Cash strapped USPTO, failed fee increase and political shenanigans

By Paul Morinville
February 26, 2017

Uncle Sam top hatOn October 3rd 2016, Michelle Lee’s USPTO released a proposed $710 million patent fee increase for public comments. (Notice of Proposed Rulemaking, Docket No. PTO-P-2015-0056, Setting and Adjusting Patent Fees During Fiscal Year 2017, 81 Fed. Reg. 68150 (Oct. 3, 2016)). US Inventor filed a response.

In an August 8th 2016 speech to the Detroit Economic Club, then candidate Donald Trump declared, “Upon taking office, I will issue a temporary moratorium on new agency regulations.” The USPTO’s proposed fee increase was published for comments on October 3, 2016, before it was known who would be the next president. But the fee increase is considered a new agency regulation, so it would be subject to the moratorium if Trump were elected. On November 8th, Trump won the election. I don’t think anyone, including the USPTO, thought that Trump would not keep his campaign promise of a moratorium, so it was not surprising that President Trump immediately ordered a moratorium as soon as he was sworn it on January 20th.

The USPTO’s proposed fee increase was open for public comment for 60 days, so on December 2nd 2016 comments were closed. A fee increase had to wait another 45 days before it could become effective, so the earliest date the fee increase could be take effect was January 18th, two days before inauguration. This is an important date because the fee increase would get caught up in Trump’s moratorium if it were not put into effect before January 20th. It appears the fee increase may be caught up in the Trump regulation moratorium. The USPTO has not announced whether they will abandon the fee increase or pursue it. Still, there is much surrounding this attempted fee increase that is curiously suspicious.

Executive Order 12866 governs new regulations. Under this executive order, a regulation is considered a “significant regulatory action” if that regulation has “an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities”. The USPTO fee increase has an economic effect of $710 million over five years, which is above the threshold. Therefore, it must be marked a “significant regulatory action” when reported to the Office of the Federal Register. Reporting proposed regulations as significant flags the regulation on the Federal Register, which enables the public, including the Trump Transition team, to easily search and find significant regulations.

Although the USPTO admitted its fee increase is considered “significant”, the proposed rule published for public comment was not reported as significant in the Office of the Federal Register’s online database. A person searching for “significant” proposed rules in the Federal Register database would have missed the USPTO’s fee increase when it was published on October 3rd 2016 and throughout the Trump transition period and inauguration on January 18th 2017. Failing to report a rule as significant in the searchable database makes finding significant pending regulations very difficult. One must read the contents of each regulation to determine which are significant. Even after Trump won the election and the transition team was actively looking at pending regulations, and in full knowledge that Trump would almost certainly put in place a moratorium on new regulations, any member of the public (or the Trump transition team) performing a search for significant rules in the Federal Register database would not have found the USPTO’s fee increase.

Did Michelle Lee’s USPTO actually attempt to push through a significant regulatory action ahead of inauguration while attempting to avoid scrutiny by the Trump transition team by not identifying the fee increase as significant in the Federal Register database? I guess it cannot be said for sure, but the question deserves an answer. (Note: Only after US Inventor brought this issue to the attention of the Trump White House on February 10, 2017 was the USPTO’s fee increase marked as significant in the Federal Register database.)

Transparency was not the only concern US Inventor had regarding the USPTO’s fee increase regulations. In support of the fee increase, the USPTO conducted an elasticity analysis to predict applicant behavior as a result of the proposed increased fees. However, the USPTO did not consider small businesses and independent inventors who are less able to pay the USPTO’s increased fees in the elasticity analysis. Small business and independent inventors are not even mentioned once in the elasticity analysis. Effectively, the USPTO’s analysis treats all applicants like large multi-national corporations. If the USPTO had included small business and independent inventors, they would have found that these small applicants are far more sensitive to price increases than large corporations.

What is most frustrating is that USPTO prides itself in its Patent Pro Bono Program, which is geared toward independent inventors and small companies who cannot afford to patent inventions. Obviously, the USPTO knows that small entities already have trouble paying under the current fee structure. In the face of this knowledge, Michelle Lee’s USPTO excluded this most sensitive group from their elasticity analysis.

While Michelle Lee’s USPTO is attempting to increase examination fees, the USPTO is diverting fees paid for examination to fund the rapidly growing Patent Trial and Appeals Board (PTAB). The PTAB was created by Congress to address the problem of so-called “bad patents” promoted by the anti-patent lobby and Michelle Lee. Their argument was that the USPTO issues far too many “bad patents” and those patents are used to shakedown unsuspecting multinational corporations. Thus, the PTAB was created to invalidate these so-called, but undefined, “bad patents”.

But Michelle Lee’s PTAB went much further than invalidating just “bad patents”. The PTAB invalidates at least one claim in over 95% of the patents that it reviews. Invalidating just one claim can neuter the enforceability of the patent completely, making it worthless. This is particularly true because once one claim is invalidated requesters can use that invalidated claim as support for a reexamination request that would place the burden on the applicant to defend a patent that was supposed to be presumed valid. Worse, a reexamination proceeding can easily take three to four years to complete without appeals.

