Looking Forward: Predictions and Thoughts about 2018

By Gene Quinn
January 4, 2018

FutureEach December we ask a panel of industry experts to identify the biggest moments in IP for the previous year, and likewise ask them for their wishes for the new year. I always strive to do similar article on predictions, but I haven’t always been able to find enough experts willing to go out on a limb and actually make predictions. This year, however, I took a slightly different approach. I asked the experts to identify specific topics of interest to watch as the year unfolds. That question not only produced a great response, but it also provoked a few experts to offer predictions.

Given that several industry insiders were willing to make their own predictions, I’ll go out on a limb and make my own predictions… First, I predict that the United States Supreme Court will find post grant procedures under the America Invents Act to be unconstitutional. It is my belief they took Oil States not as a patent case, but rather as an Administrative State case, and if that is correct this could be the first in a series of decisions over a number of years that will pull authority back from the growing Administrative State and toward the Judiciary. Second, in the event the Supreme Court does not declare post grant challenges unconstitutional, I predict the new USPTO Director will substantially modify PTAB rules and procedures, making them more fair and balanced. Third, again assuming my first prediction is incorrect, I predict the PTAB will continue to ignore Eleventh Amendment immunity and will likewise rule Indian Tribes do not deserve to claim sovereign immunity when in front of the PTAB. This will set up a showdown at the Federal Circuit that will ultimately be settled by the Supreme Court, likely in 2019. Finally, I predict there will be continued discussion about patent reform, with the conversation becoming increasingly pro-patent as Members of Congress continue to see undeniable proof that the U.S. patent system is regressing while the patent systems of the EU and China are on the rise. More specifically, I predict that the U.S. will fall out of the top 10 for patent protection in the annual Chamber IP Index, which will send a shockwave through the Capitol.

Without further ado, here are the prediction of our panel of experts.


 

Russell Slifer
Schwegman Lundberg & Woessner, P.A.

I have never been very good at prognostication, especially with respect to the law. There are too many creative attorneys and unique fact patterns to predict when the “right” case will come along to change the law. For example, TC Heartland was a surprise to many who thought that district court venue was well settled law. But I will set forth two areas where I believe changes are possible, if not ripe.

The PTAB Trial Practice Guide does not define with bright lines a real party in interest, or privy, but states “rarely will one fact, standing alone, be determinative of the inquiry.” The Board, however, held in Dragon Intellectual Property, LLC v. Unified Patents, Inc., IPR2014-01252, that the record did not demonstrate that member companies subscribing to Unified Patents neither suggested or compensated Unified for the filing of the petition. Three years later, Unified Patents challenged more entities before the PTAB than any other party in 2017. I think it is only a matter of time that a patent owner takes this issue to the Federal Circuit to review the PTAB’s reasoning. I believe this is exactly what Congress was concerned about when it tried to avoid abuse of the post-grant system.

Turning to trademarks, the Supreme Court in Tam held that banning trademark registration to names or brands that disparage others violates the First Amendment. The Court noted “if the mark meets the Lanham Act’s viewpoint-neutral requirements, registration is mandatory,” unless it falls within an enumerated statutory exception. The Lanham Act does not contain an enumerated statutory exception for lawful use in commerce under federal law. The TTAB, however, held in In re PharmaCann LLC TTAB 86520135 (June 16 2017) that marijuana-related marks are not eligible for federal trademark registration based on the status of marijuana under the Controlled Substances Act. Now that 29 states have some legal commercial use of marijuana serving millions of consumers, I predict that a trademark applicant will successfully challenge the practice of trademark refusal by the government based on language not contained in the Lanham Act.

Russell Slifer served as Deputy Director of the United States Patent and Trademark Office during the Obama Administration. Prior to that he was Chief Patent Counsel for Micron. He has also served as a Board Member to the Intellectual Property Owners Association and as a President of the Association of Corporate Patent Counsel. He is currently a Principal with Schwegman Lundberg & Woessner.

 

Bob Stoll
Partner, Drinker Biddle

I am pretty optimistic for the patent world in the US during 2018.

