USPTO ‘judgment calls’ to blame for reopening prosecution after complete Board reversal

By Gene Quinn
August 25, 2016

Hindsight road signIn Technology Center 3600 there seems to be a disturbing trend where the Board reverses patent examiners on every issue and yet no patent is issued. Instead, the Technology Center Director for 3600 authorizes the reopening of prosecution and Alice rejections are given instead of a Notice of Allowance. See The Impotence of the Patent Trial and Appeal Board.

In the cases where prosecution has been reopened after a complete reversal by the Board the appeals briefs were filed prior to the Supreme Court issuing its decision in Alice v. CLS Bank. This has lead some to argue, rather mistakenly, that it is reasonable for the Patent Office to reopen prosecution in these cases to prevent claims that do not deserve to be patented to issue. This thinking is wrong for three reasons. First, the Board has the authority to issue a new ground of rejection (which they are known to do) and they did not in any of these cases, so they did not see any Alice issues. See 37 CFR 41.50(b). Second, the Board has the authority to remand a case to the patent examiner for further consideration, which again did not happen in any of these cases. See 37 CFR 41.50(a)(1). Finally, it is immoral to leave an applicant to rot waiting for an appeal for 3 to 4 years only to reopen prosecution once victory is achieved.

The last point is perhaps the hardest to dismiss because the Patent Office is supposed to treat everyone in a procedurally equal and fair way, which clearly and undeniably is not happening.

It is unconscionable that applicants were left to wait for an appeal decision for over 3 years where there was absolutely no intention of issuing the patent even if there was a complete reversal. These types of delay tactics represent a war of attrition against applicants that is being waged by certain patent examiners and Group Directors, which is obviously being tolerated by Patent Office officials. What is remarkably sad, and downright unfair, is that these delay and deny at all cost tactics normally work, with applicants generally giving up and abandoning cases because it is clear that whatever they do, no matter whether they prevail, regardless of the frivolous nature of the rejections, the examiner will simply reopen prosecution.

This unseemly chapter in the relationship between the Patent Office and patent applicants was the subject of a brief conversation that took place on the record at the last Patent Public Advisory Committee (PPAC) meeting held at the Patent Office.

Esther Kepplinger, who is the chief patent counselor at Wilson, Sonsini, Goodrich & Rosati, as well as the Chair of PPAC, brought up the problem many applicants are facing in Technology Center 3600. Kepplinger, who herself was a former USPTO senior official, said:

I know in the past the patent office when there was a law changed the Patent Office sent people to the Board of Appeals to identify cases that might have potential rejections. And the recent criticism about cases in the business method area that, you know, were affirmed at — or were reversed at the board but then come back to the TC only to receive a new rejection that might be something you might want to look at to go and see whether there are cases so that the applicant doesn’t wait the whole long time to get a decision and then only to face a new rejection back in the TC. Just, you know, I don’t know if you’ve done that or whether you could do it but it’s something to consider.

Robert Bahr, the Deputy Commissioner for Patent Examination Policy, responded that “hindsight is great,” and went on to explain that they thought that the rejections that were being appealed to the Board would stand and there would not be a need to bring the cases back and issue Alice rejections. “These are sort of judgments calls you have to make,” Bahr explained. “Sometimes it works out for you and sometimes it doesn’t.”

The decision to allow cases to sit there for years without having anyone apply Alice only to have them pulled back into prosecution is more than a mistake in hindsight; it was a mistake period! Those cases sat there for years without any hope that they would ever reach a final resolution favorable to the applicant on the next consideration.

One of the most frustrating things I encounter when talking with certain patent examiners, and some USPTO officials too, is they simply do not understand the appeals process from the applicants perspective. Patent examiners will tell patent practitioners all the time that if you disagree with me just appeal. Just appeal!?!?! Do you have any idea what that means? It means at least several thousands of dollars of additional expense (probably more) and a minimum of three additional years pending at the Patent Office, and that is just while you wait for a decision from the Board. For many companies the thought of appealing, both in terms of hard costs and opportunities costs and time value of money are simply unacceptable. When a patent examiner or Patent Office official says “just appeal” you might as well just stick out your middle finger, because that is how it is received both in spirit and in fact.

It is bad enough when an applicant has to wait on appeal for more than three years to rectify clearly bogus rejections, but if telling the applicant to “just appeal” is the equivalent of the middle finger (which I assure you it is) then what do you suppose it feels like when you’ve prevailed after being given the middle finger and the Office still reopens prosecution anyway?

Simply put, the damage that is being done to the Office and to the longer term relationship between examiners and applicants is impossible to put into words. Senior management is well aware of what is going on and they seem to view the problem as being akin to Monday morning Quarterbacking — in hindsight maybe we should have done things differently. No maybe about it, and if things don’t change soon the amount of effort that will be required to overcome the damage will be monumental.

Patent examiners in TC 3600 are being completely overruled by the Board in an alarming number of cases. It is well known both inside and outside the agency that certain Art Units in TC 3600 give bogus rejections. It is well known both inside and outside the agency that Supervisory Patent Examiners (SPEs) and Quality Assurance Supervisors (QAS) do not think business methods and software should be patentable and, therefore, they force examiners who report to them to reject applications even with the examiner assigned to the case can come up with no legitimate reason to reject. It is also well known both inside and outside the agency that the number of times examiners in TC 3600 are completely reversed by the Board is much greater than in other areas of the Office. This all being true, it is simply not credible to say that the Office thought those rejections would be sustained.