It defies reason that 95% of issued patents are “bad patents” and should be invalidated or neutered, and it is insulting that the Patent Office refuses to presume patents they issue are presumed valid despite the statute saying that examined and issued patents are, in fact, legally presumed valid. These patents have already been examined in a rigorous, lengthy and expensive examination process by the same USPTO that is now invalidating the patent. They give with one hand and take with the other; the Patent Office has become more arms dealer than honest broker. Furthermore, and quite importantly, these patent are selected by experts who risk millions of dollars evaluating the patent, the case for infringement and paying for litigation. It is beyond obvious that these patents cannot all be “bad patents”.

Disturbingly, especially in light of the USPTO proposed fee increase, if a petition for a PTAB trial is not instituted, 75% of the petition fee paid to institute a PTAB procedure is returned to the petitioner.   If the PTAB needs funding, it makes more sense to keep this money in the PTAB than it does to take examination fees and divert them to the PTAB and then increase examination fees. Even more disturbing is the fact that the Administrative Patent Judges who agree to institute the challenges are the ones who decide the challenges, which means they control their own docket and production quota. It is no wonder it is more likely to have multiple challenges on the same patent initiated than a single omnibus challenge that would only give the self interested PTAB judges a single quota credit. The gaming of the system for the disadvantage of the patent owner is disgusting.

Moreover, returning fees biases the decision to institute a PTAB challenge, especially when big corporations “gang tackle” a patent with multiple petitions. Each petition has a fee of around $20,000, so when multiple petitions are filed, the cumulative fees may be hundreds of thousands of dollars. Denying a petition means returning 75% of that money. In an environment where the USPTO claims to be cash strapped, as is evident by the USPTO’s proposed fee increase, it may not be a good career decision for PTAB judges to deny institution.

This USPTO fee increase appears to have been timed to get a regulation in place before President Trump could stop it and appears to have been omitted as significant from the Federal Register database to avoid scrutiny. Such political games should be beneath America’s Innovation Agency.

But why is the USPTO in such a fee crisis? Because they have strayed from their mission, which is to issue patents. Far too many Art Units have allowance rates under 5%, and some as low as 1% (and those are in Art Units dominated by Fortune 500 companies). For an agency that derives the majority of its fees from patent owners paying maintenance fees it is downright idiotic for the Office to allow examiners to bury applicants and refuse patents at every turn. Worse, the solution isn’t to ease up and allow patents, instead it is to double and triple down on instituting more post grant challenges and raising fees. Issue patents for a few years in those “no patent for you Art Units” and the fee problems would be solved.

There are a lot of big things in the USPTO that need to be fixed before raising fees on independent inventors and small businesses.

The Author

Paul Morinville

Paul Morinville is Founder and former President of US Inventor, Inc., which is an inventor organization working in Washington DC and around the US to advocate for strong patent protection for inventors and startups. US Inventor has been walking the halls of Congress knocking on doors and sitting down with hundreds of offices to explain the damage suffered by inventors due to patent reforms. Paul is President of SemiComm HK, a Hong Kong company licensing patents in China, and an independent inventor with dozens of U.S. patents and pending patents in enterprise middleware.

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 55 Comments comments.

  1. LLdc February 26, 2017 1:46 pm

    Big coverup at USPTO on hiring new Examiners. For 2016, the number of proposed new hires was around 218 examiners corps wide. That is an astonishingly low number considering the backlog. They are not hiring because no one is allowing patents. Look closely at the so-called allowance rate (1-5% as noted in the article) and the art units/tech centers with no new hires. Yet, we still have a backlog and terrible service from absentee Examiners and SPEs.

  2. Caesar Salazar February 26, 2017 3:36 pm

    “It defies reason that 95% of issued patents are “bad patents” and should be invalidated or neutered, and it is insulting that the Patent Office refuses to presume patents they issue are presumed valid despite the statute saying that examined and issued patents are, in fact, legally presumed valid.”

    I think this statement needs to be viewed in light of history. It seems like the majority of patents being invalidated were ones that were issued many years ago. Thus they may be trying to “drain the swamp” from a previous era of the PTO. I’m curious as to how many patents issued today will be invalidated at a later time. It’s like cleaning the trash out of your house. At first there will be a lot of trash, but once everything is clean, you only have to take the trash out once a week.

  3. Paul Morinville February 26, 2017 3:57 pm

    Caesar Salazar @2. Spoken like a true Googler. That statement is intended to presume there was a problem that needed to be addressed to begin with. There was not. It was and remains the creation of monopolistic multi-billion dollar international consumer internet companies who wish to keep competition out. Nothing more. It is an illusion supported by a decade long multi-million dollar PR campaign engaging folks like you who perpetuate the myth either due to ignorance to the real facts, or some wish that the fake facts of the PR campaign were real. To make that statement is to perpetuate a lie.

    Read this and tell me what part of the number one selling consumer product for the last two years should be invalidated. http://www.ipwatchdog.com/2017/01/27/water-balloons-weapons-mass-destruction-ptab/id=77637/ Please explain in detail why his patents should be invalidated.

    Alternatively, put your money where your mouth is and produce the “bad patents” that have been invalidated with your reasoning as to why they are “bad”.

    If you cannot do either, please define exactly what a “bad patent” is. This definition is much needed and missing from the entire debate.