As Andrei Iancu takes the reigns at the USPTO in early January, the new Director will look for ways to improve the patent system. He will engage with careerists at the Department of Commerce to prevent them from using the guise of “shared services” to siphon fees from the USPTO and he will redirect those funds to improving the quality of patents issuing from the Office. I fully expect Director Iancu to update the guidelines for patent subject matter eligibility to see that rejections under that part of the statute are more narrowly applied as intended by the Supreme Court decisions themselves. I also believe that the new director will exercise his rule-making authority provided to him in the AIA legislation that created the post-grant procedures at the USPTO to level the playing field so that it is not so tilted against patent owners in those procedures.

I do not expect much patent legislation to get enacted this year with such a contentious and divided Congress. But we may see something on sovereignty issues related to transfer of patent rights to Native American tribes to avoid post grant procedure jurisdiction at the USPTO. This ploy seems to have hit a nerve in the patent community and may be one of the few patent issues that draw Congressional action.

Two major patent decisions will be handed down in 2018. In Oil States, I don’t think that the Supreme Court (SC) will want the disruption that would result from finding that the PTAB procedures for revoking patents are unconstitutional because the judges there are not article three judges. My guess is that the Justices will deem a patent to be a quasi-public right for purposes of validity and avoid questions about all of patents that were already invalidated there. In SAS I think the Court will also find that the USPTO need not provide for a written decision on claims that that did not pass muster for institution. So my prediction in these cases is that the status quo is maintained.

Lastly, I believe the Trump Administration is engaged on treaties relating to trade and wants strong job creation so they will be supportive of strong patent enforcement. China will be getting some attention on intellectual property issues this year.

All in all, it will be a good year for patents.

Robert L. Stoll is a partner at Drinker Biddle and former Commissioner for Patents at the United States Patent and Trademark Office. The opinions expressed here are his own. 

 

Rob SterneRob Sterne
Sterne, Kessler, Goldstein & Fox P.L.L.C.

The level of global political change has been significant and in some ways unprecedented compared to recent decades. These political changes have been reflected in substantial changes in the global IP environment, particularly in China and the US. We predict comparable changes in the IP global environment in 2018.

The value of patents will continue to drop in the US, will stay the same in the EU, and will grow in China.

The US is no longer the “gold standard” of IP systems. With uncertainty regarding what technology is eligible for patent protection (“statutory subject matter”); the lack of injunctive relief in many infringement situations; the high rate of invalidation of issued patents by the PTAB; uncertain and diminished patent damages models; and the significant lengthening of the district court enforcement process, ROI for patent owners asserting their patent rights in the US has dropped significantly in 2017. This trend will continue for 2018.

Despite the Brexit fiasco, the EU will continue to offer relatively predictable, cost-effective, and timely enforcement of patent rights, particularly in the courts of Germany and the Netherlands.

The Unified Patent Court is still very much up in the air. At the earliest, it will become operational in January 2019, but there are many variables influencing whether this will come to pass, particularly the March 2019 deadline for the UK to leave the EU.

With massive filings of patent applications at SIPO, the creation of specialized patent courts, and the high rate of enforcement success by non-Chinese patent owners in the Chinese Courts, China will continue to refine and strengthen its IP system as dictated by the Chinese Government.

The cell phone wars produced a pervasive anti-patent troll narrative in the US. While many have come to believe that this story was overblown and has hurt startups, small enterprises, and university innovators disproportionately, the economic and lobbying muscle behind this narrative is enormous and continues to be exerted to maintain the current weakened US IP environment. This will produce intense fights between the stakeholders throughout the US IP environment in 2018. That will blur political lines and accentuate differences between the ‘haves’ and the ‘have-nots.’

Global economic power in many industries will continue to consolidate in fewer but much larger entities. Antitrust and anti-competition laws that previously had limited such concentrations of economic power are not being enforced in many jurisdictions. Overall, these dominant companies on the world stage do not favor strong IP regimes, unless it involves their own technology and R&D. And, because of their economic might, they will continue to push the global IP environment away from IP protection and towards unrestricted economic competition.

Big data and the global internet will grow rapidly in IP importance. Data and security breaches, national disasters, the risks associated with inter-connectivity, and trade secret misappropriation will continue to erode the luster of the new electronic world we live in. Governments and consumer groups will be much more vocal and assertive in this sphere of IP in 2018.

