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On the Record with Former PTO Director Nick Godici – Part 1


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: July 11, 2010 @ 4:07 pm
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Nick Godici

On Tuesday, June 29, 2010, I had the opportunity to sit down on the record with Nick Godici, the former Acting Director of the United States Patent and Trademark Office and Former Acting Undersecretary of Commerce for Intellectual Property. Godici is one of only a small handful of individuals to have seen the Patent Office on every level, from newest patent examiner to SPE to Group Director, Commissioner for Patents and ultimately to Director of the USPTO.  I have wanted to sit down with him for some time now, and some mutual friends of ours, who are mentioned in the interview in passing, made introductions.  I was put in touch with Godici and now the rest is history, as they say.

I thoroughly enjoyed my time with Godici, and we managed to get into a wide variety of issues that ranged from his early days as a patent examiner, his patent examination philosophy and approach, the role of the USPTO, the Patent Granting Authority versus the Patent Denial Authority, examiner training, building relationships between patent examiners and the patent bar, the PTO work from home initiative, inequitable conduct, the Bilski decision and what the USPTO is now likely doing to address that, the parallels between the Reagan Administration and the Obama Administration in terms of patent and innovation policy and exactly what it is like to be the Commissioner of Patents and the Director of the Patent Office, and much more. Oh yes, we also talked about his getting a call from Secretary of Commerce Gary Locke last summer and returning to the Patent Office for a few months as a special adviser at the request of the Obama Administration.

Godici, who I quickly built a familiarity with likely in part due to our mutual friends and due to our common views on many issues, was extraordinarily gracious with his time. The interview was conducted at Godici’s office at Birch, Stewart, Kolasch & Birch LLP, in Falls Church, Virginia.  We had originally scheduled a 1 hour interview, and 90 minutes later we were wrapping up and I was cutting some prepared questions to make sure I got all the big ticket items in.

In terms of interview mechanics, I provided written questions in advance and agreed to steer clear of anything political or sensitive given that Godici does a fair amount of expert witness work and due to his being recalled last year to advise the Obama Administration on a variety of matters. Notwithstanding, we did talk substance and the interview gives an excellent behind the scenes look into the operations of the USPTO.  In my judgment the prepared questions were long enough for about a 45-50 minute interview, so there was a good deal of follow up and give and take. Due to the length of the interview it will be published in three parts.

Without further ado, what follows is part 1 of my interview with Nick Godici.

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QUINN: The first thing I have is, and my wife laughed when she read this, and she only read the first question, and the first question is this: a good place to start might be with college since you and my wife went to the same school. If I don’t give a plug to the University I might not be able to go home, so let me ask for the record, where did you go to college?

GODICI: Well I think you’ve got it but yes, I went to Penn State and got a degree in engineering mechanics. And I’m always asked what the heck is engineering mechanics? Is it mechanical engineering? What is it? Actually they don’t even have that major anymore. They’ve combined it, its engineering science and mechanics but it’s basically materials engineering. We put stress and strain gauges on hunks of metal and then ripped them apart and tried to figure out, tried to predict the fracture and so on and so forth. It was interesting. There were a lot of laughs involved and I enjoyed it.

QUINN: Well good, now I have an idea of how you wound up where you wound up to start at the Patent Office. But before we get there, how did you wind up going to Penn State?

GODICI: [Laughs] That’s another funny story. In high school I was looking for engineering and science schools. In NY State there were a lot of private schools, but the public schools weren’t that great in engineering and science. My girlfriend at the time had a catalog for Penn State on her desk. I said, “Oh, that looks pretty good.” I applied, she applied and I got in, she didn’t.

QUINN: Oh Wow.

GODICI: We ended up getting married.

QUINN: Oh really, no kidding?

GODICI: Yeah and she ended up at Penn State a few years later but that’s how I ended up at Penn State.

QUINN: Oh my goodness, that’s a good story. I suppose I should ask this too — when I say, “We are” what is the response?

GODICI: “We are Penn State,” that’s exactly it, everybody who’s been a Nittany Lion or been at a Penn State football game, knows that’s the cheer that goes from one side of the stadium to the other. It was a great place. I loved Penn State and I go back every chance I can.

QUINN: And I understand they just recently honored you with a distinguished alumni award?

GODICI: They did! Yes, I actually was fortunate enough that the engineering school did give me a distinguished alumni award. It was in 2002. It was about the time that I was Acting Undersecretary at the USPTO. I think that probably had something to do with it. [Laugh] But anyhow, I was honored and thrilled to receive that award.