I get that the Office may feel they need to circle the wagons, but that is the wrong response. The proper response would be to weed out those in TC 3600 who have not issued patents for years and reassign them to places within the Office where they can’t do any damage to applicants. If even that common sense step isn’t taken all the criticism of the Office will be heartily justified.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 53 Comments comments.

  1. Curious August 25, 2016 10:28 am

    they thought that the rejections that were being appealed to the Board would stand and there would not be a need to bring the cases back and issue Alice rejections
    They did not realize that the 3600 has one of the lowest affirmance rates at the USPTO for the past several years? They thought all of them were going to be affirmed. How naive.

    “These are sort of judgments calls you have to make,” Bahr explained. “Sometimes it works out for you and sometimes it doesn’t.”
    It ALWAYS works out bad for the Applicant and sometimes works out well for the USPTO. What kind of judgment is that? It is the type of (bad) judgment that evidences ZERO concern for applicants. TC 3600 has had a extremely poor reputation with practitioners for over a decade — actions like this are the reason why.

    Senior management is well aware of what is going on and they seem to view the problem as being akin to Monday morning Quarterbacking — in hindsight maybe we should have done things differently.
    I disagree. They are only saying “maybe we should have done things differently.” However, I doubt they believe it. In places like TC 3600 there has been a decade long approach to frustrate applicants at every turn. Had this been the only instance in which TC 3600 did something “anti-applicant,” then maybe I would believe them. However, $%^& like this has been going on for a very long time. I had been practicing many years before I handled my first TC 3600 (business method) application. I was absolutely floored by how incompetent and anti-applicant they were. That was 10 years ago, and it has gotten much worse since. As such, I’m not buy an “oops … our mistake” excuse. These actions were done intentionally with a specific purpose in mind — make life hell for applicants and prevent, at all costs, an applicant from receiving an issued patent.

    The proper response would be to weed out those in TC 3600 who have not issued patents for years and reassign them to places within the Office where they can’t do any damage to applicants.
    LOL … that is as LOT of examiners.

  2. Gene Quinn August 25, 2016 1:06 pm

    Curious-

    There is no doubt that this has been going on for a very long time in TC 3600, so it is difficult (if not impossible) to believe that leadership in the Office is not well aware.

    There are things they could do immediately, such as requiring the Commissioner, Deputy Director or Director to authorize reopening prosecution. Since the Rules give the Director the authority and it has been delegated as a matter of Office policy this could change today. Of course, no change has been made, or likely will be, which is telling.

    I don’t know that there are a lot of examiners who haven’t issued patents for years, but there are probably an alarmingly high percentage of examiners who haven’t issued patents for years in the e-commerce Art Units of TC 3600. If they have issued within the last year (or several years) it is likely 1 or only several. What is the point in paying someone to do that? The PTO could save money and hire people at $10 an hour to cut and paste non-informing and circular Alice rejections and then continue to say “applicants arguments are unpersuasive,” and pull out the REJECTION stamp.

    -Gene

  3. A Rational Person August 25, 2016 1:09 pm

    “Robert Bahr, the Deputy Commissioner for Patent Examination Policy, responded that ‘hindsight is great,”

    Interesting that the USPTO is all for criticizing an argument as “hindsight” when it applies to their actions, but it ismuch less sympathetic when it is an applicant arguing that a combination of references is based on “hindsight.”

    As the USPTO would say, Mr. Bahr’s argument with respect to hindsight reasoning is “unpersuasive.”

    See, for example MPEP 707.07(f)

    ¶ 7.37.03 Unpersuasive Argument: Hindsight Reasoning

    In response to applicant’s argument that the examiner’s conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction basedupon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not includeknowledge gleaned only from the applicant’s disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d1392, 170 USPQ 209 (CCPA 1971).

  4. EG August 25, 2016 1:36 pm

    Hey Gene,

    Maybe it’s time for a class action to be filed against the USPTO in the EDVa with respect to the abuse by TC 3600. Or may be when the PTAB reverses an appealed examiner’s decision in prosecution, and the examiner improperly reopens prosecution, either filing suit in the EDVa or going directly to the Federal Circuit, arguing that exhaustion of administrative remedies is pointless given the notorious track record of TC 3600 in violating basic APA standards.

  5. Edward Heller August 25, 2016 2:19 pm

    What the H? Hyatt v. Lee, Civil Action No. 03-901 (RCL) (D.C. June 6, 2016), https://scholar.google.com/scholar_case?case=13721271667051729356&q=hyatt+v.+lee&hl=en&as_sdt=2006

    After winning at the Supreme Court, nothing happened at the Federal Circuit for three years. Hyatt then asked for a remand. On remand, Lee asked for a dismissal for prosecution laches.

    Granted.

    Hyatt loses after winning at the Supreme Court. Can you imagine this?

  6. Gene Quinn August 25, 2016 3:52 pm

    EG-

    I agree. I believe in my July series I even said that nothing is going to change until someone brings this to the federal courts. I also think I pointed out that anyone familiar with the EDVA should well understand that this type of systematic and abusive war of attrition waged on a procedural level will not be something that the EDVA looks favorably upon. If the EDVA stands for anything it is that justice delayed is justice denied. This type of behavior won’t receive a warm reception in the EDVA.

    I think the case needs to be brought as a writ of mandamus by someone who has had a new search in violation of MPEP 1204.04. That would be the cleanest case of abuse of power and failure to follow their own rules, not to mention that the APJs have no authority.

    -Gene

  7. Anon August 25, 2016 4:13 pm

    Preferably someone whose new (and illicit) search is as bogus as the previous one (and not an instance where this time the Office stumbled upon art that may arguably fit).

