Michelle Lee’s views on patent quality out of touch with reality facing patent applicants

By Gene Quinn & Steve Brachmann
February 2, 2017

“[I]f Lee was referring to the PTAB and post grant challenges the most honest assessment is that the Office has utterly and completely failed patent owners and the patent system.”

Michelle Lee

Michelle Lee

An opinion piece written by Michelle K. Lee, who may or may not still be Director of the United States Patent and Trademark Office, was published by Law360 in December. The op-ed, entitled Patent Quality is Here to Stay, reached a wider audience on January 13th when it was reprinted by The Huffington Post in its entirety. In the piece, Lee tries her best to assure readers that positive developments have been made at the USPTO in recent years, but at multiple points she seems blind to major issues that have plagued U.S. patent system stakeholders during her tenure.

Lee sets up her own stage by saying: “When I stepped into the role as head of the [USPTO] a couple of years ago, one of the frequent things I told audiences of stakeholders around the country was that I looked forward to working together to further strengthen our patent system. And that effort had to include a harder look at the issue of patent quality.”

Lee’s ideas on the kind of system that enables the issue of high quality patents, however, could probably use some critiquing. First of all, she lauds the America Invents Act (AIA) of 2011 as a piece of legislation that puts the USPTO in “a unique position” to take that harder look at patent quality. Save for a minute the fact that most inventors loathe the AIA, exactly how the AIA allows the Office to take a harder look at patent quality is something of a mystery. Of course, those unfamiliar with patent law and practice will likely find this line appealing. For the rest of us, we know the biggest changes ushered in by the AIA were: (1) first to file rules that apply only to applications containing claims with a priority date on or after March 16, 2013; and (2) the creation of three new post grant challenge procedures. Let’s examine each specifically.

Clearly, the first to file provisions of the AIA could not have given the Office any opportunity whatsoever to take a hard, or even a soft look at patent quality. Until recently the Office was still examining only applications where patent examiners were applying pre-AIA first to invent law. This is true because any application filed on or before March 15, 2013, would be entitled to treatment under pre-AIA law for examination purposes, as well as any challenges once the patent issues. Furthermore, it is absolutely possible to file a patent application on or after March 15, 2013, which will still provoke examination under pre-AIA first to invent law. So there isn’t anything within the first to file provisions, which make up the bulk of the AIA and the USPTO administrative interpretations of the law, that would give the Office any particular or peculiar opportunity to take a look at patent quality.

Lee also writes that the AIA gave the USPTO the ability to focus, “in an unprecedented manner, on new ways of improving patent quality… before, during, and after examination.” An informed observer could absolutely question what Lee means by this, especially the idea of improving patent quality “after examination.” Of course, she must obviously be referring to the Patent Trial and Appeal Board (PTAB), which was created in the AIA for the express purpose of offering an administrative opportunity to challenge so-called bad patents. Lee insists that the post-grant proceedings enacted by the AIA, including inter partes review (IPR) and covered business method (CBM) review, are working as Congress intended, providing “a faster, more cost-effective quality check on the patents in the system.” She even goes so far to say that her office has “worked hard to implement and conduct these proceedings as fairly and efficiently as possible.”

I suppose these post grant challenges are cheaper than fighting in district court, but they are certainly not cheap. $500,000 to $1 million (or more) in legal fees is the norm. And to characterize the proceedings as being as fair and efficient as possible? We can all probably agree that PTAB proceedings are efficient, but once upon a time so too were trials in small frontier towns in the West. You know the type. Crowd yells: “Hang ’em!” Sheriff says: “No, first we are going to give him a fair trial and then we’re gonna hang ’em!” That’s the PTAB, or at least was for much of Lee’s term as Director. Insofar as being fair, Lee is simply wrong. PTAB proceedings are unfair and against the patent owner at every procedural turn.

Two examples explain just how thoroughly unfair the PTAB processes have become. First, perhaps nothing exemplifies the unfairness as clearly as the statute giving patent owners the right to amend claims and the PTAB nearly universally denying every motion to amend. The Federal Circuit is currently reconsidering this brazen misreading of the statute en banc (see here and here). Second, the PTAB has stated (which acquiescence from the Federal Circuit) that timely submitted evidence a party has a right to submit under the regulations can simply be ignored.