Technological innovation and new global business models will continue unabated and will outrun existing legal regimes globally. The legal systems around the world will be hard pressed to deal with the changes and challenges wrought by the global disrupters.

Robert Greene Sterne is a founding director of Sterne Kessler Goldstein & Fox. Sterne has been recognized by Law360 as one of the “Top 25 Icons of IP,” and among the country’s “IP Trailblazers & Pioneers 2014” by the National Law Journal.

 

Chris GallagherChris Gallagher
President of IP Strategic.com

Let’s take note of big tech’s wilting welcome in Congress. Their economic dominance is seemingly sinister. Once praised for convenience and useful platform access, Apple, Alphabet (Google), Amazon and Facebook gatekeeper manipulation has recently shape-shifted from earlier sheep’s clothing into a more wolf-like menace. Relentlessly advancing technology exacerbates their addictive dominance. Size and scale enable them to swallow or smother disruptive competition. Advertising technology has destroyed our privacy. Russian electoral interference, EU regulatory activity and other negative news demonstrates on a daily basis the darkening clouds of their overbearing bad behavior. I expect this to only continue into 2018.

Congressional water-carriers who once sought public association with big tech are backing away despite possibly losing their political affection. Previously enthralled lawmakers now see why big tech’s push for troll-related patent reform was a diverting ploy to elevate the risk and costs of enforcing patents so they could continue their abuse of patents with less risk and simultaneously protect their incumbencies from competitive disruption. Big digital tech’s Hill environment has changed, and that should intensify in 2018, particularly now with Conservative groups joining to support patent rights.

Big tech has been lowering its Hill profile to avoid regulation, which we can expect to continue into and throughout 2018. They fear a more relevant update of the 20 year-old Communication Decency Act, which allows them legal treatment as uninvolved third-party carriers of corrosive content rather than sharing co-publishing responsibility with its authors. Recent Hill efforts to exempt sex-trafficking from such protection can easily be broadened to include other subject areas. Moreover these digital giants are commercially colliding as they drift into each others’ market verticals, a trend I expect to continue. In short, this changing Hill environment has damaged their assertiveness and unity, which should strengthen the pro-patent movement in 2018.

Burdened in the past by having to explain patent policy to campaign fund-craving lawmakers who had swallowed whole the overblown troll narrative, pro-patent advocates have endured a hard climb on Capitol Hill. But now efficient infringement can be seen as part of broader big tech bad behavior, which includes; abusing user privacy, transparency, discriminatory recruiting, and think tank support with strings attached. Meanwhile pro-patent advocates are working well together. Their collective effort is creating converts, but more needs to be done. Thus it is time again to remind our delegations that the Innovation Act was part of a larger self-interested behavior pattern. While we now play on a more-level field we must not be lulled by big tech’s lowered profile. Their objectives haven’t changed. To restore patents to their pre-AIA support of our innovation ecosystem we have a chance to win in 2018, but we must now play even harder and take advantage of the growing distrust of the motivations and operations of Silicon Valley’s largest companies.

Chris Gallagher is President of IP Strategic.com and a perennial selection to The Best Lawyers in America. Having spent years as one of the most influential and highly regarded advocates in the New Hampshire Legislature and state administrative agencies, Chris is now focused primarily on federal policies in Washington, DC.

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 37 Comments comments.

  1. David January 4, 2018 10:45 am

    Gene,

    Stop giving IPR lawyers airtime.

    Your competitors at Pat-O and IP Law360 are far more savvy when it comes to selectively screening viewpoints.

  2. Anon January 4, 2018 11:13 am

    David,

    I do not know about IP Law360, but you are simply off the mark when it comes to that other patent blog.

  3. David January 4, 2018 11:36 am

    Anon are you kidding? The fact that you haven’t detected Dennis steering the discussion only reveals how good he is at it. He is very progressive, and his blog advances his politics.

    As for IP Law360, firms pay for airtime, and the PTAB groups are rolling out big $$$ to get their people out there steering client perception.

    Meanwhile, Gene queues up another panel of IPR lawyers for their “objective” opinions on Oil States and sovereign immunity.