  8. Gene Quinn August 25, 2016 4:30 pm

    Edward Heller-

    At the risk of sounding like a USPTO apologist, it is my understanding that there is MUCH more than meets the eye here with Hyatt. Based on what I’ve heard over the years the USPTO did bend over backwards to try and work with Hyatt and he seemed to have no real interest in working with the USPTO. He demanded examination of many hundreds of claims in a single application, which is not something that the USPTO does for any applicant. So Hyatt seemed to be demanding a lot of things and wanting a lot of special treatment. Even still, I believe there were patent examiners assigned only to his cases.

    Before anyone jumps on Hyatt’s bandwagon and attempts to use this as an example of USPTO abuse I’d recommend a thorough review of the file histories.

    -Gene

  9. Curious August 25, 2016 5:17 pm

    Hyatt loses after winning at the Supreme Court. Can you imagine this?
    I’m a little confused at this. What did Hyatt do wrong in this instance. Wasn’t the case at the Federal Circuit after remand from the Supreme Court. Was the burden on Hyatt to ask for remand from the Federal Circuit to the district court?

  10. Curious August 25, 2016 5:21 pm

    He demanded examination of many hundreds of claims in a single application, which is not something that the USPTO does for any applicant.
    If the rules permit it, then the USPTO has to do it. Those additional claim fees are not cheap. Also, I highly suspect than many of those hundreds of claims are duplicative of one another. While Hyatt may not have perfectly clean hands, the onus is still on the USPTO to roll up their sleeves and get the job done.

    Before anyone jumps on Hyatt’s bandwagon and attempts to use this as an example of USPTO abuse
    I’m not sure this particular example is one of “USPTO abuse.” The case was in the federal court system — not at the USPTO.

  11. Gene Quinn August 25, 2016 8:05 pm

    Curious-

    I can’t profess to have looked into this, so what I’m saying here is only what I’ve heard as a fly on the wall over the years.

    I believe you are correct, many of the claims were seen as being duplicative. There were also apparently numerous inventions claimed. The specifications (I think) are enormous. The USPTO was willing to work with Hyatt (from what I’ve heard) they just wanted to approach his monster applications in a manageable fashion. I don’t believe that is unreasonable. That is the way they treat every other applicant.

    If that wasn’t the case I’d be interested in hearing otherwise.

  12. Micki August 25, 2016 8:20 pm

    Gene,
    I have followed your various posts on this issue with interest. I do not have firsthand experience with 3600 but, like others, have heard stories. So, I won’t argue with your general positions on the issue, either pro or con.

    However, there are a couple of points that I would like to raise that I think should be considered in your arguments, and I am confining it to just these 2 issues.

    Firstly, I think that you are putting too much faith in the Board & their raising or not raising an Alice issue in a decision. You appear to be arguing that since the Board did not make their own grounds of rejection under Alice then there must be no grounds to make a 101.

    Unfortunately, the Board is made of of people and, like all too many people, they sometimes take the easy way out. Just because they “can” make a grounds of rejection does not mean that they “must” or will do it. Just as an example, I have seen a few different recent decisions where they reverse the examiner but throw in a footnote that the examiner should review reference X for possible rejections that could be made. So the Board failing to make the new grounds of rejection ivo Alice is not, in itself, conclusive.

    Secondly, the trend you cite of the number of reopenings in 3600 is definitely troubling. However, IF they were of the Alice-type those rejections should be evaluated on their own merits before categorically saying that they are all incorrect. Alice, and subsequent, decisions probably came out after the appeal was sent up, so what is or is not allowable under 101 has drastically changed over the last few years. It would seem reasonable that prior to allowance the claims should be reviewed under the most current guidelines and precedents. Failing to do so would seem to be doing a disservice to the applicant. No?

    Now, I have not reviewed (nor intended to) the cases you cite for reopenings under 101 but I think that before there is a blanket condemnation of all such reopenings these 2 points should be considered.

    Oh, in #6, above, I think you meant MPEP 1214.04, no? 🙂

    thanks,
    Micki

  13. Anon August 25, 2016 9:27 pm

    Micki,

    To your comment of “so what is or is not allowable under 101 has drastically changed over the last few years.” I have to ask:

    When did Congress – the only branch of the government authorized under the Constitution – meet and change the patent law as you are reflecting?

    The answer of course leads directly to the single largest problem in “patent law” today.

  14. Curious August 25, 2016 10:01 pm

    When did Congress – the only branch of the government authorized under the Constitution – meet and change the patent law as you are reflecting?
    I’ll answer that question — no change has been made by Congress.

    I find it both sad and amusing that the Supreme Court, in Bilski, chastised the Federal Circuit with the following statement:
    In holding to the contrary, the Federal Circuit violated two principles of statutory interpretation: Courts “ ‘should not read into the patent laws limitations
    and conditions which the legislature has not expressed,’ ” Diamond v. Diehr, 450 U.S. 175, 182, 101 S.Ct. 1048, 67 L.Ed.2d 155, and, “[u]nless otherwise defined, ‘words will be interpreted as taking their ordinary, contemporary, common meaning,’ ”ibid.

    Does the expression “do as I say not as I do” come to mind? The Supreme Court needs to take a long, hard look at themselves in the mirror and reconsider their “abstract idea” jurisprudence in view of this statement.

  15. Eric Berend August 25, 2016 11:56 pm

    I would only add that this nonsense further validates my position that this is all a giant racket with sufficient civil and probably criminal infractions as to support a RICO lawsuit; please see my comment in your other recent article entitled “USPTO handling of patent eligibility sparks substantive discussion at PPAC meeting” for the detailed description.