  4. Anon February 26, 2017 4:21 pm

    Let’s be clear: ANY fee increase for the Office – under the rules allowing more power to the Office under the AIA has to be completed in a “net-zero” effect with the budget.

    Fee’s going up in one area – all else being equal – MUST mean that fees must come down – in equal amount – somewhere else.

    Any push by the Office not in accord with the FULL requirements of the AIA is ultra vires, and will not survive challenge.

  5. Anon February 26, 2017 4:23 pm

    Caesar,

    Please be aware (current feelings notwithstanding), a granted patent carries with it a presumption of validity.

    Do you understand what this means?

    For starters, you simply do not get to “drain the swamp” or “throw out the trash” without regard to the rights that a granted patent carries with it, no matter how you may “feel” about any such patent.

  6. Caesar Salazar February 26, 2017 4:55 pm

    Paul,

    I read over the PTAB decision to invalidate the patent for indefiniteness. While I may or may not agree with them on their final decision, they do make a good point that the term “filled” is ambiguous in light of the specification. Without knowing what “filled” or “substantially filled” means, one wouldn’t know how tight the elastic fasteners (the rubber band things that hold the balloons in place while they are being filled with water) are.

    The claim itself requires this knowledge because the fasteners in the claim are directly tied to the definition of “filled.” Basically, if one wanted to know what was specifically claimed, one would need to know how much water the balloon would need for it to be “filled” because that directly affects how the elastic fasteners are “configured to provide a connecting force that is not less than a weight of one of the containers when substantially filled with water.” The illustration on page 26 of the decision (http://swipreport.com/wp-content/uploads/2017/01/Telebrands-Corp.-v.-Tinnus-Enterprises-LLC.pdf) helps a lot here. Which diagram (A, B, or C) means “substantially filled”? If the claim is definite, then other market participants could design around it without infringing. For example, a competitor could make a device where the elastic bands slide off when a balloon reaches only half of its maximum capacity. But as it stands, no one could design a non-infringing device because the term “substantially filled” is unclear, and without a definite definition no one can know the metes and bounds of the patent. Without certainty, the law means nothing.

    Furthermore, the board applied the Packard standard (indefinite means a term is “unclear”) instead of the Nautilus standard (“reasonable certainty”) to this preceding because it believed SCOTUS’ mandate to use the BRI in Cuozzo provided guidance that internal PTO standards should be preferred to those used during litigation in district court in AIA proceedings. Without a clear mandate on which indefiniteness standard to use at the PTO, the choice of the Packard standard strikes me reasonable, especially in light of Cuozzo. As the PTO is better equipped to determine patent validity than a district court due to its specialty, deference to it in which standard it uses seems reasonable as well.

    With this backdrop, I don’t see how the PTAB’s determination was unreasonable. It does suck for the patent owner, but that could have been solved with better prosecution and claim construction. As the board stated, the prosecution history did nothing to clear up the ambiguity over the term “substantially filled.” And since this was extremely important and inextricably tied to the elastic band strength in the only independent claim, it doesn’t seem improper.

  7. Caesar Salazar February 26, 2017 5:11 pm

    Paul,

    Additionally, in your article you state:

    “But how else can you write the claims? You could use grams of water if a balloon was a solid structure, or perhaps if all balloons were exactly the same. But manufacturing processes that make balloons are not accurate processes. The thickness of the balloon’s wall varies greatly from balloon to balloon and even in the same balloon.”

    You are correct in a sense because balloons do vary, etc. However, the claim itself directly tied the elastic fastener to the concept of “substantially filled.” Thus the term isn’t just an isolated term and cannot be analyzed as such. It needs to be clearly defined in order to determine how tight the elastic fastener (i.e. rubber band thingy) needs to be. Context matters here, and in this particular context a person of ordinary skill in the art wouldn’t know how to design around the patent because of the indefiniteness of the claim.

  8. Caesar Salazar February 26, 2017 5:12 pm

    Paul,

    Finally, your assertion of “spoken like a true Googler” does nothing to advance the discussion. It only serves to derail the conversation with baseless accusations.

    Gene, I implore you to censure Paul for this indiscretion.

  9. Paul Morinville February 26, 2017 5:24 pm

    Caesar, First, the balloon patent, allowed in various forms five times, was filed originally in 2014. How does this fit your argument that the PTAB is draining the pre-AIA swamp?

    Second, the Federal Circuit disagrees with you and the PTAB. As Judge Moore stated, “You have to be able to say substantially, ‘cause there’s a million patents that use the word substantially.” Perhaps you can discuss for the audience how you reason that the word “substantially” should be no longer be used and literally thousands of patents should be invalidated as a result.

    As for the statement, “spoken like a true Googler”, I am surprised that you take offense to that. You did in fact speak like a true Googler. Google, as you probably know, is the driving force behind the destruction of the patent system and your argument is exactly what they used to create the fiction bought by congress… er… that bought congress.

  10. Caesar Salazar February 26, 2017 5:51 pm

    Paul,

    To your first point, this one patent could be the part of the “once a week” trash in my analogy before. Cleaning out a lot of trash in a draining operation can include trash that you would need to take out weekly anyways. Thus it doesn’t not contradict my statement about pre-AIA swamp. Perhaps this was the kind of “bad patent” the AIA was meant to sweep out going forwards (in addition to cleaning up past bad patents).

