My only response to this is my mouth staying wide open for ten seconds, and moving on back to my work. Not only have I explained this issue to you before, but it would be immediately evident to you if you still did any real prosecution work. Get a clue (you can find a few in the MPEP, in any recently issued rejections, and in the language of S.515).

The scare tactics and attempts to blur topics that have nothing to do with one another do no one any good. With any legislation the devil will be in the details, but there is no point ignoring the different roles of interference, which deals with an application and another application or issued patent and 131 practice which deals with an application and a reference.

Why would you try and blur things that are unrelated? You seem not to like my opinions, but I don’t compare apples with oranges. I also don’t change my opinions or blow in the wind. You always know what I think, where I stand and exactly why. But what about you? What is your agenda? Why do you try and mislead to gain support for your cause?

In my book, the Top Patent Story of the Decade, is my patent infringement case against StairMaster/Sports Medical Products, Inc. (now Nautilus, Inc.) that has been ongoing the entire decade.

The case is so big and complex, that I had to resort to explaining it on my Show @
http://commandodave.com/GOINALLIN/commandodaveshow.html And now that Nautilus, Inc. is selling some of its StairMaster assets to Fit Dragon International, the story is destined to become even bigger and more complicated.

The gist of my case is on YouTube @ http://www.youtube.com/user/CmndoDave#p/u/4/p1oxbB8fxj8 and Blogger @ http://goincommando.blogspot.com/2009/12/contingency-plan.html with the explanation for its complexity @ http://commandodave.com/policies.html

With all due respect to your #7 entry, perhaps you should consider replacing it, or at least adding a “7.1″ once you check out GOIN’ ALL IN!, the beginning of “The Rise of Patent Shows.”

I’m just getting started, so stay tuned.

37 CFR 1.131 is the reality, and not just a “de facto” reality–it’s on the books and patent practitioners make use of it every day. S.515 and its new 102 would kill rule 131; new 102 in combination with the creativity of examiners to force together illogical or unreasonable 103s would do nothing but add friction to a patent system that is already quite corroded.

Your blog is at its best when it keeps the rhetoric down–information is always useful, but your ideology blows with the wind.

I don’t want to get into a long debate, and I am sorry if I am snarky. I just want to point out one thing.

We most assuredly do have a de facto first to file system, and why you ignore the cold hard facts is a mystery. Be dismayed if you like, but you can’t fight reality.

I am pro small business as well, and it is exceptionally clear that those who embrace first to file will be far better off. We all know big tech cannot and does not innovate. They acquire and copy. Now independent inventors and small businesses will have the incentive to do what they should all be doing anyway, which is file as early as possible to get the best priority date possible. So to the extent that the Patent Office and Patent Laws give them incentive to do the right thing then they will, and will be begrudgingly grateful later when it is clear that big tech got a wish they shouldn’t have wanted.

In so far as Kappos not having a real sense of American innovation and doing IBM’s bidding, I would rather have someone who understands just what a progressive patent strategy and a powerful patent portfolio can do.

Perhaps Kappos will turn out to be the fox guarding the hen house, but I doubt it. What he is doing is worthy of cheering, particularly after the dark ages of Dudas. We all complained about Dudas, and rightfully so. Now we get a patent guy and there is complaining anew. I for one think the office is on a good path, and they should be cheered loudly and urged to continue. I particularly like the fact that they are little by little adopting ideas that I have been suggesting for many months and years. I would be a hypocrite not to think what they are doing makes sense. Go back and look at my writings over the last couple years and you will see many of the suggestions coming into being. I can’t say it is because they are doing what I said, but they are doing what I suggest whether they adopted my positions or came to them on their own. Another one will be unveiled tomorrow or next week. I was going to write it up today, but patentability assessments and client duties called.

-Gene

I agree 100% with every point you made in your 4:13 PM post.

It is one thing to welcome change and promote accord between the Office and the Bar. It is quite another to shut one’s eyes and take a big gulp because we are told the kool-aid tastes great.

And while I found Gene’s post of 8:56 PM to be a bit more snarky than usual, we all know that Gene is passionate about what he writes and I do not doubt that Gene fully believes in his position. Of course, he is entitled to be wrong, just as any of us are. He is also entitled to be bitter or snarky – this is his forum.