QUINN: That’s actually a good segue because as far as I can tell and correct me if I am wrong, you are one of a very small group of people to have started from the newest examiner and gone up through the ranks to make it to director and you were acting director and acting undersecretary for about a year right?

GODICI: That’s right. I started out as a GS7 Patent examiner in 1972 [Laugh] and worked my way through, and like I said before, I was fortunate to do be able to do some of the things I did at the PTO.

QUINN: And then you got called back.

GODICI: I did.

QUINN: Last summer. What was that like? I have so many questions about that. First, how did it happen?

GODICI: Well there was no magic about it. I was sitting here in my office one day. I had gotten some general inquiries from folks at the Department of Commerce and others, would I be willing to do something along those lines in terms of trying to help out? But I was sitting here in my office and the phone rang and on the other end he says, “Nick, this is Gary Locke, the Secretary of Commerce?”

QUINN: Did he really introduce himself like that?

GODICI: Absolutely. He personally called, I picked up the phone and that’s exactly what he said. He said, “I understand you might be willing to go over to the PTO and help out for a short period of time.” So I said absolutely. Anything I can do to help I’d be more than happy to do that and gosh it happened almost overnight. I think the call was on a Friday and Monday I showed up at the Patent Office.

QUINN: Oh wow.

GODICI: Of course I talked to the guys here at the law firm and cleared the way and it was just going to be a temporary thing and so I was able to do that, go over and try to help out with some of the issues and get things teed up for Dave Kappos. We all knew Dave was nominated, we weren’t quite sure when he was going to be confirmed. But the whole idea was that he would be coming over and we wanted to make sure that things were set up for him and some of the issues that they had been dealing with were hopefully taken care of and resolved.

QUINN: OK. Before I get too far ahead of myself, I’d like to talk to you about the fact that I think you have an interesting set of experiences to go all the way through the Patent Office as you did, so maybe we can jump back in time to when you were that newest examiner. What technology were you in?

GODICI: I was in group 320, unit 323 and the first docket I had was in class 51 which was abrading and there was a veteran primary examiner, his name was Harold Whitehead and I was under his wing from day one and he was the guy that trained me. In the old days it was basically on the job training after the initial patent academy. They would give you a stack of cases and you would read them and do the search and report the cases one on one and I thought I got a really great opportunity to be trained by Harold Whitehead who everybody respected as a veteran examiner. Abrading, it was basically machine tools. It was heavy machinery, boring tools to bore out engine blocks, some numerical control and so on. Clearly nothing that I had experienced at Penn State [Laugh] prepared me for that exact technology but that’s generally what happens at the PTO. You learn by reading the applications and getting into that technology.

QUINN: Yes, but you did get into some of those areas a little bit? A little birdie told me –

GODICI: I know what you’re hinting at. A few years later Al Lawrence Smith was my SPE who I really, really owe a lot to. He really was a mentor to me. But anyhow, a class was transferred from group 330 to group 320. It was class 43, fishing, trapping and vermin destroying. [Laugh]

QUINN: It was described to me as mousetraps and vermin.

GODICI: Mousetraps and fishing lures. I ran into my SPE’s office and I volunteered. I think I was a new primary. It was probably 4 or 5 years after I’d come to the PTO and I did not have my own class. I was working in a class where there were other primaries that were more senior. Plus it sounded interesting. It sounded like a change from machine tools. So sure enough they gave me fishing, trapping and vermin destroying and I was the fishhook and mousetrap guy for a few years. [Laugh]

QUINN: I understand that gave you an opportunity to apply some of the material science training that you had.

QUINN: Sure, there was some of that although the bottom line is probably that mechanical engineers or engineers could easily understand the technology in fishhooks and mousetraps. The thing about that is it was interesting to me, but you had to do a lot of work. They were fairly simple technologies, so you had to churn through a lot of cases. And that was a good thing too, because every case brings it’s own issues. I don’t want to sound like a Pollyanna but I enjoyed every job that I had at the Patent Office and I enjoyed the examiner job. A lot of people wanted to move on and get onto something different. I enjoyed it and one of the things that I always tried to do, I wasn’t necessarily always looking at the next promotion. I just tried to do the job I was in well. And if things fell into place in terms of the next step up, fine and if not it probably wouldn’t have bothered me because I really, really got into the job I was in at the time.