    To you second point, the Fed Circuit didn’t address the PTAB in its written decision. It was deciding the case based on the district court analysis and appeal. It only mentioned the PTAB in passing. It didn’t weigh in on the PTAB any further than mentioning it. Thus you can’t say that the Fed Circuit invalidated the PTAB on legal grounds. Perhaps they disagree, but that would be decided in a different case. Furthermore, Judge Moore’s comments in oral arguments are not indicative of the final decision. Any lawyer knows that questions/comments during oral argument are just that, questions/comments in order to figure out what’s going on.

    With regards to your worry about the word “substantially,” like I said in this case it was tied to another component, the rubber band tightness. As a simple analogy, suppose I were to design a chain designed to strap onto cargo containers when they are lifted by cranes. If I say that the links in the chains need to be of “such tensile strength so as to ensure that they will be able to carry a sufficient filled cargo container,” I would be introducing uncertainty. What constitutes a “sufficiently filled cargo container”? That directly ties into how strong each of the chain links need to be. You can see how this creates problems with regard to definiteness, especially when determining what constitutes an infringing product.

    Finally, I don’t take offense per se to your statement. I just think it’s unprofessional to call people out on something without evidence. I made a comment and immediately get accused of speaking like a true “Googler.” That would be like me saying to you, “Paul, spoken like a true patent troll.” Sure, both you and “patent trolls” are both pro-patent, so the statement wouldn’t be incorrect. However, as Gene has mentioned plenty of times, this does nothing to advance the debate and only functions to derail a topic into impermissible motive accusations.

  11. Anon February 26, 2017 8:31 pm

    Not to intrude into your exchange (toomuch), but Caesar, I find it more than just a little telling how you use the “Tr011” word:

    That would be like me saying to you, “Paul, spoken like a true patent troll.” Sure, both you and “patent trolls” are both pro-patent, so the statement wouldn’t be incorrect.

    What exactly do you think the “Tr011” position is that makes it “pro-patent,” and how would that distinction not apply to anyone that is pro-patent?

    It is as if you want to be subtle about the insult, but apply the insult nonetheless.

    On the flip side, the analogizing to the Google view is a bit more pernicious and a bit more explicit, given the evidence provided as to Google’s rather questionable activities, fund expenditures and general stance towards weaker patent protection.

  12. Paul Morinville February 26, 2017 9:35 pm

    Caesar, If you are asking me if I am a patent troll, you can easily find out who I am with a simple internet search. Unlike you, I use my real name.

    However to answer your question, one must first define a patent troll. Since there are so many definitions out there and many of these definitions mutually contradict. We must arrive at defining a patent troll in another way. I think the most reasonable way is to go to the results and work backwards to define the culprit.

    The AIA was by all accounts legislation intended to kill patent trolls. Taking a look at what was killed will give us the definition of a patent troll. The AIA made it practically impossible for any small entity to defend a patent against just about any infringer. I am indeed an independent inventor, which in my case is certainly a small entity, with infringed patents. So, folks like me were killed by the AIA. I guess now that we look at it in this light, I may actually be a patent troll after all.

    In your first point, you effectively argue that the AIA did not drain the swamp of “bad patents”. But wasn’t this the purpose of the AIA? Perhaps repealing the AIA is something we can both get behind.

    To your second point, the Federal Circuit did in fact address the PTAB invalidating the balloon patent. If fact, the infringer was arguing against the temporary injunction granted by the trial court and their key argument was that the PTAB invalidated it so there should be no injunction. This case is much more screwed up than you seem to understand. The Federal Circuit thumbed its nose at the PTAB and upheld the injunction because the PTAB’s argument for invalidation based on “substantial” did not pass the sniff test. Even more… the USPTO invalidated this patent in the PTAB while examination issued another patent after a disclaimer for double patenting siting the same PTAB. You cannot with a straight face tell me there is nothing wrong with this

  13. Caesar Salazar February 26, 2017 11:11 pm

    “Caesar, If you are asking me if I am a patent troll, you can easily find out who I am with a simple internet search. Unlike you, I use my real name.

    I am no more asking you if you are a patent troll than you are asking me if I’m a “Googler.”

    “In your first point, you effectively argue that the AIA did not drain the swamp of “bad patents”. But wasn’t this the purpose of the AIA? Perhaps repealing the AIA is something we can both get behind.”

    Not exactly. What I’m observing (which is why I use the words “could” and “perhaps” a lot) is that the AIA “draining operation” is a process that is still going on. Seems like they are working on “bad patents” from the past while continuing to move forward and addressing future “bad patents.” It’s an ongoing process, thus it’s too early to see if it failed in “draining the swamp.”

    “Even more… the USPTO invalidated this patent in the PTAB while examination issued another patent after a disclaimer for double patenting siting the same PTAB. You cannot with a straight face tell me there is nothing wrong with this”

    Like I said the PTAB’s rationale is reasonable on legal indefiniteness
    grounds using the standard that they did. As to whether CAFC would agree, it would have to be raised in another case as nothing in the opinion expressly disavowed it. The published opinion did not state that the alleged infringer was arguing against the preliminary injunction on these grounds. From the opinion itself:

    “Telebrands alleges that the district court abused its discretion by concluding that (1) the asserted claims were likely infringed; (2) the claims were not vulnerable on indefiniteness or obviousness grounds; and (3) Tinnus made a showing of irreparable harm. For the reasons stated below, we disagree with Telebrands and affirm the district court’s grant of a preliminary injunction.”