  4. angry dude January 4, 2018 12:29 pm

    Here is my prediction:
    US patent system will remain very very weak to the point of being irrelevant
    Sure they’ll try to make cosmetic improvements to the process of granting and revoking patents, but patent licensing and enforcement will be in its current almost non-existent state
    The thing is: in order to really improve US patent system they’ll have to institute efficient patent licensing/enforcement and this will undermine market positions (and crash stock market) of the biggest tech monopolies in US (google, apple, amazon etc)
    The Trump administration will never sacrifice big SV infringers and stock market capitalization for a (relatively distant) future prosperity of the country, thus inventors will continue to suffer and exit inventing “business” in droves or will use trade secrets instead of patents
    cant’ have a cake and eat it too

  5. Anon January 4, 2018 12:58 pm

    David,

    Your reply is most quizzical.

    Not only has “that other blog” been noted as ‘steering the conversation” (and often lambasted for doing so), but that very ‘steering’ and OVER-selling of the Professor’s agenda is the very reason (in no small part) of the disdain of that blog and why that blog is NOT more savvy, as you first put it.

    My first post is in fact only confirmed with your follow-up. You mistake the direction (and magnitude) of the arrow providing the direction between “more” and “less” savvy.

  6. Gene Quinn January 4, 2018 3:15 pm

    David-

    You say: “Your competitors at Pat-O and IP Law360 are far more savvy when it comes to selectively screening viewpoints.”

    I don’t screen viewpoints. If the article is interesting and correct I will publish it. And by correct I don’t mean viewpoint discrimination, I mean is it within the broad envelope of acceptable viewpoints/opinion/argument within the industry.

    As for your comment about these people being IPR lawyers, which seems intended to suggest they are pro-IPR, you obviously don’t know anything about what you are talking about. Chris Gallagher is extremely opposed to post-grant challenges, which his comments reflect. Similarly, Russ Slifer has been very critical of post-grant challenges and has written here on IPWatchdog about the changes he sees as necessary, which in any fair interpretation should be viewed as a pro-patent shift toward making the process neutral and fair. To the best of my knowledge Bob Stoll does not do IPR work, and he is certainly entitled to think (as many do) that the Supreme Court won’t find IPRs to be unconstitutional. Further still, there are many pro-patent advocates who don’t think the Supreme Court will find IPRS to be unconstitutional. Only Rob Sterne here handles IPRs specifically, and his comments here are hardly pro-IPR.

    With respect to your claims that other outlets are are selective in their screening, you are simply flat wrong. Both the publications you mention publish far more that is pro defendant and infringer than we ever do. And as far as selective screening it certainly doesn’t happen in the comments.

    So truthfully, I have no idea what you are saying. Your comments defy the facts.

  7. Gene Quinn January 4, 2018 3:21 pm

    One more thought…

    I get called a shill for inventors and patent owners (i.e., patent trolls) and now you seem to be calling me a shill for technology users and attorneys advocating against patent owners (i.e., infringers).

    I am not going to discriminate on viewpoint. If the article is well written and interesting I will publish it even if I disagree. The fact that it seems both sides think I’m a shill is probably the best proof that we provide a platform for interesting thought and information.

  8. David January 4, 2018 3:23 pm

    The other side is running circles around you, and you don’t even know it.

  9. Gene Quinn January 4, 2018 3:33 pm

    David @8-

    Thanks for the laugh.

  10. Anon January 4, 2018 4:26 pm

    David @ 8,

    Your claim is not only made without evidence, the “evidence” that you have put forth (or rather, the bald statement that “you haven’t detected Dennis steering the discussion” ) is patently [sic] false.

    That type of falsity (while perfectly accepted at “that other blog”) is a quick path to being banned here,

    And that is another major reason why your “runs circles” statement is facially incorrect.

    Tread carefully my friend – THIS site does a far better job of controlling THAT type of blight.

  11. Curious January 4, 2018 4:27 pm

    I don’t think that the Supreme Court (SC) will want the disruption that would result from finding that the PTAB procedures for revoking patents are unconstitutional
    What disruption? The IPRs via the PTAB have been around for only a little longer than 5 years. It’s not some decades-old, long-entrenched practice. Also, losing IPRs doesn’t preclude accused patent infringers from employing the same arguments in a District Court. While former Commissioner Stoll adds some valuable comments from time-to-time, on this issue and in my eyes, he has long been a shill for the patent parasites/efficient infringers.