Indeed, the PTAB has been so thoroughly criticized and demonstrated to be a procedural train-wreck from a due process standpoint that it is amazing that anyone would want to try and lay claim to credit for what they have done. The PTAB has been so hopelessly one-sided in terms of process that at every turn procedure cuts against the patent owner and in favor of the challenger who is attempting to strip a vested property right away. The Office will tell you they have to cut corners because they have only 12 months do conclude proceedings, but that is simply not true. The statute gives the Office up to 18 months to conclude proceedings (see 35 U.S.C. 316(a)(11)), specifically envisioning greater than 12 months in the case of joinder. To my knowledge the Office has never even tried to explained why they have yet to take advantage of that extra six months in any case. Instead, the rules rush the proceedings to the detriment of procedural fairness for the property owner, which absolutely should call into question the due process the Office is affording patent owners (i.e., property owners). For a property right of constitutional magnitude proceedings designed to be a rush to judgment seem hardly appropriate and terribly ill-conceived.

The AIA also allows the Director discretion to stop harassment of patent owners, but Lee has never once used that power despite the fact that at least several patent owners have had seven or eight inter partes review challenges filed against the same patent. The PTAB itself has finally started to consider harassment as grounds to refuse to institute. So bad and lopsided are the PTAB proceedings, that the Federal Circuit has found PTAB decisions to be arbitrary and capricious, and with respect to covered business method (CBM) challenges, the Federal Circuit has slammed the PTAB for creating its own definition and standard while ignoring the statute and regulations. So if Lee was referring to the PTAB and post grant challenges the most honest assessment is that the Office has utterly and completely failed patent owners and the patent system.

Whether or not the AIA has helped the USPTO achieve a 30 percent reduction in the Office’s backlog of unexamined patent applications, as seems to be suggested, is also open for debate. So many patent applicants giving up hope of ever receiving a patent because certain Art Units have a 1% allowance rate probably has a lot more to do with the Office clearing the backlog than anything else. Furthermore, nothing in the AIA, and nothing in any patent quality initiative does anything to fix the time and attendance abuse issues swirling through the USPTO in recent years. It seems fair to question whether Lee is honestly addressing the issue of patent quality given that her Office has been unable to address the issue of work quantity and quality among her patent examiners. An examiner submitting fraudulent time sheets and the Office not knowing is unacceptable. Having patent examiners who haven’t issued patents in years — yes years — is equally unacceptable. Oddly, Lee doesn’t mention these examiner abuses, ridiculously low allowance rates, that examiners tell applicants that they will never issue a patent regardless of what is said or how the claims are amended, nor that some patent examiners haven’t issue patents for many years. She obviously has access to all of this information, but did nothing. Until the Office addresses these significant examiner irregularities any patent quality initiative is nothing more than the patent equivalent of an emperor with no clothes rearranging the chairs on the deck of the Titanic.

“Of course, patent quality also means applying the law accurately and clearly even in areas of the law that are evolving, including, for example, the 101 jurisprudence on what is patent eligible subject matter,” Lee writes. Jurisprudence on patent-eligible subject matter has been evolving — you could say I suppose — thanks to major court cases like the U.S. Supreme Court’s 2014 decision in Alice Corp. v. CLS Bank International. But an “evolution” isn’t exactly how most would characterize Alice, or Mayo, or Myriad. These cases and what has followed have been a monumental shift in patent law that has resulted in better patent protection being available for many cutting edge innovations in China than in the U.S., which is ridiculous. The law of patent eligibility is only “evolving” if your view is decidedly anti-patent and you are OK with China, Canada, Australia and Europe have more progressive and inventor friendly patent laws. For most innovators the word catastrophe better exemplifies the state of patent eligibility law than does “evolving.”