    To that statement, I would only add that while I specifically mentioned so-called “civil RICO”, there is also a criminal element of extortion by this infringer cabal in the mammoth, concerted and deliberate, and successful effort to degrade the jurisprudence and enforcement of U.S. Patent law, by clear and convincing evidence, such that they could perform takings of property of inventors for the purpose of unjust enrichment (civil liability) and as a part of said actions, to accomplish this goal, performed extortion upon inventors even as the company decried patents altogether through the facility of its sycophant surrogates, by filing numerous PGR and IPR proceedings at the USPTO as newly empowered by the results of their own legislative influence, then simultaneously publicly offering to buy inventors’ harmed patents at a greatly reduced value and which harm directly resulted from their threats to make the same properties worthless in PGR and IPR.

    These are, doubtless, not trivial allegations and should give pause to any interested observer, as to the true nature of participation, operations and practices in this heavily corrupted industry.

  16. TBill August 26, 2016 12:16 am

    Wow, all this erudite talk about reopening and no mention of Rule 198 or MPEP 1214 (‘thou shalt not bootstrap”).

  17. Paul F. Morgan August 26, 2016 9:19 am

    If appeals were properly handled in application date order they could not be abused for delays of issuance.

  18. KenF August 26, 2016 9:38 am

    “When a patent examiner or Patent Office official says “just appeal” you might as well just stick out your middle finger, because that is how it is received both in spirit and in fact.”

    Truer words were never spoke before.

  19. tina August 26, 2016 9:47 am

    Anon @ 13, that’s not a productive statement. Putting your fingers in your ears and stomping around while shouting “SCOTUS IS WRONG SCOTUS IS WRONG SCOTUS IS WRONG” does absolutely zilch.

    Did they screw up? Yep. Can we do something about it other than whine? Yep.

    Contact your representatives. Get involved with AIPLA or whatever other patent bar association and try to drum up support for an amendment to 101 or a specific carve-out for software patents. (Which I think would actually get more traction. Think more stringent 112 requirements, less term.) Speak about it. Write about it. (But not in a condescending way that makes you look like a whack job conspiracy theorist (see, e.g., NWPA).)

    Gene tries, sometimes succeeds, and sometimes fails, but at least he tries. You seem to spend all of your energy fighting with some random clown on Crouch’s blog. Imagine if you spent that time trying to advocate for change in the real world.

  20. Gene Quinn August 26, 2016 1:54 pm

    TBill @16

    Although your comment is rather nebulous, I suspect you are trying to articulate a complaint about the article I wrote and somehow suggest that I don’t know what I’m talking about if I don’t cite to Rule 198 or MPEP 1214.

    The first paragraph of the article cites to an earlier article on the impotence of the PTAB, which goes into great detail on Rule 198 and MPEP 1214, as well as other sections of the MPEP and Rules. See:

    http://www.ipwatchdog.com/2016/07/17/impotence-patent-trial-and-appeal-board/id=70952/

    Not every article can or should be exactly identical to every other article. So in this article I wrote about what happened at the PPAC meeting.

    -Gene

  21. Night Writer August 26, 2016 8:01 pm

    @19 tina: “(But not in a condescending way that makes you look like a whack job conspiracy theorist (see, e.g., NWPA).)”

    Gee thanks. What nonsense. Tell me what I have ever said that is a conspiracy theory? What I do is face reality of how DC works and how the world works.

    >> Imagine if you spent that time trying to advocate for change in the real world.

    Although, that is a productive statement. I think that writing academic papers refuting some of Lemley’s nonsense might be a good new way for me to spend my time.

    (But, let’s see. Some of the stuff I’ve said about Lemley. Conspiracy theory? I think not. You should do a little research on the web about reporting ethics violations of law professors at the top universities. The research will tell you that the universities will ignore you.)

  22. Night Writer August 26, 2016 8:04 pm

    Also, tina, be interesting to hear what you think is a conspiracy theory. I suppose you believe that judges like Taranto were just picked for their excellence and not for their anti-patent/science ignorance/real world ignorance. I suppose you think that Google wasn’t part of picking Taranto? If so, you’d be very wrong.

    tina, I grew-up in DC. Some of the current senators and representatives are people that I went to high school with. I know how the system works.

  23. Ben August 26, 2016 8:18 pm

    That’s an odd claim. Doesn’t seem terribly likely that many senators would have gone to high school in DC.

  24. Mark Nowotarski August 26, 2016 9:12 pm

    Micki @ 16,

    I would agree that if the board reversed a 102/103 rejection then you can’t presume a 101 analysis has been done. If the case goes back to the examiner and the examiner feels that in light of the new guidance, the claims fail 101, then reopening with a 101 rejection is appropriate.

    The problem is where the board reverses a 101 rejection and the examiner turns around and issues a new 101 rejection with a different rationale (e.g. Alice). That to me seems directly counter to 37 C.F.R. 1.198

    “When a decision by the Patent Trial and Appeal Board on appeal has become final for judicial review, prosecution of the proceeding before the primary examiner will not be reopened or reconsidered by the primary examiner except under the provisions of § 1.114 or § 41.50 of this title without the written authority of the Director,and then only for the consideration of matters not already adjudicated, sufficient cause being shown.”

    It seems to me that the TC 3600 director is interpreting “matters not already adjudicated” as “arguments not previously presented”. But if that’s the case, an applicant will never be able to prevail on a 101 rejection since new court cases are constantly being decided. If the applicant prevails against rejections based on Bilski, then the examiner can simply make new arguments under Alice. If the applicant prevails against rejections based on Alice, the examiner can just cite any one of the new cases that will be decided in the 3 years it takes to get an appeal heard.