  12. Curious January 4, 2018 4:39 pm

    The big problem we are facing is the mid-term elections. If we are lucky, we’ll see Issa get sent off to pasture. However, that is the silver lining to the potential dark cloud. The Republican majority in Congress is likely (just based upon history and not even considering the current political environment) to be reduced if not flipped to a minority.

    In such a situation, while Democrats ostensibly campaign to help the little guys they are also addicted to campaign dollars (not unlike their friends on the other side of the aisle) and the campaign dollars they particularly like are those from big tech — who are supportive of the social issues that Democrats campaign on. However, I have no doubt that big tech will use their clout to make it harder and harder for most entities to obtain/assert patents.

    In the end, whether it is because of a reduced Republican majority or even a flip to a minority, I think it is very unlikely that any positive reforms will come out of Congress post midterm elections. As such, if reforms are going to happen, it is going to have to be in the next 6-8 months, and I just don’t see that with Issa (potentially) blocking any reform that helps patent inventors.

    As such, if anything positive is going to develop for inventors, its going to have to come from Iancu or from the Supreme Court. While, I’m optimistic on both accounts, I’m not overly optimistic.

  13. Gene Quinn January 4, 2018 4:43 pm

    Curious @ 11-

    What if the Supreme Court were to rule IPRs unconstitutional? I think there is a strong chance they will, or at least larger than a negligible chance. I also think it is the proper legal determination. But what if…

    The thinking exhibited in Bob’s comments typically points to the chaos that would ensue in terms of those patents that an unconstitutional PTAB would have invalidated. Do they automatically spring back to life? What about the time that has been lost on the patent term? What about those entities that started to act based on the belief that the claims were invalidated? All of that would create a series of issues that would raise difficult questions and plunge things into chaos. I’m in favor of that chaos because I think it is correct, but will a SCOTUS that has typically been hostile to patent owners embrace (or even understand) that chaos?

    Then there is the unfortunate reality that the PTAB has very quickly grown in size and political strength. It has many powerful advocates, and once government grows in size gains political champions it is very difficult to break things down. Again, I think dismantling the post grant challenge proceedings is the proper legal determination, but there is some legitimate question about whether a SCOTUS that buys that legal argument would want to upset the apple cart to benefit patent owners.

    Remember, they ignore stare decisis in patent cases all the time when it leads to a determination that goes against patent owners, but they cite stare decisis as a rationale for not changing things dramatically when they don’t want to change. It is intellectually dishonest, but that is what they do.

    So whether Bob represents or advises efficient infringers misses the point. Although we might not share his opinion, his prediction is unfortunately a very real possibility. That is why we need to take Chris Gallagher’s admonitions very seriously. Pro-patent advocates could prevail in 2018, but great effort and resilience will be necessary.

  14. David. January 4, 2018 5:36 pm

    “The thinking exhibited in Bob’s comments typically points to the chaos that would ensue in terms of those patents that an unconstitutional PTAB would have invalidated. Do they automatically spring back to life? . . . All of that would create a series of issues that would raise difficult questions and plunge things into chaos. ”

    If Bob had read the cases, he’d know that the Supreme Court hasn’t done this in the past. If a case or an appeal is still pending, then those patents would be affected. Otherwise, the patents remain invalidated.

    See, problem solved. No chaos.

    Stop giving these guys a platform.

  15. Night Writer January 4, 2018 11:26 pm

    David @3 >Meanwhile, Gene queues up another panel of IPR lawyers

    What do you mean by IPR lawyers? I know two of these people and I wouldn’t call them IPR lawyers.

  16. Night Writer January 4, 2018 11:34 pm

    @David

    Running circles around? How?

    @Curious: I don’t see any help coming to patents. Maybe the SCOTUS will hold IPRs unconstitutional, but the Congress is not going to help. And, the SCOTUS is not going to fix Alice, eBay, or KSR.

    And, let’s see what happens with the next CAFC judge. Now we have a whole bunch of Obama appointments that were selected by Google and many have no science training.