Lee also notes that one of the measures introduced by the USPTO to adapt to such judicial developments is training “focused on clearly drafting 101 rejections and subsequent responses.” However, examiners have been issuing Alice rejections based on circular and flawed logic regarding what constitutes an abstract idea, and it’s done in such a way that it doesn’t seem to take into account Enfish v. Microsoft Corp.BASCOM or any of the other pro-patent eligibility decisions of the Federal Circuit, or any of the guidance issued by the Office itself (see here and here) explaining to examiners what they are supposed to be doing. Worse than not following these cases, patent examiners routinely tell patent practitioners that they simply ignore Federal Circuit cases finding claims to be patent eligible because they disagree with them or believe them to be an anomaly. Examiners doing their own thing, ignoring USPTO memorandum, refusing to follow Federal Circuit precedent, and never issuing patents under any circumstances isn’t exactly “applying the law accurately and clearly”, is it?

Perhaps the most abrasive thing Lee stated in her editorial was this: “Our stakeholders share my belief, and that of my USPTO colleagues, that there is a cost to society when this agency issues a patent that should not issue…” No, Ms. Lee, a great many stakeholders do NOT share your belief. They don’t share your belief primarily because by making this statement you shine light on a largely fictitious problem while simultaneously ignoring the real problem facing the Office, which is that patent examiners refuse to issue any patents at all on good, high quality innovations that deserve patent protection. The problem isn’t that patent examiners are issuing bad patents or patents that should never have issued, rather many of your patent examiners haven’t issued a patent for years and nothing was ever done to put an end to that.

Lee can talk all she wants about all stakeholders sharing her beliefs, but that is simply not the case. Indeed, it is exactly that type of presumptuous attitude that understandably rubs those who disagree with her the wrong way; like fingers on a chalkboard.

Anyone who is paying attention knows that there are a great many stakeholders that share few, if any, of her beliefs. While many may be willing to otherwise acknowledge that egregiously broad patents shouldn’t issue, how can they? Why should they? Lee hides the real problem with the fantasy of bad patents promulgated by the infringer lobby and a popular press that is preoccupied with trolls. But even President Obama’s FTC said calling patent owners patent trolls was unhelpful and misleading! Not acknowledging the problems of those who seeks patents and still suggesting she speaks on behalf of all stakeholders is a bridge too far and alienates those who the law and system have cheated. What about the egregious rejections and patent applications that examiners bury by refusing to issue? If issuing egregiously broad patents is bad why can’t Lee acknowledge the obvious – that bogus rejections that prevent patents from ever issuing are a real problem? Indeed, they are a much larger problem than egregiously broad patents, and everyone in the industry knows that to be true.

Like so many times, Lee here takes one side while not even acknowledging there is another side or story to be told. Worse, she has the audacity to proclaim she speaks for everyone when she knows or should know that she does not. That is why so many dislike her and oppose her continuing on as Director of the USPTO. They feel that she has thoroughly politicized the Office, refuses to stand up for the rights of patent applicants, and has put the Office, and the patent system, on a downward trajectory to the detriment of innovators. In the eyes of many that is her legacy.

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.

Gene Quinn

Steve Brachmann is a writer located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He has become a regular contributor to IPWatchdog.com, writing about technology, innovation and is the primary author of the Companies We Follow series. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients.

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 40 Comments comments.

  1. Paul Morinville February 2, 2017 10:22 am

    US Inventor is currently visiting every Senate office with a similar message. We want Michelle Lee gone.

  2. Martin Hoyle February 2, 2017 10:41 am

    EXCELLENT!! The old saying, “a lie is halfway around the track before the truth ever gets out of the starting gate”, is very true here!! Years of lies are finally beginning to catch up with her. Who can, with a straight face, say that she has done her best to promote the common good and not that of her former, and most likely, future employer, Google?

  3. Aquinas February 2, 2017 11:17 am

    At a bare minimum, the taxpayers deserve to know if she is still drawing a paycheck. I find the conspiracy of silence coming from the USPTO to be downright eerie. No wonder the career staff at the agency are rumored to hate her. She has put them in a very tenuous position. Who’s in charge?

  4. Night Writer February 2, 2017 12:13 pm

    This is just ridiculous. She is a joke. Never did prosecution and was put in charge of 8,000 people that did prosecution.

    Want to bet? I will bet that she cannot even read a file wrapper and figure out the quality of the patent. So, she is incapable of even evaluating the quality of the work.

    Just outrageous ridiculous Orwellian crxp.

  5. Invention Rights February 2, 2017 12:58 pm

    Takata should be applauded for efforts to improve air bag quality. Millions of defective air bags have been recalled and hundreds of thousands have been removed from the roads. Plus, they shipped more airbags in 2016 than they did in 2015.