    Nowhere in there does it mention the PTAB invalidation. Like I said, it was mentioned in passing as a parallel proceeding. When you say “The Federal Circuit thumbed its nose at the PTAB and upheld the injunction because the PTAB’s argument for invalidation based on “substantial” did not pass the sniff test.” it is just speculation on your part. You may well be right, but the official opinion says nothing of the sort. Thus that is where we stand when speculation is taken out of the picture.

  14. Caesar Salazar February 26, 2017 11:15 pm

    Quick addendum to post @13:

    “Nowhere in there does it mention the PTAB invalidation”

    I mean to say nowhere in there does it mention the PTAB invalidation as a grounds for reversing the preliminary injunction. That was not the reason the CAFC officially affirmed the preliminary injunction. It did so based on the standard prelim. injunction analysis and just mentioned the parallel PTAB proceeding just to say “this is going on also so there.”

  15. Caesar Salazar February 26, 2017 11:40 pm

    Anon,

    You say “Please be aware (current feelings notwithstanding), a granted patent carries with it a presumption of validity.” While true, the phrase nemo dat quod non habet (you can’t give away what you don’t have) is also true as well. If the patents were defective in the sense that they shouldn’t have been given in the first place, then the question of validity presumption is moot.

    You also say “What exactly do you think the “Tr011” position is that makes it “pro-patent,” and how would that distinction not apply to anyone that is pro-patent? It is as if you want to be subtle about the insult, but apply the insult nonetheless.”

    I was simply analogizing that Paul calling me a Googler because I can see the reasonableness of the water balloon PTAB decision is no different than me calling him a troll because he doesn’t agree with it. What’s “telling” as you say is that you call me a “Tr011” using 1337 speak. If anything that belies your status as a “Tr011.” I don’t think Gene would approve of such baseless derailment.

  16. Anon February 27, 2017 12:00 am

    Caesar,

    Your reply makes no sense.

    1337 speak?

    Please try again. This time instead of word games, answer the questions directly.

    As to the quote in Latin as a reply, stick to English, and stick to the law. The whole point of a granted patent having that presumption of validity is that – by law – that presumption DOES attach at grant. You just don’t get to quip some Latin, wave your hands, and make it go away. Your attempt at being cute does not cut it.

  17. Caesar Salazar February 27, 2017 12:08 am

    I am making sense. I answered your question. Saying that I didn’t answer it ignores the fact that I did answer it. It is you that are playing the word games here.

    Furthermore, if a patent was granted that upon review is determined to have not been valid in the first place, then no property right attaches because there was never one in the first place. The quote in Latin is a legal term. https://en.wikipedia.org/wiki/Nemo_dat_quod_non_habet. No word games here, just legal terms.

    Also, your statement “Your attempt at being cute…” is a creepy statement. Cute? Are you trying to come onto me or something?

  18. Caesar Salazar February 27, 2017 12:15 am

    Also, you state “The whole point of a granted patent having that presumption of validity is that – by law – that presumption DOES attach at grant.”

    If you’re going to go with “the law” argument, you are shooting yourself in the foot here. This is because “the law” also states that the PTAB can invalidate a patent. So what are you trying to do, cherrypick the law? I guess in your words, that would be “cute.”

  19. Paul Morinville February 27, 2017 12:16 am

    Caesar, “I was simply analogizing that Paul calling me a Googler because I can see the reasonableness of the water balloon PTAB decision”

    That part of the discussion had not yet been brought up. I called you a Googler because you spouted the gospel according to Google that there are somehow so many patents out there that PTABs are just cleaning up the mess. “Thus they may be trying to “drain the swamp” from a previous era of the PTO”.

    But now after the discussion of the water balloon patent, I am very certain you are in fact… a …. Googler.

  20. Caesar Salazar February 27, 2017 12:27 am

    Paul,

    In post @2 I said:

    “I think this statement needs to be viewed in light of history. It seems like the majority of patents being invalidated were ones that were issued many years ago. Thus they may be trying to “drain the swamp” from a previous era of the PTO.

    The words “seems” and “may” mean that I do not necessarily hold those views. Rather I’m just stating an observation. Thus how can I be a true “Googler” as you say. Please read what others write and offer an informed response instead of mis-characterizing a statement.

  21. Caesar Salazar February 27, 2017 12:46 am

    Paul,

    Furthermore, you asked me to explain the invalidation in the PTAB, as if you were against the decision. I did explain the decision in hefty detail and you have yet to reply to the substantive arguments other than saying that “the Federal Circuit disagrees with you and the PTAB.” That’s not an argument, just quoting someone else’s disagreement.

  22. Caesar Salazar February 27, 2017 12:47 am

    Almost like a “one-word affirmation” of the CAFC, which many here are upset about. Please don’t stoop the level of using tactics like this when you don’t agree with others using them. It comes off as hypocritical.