QUINN: That brings up a couple of things. One is the training you received and two is examiners moving around. I get a chance, as you know, to talk to some of the old timers that came up in a different era and it seems like a lot of them did move around and there was a lot of opportunities to move around and people would find places where they both excelled and had interest. Which seemed to then lead to them having the satisfaction that you were just describing. And also a recurring story that I hear is being trained at the elbow of a senior person.

GODICI: Right.

QUINN: I think from my perspective on the outside looking in, both of those have been lost over the years. Is that a fair assessment?

GODICI: I think to some extent, yes, to be perfectly honest with you. Like I said before, I had the opportunity from day 1 to be trained by a primary examiner, Harold Whitehead and then Al Lawrence Smith who was my SPE. To me a typical day would be working on the applications, going through 2 or 3 applications in a few days time period and then going and sitting down and opening the case and reporting out what the case was about, what the prior art was, how I intended to treat the claims, there’d be a discussion and so on and so forth. Then I’d go back and try to write up an office action. But you bounced everything off of an experienced person who knew the art. That’s the way I was trained and when I became a supervisor that’s the way I tried to train the examiners that worked for me. Today I’m not sure that many of the examiners have that luxury. A lot of the times they’re trained in groups or maybe not as much one on one training as there were back in the old days.

QUINN: What I’ve observed, and I don’t know whether this is true, is that change may have been going on over time but seemed to really accelerate with the move to the new campus. And then the people who you could trust the most, the people with enough experience to work from home, were able to work from home because you couldn’t trust a new person to work from home

GODICI: Right.

QUINN: Because, (1) they need that training or supervision; and (2) you just don’t know whether they have that motivation to work from home. Is that a fair assessment, you think? Did that move to the new campus really accelerate some of what I would call negative consequences?

GODICI: Yes and no. The bottom line is the pressures to hire more examiners and hire massive numbers of examiners to deal with the backlog, required some changes. When I came in you were hiring 100 or 200 examiners a year. It was not 1000 examiners per year, but to absorb 1000 examiners a year and try to train them the way we did in the past may not have worked. Although I think it could have worked in certain instances.

The work at home thing is kind of a two-edged sword. I agree with you that it’s good to have the experienced examiners around to talk to and get searches from and to help train. On the other hand I think having the opportunity to have the flexibility to work at home, is probably keeping some good people in the Patent Office. And I know personally people that I came to work with in 1972 stuck around for a few more years at the end of their career because they did have the opportunity to work at home. I think that generally the work at home program is a good thing. The PTO, I think attempted to try to balance the benefits of working at home against the down side of not having the mentors there. Maybe they could have balanced a little more toward the mentoring side.

QUINN: Do you think that maybe, and if you don’t want to answer this, that’s fine because this may be getting into a political area. Do you think that eventually we are going to have regional Patent Offices? I know there were some congressmen recently when Kappos was testifying who were saying, “Come to California.”

GODICI: Right.

QUINN: And that doesn’t surprise me that Congressmen and Congresswomen would want that in their own state. But that seems to maybe strike another balance between giving examiners that you want to retain freedom and still having a mentoring ability.

GODICI: I don’t know if we’ll have regional Offices or not to be perfectly honest with you. I’m not sure you need an office. It may be more of virtual offices as opposed to regional offices, eventually. I do think that early in the career, the patent examiner job takes a while to figure out and training takes a while and I do think there’s always going to be the need for someone coming into the PTO to have some serious training that’s going to take 2 or 3 years at least. After that once a person becomes competent, the ability to work virtually I think is there and the PTO can and has taken advantage of it. I understand the balance and I understand the upside down side but it’s the reality of today and you’ve got to deal with it and you’ve got to figure out how to use it.

QUINN: Now when you just said Virtual Office, I wonder if you were using that in the common business sense or whether you were using that as a work at home or some blend of that, because what came to mind when you were saying that is potentially having these cadres of people that live close enough to work on similar stuff where you actually really do have, whether it be through Regus or whoever, a virtual location that they can go to and meet maybe once a week or once every other week or something like that. Do you think something like that may work or be somewhere in between, a compromise?

GODICI: In my mind virtual office is basically work at home through electronic tools. There may be the opportunity to possibly have some storefront type brick and mortar places around the country where the public can interact on interviews with examiners. You’re right, when I was at the PTO, every Member of Congress wanted to have the PTO 2 in their district.

QUINN: For the jobs and the federal investment.