  6. James February 2, 2017 1:40 pm

    Seems logical that if one wants to be the Director of USPTO, then they should have gone through the experience of filing a patent application in the past and put up with the BS that comes back from the examiners…..

  7. Golden Gate February 2, 2017 4:10 pm

    Here’s a look at Silicon Valley’s political investments:

    https://fivethirtyeight.com/features/nearly-all-of-silicon-valleys-political-dollars-are-going-to-hillary-clinton/

    Can anyone see Michelle Lee being welcomed back the the Valley with open arms after serving in the Trump administration? This is career suicide.

  8. Patent Investor February 2, 2017 7:09 pm

    Do we know yet if she spoke in San Fran this morning?

  9. Anon February 2, 2017 9:31 pm

    Some of us have pushed – before, during, and after the AIA for Congress to focus on actual quality of examination.

    Anything post grant is – by definition – an admittance of a lack of quality examination.

    It would be like car companies trying to sell you on their quality by boasting how many recalls they have undertaken.

  10. Old Examiner February 3, 2017 6:42 am

    James stated:
    “Seems logical that if one wants to be the Director of USPTO, then they should have gone through the experience of filing a patent application in the past and put up with the BS that comes back from the examiners…..”

    I believe your comment needs to be modified to read –from some examiners–. Like any other professional, many do excellent work, some don’t.

  11. RanMan February 3, 2017 9:12 am

    Does the funding provisions in the AIA have any effect on patent quality?

  12. Gene Quinn February 3, 2017 11:02 am

    Old Examiner-

    I have to agree. That is the frustrating thing about dealing with the Office. There are many, almost certainly an overwhelming majority, of examiners that do excellent work. There are some examiners that are an embarrassment to themselves and the Office, and do nothing other than unnecessarily call into question the integrity and hard work of the vast majority of examiners that play a vital role in our innovation ecosystem. I’ve never understood (and never will) why the union isn’t as concerned about getting rid of those examiners that don’t do work at all, or who only really harass applicants.

  13. Search Horizon February 3, 2017 11:13 am

    While I agree with many of your ideas, I’d like to point out what most people do not understand about time/attendance issues at the PTO. Most people commenting on the subject have completely failed to grasp the following.

    The compensation system at the PTO is geared to reward the examiners based on production. Thus, although the time tracking system is there for the sake of formality, how examiners satisfy the time/ attendance “requirement” cannot and should not be the criteria for evaluating their compliance.

    The OIG’s study is flawed, .because the underlying assumption is that the examiners are paid for the time they spend at work. This is simply not the case. Similarly, the conclusions that the report come to are equally flawed. This is the same erroneous conclusion reported by the Washington Post 2-3 years ago.

    There are many issues at the PTO, but time/attendance fraud is not one of them. Not really.

  14. Search Horizon February 3, 2017 11:31 am

    One more thing. Examiners I spoke to think that M. Lee’s failures are due to the fact that she is an outsider, not someone familiar with the inner workings of the PTO. However, when has the President ever appointed an insider for the position?

    Looking at things from that perspective, M. Lee’s failings are not so bad. M. Lee didn’t pass the AIA nor did she have anything to do with Alice.

    I am not saying that the examiners I spoke to are correct. I do think in evaluating Lee’s past performance, one has to take a balanced approach.

  15. Greg DeLassus February 3, 2017 11:55 am

    A lot of the comments here seem to be talking past Under Secretary Lee’s point. She said that she was going to focus on *patent* quality. The responses bring up points about Examiners or fees or Art Units. These are not patents.

    It is entirely possible to improve *patent* quality without making the experience of prosecution a whit more satisfying or convenient. Given that I work with Examiners day-in & day-out, I am all in favor of improving the quality (and/or convenience) of examination, but this is not what Director Lee promised, so it is a bit beside the point to say that she did not deliver higher quality examination. She promised higher quality patents, not higher quality patent examination.