    It seems to me that if the examiner really feels that the board failed to properly take Alice into account in a 101 reversal, then he/she should request a rehearing by the board under MPEP 1214.04 “The examiner may request rehearing of the Board decision. Such a request should normally be made within 2 months of the return of the application to the TC.

    All requests by the examiner to the Board for rehearing of a decision must be approved by the TC Director and must also be forwarded to the Office of the Deputy Commissioner for Patent Examination Policy for approval before mailing.
    The request for rehearing must state with particularity the points believed to have been misapprehended or overlooked by the Board. Arguments not raised in the answers before the Board and evidence not previously relied upon in the answers are not permitted in the request for rehearing except that the examiner may present a new argument based upon a recent relevant decision of either the Board or a Federal Court.
    The request should set a period of 2 months for the appellant to file a reply.
    If the request for rehearing is approved by the Office of the Deputy Commissioner for Patent Examination Policy, the TC will enter the the request for rehearing in the electronic file and a copy will be mailed or given to the appellant.”

  25. Anon August 27, 2016 7:10 am

    Tina @ 19,

    I find YOUR reply to not be a productive statement.

    You seem to make the logical mistake that “productivity” must somehow always be a “positive or happy statement.”

    Would you rather be quiet and let injustice fester?

    I do not see ANY words or action from you other than this type of “hush, child, do not say that the emperor has no clothes.”

    As to any other blog, and comments therein, of what import has that here? Your whining then merely reflects an even more egregious example of the type of comment that you would here find to be “unproductive.”

    Oddly, the very words you seek to use to describe me (putting fingers in your ears) is what YOU are doing. I have shown NO such tendency to put fingers in my ears – and I fully listen to any and all responses, giving each response critical thought. Can you say the same? (your whine says otherwise).

    As to contacting my representatives – you assume that I have not done so – and that would be a false assumption. I have actively contacted my representatives, explaining that my offered opinion is an informed professional one and pointing out the reasons backing up my opinion. And while I always receive a gracious “Thank you,” the plain fact of the matter is that “louder” voices (thanks to cases like Citizens United) simply drown out my singular voice. You act like forums such as this (and that other blog) are NOT vehicles of protest, and would deign to deny the effect of any “non-happy” protest as “non-productive.”

    You are wrong to so deign.

    As to any type of “special carve-out” for software – you quite miss the point that NO such carve out is needed (and indeed would be counter-productive), and instead, what is needed is that we actually follow the law as ALREADY written by Congress (you would acquiesce to the sham of the Emperor’s clothiers). You further make the mistake to think that ONLY politeness matters, and that condescension or ridicule have NO place. This too is error. As I have discussed in the past, the use of ad hominem – when properly applied – is an effective and meaningful rhetorical t001. But while that t001 may be abused with baseless ad hominem (unfettered by any tie to reality), such abuse does not lessen the propriety of its use, nor does it mean that politeness is – or even should be – the top priority in an exchange that so clearly sees the anti-patent side NOT willing to be inte11ectually honest.

    Your complaint reminds me of the historical adage that the British levied against the colonies when the colonies would not line up in pretty ranks to exchange volleys (the colonists instead opting for the more effective guerrilla warfare style): all is fair in love and war. And I would then remind you that the ad hominem that you may see on this or other blogs by “anon” does not even descend to that “all” factor and is in fact restrained to be ad hominem based on actual factual predicates.

    Bottom line: stop whining about your overplayed sense of “politeness,” Let’s see YOU have some “effect in the real world” first – lead by example. As it I, ALL that I see from you is this “hush child, don’t bother the emperor” view. Tell me instead of your success.

  26. Anon August 27, 2016 7:27 am

    Tina,

    Let me add that you show an amazing level of naivete and lack of understanding of the varied t001s of rhetoric to think that such “sunshine” and “politeness” are the only effective t001s. You should augment your understanding of WHY people blog as they do with some study of propaganda (as the truth may be told: there is a reason why propaganda still exists – and one cannot combat propaganda, if one sticks their own fingers in their ears or clenches tight their eyes to its existence).

    Mark,

    You have hit upon a key problem: the constantly moving target (also known as the aversion to any bright line rule, and also reflected in the Court’s addiction to power and desire to keep their finger in the 101 nose of wax).

    Back when KSR came out, I was with a firm that heavily used boilerplate and the (pre-KSR) TSM rationale. A substantial volume of applications were effectively “tainted” with responses no longer valid under the supposed impact of KSR. I led a concerted effort to push the Office to make a public declaration on the effect of the KSR decision so that all of these still active applications could be properly “inoculated.”

    The push back was that the Office was not going to state any such position because “KSR was not a legislative change in the law.” You may recall this was back when the Court was still pretending that it was merely “interpreting” instead of actually rewriting the law (either implicitly or explicitly).

    Then – as now – each and every evolving decision means less and less certainty to the entire body of applications (and granted patents when such patents become subject to question as may happen when enforcement is attempted).

    This effect too is reflective of my posts concerning the writing of law by the Court and that writing being subject to a Void for Vagueness standard.

  27. Night Writer August 27, 2016 8:04 am

    Anon, I agree that tina is absurd at many levels. And, tina is one of those status quo people that talk down to everyone that isn’t doing what she is doing. Sounds like tina may be a sell-out. She is being polite and ignoring reality in exchange for membership into the Google class. So, probably tina is a sellout.

    But, that other blog has really become a cesspool occupied by paid bloggers. tina’s point that maybe you should use your energy to more productive purposes –like posting on this blog–might be good advice.

