see the posts from these, or should I say this, junior examiner every day: constant allegations that every single practitioner and applicant commits inequitable conduct in every response of every application. Junior examiners posting on the patent blogs that none of their applications have any allowable claims at all, not that they’ve been told to reject everything, but actually believe that nothing is patentable. Where else could they have gotten such ridiculous attitudes and beliefs?

He also constantly puts out these phony statistics purporting to show what outstanding work the PTO is doing. His latest one is his boast that the PTO is affirmed 70% by the Federal Circuit. Never mentions that the PTO gets to cherry pick which cases go to the Federal Circuit. Same with the BPAI “affirmance” rate. Completely phony statistics. Utter garbage.

I’m sure there are those over there who were against his “quality = reject, reject, reject” mandate. My question is: where’ve they been for the last 5-6 years? My guess is that they were “following orders.” That’s a shame.

Personally, I think that there are TWO people up there that are responsible for the problems, both male, AFAIK, both of them are responsible for the rules packages.

Oh, and there are a LOT of long-term people in the office that were/are against these policies & rules packages. Unfortunately, most of them are not high enough in the food change to make a difference.

thanks,

LL

You gotta aim high.

It was the lifer class over there that wrote the claim examination and continuation rules. Nobody who has any respect for the law would have written those.

The PTO received hundreds of comments, from very knowledgeable practitioners and organizations, that told them the rules were contrary to the law. The PTO just ignored the comments. No respect for the law.

Feel free to review then-Solicitor Whelan’s remarks about the rules. I attended a Bar Association of DC (Patent, Trademark & Copyright section) meeting where Whelan spoke about a month before the comments on the rules were due (May 2006 or thereabouts) and somebody at the meeting told him the rules were contrary to law and might be challenged. Mr. Whelan replied, “We thought about that. We think we have a 50-50 chance, so take your best shot.”

You simply can’t have people like that in positions of power at the PTO.

The chief writer of those rules is gone, as are many of the old time lifers who cooked up that stinking pile of mess and then walked away when the mess hit the fan. But the driving force behind them remains. Until he is removed things will not improve. He is 100% responsible for the mess over there, IMO. He has to go.

wow, I was hoping for UNDERSTAND.

I like your requirement better.

The reason we need somebody with private practice experience is because we need somebody who respects the law. And what I mean by that is somebody who understands that you can’t simply instill policies like “quality = reject, reject, reject.” Somebody who understands that the law controls, not some policy designed to prevent the Patent Office from being embarrassed by issuing patents on exercising cats with a laser pointer.

In private practice, we’d all love to simply tell our clients that every claim of every application they’re filing is patentable, that every one of their competitors is infringing every one of their patented claims, and that they’re never infringing any claim. Ever. But we can’t do that. We have to respect the law. Sometimes the answer isn’t the one you want. But you have to deal with it when you’re in private practice.

At the PTO, nobody has to respect the law. You have hordes of SPE’s who were given the job 5 minutes after passing the full sig program. They’re supervising hordes and hordes of newbies hired in the last 5-6 years. So they get an OA from one of their juniors, they look at it, and check to see if anything is allowed, if there’s nothing allowed, they grab their pen and sign away.

Can you imagine doing that when you’re supervising junior associates in a firm? Can you imagine signing anything put in front of you by a junior associate, without reviewing it, simply because from a skimming of the work it appeared that the associate had argued all the claims are patentable, or because the associate opined all the competitor’s claims were non-infringed and/or invalid?

Of course you wouldn’t do that. Nobody in private practice would (or at least I hope nobody would). You would sit down with the associate, go through the work, make sure you were comfortable with the correctness of the factual and legal analyses, and then sign your name to it, or allow the associate to sign it.

There’s nobody in the lifer class over there at the PTO that’s ever worked under conditions like that. The SPE class over there has a generally prevailing attitude of, “Hey, don’t see any claims indicated allowable, what the heck, can’t get in any trouble for signing it, where’s my pen!!!!”

If some PTO lifer is given this position, you can forget about anything changing over there.

I think you are right. The filing of the DC position will be a big indication of whether Kappos will really change the culture. I am sure there are qualified people in the Office, but I personally think that there are a lot of qualified people outside the Office who are very attractive candidates, including a lot with PTO experience who were cast aside some 5 years ago at the dawn of the Dudas era. With 5 years of living under the rules of the Office in private practice a number of those folks would be appealing and offer unique perspectives.

-Gene