  16. Todd February 3, 2017 3:12 pm

    Gene,
    There are issues with some examiner who don’t issue patents ever. however I would like to note that in my work group in TC 1700 it’s also the supervisors. There is no mechanism when you’re a junior examiner to go around a supervisor you just have to issue bad rejections and hope they don’t get pulled or appealed. If you were to go to another supervisor or a quality assurance specialist retribution from your own supervisor would surely follow.
    A true quality initiative would spend a bit more time looking at the supervisors who have carried their anti allowance mindset and now are affecting entire art units. It’s mind-boggling to me that supervisors don’t have to be attorneys I can’t tell you how many times I’ve heard that the mpep is higher authority than the cases to which it cites or the statues upon which it is based.

  17. Independent Inventor February 3, 2017 3:44 pm

    Greg — saying that she promised higher quality patents, not higher quality patent examination … is akin to saying the head baker promised higher quality cakes, not higher quality cake ingredients.

    You can’t one without the other.

    And I say this knowing that the great majority of examiners do an excellent job … considering that they should be allocated more time per app; especially apps with more than 30 claims (which is where the extra fees we’re paying for should be going towards).

  18. Night Writer February 3, 2017 4:21 pm

    @15 Greg–We are not talking past her point. There is a distinction as you say, but the question is how to get better patent quality and how much does examination have to do with it.

    IPRs may improve quality as companies and attorneys may improve quality because of IPRs, but that does not mean that this is the best way to do it or that this can improve patent quality a lot.

  19. Greg DeLassus February 3, 2017 4:24 pm

    “You can’t one [i.e. higher quality patents] without the other [i.e. higher quality patent examination].”

    Sure you can. Higher quality examination is probably the most efficient way to achieve a high quality stock of issued patents, but it is not the only way.

    *IF* (I am not asserting the truth of this contention, just offering it as a hypothesis) examination has been lax in the past, such that there is now an existing stock of poor quality (i.e., will be declared invalid if litigated, but not yet asserted so invalidity as yet untested) patents floating around, then you *can* improve quality by putting the whole stock of patents back into the PTAB’s jurisdiction to cull the bad ones before they are asserted. That is a goofball way of achieving quality (issuing invalid claims, then dragging them back into the PTO to be canceled), but it *does* result in the remaining patent stock being of higher quality.

  20. Greg DeLassus February 3, 2017 4:31 pm

    “IPRs may improve quality as companies and attorneys may improve quality because of IPRs…”

    Hm, I do not disagree with this, but the response suggests to me that my original point may not have been as clear as I might have wished. You evidently take me to be suggesting that applicants will “up their game,” so to speak, because they know that their patents might be tested in IPRs. I agree that IPRs might incentivize quality in that manner, but I was thinking of a much more direct mechanism by which IPRs could improve quality—by cancelling poor quality claims. If you have a population of issued claims, some of which are valid and others of which are not, you can improve the quality of the stock of issued claims simply by canceling the latently invalid ones.

    That is what Director Lee promised to do, and I believe that is what she has done. If you really wish to contradict Ms. Lee’s assertions, you should not waste your time griping about this or that examiner giving you the run around. That might be true, as far as it goes, but it is simply beside the point to Ms. Lee’s promises. The way to prove Ms. Lee wrong is to show that this or that transparently invalid claim came through IPRs unscathed. I have not seen a single person on this thread make that assertion.

  21. Steve Brachmann February 3, 2017 4:43 pm

    Greg @ 18 – You seem to be following the unhelpful assumption that PTAB is only invalidating the patents which it should be invalidating. Please see: http://www.ipwatchdog.com/2017/01/03/ptab-mri-machine-abstract-idea-patent-ineligible/id=76554/ and http://www.ipwatchdog.com/2016/11/21/federal-circuit-slams-ptab-cbm-patent/id=74925/. It would seem to me that invalidating existing patents which shouldn’t have been invalidated would negatively impact the overall stock of patents in terms of quality.

  22. Gene Quinn February 3, 2017 5:30 pm

    Greg-

    You say: “you should not waste your time griping about this or that examiner giving you the run around.”

    Your comment strikes me as rather ignorant. Are you actually saying that patent applicants, who by law are entitled to a patent (that is the presumption the law sets) shouldn’t care that examiners don’t do their job and don’t follow the law?