  28. Night Writer August 27, 2016 8:05 am

    And, let’s remember that I stand up for what I am saying. The typical Lemley character uses his position to misrepresent the law and facts and then runs from any real debate.

    My guess is that tina will run because her arguments do not hold water.

  29. Mark Nowotarski August 27, 2016 10:19 am

    NIghtwriter,

    If you really want to keep this a productive blog, you should refrain from personal attacks on other posters. Just focus on what they say, not what you think their motivations might or might not be.

  30. Anon August 27, 2016 12:18 pm

    Mark,

    I have to disagree with your advice to Night Writer.

    While pure speculation should be avoided (and unless otherwise shown, some “benefit of the doubt” may well apply); the avoidance of “motivation” is certainly NOT appropriate and to a very real extent plays right into the “hush child, don’t tell the emperor that he has no clues” over-politeness that is a detriment to changing what has been going on.

  31. Mark Nowotarski August 27, 2016 12:50 pm

    Anon,

    I agree that we should be direct and confrontational if necessary towards the content of someone’s posting. I do not agree that we should speculate about another poster’s character.

  32. Anon August 27, 2016 12:58 pm

    Mark,

    Let me reply with a quote: “Stupid is as stupid does.”

    Sorry, but sometimes a person’s character very much comes into play.

    …in case you have not noticed, the “other side” is not “playing fair.”

  33. tina August 27, 2016 2:27 pm

    Expected responses.

    NWPA, if you want people to take you seriously, collect and publish hard evidence – not anecdotal nonsense like “I know a guy who went to my high school and he’s in Congress and knows things so there I’m right” – that Google successfully lobbied for its candidates to be placed on the Federal Circuit. Unless and until you do that, nearly everyone will disregard your thoughts as those of a conspiracy theorist whackadoo.

    Anon, I don’t even know what the hell you’re trying to say. But I do know that I’d love to hear how you’re planning on convincing anyone – judge, jury, admin judge, examiner – to “follow the law as Congress wrote it” in view of Mayo and Alice. Do you have some magical argument you’d like to clue us in on? Cert granted? Didn’t think so. Your statement is dumb.

    So again, there’s absolutely no point in continually posting on random blogs’ comment threads whining about what the law is. You’re not changing anyone’s mind on patentlyo. Certainly not those who matter. And you don’t need to change anyone’s mind here.

    Also, where exactly did I advocate for sunshine and politeness? Nowhere. But I can tell you that insulting people is a pretty piss-poor way of convincing them they’re wrong and you’re right.

  34. curmudgeon August 27, 2016 4:01 pm

    Thanks Tina.

  35. Anon August 27, 2016 4:29 pm

    As you attempt to make your point tina by engaging me in the very manner that you whine about (and you still have not addressed the point I provided that I am not sticking my fingers in my ears – nor have you shared any of YOUR “winning” arguments), I would again say that your post is simply not a productive statement.

    As to curmudgeon – with all due respect, bite me. What have you done?

  36. Night Writer August 27, 2016 6:40 pm

    tina >> nearly everyone will disregard your thoughts as those of a conspiracy theorist whackadoo.

    tina, Google is the second largest contributor to Congress. I have posted much evidence regarding Google and much of their views are public. Moreover, there is much evidence that is public about Google lobbying at every level regarding patents including Fed. Cir. appointments and USPTO appointments.

    Your attitude is just bizarre. Disconnected from reality. And, many other people have said what I am saying in recent posts on this blog. I think it was Kappos, in fact a month or two ago that included in his post Google’s lobbying efforts to weaken patents.

    So, very nice you think that of me. Try some reading and you won’t. Or, at this point, I am strongly suspecting you are a troll. A typical troll tactic is to deny everything and ask for proof for everything despite the fact the facts are well-known and public.

  37. Night Writer August 27, 2016 6:46 pm

    tina, the fact is that I have backed up pretty much everything I have said with links to articles (for example, I linked to the Financial Times which recently had an article about Google’s lobbying efforts in Congress).

    So, again, tina, give me one example of something that I have said that is a ” conspiracy theorist whackadoo” statement. Pretty sure at this point you are a troll. You sound a lot like MM on that other blog who even denied that a large part of the lobbying effort for the AIA was to bifurcate patent law (until he posted a link to a youtube video of the chief lobbyist who said that was one of her chief goals that she wanted for the AIA that she didn’t get.)

    So, is that what we can expect from you? Prove the sky is blue? And a memory that last exactly one blog post?

    The fact is too tina that I challenged you to come up with one thing I have said and you didn’t, but name called. So, reality, you have attitude and not much else.

  38. Night Writer August 27, 2016 6:47 pm

    tina: But I can tell you that insulting people is a pretty piss-poor way of convincing them they’re wrong and you’re right.

    And yet, this is all tina has done to me.

  39. Night Writer August 27, 2016 7:09 pm

    I am noticing another troll tacit that tina is using of picking on the weakest point of someone and then name calling. Pretty sure at this point that tina is troll.

    Really tina? You haven’t read anything about Google’s efforts to weaken the patent system and the massive amount of money they are putting into that effort? So you are either a troll or an ignorant person with attitude posting on a patent blog.

  40. Mark Nowotarski August 27, 2016 7:52 pm

    Nightwriter,

    It appears to me that someone with high authority has passed the word down to art unit 3600 “No more business method patents”. That someone may very well be Google.

    OK, now what?