GODICI: Absolutely, it becomes very political and it becomes very difficult because it is political. So that’s why I think realistically rather than seeing buildings go up in different districts with PTO on the front door, I think you’re going to see this kind of virtual workforce that can work from anywhere once they are up and trained and able to contribute on their own. I think that’s more likely than new PTO buildings around the country.

QUINN: Let me again take a step back as I know we went off on a tangent there a little bit, In terms of your philosophy, and the way that I’ve described it is there seems to be two, and this is over simplifying, but two different examiner philosophies. Examiners work for the Patent Granting Authority or they work for the Patent Denial Authority. First do you think that is an accurate representation or an accurate view, and two which one would you say you tended to believe you worked for?

GODICI: Yes and the Patent Granting Authority. I’ll elaborate. Obviously I do think that because of certain policies that maybe have been implemented over the years there had been a certain attitude towards denying patents or rejecting applications and rejecting claims. The stats speak for themselves. The allowance rate at the Patent office went from 65% over a 30-year period to 42% or something and I don’t think that the law changed or the quality of patent applications changed. I just think that there was a change in policy or philosophy. My philosophy was I wanted to find the best art. I wanted to get it into the case and then I wanted to find a claim that an applicant was fairly entitled to. It may be a very narrow claim and a lot of applicants, at least in the simpler mechanical arts, were willing to take a narrow claim. And I found that that was an avenue that we worked towards. We did a lot of interviews to achieve that. My SPE was a huge advocate of interviews. I don’t think I ever denied an interview. I know the current PTO leaders are encouraging interviews and the number of interviews has increased dramatically over the last year.

I always told my examiners that I trained it’s tougher to allow a patent then reject. And here’s the reason why. Rejection is easy. You can always find some art and conjure up a rejection and it’s safe. You’re safe. When you decide, you draw the line and you decide where something’s allowable, you are putting your reputation, your name on the line and you’re granting patent rights. I always though that was really when you were doing your job when you were able to identify that line over which allowability lies, if that makes any sense.

QUINN: I know exactly what you’re saying. Did you find yourself working together with the applicants and attorneys to figure out where that line is?

GODICI: Absolutely. Again, that was the way I was trained. I always thought the philosophy of a range of dependent claims was for the purpose of drawing a line of where patentability existed. If you combined these three dependant claims, you’d have patentable subject matter as opposed to some examiners who say “I’m only going to look at the independent claim and the dependent claims are all lumped together, they all kind of go along for the ride.” That’s not the way I look at it. It was a perfect opportunity to draw the line, to figure out where patentability lies.

QUINN: That seems almost like a recipe, if you don’t do that, to just foster continuing a number of RCEs and ultimately then getting into appeals. It bogs the system down and doesn’t assist the applicants.

GODICI: Right.

QUINN: Because sometimes a narrow claim is as good as any claim at least to start off. Because now you’ve got some kind of proof to show investors or partners or a spouse who is afraid that you are spending too much time tinkering in the garage.

GODICI: [Laughter] Yes. Absolutely. I agree with that and that was the approach that I was taught and that’s the way I tried to approach it.

QUINN: Well let me ask you another question, and if you don’t want to answer this again it’s fine and totally understandable. I do a lot of writing about inequitable conduct. And I think over the years one of the reasons and I’d like to get your take on it, that this communication between an applicant and examiner has broken down is because of what I’ll say is a moving target in inequitable conduct. Sometimes it’s “not negligence standard” or its a recklessness standard or it’s a fraud standard and now we seem to be gravitating back toward the negligence standard and then the Patent Office has it’s standard and the CAFC says “Well we’re not necessarily going to follow that standard, we have our own standard.” So it seems to me that out of abundance of caution, and the patent attorneys being the conservative lot that we are, say if it works today, we don’t want to change it until it doesn’t work. They just throwing their hands up and say “Well I really can’t participate, because anything I do say can and will be used against me.”

GODICI: [Laughing]

QUINN: Do you have thoughts on that?

GODICI: I’ve been doing expert witness work and the issue of inequitable conduct comes up. It is a moving target and it is to some extent, I agree with you, an estoppel problem. Whatever you say in a prosecution history is going to be dissected if that patent is attempted to be enforced later on. And there have been cases that have been decided that kind of force patent attorneys to come to the table with anything and everything that could possibly be considered important to a reasonable examiner, which is hard to figure out sometimes. So in an abundance of caution most attorneys will give everything to the patent office and that becomes a bit of a burden there. On the other hand, I can understand exactly why it’s done and I would do it too if I was doing a lot of prosecution. Inequitable conduct, right now, is difficult. I know the Fed Circuit is going to address it in an en banc case that is coming up. I think that maybe there is some appetite to try to narrow or at least strengthen the intent prong.