    Obviously, it is not griping to point out that there are many patent examiners who routinely collect a paycheck and NEVER issue patents; they haven’t for many years. Further, it is not griping to notice that many examiners issue bogus rejections. These are factual truths.

    You say: “by cancelling poor quality claims.”

    What exactly is a poor quality claim? Claims are either valid or invalid and once a patent issues the law presumes that patent claims are valid. The PTAB does not follow the legal presumption that patent claims are valid, but the fact that the PTAB is ignoring the law doesn’t change what the law says.

    You say: “Ms. Lee wrong is to show that this or that transparently invalid claim came through IPRs unscathed.”

    Sorry. Wrong. This article proves that everything Lee said was erroneous. Whether a good or bad claim escapes IPR doesn’t change the fact that a majority of stakeholders just don’t share her beliefs. She has to know that, or she is completely tone def.

    You also say that you haven’t seen anyone make the assertion that invalid claims are getting through IPR. Interesting that you choose to ignore ALL the OVERWHELMING evidence of patent owner harassment, lack of due process and the PTAB invalidating claims for obviousness a much higher rate than district courts. You also ignore that the Federal Circuit has overruled the PTAB several dozen times. Something is seriously wrong at the PTAB and those who choose not to acknowledge it are just fooling themselves.

  23. Greg DeLassus February 3, 2017 5:41 pm

    “It would seem to me that invalidating existing patents which shouldn’t have been invalidated would negatively impact the overall stock of patents in terms of quality.”

    Not really. I am not saying that it is a good thing to cancel claims that should be held valid, but to do so does not impair patent quality. “Patent quality” is at 100% when 100% of non-expired claims are valid (i.e., comply with all statutory and common-law requirements for an enforceable claim). If there are ten such claims, then quality is at 100% when only those ten remain. If there are one million such claims, then quality is at 100% when only those million remain. In other words, quality is strictly a function of ratio (valid claims per total claims), and does not increase or decrease according to the number of claims in force. If one cancels valid claims in the process of cancelling invalid ones, this does not diminish patent quality.

    Please do not misunderstand me to imply that it is not a bad thing to cancel valid claims. However, as I have been at pains to make clear, Director Lee only promised one thing—patent quality—and patent quality is not diminished when valid claims are canceled (unless *only* the valid claims are canceled, such that the ratio of valid claims to total claims decreases in the process). I suppose that if IPRs—in practice—*only* canceled valid claims and *always* confirmed invalid claims, then they would be responsible for decreasing overall quality, but I am not aware that anyone is actually advancing the assertion that 100% of invalid claims presented to the PTAB have been confirmed.

    “You seem to be following the unhelpful assumption that PTAB is only invalidating the patents which it should be invalidating.”

    Your point is quite fair. I have not said anything about the pernicious tendency of IPRs to cancel claims that should not be canceled. As it happens, I agree with you about this. This is a perfectly fair complaint. Once again, however, it really does not speak to the one point that Director Lee promised—improved patent quality. As explained above, *patent quality* is not necessarily diminished by the cancellation of valid claims, no matter how unjust and unacceptable such an outcome might be.

    Many things *are* diminished when valid claims are canceled. Justice is diminished. Constitutional regard for property rights are diminished. The incentives to innovation are diminished. These are all bad things. None of them, however, are *patent quality.*

  24. Greg DeLassus February 3, 2017 6:07 pm

    “Greg… say[s]: ‘you should not waste your time griping about this or that examiner giving you the run around.'”

    I do not think you are quoting me fairly there. There was an “if” statement at the started of that incompletely quoted fragment: IF you wish to contradict Ms. Lee, THEN you should not gripe… That is not a directive not to gripe. If you feel ill-used by the patent office, by all means gripe (I do so all the time, I will scarce begrudge anyone else the pleasure of a good gripe). I simply mean to say that none of this griping about sloppy examination actually serves to contradict Ms. Lee, or to disprove anything that she is actually quoted as having said. Ms. Lee did not promise higher quality *examination*. She promised higher quality *patents*. You can have boorish and unprofessional examiners and it will greatly frustrate the applicants, but it will not actually diminish patent quality.

    “What exactly is a poor quality claim?”