  17. Curious January 5, 2018 9:23 am

    Do they automatically spring back to life? What about the time that has been lost on the patent term? What about those entities that started to act based on the belief that the claims were invalidated?
    Once judgment is final and all appeals are exhausted, there is no going back. Perhaps someone with better experience in trial practice can confirm (or refute). BTW — anytime the law is “changed” is creates chaos/disruption because it upsets what was once settled. That is no reason to argue against a particular change.

    Then there is the unfortunate reality that the PTAB has very quickly grown in size and political strength.
    How much political strength does a bunch of APJs have? Its not like they are going to lose their jobs — deciding IPRs isn’t their only responsibility. They still have a large backlog of ex parte Appeals to go through. The USPTO will stop hiring, those APJs that wanted to do “trial” work will likely leave for private practice, and things will eventually get back to normal.

    there is some legitimate question about whether a SCOTUS that buys that legal argument would want to upset the apple cart to benefit patent owners
    It’s not a big apple cart. You aren’t denying people challenging a patent the opportunity to do so — just eliminating one of the forums in which they can. Also, unless a ruling by SCOTUS is extremely broad, ex-parte reexams are still in place. I honestly cannot see SCOTUS worrying about the fate of a handful of APJs, who again still have other responsibilities they can fulfill.

    they cite stare decisis as a rationale for not changing things dramatically when they don’t want to change
    Fortunately, there is no stare decisis for them to cite to support IPRs.

    It is intellectually dishonest, but that is what they do.
    That criticism shouldn’t be confined to SCOTUS. Judges pick and choose what case law they’ll apply all the time based upon their preconceived notion as to what party should prevail. Granted, many/most try to apply the law appropriately. However, it isn’t too hard to find VERY STRAINED interpretations of the law when he/she/they want to come out one way.

    So whether Bob represents or advises efficient infringers misses the point. Although we might not share his opinion, his prediction is unfortunately a very real possibility.
    Its not the prediction I’m worried about — its just that I’ve read many of his comments and I almost always come away with the impression that he is not on “our” side. Perhaps there are times when he straddles the fence, but these dark times call for more than fence sitting. People like former Commissioner Stoll would be a great asset if they fully and publicly supported our positions. However, I have yet to see that level of support. I find that very disappointing.

  18. Curious January 5, 2018 9:31 am

    Maybe the SCOTUS will hold IPRs unconstitutional, but the Congress is not going to help. And, the SCOTUS is not going to fix Alice, eBay, or KSR.
    Getting SCOTUS to hold IPRs unconstitutional would definitely be step in the right direction and would help. Honestly, today there is very little chance for small/mid-size entity could successfully assert a patent against a large company based upon IPRs and how onerous and expensive they are for the patent owner. As for Congress not helping, that was my point. While fixing eBay would be nice, that ship has long sailed. KSR is a pain, but over the years, I have found the same arguments that were presented by the USPTO pre-KSR are the same arguments presented post-KSR. The only big difference is that if you go to the Board, they tend to ignore what the Examiner wrote, ignore what you wrote, chant a few incantations that go like “predictable results,” “combination of familiar elements” amongst other finish by saying “KSR, KSR, KSR” and the combination is magically affirmed. As for Alice, it would be nice if they gave us a least a little to work with. Right now, both the USPTO and the Federal Circuit do not feel constrained in any regard with regard to applying Alice rejections to any claim.

  19. Curious January 5, 2018 9:38 am

    I’m not sure if this is a prediction (perhaps it is in recognizing a trend), but I just wanted to share my experience is that I’m beginning to see a LOT more Alice rejections in art units involving computer-implemented inventions that having nothing to do with business methods. If you are in 3600, it is all but guaranteed to get a 101 rejection. I see a lot in 2400/2600. However, 2100 is really getting gung-ho in issuing them. The other trend I’m seeing is a near universal disregard to the USPTO guidelines regarding making these types of rejections. It used to be that Examiners would actually spend some effort on the step 2A analysis and even more analysis on the step 2B analysis. These days, step 2A involves citing a couple popular cases (without explanation) and a conclusory paragraph that the remainder of the claims is “not substantially more.”