  41. Night Writer August 28, 2016 6:58 am

    @40 Mark:

    Look, let’s get real here. OK. An example, Lee was vetted by business people in the Oval Office before Obama appointed her. That was reported in the main stream media. Moreover, from the history of financial regulation we know the extents to which Goldman Sachs influenced the system with money. A lot of it was putting in insiders into DC. (And, you know, look, there are many articles and documentaries about the capture of regulators by the industry they regulate. And, anyone like me who has spent some time in DC has first hand experience with this.)

    Now, what is happening in the art unit 3600 is obviously more subtle than Google saying no more patents in 3600 and it occurring. The mechanisms to achieve this goal are not so straight forward. That does not mean the driving force is not Google. (And, tina’s ridiculous assertion that Google is not influencing the selection of fed. cir. judges is ludicrous given that Lee is a Google executive and that she was vetted by other business leaders before the appointment–privately.)

    I think the reality is to strengthen the patent system is not going to be easy. I have said many times one of the biggest things we can do is discredit the work of Mark Lemley. I think the cites in his papers are unethical. Some of his factual assertions in his paper are wrong and calculated to be wrong–unethical. I think the pseudo-intellectuals like Lemley form the backbone of the anti-patent movement and are the weakest link.

    I think fighting the lobbying of Google will be hard because there put so much money into it and it comes every year. Also, you know, what is happening is the rise of these huge international corporations that are close to being monopolies. I also think what we have seen is the selection of anti-patent/science ignorant judges driven by Google lobbying. This is going to make it extremely difficult to change anything. (The best thing we could do is eliminate the Fed. Cir. because it enables the lobbyist to select for anti-patent in the appointment where a general court this is not so easy.)

    (And, tina, I am still waiting for you to back-up you statement. Select something I’ve said that is a ”conspiracy theorist whackadoo”. You obviously are a troll tina. So, tell us tina about Google. Anyone that professes to be knowledgeable about patent law and lobbying should be able to tell us what Google.)

    I think too that another big way to fight this is with real numbers. In the financial industry it took the reality of the 2008 crisis to make people realize that the fantasy that Goldman Sachs was selling was wrong. Here, I’ve seen studies that indicate that innovation is starting to diminish in the US. These come from real economist in peer reviewed journals–not law professors in a vanity press format of the law journal.

    You know, what Google and the others are saying is that we can do innovation. Just lower our taxes and we will take care of this innovation thing.

    (all of this is very complex. I think a lot of SCOTUS jurisprudence is driven by the fact there are too many cases in the federal system for the judges to handle. You know that the federal court system was experimenting with creating magistrate judges to handle the patent cases because of capacity. There are many articles about similar things that have happened in criminal law because of the lack of capacity in the federal court systems.)

    Anyway, it is very complex, but Google is obviously pushing the buttons of: get the director they want, get the judges at the fed. cir. they want, get lower taxes for them for innovation, and get legislation they want. Get the judges they want on the PTAB. Not easy to fight. And, it is a ground game with them becoming entrenched for years with some of their wins.

    Chen is remarkable in that he was virulently anti-patent before his appointment and without his cases the software patents would be in much bigger trouble. Thank you for being intellectually honest and applying the law Judge Chen. You are one of the few at the Fed. Cir. who apply the law and are honest. I respect you immensely.

  42. Night Writer August 28, 2016 6:59 am

    Another way to fight it on these blogs is to demand that paid bloggers be limited and identified. Patentlyo is flooded with the posts of paid bloggers. Here we have tina that is at this point pretty clearly a troll.

  43. Night Writer August 28, 2016 7:03 am

    One aspect of this too that is well-known is that the capture by the industry is not subtle. There is a clear quid pro quo. You get done in DC what we want and there is a big fat pay check waiting for you.

    In terms of what to do, I agree with Sanders that we should overturn Citizens United. That would be a huge step to limiting Google’s influence.

  44. Night Writer August 28, 2016 7:17 am

    And let’s add: Google giving money to non-profits for paid bloggers that are anti-patent (about year ago there was a job advertisement for a person to direct the anti-patent bloggers on patentlyo). And paying for amicus curiae briefs which the SCOTUS recently admitted they use for factual findings.

    The reality is that K Street is extremely sophisticated and Google pays for hitting this issue in any and every way possible, which is easy with the K Street firms.

    Anyway, that is what is going on.

  45. Anon August 28, 2016 8:00 am

    I am not sure tina is a “tr011.”

    That said, we ALL should be aware (and beware) the path that tina attempts to take: “shush child, do not say that the emperor is not wearing any clothes.”

    Look again at tina’s posts: they are empty of substance even as she claims that others who post and who combat the nonstop propaganda are (effectively) not doing anything “productive.” Look again at mu posts at 25 and 26 – tina’s reply is non-responsive to the counters that I have presented.

    tina’s naivete and lack of understanding is NOT to be applauded (like curmudgeon does). This is like trying to get rid of the wolf at the back door by throwing it a steak. This is like the theory of pacification.

    Wake up people – such things simply do not work.

    And tina, you need to pay attention, as I have done much much much more than merely say “the Court is wrong.” Yes, I do say that – and I say that because it needs to be said (the emperor really is not wearing any clothes). But I say much more than that. I have provided the sound Constitutional path of jurisdiction stripping (patent appeals are NOT a matter of original jurisdiction of the Supreme Court) – as long as a (new and untainted) Article III court is there to provide review, Marbury remains satisfied. I have pointed out the weaknesses in the propaganda. I have provided solid counter points in law, fact and history that remain unresponded to.