    You make a very good point. It is always best to be clear about the meaning of the terms of a discussion, so as to avoid confusion and equivocation. As I tried to clarify in #22, a claim is “high quality” if it complies with all statutory and common-law requirements for an enforceable claim. In other words, a “poor quality” claim is simply another word for a claim that will eventually be invalidated in the event that a court should ever have occasion to consider it.

    “The PTAB does not follow the legal presumption that patent claims are valid, but the fact that the PTAB is ignoring the law doesn’t change what the law says.”

    Hm, I cannot agree here, and I would be interested to see you cite some evidence to back up this assertion. In federal law, a “presumption” is merely a mechanism for allocating an evidentiary burden. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255 n.8 (1981). In other words, to say that a patent is “presumed” valid is merely to say that the challenger has the burden to prove that it is not valid. That is exactly what the PTAB requires (except with regard to proposed amendments—on that point the PTAB really is in flagrant violation of the statute). If you mean to say that the PTAB is ignoring the law by not requiring that the challenger prove unpatentability by *clear and convincing* evidence, well the statute says (35 USC 216(e)) that the PTAB should only require preponderance of the evidence, and the PTAB can scarcely require more of the challenger than the statute says is required.

    “Interesting that you choose to ignore ALL the OVERWHELMING evidence of patent owner harassment, lack of due process and the PTAB invalidating claims for obviousness a much higher rate than district courts. You also ignore that the Federal Circuit has overruled the PTAB several dozen times.”

    True. As I tried to acknowledge in #22, my post did not touch on any of these points. Suffice it to say, I largely agree with you. I think that that the CAFC should reverse more IPR decisions than it has. As I tried to explain, however, these points are still talking past Director Lee. She did not promise justice, or equity, or any of the other worthy goals that your complaints consider. She only promised patent quality. You do not really give the lie to her promise by noting all of these other considerations, although they are all good arguments for why the IPR enabling statutes (or at least the regs) should be amended fairly considerably.

  25. Greg DeLassus February 3, 2017 6:12 pm

    Er, the citation to 35 USC 216(e) in #23 should really be to 35 USC 316(e). My apologies for the typo.

  26. Anon February 3, 2017 7:22 pm

    Greg at 15,

    You could not be more wrong headed about the notion of quality.

    Have you ever worked in industry? Your eager acceptance of “quality once out the door” screams the answer: “No.”

  27. Stephen Curry February 3, 2017 9:03 pm

    Beem said It in Chicago in year 2015.

    http://www.beemonpatents.com/2015/04/patent-system-under-attack-interview-with-uspto-director-michelle-lee/

    I said It in silicon valley in year 2004.

    Other folks are still in denial and will not say It. so be it.

  28. Invention Rights February 3, 2017 9:28 pm

    The PTAB has rejected claims in 8 out of the first 9 PGR petitions. These are patents prosecuted entirely under Lee’s tenure, reviewed APJs under Lee’s supervision. This is utter chaos, not quality.

  29. Stephen Curry February 3, 2017 9:43 pm

    @27 Word

    she’s not a Clueless of a USPTO/DC outsider as some people think. get her out of the swamp ASAP.

    http://www.beemonpatents.com/2015/04/patent-system-under-attack-interview-with-uspto-director-michelle-lee/

  30. Gene Quinn February 4, 2017 1:19 pm

    Todd-

    I know that you are correct. In fact, the supervisors are likely far more to blame than the examiners in the Art Units with very low allowance rates and examiners who simply do not issue patents ever. The Office could solve a lot of problems for applicants if they were to reassign supervisors who run Art Units with unacceptable allowance rates and bring in new supervisors who are not ideologically opposed to patents.

    Solving the problems of the Office wouldn’t be difficult if a Director with the will to solve them were to be put in place.

    -Gene

  31. Night Writer February 4, 2017 2:29 pm

    @24 Greg: That “if” clause was directed at me.

    OK, so, you have a point that Lee could say that she has improved patent quality of issued patents by cancelling some claims. But, the problem with that is the IPRs also appear to be capricious and unfair in not allowing patentees to amend claims. So, I suppose you could say you have cut down on the number of criminals by killing everyone accused of a crime. But, the bigger issue is what have you done to the criminal justice system?

    I think that is why J. Rader’s comment of “death squads” is so appropriate. “Death squads” can be said to do some good to the political party in power, but the question is what good have they done to the political system as a whole.