    A lot of times, I’m seeing several Office Actions into prosecution when no 101 rejection has previously been applied. I’m not sure whether the Examiner is really believing in the rejection or that the Examiner is being told to make the rejection.

  20. Night Writer January 5, 2018 10:36 am

    @18 Curious:

    What I am seeing is some clever examiners starting to use 101 to force me to narrow the claims and to get an RCE. They know they can just write junk down and it takes them like 10 minutes.

    I had one examiner all but admit to me that he was behind so he just rejected my entire application under 101 and then after the non-final OA, he withdrew the 101 and found art.

  21. Night Writer January 5, 2018 10:38 am

    Basically, Alice means that the applicant is open game for the examiners to r@pe.

    The justices could be impeached based on Alice –and should be.

  22. Curious January 5, 2018 11:27 am

    What I am seeing is some clever examiners starting to use 101 to force me to narrow the claims and to get an RCE. They know they can just write junk down and it takes them like 10 minutes.
    Unless an Examiner is calling with a proposed amendment that overcomes the 101 rejection, he/she is not getting a RCE from me. Anything that can easily be added to a claim can easily be shot down as “not substantially more.” As such, what is to be gained from amending?

    I had one examiner all but admit to me that he was behind so he just rejected my entire application under 101 and then after the non-final OA, he withdrew the 101 and found art.
    Unsurprising.

    The justices could be impeached based on Alice –and should be.
    I’ve said this before, but that is an over the top reaction. Impeachment shouldn’t occur just because a decision stinks. It needs to stink like a rotting putrid corpse sitting in the hot sun for 30 days — and I haven’t seen any decision raise to that level in a very long time.

  23. Night Writer January 5, 2018 3:03 pm

    >>It needs to stink like a rotting putrid corpse sitting in the hot sun for 30 days

    Alice is a clear breach of the Constitution. The justices legislated. The justices better hope that things don’t get wilder than they are now. They are vulnerable.

  24. Night Writer January 5, 2018 3:05 pm

    @22 Curious

    I do not narrow without an agreement to lift 101. But, what they are doing is holding the 101 until an after-final interview. Basically, saying with an RCE I will lift the 101, but I need more time than an AFCP 2.0 to consider and search the amendments.

    Alice is being used to game the system by some examiners. Why? They can reject the claims with a paragraph of garbage.

  25. Gene Quinn January 5, 2018 3:07 pm

    David @14-

    It is a shame that you come here and comment on things you obviously do not understand. There is NO universe under which the Supreme Court rules post grant challenges unconstitutional where the patents invalidated by the PTAB using those procedures remain invalidated. Such a decision would necessarily mean that the actions of the PTAB were ultra vires. If you don’t think that will create chaos you obviously know nothing about patents, nothing about patent law, and even less about attorneys who represent patent owners screwed out of patents by post grant challenges.

    As for your cry for me to stop giving people like Bob Stoll a platform… the solution is for you to stop reading IPWatchdog.com. If you are so insecure in your own view points that the reasonable and legitimate opinions of someone like Bob Stoll offend you then you should really stop coming here, and you should probably simply stop using the Internet altogether for information. That you are offended speaks volumes about you.

    I am done responding to you. Either get over yourself or get out of the way and stop interrupting thoughtful discussion in the comments.

  26. Night Writer January 5, 2018 3:08 pm

    Right now, I’d guess the alt-right could justify not only impeaching the justice but probably much worse. The justice regularly legislate. I know you think it is over the top. It is over the top in the current environment because the Congress simply isn’t going to impeach a justice short of them raping an underage girl next to the Washington monument.

    But, if the Congress had a mind to impeach the justices, it would be easy to do.

  27. David January 5, 2018 3:38 pm

    Gene,

    I sometimes wonder who butters your bread.

  28. Anon January 5, 2018 5:58 pm

    David @ 27.

    Your innuendo is not only out of place, it carries with it a disdain that you have not shown to be deserving to dish out.

    Your posts here have been entirely incorrect.

    Instead of taking a moment and contemplating that which is offered to you in return for your errors, you double down and all but invite a banishment.