  23. Anon February 27, 2017 7:17 am

    I answered your question. Saying that I didn’t answer it ignores the fact that I did answer it. It is you that are playing the word games here.

    Caesar,

    You most definitely did not answer my questions.

    You typed a response, but that is just not the same.

    Please re read my questions and answer them directly. The use of Latin – as you attempt – is NOT a use of “legal terms” and if you were an attorney, you would know that such Latin use is actually frowned upon.

    As to “cute” now you are being coy, as the context is quite clear that I was being neither creepy nor coming on to you. You strike me as already knowing that, but still attempt to divert attention in a slander back against me.

    Not accepted.

    Further, I explained why your reply was non-responsive. I ignored nothing.

    Further still, you quip “If you’re going to go with “the law” argument, you are shooting yourself in the foot here. This is because “the law” also states that the PTAB can invalidate a patent. So what are you trying to do, cherrypick the law” – and you would be incorrect.

    If you had been paying attention to this topic, you would note that even Congress cannot write further laws (and that includes further laws on patents, to which they are the branch of the government solely designated to do so) that transgress other Constitutional protections.

    There is no “shooting myself in the foot” going on, and I most certainly am not the one “cherry-picking” the law.

  24. Eric Berend February 27, 2017 8:00 am

    All (and in particular, ‘angry dude’, ‘anon’, jblang’, ‘Curious’, ‘Independent Inventor’ and Paul Morinville):

    Something about “Caesar Salazar” here, feels more like an Asian attorney for a large Chinese infringer, displaying their degree of legal expertise; whatever that may be; and, to see what kind of response can be drummed up to analyze for their own AIA-assisted piracy purposes.

  25. Caesar Salazar February 27, 2017 8:47 am

    Eric,

    Please don’t come up with crazy theories that I am some “bad” Chinese infringer. It comes off as uneducated and frankly kind of “lame.”

  26. Caesar Salazar February 27, 2017 8:57 am

    Gene,

    I implore you to censure Eric Berend for his indiscretion.

  27. Gene Quinn February 27, 2017 10:45 am

    Caesar @ 8 and 26 –

    I can assure you that neither Paul nor Eric are going to be censured. While I know you think they are personally attacking you, that is inaccurate. They are substantively pointing out that your positions are very closely aligned with Google (what Paul said) and/or a Chinese company that makes a living off knocking off products and flooding the marketplace with cheap, inferior products (what Eric said). Those are substantive.

    Truthfully, I have to agree with both Paul and Eric. Your views clearly slant in a decidedly anti-patent way. I wouldn’t say you are a Googler, as Paul did. I would tend more to agree with Eric, although the philosophy on patents would largely be the same.

    I also find it interesting that you question everything and everyone in virtually every thread, demand that articles be fixed to your liking and claim they lack citations, and then when people point out your obvious biases in a substantive way you cry foul. Very interesting indeed.

    -Gene

  28. Concerned Asian February 27, 2017 12:45 pm

    Gene, I find your accusations against Asian companies being barely hidden behind your racist use of “slant” to be both offensive and ignorant.

  29. Gene Quinn February 27, 2017 1:04 pm

    Concerned Asian-

    You can call my comments racist if you want, but that is asinine. What is ignorant is your attempt to needlessly and inappropriately interject race into a substantive discussion. Only someone with an agenda and absolutely no argument to back them up would resort to calling me a racist for acknowledging the absolute truth… there are MANY Chinese company that flood the market with cheap knock-offs. Only a biased, ignorant, shill would pretend that there is not a problem of counterfeits coming into US markets from China, and in many cases those counterfeits do more than just violate trademark laws — they violate U.S. patent laws.

    So call me a racist if you want, but you are wrong and your position is exposed. Name calling like that is the last refuge of someone who has no point, no argument and no intellectual capacity to engage on a substantive level.

    Please let me know if you need me to clarify my remarks. Happy to explain them further if you want me to. These types of low rent, stupid tactics won’t get me to back down.

  30. Caesar Salazar February 27, 2017 1:57 pm

    Gene,

    The problem is that they aren’t pointing out any biases in any substantive way. I simply make observations and people lurch with name-calling and the like. That seems very unprofessional. If you look at my posts I always respond with a substantive comment. You may not have time due to your busy schedule but I assure you the substance on my part is present.

  31. Anon February 27, 2017 2:19 pm

    Not always Caesar – your replies to me have not had that substantive quality at times.

    And you do seem to overplay the “apply the rules to them” card – especially being a “brand new poster.”

  32. Caesar Salazar February 27, 2017 3:00 pm

    Anon,

    I don’t get what you mean by overplaying the rules and being “a brand new poster.” Are you insinuating that since I am a new poster I have to follow the rules while more veteran posters don’t? It seems reasonable that all should be subject to the same rules. In fact that is the basis of our legal system. What does being a new poster have to do with it. The rules should apply to all equally. What you seem to be insinuating disturbs me.

  33. Anon February 27, 2017 3:41 pm

    I am not insinuating anything, Caesar. I am saying out right that once you have been around a while, have consistently contributed in meaningful ways, then the tolerance for “smack” or snark” or other minor transgressions does in fact go up.