QUINN: From my perspective, I just hope that it is clarified. Now I have certain leanings and I agree with you. I think the intent prong is where we really need to focus and say, “Is this fraud based or is it not fraud based?”

GODICI: Right.

QUINN: Because I think it’s got to be fraud based. So that would be very helpful but from my perspective, just having all of them sit down again and issue a decision should, how do I want to say this? I’ll just say it, issue a decision that reigns in some of these three judge panels that seem to be outliers. And I’m not sure there’s really a question there and with expert witnessing

GODICI: [Laughing]

QUINN: I’m not sure you can really say anything so why don’t I just let you off the hook and say we’ll move passed it. Unless you want to add anything, you can.

GODICI: I’ve seen the witnesses before the judge and the jury on issues of inequitable conduct and a lot of times, in my personal opinion, at the district court level, it boils down to the credibility of the witnesses and how they come across to either the judge or the jury. Most of the time it’s a bench trial on inequitable conduct and it’s the Judge. And so they make a decision with respect to intent based on this interaction or observing the witness or witnesses that might be involved. And that carries over into the decision that goes to the Fed Circuit. Now the Federal Circuit didn’t get the opportunity to see the performance or the person on the stand and in some of the decisions it may be hard to over rule the judgment of the district court judge who actually witnessed it. And so I think that accounts for some of the decisions. That’s my personal opinion. I’ve seen it and I can understand how a Judge could conclude that there was intent based on the performance.

— End of Part 1.

Part 2 will pick up with what advice Godici would give himself if he could travel back in time, discussion of the Reagan Administration’s attempt to cut the backlog during the 1980s, how the Reagan initiatives parallel the Obama initiatives with respect to attempting to cut the backlog and reduce average pendency and the Supreme Court decision in Bilski and what it means for the Patent Office.

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Posted in: Gene Quinn, Interviews & Conversations, IP News, IPWatchdog.com Articles, Patents, USPTO

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

9 comments
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  1. “The allowance rate at the Patent office went from 65% over a 30-year period to 42% or something and I don’t think that the law changed or the quality of patent applications changed. I just think that there was a change in policy or philosophy.”

    Thank you for your honesty, Mr. Godici.

  2. I never did work directly with Mr. Godici but I did have some interactions with staff members reporting directly to him and I can honestly say they were straight shooters, unlike other people you run into from time to time at the USPTO. I have a feeling that the honesty and philosophy of how you deal with the “customers” trickles from the top down. And the case of Mr. Godici that was a good thing.

  3. Mr. Godici has another recent article here
    http://journals.lww.com/medinnovbusiness/Fulltext/2010/06010/Adequately_Funding_The_USPTO__A_Critical_Problem.13.aspx

    This is one article in a special edition of a medical journal that I coedited with Ron Katzenelson and Renee Kaswan. The issue as a whole is here:
    http://journals.lww.com/medinnovbusiness/Fulltext/2010/06010

    The issue includes an interview with Chief Judges Michel and Rader, several articles by VC”s on the effect of the Patent Reform act on small companies and startups and medical innovation, etc.

  4. I was also trained at the USPTO before working at home. Upon hearing that the USPTO went for the work at home model, I also thought great for the Senior Examiners but… who will train the junior ones. That is a tough balance. The allowance rate being down at the Patent Office is also very interesting. It is called the Patent Office not the Rejection office right?

  5. “I always told my examiners that I trained it’s tougher to allow a patent then reject. And here’s the reason why. Rejection is easy. You can always find some art and conjure up a rejection and it’s safe. You’re safe. When you decide, you draw the line and you decide where something’s allowable, you are putting your reputation, your name on the line and you’re granting patent rights.”

    And therein lies the reason behind a principal problem with today’s Patent Office, from the stakeholder’s perspective, since it favors this “conjuring” as a cowardly means of evading critical thought and biases the examiner toward rejection at any cost, even at the cost of resorting to absurdism and/or hand-waving in making rejections. Quality of examination needs to use as a metric not just false positives (allowances on really invalid claims) but false negatives (“conjured” or manipulated rejections on really valid claims).