    Is that your aim? Do you then intend to go elsewhere and “claim” that you were kicked off the site for questioning the impartiality? Such, of course, would be an incorrect assessment, but given that you have been incorrect across the board, I am not surprised.

  29. David January 5, 2018 6:25 pm

    Anon,

    Glug glug.

    https://www.youtube.com/watch?v=DEiWU1MbBfk

  30. Anon January 5, 2018 8:52 pm

    Oddly funny, but rather meaningless, especially if you want to imply that the concept fits my posts to you.

    Maybe reply on point? Goodness news that would be refreshing from you.

  31. Gene Quinn January 5, 2018 9:41 pm

    David-

    You can wonder who butters my bread if you like, but it is no secret. I’m completely transparent in that regard. Everyone sees the sponsors clear as day, and it is hard to miss the fact that I teach a patent bar review course for PLI. So wonder if you like.

    What I wonder is who you are and what your agenda is. You refuse to provide a last name or identify yourself. If you want to question me that is fine. But now that you have you need to tell everyone who you are and who butters your bread. That is only fair.

    I look forward to the same full disclosure on you that I provide here. That way we can all learn who you are and better understand your bias.

    If you don’t respond with full disclosure, after calling me out like this, you will be banned. That is (of course) what you want. As Anon points out.

    -Gene

  32. Anon January 6, 2018 10:19 am

    Mixed emotions on seeing your post at 31, Gene.

    While I agree that “Dave” should put up or shut up,” ( or rather, simply not double down with his obvious errors), I am loathe to promote the “out yourself” path.

    I also recognize the issues that your site has been exposed to, given that you yourself are a “Pro-Patent” advocate. There have been repeated (and rather lame) series of postings by people who are not willing to truthfully comply with the rules of engagement by providing bogus background information that is NOT revealed to the public.

    As I have previously noted (and championed, even for “anti-patent” posters), the history of anonymous and pseudonymous has a long and rich history in our country.

    Instead of “outing” anyone, I would instead advocate that those who do not comply with your (well-known, and I would add, evenly and objectively applied) rules should simply have their posts wiped out and be blocked. There is ZERO reason why someone should expect to be able to post on your site and not provide legitimate credentials (behind the scenes that are not divulged) and to not engage in known falsehoods.

    It is one thing to be “cheeky,” but quite another to engage in either of the items I state. Overall, you are far ahead (and run circles around) “that other blog” for the very reasons that “Dave” appears to want to celebrate (and is quite incorrect in thinking that no one notices).

  33. Bemused January 6, 2018 12:43 pm

    Anon, I’m gonna have to agree with Gene on this one. If a poster has the b#alls (and I mean that term of art in the generic sense so this applies equally to both male/female/others posters) to denigrate and libel on the Internet that individual should have the b#alls to show themselves. I’m fine with anonymous discourse when its germane, intelligent or even consists of biting criticism but once you cross the line then either out yourself or be gone.

    Of course, that begs the question as to gets to be the drawer of that line? In this particular instance, its the publisher of IPW. Gene effectively polices the commentary on this blog which is why so many of us regularly read the articles and commentary – unlike the good professor at the “other blog” who lets idiots like M&M’s (you know who I really mean) pretty much take over any thread with vapid and repugnant ad hominem attacks.

  34. Curious January 6, 2018 4:41 pm

    Alice is a clear breach of the Constitution. The justices legislated.
    They legislate from the bench ALL the time. It happens.

  35. Gene Quinn January 6, 2018 4:48 pm

    David-

    Does the cat have your tongue? I don’t see a response from you. What’s the problem?

    Are you trying to pretend that I banned you or something?

    Looking forward to your response… but not holding my breath. Your drive by commentary and refusal to stand up and own what you say is regrettably far to common on the Internet today.

  36. Marc Richards January 11, 2018 12:16 pm

    Nice article, Gene. Next time, include more diversity in your selected panel of experts.

  37. Gene Quinn January 11, 2018 1:14 pm

    Marc-

    Gee… I never thought of that! Thanks!

    I solicit far and wide and we go with those who respond. If white males are the only ones who respond then I will publish the commentary from white males. Sorry if that offends you, but I’m not going to stop doing what I’m doing and not share the commentary of white males simply because no women or minorities choose to respond with their own commentary.

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