    This is a perfectly natural way of operating a blog that will on occasion engender strong feelings. Especially when the system of government is out of whack (most notable – but not exclusively – the judicial branch).

    THAT is perfectly reasonable. Also, as you seem to purposefully not acknowledge, this blog has been subjected to repeated Tr011ing of late. You may and well play the “I am disturbed” card and that would entirely fall into the gas lighting meme. And when you do so play that card without regard to actual reality, human nature and the nature of blogging, well, then, that does fall along the lines that you are not on the up and up. No one is that naive.

    As to the direct point that I present at post 31: you simply have not done as you claim to do with “providing answers.” And I explained exactly why your reply was not an answer it at least one explicit case.

    I am a fan of being professional – but I am also not one to be constrained by any sense of false politeness – and the false politeness IS what you seem to be on about.

  34. Caesar Salazar February 27, 2017 4:03 pm

    Anon,

    I did in fact respond. Our correspondence related to the validity of patents and the invalidation of certain patents at the PTO. I responded by saying that if the PTO determines that it erred in issuing the patent, there is no presumption of validity because there is no patent. I fail to see how this is not a substantive answer.

    As to your comments regarding tolerance of comments on this blog, it seems rather akin to a fraternity with “hazing.” You acknowledge that it is human nature, yet appeal to the power of the law above men when speaking of issues relating to the PTAB, etc. This seems highly hypocritical. It sounds like you’re saying “we’ve been here a while so we are allowed to use snark remarks, it’s only human nature, but newcomers better not do so; they must be held to superhuman standards.”

  35. Anon February 27, 2017 4:25 pm

    Caesar,

    for reasons already provided, your “reply” was non-responsive. You still have not replied on point.

  36. Anon February 27, 2017 4:30 pm

    Your Label of “hypocritical” is noted and rejected.

    Your spin is of course, false, – and NOT what I am saying – NO ONE has said “just use snark.”

    What was said was in that some cases, snark can be used – and used effectively – as part of a give and take. Those that have established themselves (another point you glossed over) simply get more leeway. You appear to take offenses at this, and you have every right to an opinion that such is “not fair.” My response: grow up. Life is not fair, and not everyone coming in out of the blue gets treated the same – even under the same general rules (which is what I believe that you are trying to gas light here).

    There is NO “super human” requirement to establish yourself – that’s quite the false representation.

  37. Caesar Salazar February 27, 2017 4:44 pm

    Anon,

    If “life is not fair” as you say it, then under your own reasoning would you not be forced to accept interpretations of the patent law that you vehemently disagree with? If everyone does not get treated the same and you have to “deal with it,” then the same should apply to what you have written with respect to patent law. It seems like you aren’t practicing what you preach in this regard.

  38. Anon February 27, 2017 5:55 pm

    Accept? Not when I can persevere otherwise.

    To attempt to equate a patent blog general rule to the rule of law in the courts is beyond preposterous.

    This is exactly the type of post that is considered “tr011ing” and will land you in hot water.

  39. Anon February 27, 2017 5:57 pm

    I will also note that once again, you have been selective in your reply, omitting a number of things that go into the complete picture that you insist upon spinning.

    Ask yourself why that is.

  40. Gene Quinn February 27, 2017 6:05 pm

    Caesar @ 30-

    You have the audacity to complain here that others aren’t engaging you on substance and are acting unprofessionally when you posted a comment on an article authored by Steve Brachmann throwing him under the bus for listing on his LinkedIn page that he has a degree in Fine Arts and is involved in Acting in community theatre? WOW! How clueless are you?

    You took the time to research Steve to cut him down, but didn’t seem to take the time to figure out that he has authored or co-authored 770+ articles for IPWatchdog.com over the past 4+ years. Prior to being hired he was a tech writer with author credits at some major publications. Yet you question whether he is capable of reporting that Whirlpool obtained a permanent injunction against Chinese infringers? Curious indeed.

    Let me be perfectly clear. I am done hearing from the nameless cowards who refer to him in derogatory terms as an “actor not journalist.” That ends today. If anyone wants to post that kind of garbage a real name had better be attached and you better be ready for the response. That type of Internet hit and run is crap.

    If being a well rounded human being with interests outside of work offend you then that is YOUR problem. Steve is an asset. If you disagree the solution is VERY easy. Stop reading what he writes.

    Now enough of your crying that you are not being treated fairly and people are being too hard on you. That ship has sailed.

  41. hmmmm February 27, 2017 6:08 pm

    “The PTAB invalidates at least one claim in over 95% of the patents that it reviews.”

    […]

    “It defies reason that 95% of issued patents are “bad patents” and should be invalidated or neutered, and it is insulting that the Patent Office refuses to presume patents they issue are presumed valid despite the statute saying that examined and issued patents are, in fact, legally presumed valid.”

    It defies reason to imply the PTAB invalidity rate is representative of all issued patents – DoJ has almost a 95% conviction rate, does that mean 95% of people are criminals?

  42. Gene Quinn February 27, 2017 6:31 pm

    hmmmm-

    Brilliant! I love it! If that doesn’t put things in perspective I don’t know what will.

    -Gene

  43. Caesar Salazar February 27, 2017 6:33 pm

    hmmmm,

    Good point, there is a logical error there in Paul’s analysis.