But do not let that dissuade you from arguing your position Robert; after all, arguing is what we do.

- “Bitter” isn’t the right word for how I feel about the present situation; I started in this career during the last eight years so I’ve never known anything but the “reject, reject, reject” PTO, the one that cooks up absurd, nonsensical 103s and fights them through to the BPAI. One can’t be bitter if one has never tasted sweet. But one can be a bit puzzled when a colleague is munching on earth and keeps telling everyone around him how great this honey is.
- We don’t have a “de facto” first-to-file system at present, and it is dismaying to see you keep using this and other lines of propaganda even after all the effort that has been put into explaining to you why they are not so.
- I am sure you are right that “patents are getting granted”. This is not at issue. More at issue is whether the allowance rate has picked itself up off the cliff, whether pendency is going down, whether the backlog is being depleted, whether response rates pick up, whether filing rates are going up, and whether there has been a culture change at the examination corps level which results in an end to Office actions that do things like distort the teachings of references and insist on unreasonable definitions of terms of the art in order to fit rejections into place, creating puzzles of unfitting pieces that have been pounded together. I am sure we’ll see some interesting posts on the Watchdog when the next round of plots come out showing that the allowance rate continues to fall and pendency continues to rise well into the Kappos regime even as filing rates plummet. (I don’t hope for these outcomes–naturally, I hope for the opposite.)
- Kappos has dispensed plenty of rhetoric about boosting the PTO budget and ending fee diversions, yet the opposite has occurred under his regime. Granted, he does not have absolute control over these factors, but out of everyone, he is in the highest position of advocacy for a financially strengthened PTO, so some of the blame for the failure must go to him.
- My “agenda” is pro small technology business because small businesses create more jobs than big businesses and more innovation comes out of small businesses than large businesses. Fostering small businesses is win-win for America. IBM’s patent policy positions are designed to elbow out small businesses and weaken the patent system in favor of a large company which doesn’t need patents to preserve market dominance since it can do so through through marketing and sales. I certainly prefer a patent attorney like Kappos running the PTO over someone with nonexistent or unclear patent system experience. However, ideally, a PTO director would also come from a background of entrepreneurship and would thus be someone who understands the business forces that innovate and create wealth for employees in America, and the importance procuring patents plays in securing investment. Going by his most recent remarks and particularly his blog posts, I remain unconvinced that Kappos has any real sense of how the patent system unleashes American innovation and creates jobs (or how it ought to be better harnessed to do so). Kappos is still toeing the IBM line, so in this respect, he is much more like the “foxes guarding the henhouse” federal administration appointees of the Bush era (Baker, Snow, Leavitt, Norton, Brown, etc., etc.).
- Your closing about “throwing up of hands” amounts to a playground taunt, and it’s unbefitting. Elite patent prosecution requires fighting arduous battles, and I fight those battles, as it’s my job. In virtually all cases the battles are arduous unnecessarily, simply because examiners are shackled by a culture of “no”. If you think this culture has changed, I look forward to the data evidencing that. Until then, you don’t know whether the team is worth rooting for, so stop cheerleading.

I feel sorry for you, I really do. You sound so bitter, and for what reason? You seem to dislike first to file, despite the fact that you know we have a de facto first to file system. Why is that?

The fact that you think the patent office is not granting patents is a mystery, and calling what I say hyperbole. Really? Believe it or not, patents are getting granted.

You really think it is unclear why Kappos cannot get more money from Congress? Do you blame Kappos? It seems like you do, but why?

When you say he is “beholden to the policy positions of IBM..” it seems clear what your true agenda is. You don’t like the man, you don’t like IBM, you are bitter you can’t get patents issued and want to blame everything on Kappos, and presumably me for having the audacity to acknowledge what we all know is true. The Patent Office is being run much better now than it was under Dudas.

Your bitter tales of not being able to work with examiners and get patents misleads inventors and innovators into believing there is nothing that can be done. The fact that you cannot throw up your hands any more must be disturbing.

-Gene