    Moreover, you are trying to limit me to address Lee within her framework. I do not have to be so limited. There are far more effective ways to improve quality and the patent system as a whole. The fact that Lee orchestrated death squads against claims that she deemed unworthy is not much of an accomplishment.

    It is a bit like a mass murderer saying that at least some of the people he killed would have committed murders anyway.

  32. Night Writer February 4, 2017 2:34 pm

    And, Greg, really? So, either we address Lee’s comments within her framework or we are just people complaining about examiners? Seriously? I have read many thoughtful remarks about the patent system on this blog that are not mere complaints about an examiner.

    It is becoming pretty hard to take you seriously Greg. You appear to be intentionally trying to derail fair criticism of Lee with disingenuous arguments.

  33. Inventor Woes February 4, 2017 2:50 pm

    The PTO, like the FDA, is an administrative agency. If the FDA scrutinizes the drugs it approves to a greater degree than it did before in the name of “drug quality, efficacy, and safety”, then how is the PTO doing the same in the name of “patent quality” any different? Just like how society doesn’t want dangerous drugs that don’t work in the marketplace, don’t they also want to make sure that bad patents don’t get the privilege of monopoly?

  34. Anon February 4, 2017 5:28 pm

    or we are just people complaining about examiners?

    Is there a legitimate reasons why this should be off the table?

    I mean, C’mon Greg – the whole “quality once out of the Office” is more than just a little asinine.

  35. Night Writer February 5, 2017 9:50 am

    Greg’s posts are absurd. He is telling us that it is our burden to show that Lee has done harm rather than her burden to show that her actions have improved the patent system.

    Typical inside the Beltway crxp. Greg: Lee has the burden as the administrator and the person responsible to show that her actions have helped the patent system. Cheap shot comments like, gee some patent claims are now invalidated is not sufficient. I would classify that as reprehensible crxp that should result in immediate removal. You defending this Google Bucks Director is not helpful. Try, Greg, going big. Look at the big picture and not the street gang mentality where Lee wants us to play.

  36. Night Writer February 5, 2017 9:53 am

    And, Greg—seriously–go look at her responsibilities as the director (or ex) and then try to square her little snappy trash comments with her responsibilities.

    She is a google bucks purchased piece of trash.

  37. Stephen Curry February 6, 2017 5:52 pm

    question: why is Russ Slifer not showing up in the roll of registered patent attorneys?
    https://oedci.uspto.gov/OEDCI/practitionerSearch.do

    Why is the “former” PTO Director Lee also not showing up as a registered patent attorney in the USPTO roll? any clues?

  38. Gene Quinn February 6, 2017 6:15 pm

    Steph-

    I don’t know about Russ. He should get his Registration No. back. Perhaps there are some formalities by way of paperwork that need to be completed. As for Michelle Lee, no one seems to know whether she is still employed by the Office, although the latest reports I’ve heard are that she is still being seen on the 10th floor of the Madison Building.

    -Gene

  39. Night Writer February 8, 2017 10:55 am

    They should put Russ Slifer in charge. He has the experience and education and is a great guy.

  40. Mark S. Graham, Esq. February 11, 2017 12:07 pm

    This is a good debate. I wish I had gotten into it much sooner.

    Anyway, when the PTAB invalidates patents that should not be invalidated, it is probably doing its job. The jurisprudential design of the PTAB is fatally flawed. We should expect what they are doing to appear stupid because it is stupid.

    Of course patents that should not be found invalid will be found invalid at an alarmingly high rate in these IPR proceedings. Their claims are attacked without the protective shield of the “statutory” presumption of validity, and with an artificially broadened scope based on a silly “broadest reasonable construction” standard that is bound to cause them to ensnare more prior art than they would across the street in a US District Court.

    And since the PTAB is a part of the USPTO, its ridiculous existence, as currently configured, is in fact attributable to the leadership of the USPTO. How could a thinking person not see the idiocy of what the PTAB is allowed to do to issued US patents in IPR proceedings? We should not be surprised that the self-inflicted wounds being inflicted on our patent system by the PTAB are very hurtful, and are being applied to some of our Country’s most commercially important patents.