  44. Caesar Salazar February 27, 2017 6:34 pm

    Gene,

    That would suggest that the moniker attached to the PTAB as the “patent death squad” is perhaps overblown as well, no?

  45. Anon February 27, 2017 7:34 pm

    Caesar,

    Your tr011ing is starting to push the envelope – and in the interests of you developing your thoughts further, I would advise you not to do so in such a school yard manner.

    There is a clear lack of equivalency from the statements made here to the supposition tha thte PTAB is a patent death squad because the contex tof the PTAB comment carries with it the context of those matters appearing before the PTAB.

    This is a simple and easy logical point, and one that you strain credibility with by pretending it does not exist. The level at which you supply certain case law points that this is just not an innocent mistake, and smacks of a hubris and an ulterior motive that (thankfully) has not found a home on this forum.

    You do come with some interesting questions, and definitely a different perspective, which COULD be healthy.

    Make sure that you do not play your game too coyly, lest you not be playing here at all (which, as I have indicated may very well be an end game for you – hence the gas lighting references).

  46. jbavis February 27, 2017 9:01 pm

    Caesar @ 6:

    “without a definite definition no one can know the metes and bounds of the patent. Without certainty, the law means nothing.”

    Traditionally, patents meant something precisely because once issued they were enforceable. That is certainty – and it helped both sides – it kept large corporations in line by dis-incentivizing theft of IP and incentivized small entities to innovate. Certainty – it was once fair, now the only certainty is that large corporations can do as they like and steal whatever IP they like.

  47. Caesar Salazar February 27, 2017 10:25 pm

    Anon,

    I’m not sure why you keep insisting that I am doing something that I’m not. Accusations of an ulterior motive and other sinister things are unbecoming of you. One could say that it is some kind of weird obsession/fetish that you have for my posts. You seem like a knowledgeable guy and I would like to engage with you respectfully, but one could interpret your responses as “creepy” to say the least. I don’t personally, but a reasonable person in the circumstances could.

  48. Caesar Salazar February 27, 2017 10:34 pm

    Anon,

    There is a clear lack of equivalency from the statements made here to the supposition tha thte PTAB is a patent death squad because the contex tof the PTAB comment carries with it the context of those matters appearing before the PTAB.

    You are quite right. However I point out the PTAB “death squad” concept because as I have pointed out in other posts, there is this obsessive compulsive obsession with the PTAB in the comments here on this blog. As hmmmm pointed out with the logical error, perhaps the PTAB fears are overblown.

  49. Anon February 27, 2017 11:29 pm

    Caesar,

    Your last post simply ignores reality, and that is just not the same as understanding the differences in context.

  50. Caesar Salazar February 27, 2017 11:40 pm

    Anon,

    It acknowledges reality. It actually takes into account differences in context. While the PTAB invalidation rate may be high, this is taken to mean that all patents are on the “chopping block,” which increases fears of patent owners. hmmmm was right when he noticed this.

  51. Eric Berend February 28, 2017 7:23 am

    All:

    I am done with tolerating the poster “Caesar Salazar” ‘s repeated and incessant obfuscations, inter alia: provocateur tactics of snide implications, “gaslighting”, double standards (e.g., the Steve Brachmann criticism), ‘ghost’ confrontations (i.e., runs right up against causing offense and coyly backs off) and shifting logic to support deliberately discordant remarks.

    These are disruptive and obfuscating tactics of rhetoric; of course, this is a well known and respected skill, from the time of the Greeks and before. I ask everyone reading this: does such rhetorical skill, presented here only in opposition, in the service of those who would continue the destruction of the U.S. patent system; offer any benefit to this blog forum?

    At this point, what further reason for tolerating this discord, can there be? In “Caesar Salazar” ‘s rush to overwhelm (“hijack”) nearly every comment thread he/she has been involved with, his/her viewpoints have been made abundantly clear. Is there really, anything more to learn, here?

    I have already respectfully requested that this poster be banned, in comments to another recent article; here, I reiterate that request.

  52. Anon February 28, 2017 7:53 am

    No Caesar, your statements do not acknowledge reality and misapplies comparisons across different contexts.

    You yet again spin with half-truths, and do not address the point that I have put to you.

    Be very careful in such games. You have been put on alert not to obfuscate.

    It is one thing to try to be clever and provocative. It is quite another when you cross the line and obfuscate with what others have stated. You are still trying to make an analogy fit that just does not fit because the contexts are different. Your reply of “It acknowledges reality” when clearly those contexts being different make it so that it cannot acknowledge reality is a non-starter and belies the “always polite” gaming that you are engaged in.

    Too clever by half, my friend.

  53. Paul Morinville February 28, 2017 8:07 am

    Gene,

    I implore you to censure Caesar Salazar for his indiscretion.

  54. Caesar Salazar February 28, 2017 1:51 pm

    Anon,

    Perhaps we are talking past each other. Let us try to figure out what went wrong.

  55. Caesar Salazar February 28, 2017 1:52 pm

    Paul,

    I did nothing to antagonize you. It was you who threw the first insult by calling me a “Googler.” Thus it is somewhat perplexing (and sad) that you want to censure me when it was you that committed the indiscretion.