    The “‘you’re safe’ when you make bogus rejections” culture/mentality at the Patent Office needs to end. In my view, it’s the biggest contributor to the backlog and it’s costing American jobs. Current examination policy is probably penny-wise and pound-foolish in this regard. If examiners just spent an additional hour on each case, trying to understand the art and determine patentability with a critical eye, instead of just trying to keep “safe”, it would likely save on average at least one prosecution cycle per case.

  6. “The “‘you’re safe’ when you make bogus rejections” culture/mentality at the Patent Office needs to end.”

    Would that it were so simple. The culture/mentality over there is not just “you’re safe when you make bogus rejections” it is, “YOU’RE OUTSTANDING!!!!!!!!!!! HERE’S A BONUS!!!!!!!!!”

    “Quality of examination needs to use as a metric not just false positives (allowances on really invalid claims) but false negatives (“conjured” or manipulated rejections on really valid claims).”

    In order to accomplish this, the PTO would need folks in OPQA who are capable of objectively determining when a rejection is “conjured,” or “hand waving.” They don’t have any.

  7. “In order to accomplish this, the PTO would need folks in OPQA who are capable of objectively determining when a rejection is ‘conjured,’ or ‘hand waving.’ They don’t have any.”

    I have some suggestions–

    (1) When an examiner withdraws a case from appeal on the basis of arguments made in an appeal brief that were already made once before in the response after final without amendments, it’s points off. When the examiner withdraws a case from appeal on the basis of arguments made more than once before, it’s extra points off. This would disincentivize an examiner ignoring an applicant’s arguments until they’ve already paid for an appeal, something that happens all to often.
    (2) When the BPAI or CFAC reverses or remands for the same reasons previously pointed out by the applicant, it’s points off.

    I think both of these could be fairly objective assessments that would act to inhibit some of the worst examination practices that prolong prosecution, add to the backlog and raise the cost of obtaining patents.

  8. I have some suggestions–

    (1) When an examiner withdraws a case from appeal on the basis of arguments made in an appeal brief that were already made once before in the response after final without amendments, it’s points off. When the examiner withdraws a case from appeal on the basis of arguments made more than once before, it’s extra points off. This would disincentivize an examiner ignoring an applicant’s arguments until they’ve already paid for an appeal, something that happens all to often.
    (2) When the BPAI or CFAC reverses or remands for the same reasons previously pointed out by the applicant, it’s points off.

    Would it be fair to hold applicants and their agents to the same standards? You know, sanction them for filing an RCE after a notice of appeal with amendments or new arguments to overcome rejections that were already made once before, sanction them for filing an RCE after a notice of appeal on the basis of arguments made more than once before, sanction them when the BPAI or CAFC affirms the examiner’s rejection.

    It would inhibit some of the worst prosecution practices that prolong prosecution, and seriously cut down on the backlog both in regular examination and at the Board.

    Or can we all take a chill pill and realize that the applicant is better off having a rejection withdrawn by the examiner than reversed and remanded three years later?

  9. “Would it be fair to hold applicants and their agents to the same standards? You know, sanction them for filing an RCE after a notice of appeal with amendments or new arguments to overcome rejections that were already made once before, sanction them for filing an RCE after a notice of appeal on the basis of arguments made more than once before…”

    Huh? Who files an RCE after filing a Notice of Appeal?

    “…sanction them when the BPAI or CAFC affirms the examiner’s rejection.”

    You’re missing the point. When an attorney advises a client to appeal to the BPAI or CAFC, and then loses, the attorney has to answer to the client.

    When an examiner takes a BS rejection to the BPAI and gets reversed, there are ZERO consequences. In fact, the examiner and his/her idiot buddies and/or SPE and/or primary(ies) sit around and grump, “The APJ’s don’t know anything. They don’t understand the technology.”

    I’ve had examiners reversed when they’re doing the typical hand waving and conjuring nonsense (e.g. relying on boilerplate case law, relying on inherency, Official Notice, statements that claimed features “are well known”, “design choice”, etc.), and in the very next application I have land on their docket they come back with the same nonsense. It’s as if they’ve completely forgotten that the last time they tried that, they got appealed, and reversed.

    “Or can we all take a chill pill and realize that the applicant is better off having a rejection withdrawn by the examiner than reversed and remanded three years later?”

    The majority of the rejections I receive once the appeal-reopen-appeal-reopen-appeal-reopen merry-go-round starts spinning are actually worse than the originally appealed rejections.