    If you ‘grow weary” of this – then you are telling the wrong person to “shut up.” Instead of saying that I am “not productive” (when I am), perhaps you can petition the “other blog owner” to control the rampant propaganda that has overrun that site? Instead, you want to whine and stick your very own fingers in your very own ears.

    Mark,

    I invite you (since you appear a little more willing to walk the path) to see that the important FIRST step is to recognize that a problem does exist. You appear to accept that, but only so far as to “throw the ball back into the court” for Night Writer. I am not sure that you accept it for the actual problem that it is. Maybe you can help come up with some more ideas (things like actual transparency in the Office – something that Obama used as a platform in his presidential runs, even as he has set a record for the worst modern day president in regards to transparency). Minute-less meetings, obvious “Google-help” with so-called “Tr011-tracker” software initiatives, and the abundance of “unknown details – but known to exist” SAWS-like and second-set-of-eyes-like examination protocols that do not abide by the rule of ALL examination to be done on the written record provide ample places to start.

    And yes tine, I HAVE TALKED ABOUT SUCH STEPS (you just need to pay better attention instead of wanting to say “shush”).

    We (the royal We [pun intended]) cannot put clothes on the emperor UNTIL the emperor accepts the fact that he is not wearing any clothes.

  46. Night Writer August 28, 2016 9:45 am

    That was a great post Anon. I think if tina posts again she should recite for us substance of what she thinks the current state of Google is with patents including their public policy statements, their lobbying efforts at Congress etc., instead of her nonsense of prove all that you say. I also think Anon you are wrong about tina. I think it is pretty clear she is a troll. Her tactics are very similar to MM’s, e.g. no substance, prove everything you say each time you say it, name calling, etc.

    I gave three concrete proposals of things to do.

  47. Mark Nowotarski August 28, 2016 6:23 pm

    Nightwriter @44, can you provide a copy of the job advertisement for a person to direct the anti-patent bloggers on patentlyo?

    Anon @45 is there anything in particular you would like to see more information on that you think is currently hidden?

    And could someone remind me of what SAWS was all about?

  48. Tim August 29, 2016 7:43 am

    When Vringo vs Google was tossed by 2 of 3 corrupted Appeals Ct judges, “Mayer & Wallach”, and the Supreme Ct would not see the case “12-man jury voted unanimously on all 14 charges. I first thought was Vringo symbol: FH should sue the patent office for running a Ponzi scam. However, after watching the FBI Director “Comey” let Hillary off, after completely violating USC 18, 793 F&G, and USC 18, 2071. I realize our country has been completely corrupted. Many of us shareholders lost huge amounts of retirement, believing in our patent office and our legal system. How sad, we have this corrupted government.

  49. Anon August 29, 2016 7:54 am

    Mark,

    If you have to be reminded of what SAWS was about, you need far too much hand holding for me to teach you why star chamber tactics are bad.

  50. Night Writer August 29, 2016 8:04 am

    @48 Tim. I am not sure how direct the corruption is at the Fed. Cir. I suspect it is more only of the selection of which judges and getting the judges to pledge to “reform” the patent system before being appointed.

    When I was kid, politicians weren’t allowed to take the speaking fees as it was said to create a conflict of interest. And, actually one of the reasons I grew-up with all these people (I grew-up with A LOT of politician sons and daughters including the most famous among them. Name a big politician from the 1970’s and there is about a 30% chance I grew-up with their children) is that the average politician wasn’t rich so their kids went to public school with me. Now with the speaking fees they are all rich and go to private school.

    Actually, with the Clinton thing, the most egregious thing was the attorney general meeting with Bill and then recusing herself. That is so outrageous. The biggest decision of her job of whether to back the FBI or prosecute Clinton —which was her job–and she finds a way to worm out of it. In the 1970’s everyone would have demanded her resignation immediately or Obama’s immediately.

    Anyway, tina if you post again, please be sure to tell us what you think the state of Google and lobbying is. And, also, you never told me the whack conspiracy theory example that supposedly I regularly give.

  51. Curious August 29, 2016 10:47 am

    I’ve been on this blog and the other one (actually, I’m IP-blocked from commenting on the other one for repeatedly taking Dennis personally to task for the cesspool he runs) for many, many years — long enough to remember 6 as Examiner 6K and MM as Malcolm Mooney and when people passed off his (mild) rants as just amusing snark.

    NWPA — @41 is a good post. However, there have been many times when you have been over the top. We all engage in hyperbole from time to time, but you tend to have yours pegged at “11” (Spinal Tap reference) more often than others.

    Anon — while I don’t agree with some of Tina’s comments @19, this comment (i.e., “You seem to spend all of your energy fighting with some random clown on Crouch’s blog”) was spot on. Whenever I see a comment thread of you and MM trading insults, I almost always skip over it. Its the same stuff year after year (and that isn’t hyperbole). I have halfway seriously considered suggesting to Dennis that he devote a portion of his website to just you and MM.

    I enjoy your posts when you discuss the law and substantive issues. However, you are too easily offended and hence too easily distracted from the big picture. I’ve seen you come down really hard on people that are on OUR side because of one thing they wrote that you didn’t like.

  52. Mark Nowotarski August 29, 2016 12:42 pm

    Anon @49

    No worries. A little quality time with Google and I am now up to speed on SAWS.

  53. Night Writer August 29, 2016 5:54 pm

    @51 Curious. I often think of what Bill Gates said. People over estimate short term effects and underestimate long-term effects.

    I tend to focus on the long-term. I am pretty sure what is happening is about what happened to anti-trust law and the regulation of Wall Street. Concerted lobbying efforts over a long-term period can decimate an area of law. I really don’t think hyperbole has much to do with what I write.