just_n_examiner ([info]just_n_examiner) wrote,
@ 2008-04-01 23:04:00
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Wow. Continuation Rules Declared Null and Void
This will no doubt be dissected on all of the patent blogs over the next few days. It will likely make for some interesting reading.

Patently-O


The Order

The Opinion


The end result is that things are back where they started (for now). Still a pendency problem.

The decision also raises a question: since the Office cannot implement the proposed rule changes, anybody got a productive suggestion for alternative plans that might help deal with the backlog?

(Post a new comment)


(Anonymous)
2008-04-02 03:43 am UTC (link)
Patent worksharing between offices and allowing applicants to suspend prosecution before first action are two proposals I liked.

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(Anonymous)
2008-04-02 06:21 am UTC (link)
Worksharing? With whom? ROW dances to different music entirely. Between US Exrs and ROW there is precious little common ground, not just on substantive law but on how to administer it. The USA uses adversarial English common law. England is part of Europe these days and Europe, Asia and ROW uses civil law, which isn't so adversarial as common law. It's because prosecution at the USPTO is uniquely (and unecessarily) adversarial that you are in this mess, but short of dumping common law and joining ROW I have no idea what the solution is. Prosecution at the PTO doesn't have to be adversarial. Just tweak the system so Applicants have an incentive to go to issue with patents that contain no bad claim. Then Exrs and Applts work together, to squeeze out the dross. By "bad" claim, I mean one that, on a preponderance of evidence, lacks novelty or non-obviousness.

Deferred examination? Now there's an idea. Europe used to have it. Dumped it 30 years ago. But for a jurisdiction that suffers violent pendulum swings concerning what's patentable, there might be a real fit there. Good idea.

Now that the EPO is pumping out its EESR'S soon after each new app arrives, USPTO Exrs can visit the file on www.epoline.org and read the EPO's "FAOM". Bite on that. Often it's not a bad work product to lean on.

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(no subject) - (Anonymous), 2008-04-02 09:08 am UTC (Expand)
(no subject) - (Anonymous), 2008-04-02 10:41 am UTC (Expand)
Get rid of your management, deferred examination, and stop giving counts fot "churning"
(Anonymous)
2008-04-02 10:58 am UTC (link)
The USPTO management understands neither the mandate/purpose of the agency (to promote the progress of Science and the Useful Arts), not does it understand the current problems with the patent process (e.g. churning). It merely has tried to address the symptoms, with a hammer, not a scalpel).

Deferred examination keeps the JPO from a billowing backlog. (The JPO has more annual patent application filings than the USPTO.) Of course, I suspect the CPF companies are against deferred examination because it would preserve for several years or more (rather than obliterate) patent application filing rights.

Currently, Examiners get one count for each FAOM and one count for each disposal (allowance, abandonment, or RCE equivalent). This system rewards Examiners who can stall the resolution of true issues (e.g. with piecemeal rejections) rather than bring the issues to a head. How about revising the system to stop rewarding conduct that merely recirculates applications by revising the count system so that:

1) if a continuation is filed of an application which goes abandoned, don't give the Examiner a count for the abandonment (since obviously the applicant has not "abandoned" pursuing the invention), but he still gets a count for the next FAOM;

2) if an RCE is filed, don't give the Examiner a count for the RCE, but give him one count for the next action on the merits.

To give the Examiner's counts for actions that resolve nothing (abandonment/continuation, forcing a continued examination but not doing any continued examination) seems to just promote resolving nothing.

And to make up for the lost Examiner counts, maybe you could give Examiners two counts for:

3) abandonments that don't result in subsequent continuations;

4) allowances that terminate a family or perhaps a family chain (i.e. no subsequent continuations).

Regarding 3) a killer rejection with killer art would be granted double-count credit. I understand that 4) might be dangerous (prompting Examiners to issue the cases as filed) but perhaps there could be a second review of all first action allowance attempts (or of cases issued without any significant claim amendments)... resulting in loss of counts for the Examiner and/or other actions in the case that errors are determined.

(Reply to this) (Thread)
Re: Get rid of your management, deferred examination, and stop giving counts fot "churning"
(Anonymous)
2008-04-02 01:37 pm UTC (link)
the problem with punishing examiners for a continuation being filed on a case that then goes abandoned (and yes, not giving the examiner a count for that abandonment just because a continuation was filed is a punishment) is that it's not always, and in fact I'd say it's rarely, the examiner's fault that the applicant chose to file the continuation. Applicants relentlessly abuse the continuation system to avoid public notice and create "submarine patents" by filing a continuation, then abandoning the parent, filing a continuation on the continuation, abandoning the first continuation, and so on... I've examined cases that claimed a priority date all the way back to 1999 in this way without a single FAOM on ANY application in the chain of priority (so you can't say they did it for any reason having to do with examination).

As for the RCE thing, not gonna happen; RCE counts are part of the POPA agreement.

-MM

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Re: Get rid of your management, deferred examination, and stop giving counts fot "churning" - (Anonymous), 2008-04-03 11:24 am UTC (Expand)
Proposed backlog solution
[info]humbleagent
2008-04-02 11:32 am UTC (link)
Give examiners a budget to hire technical consultants if a term of art or concept in an application is unfamiliar to them or their peers.

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Re: Proposed backlog solution
(Anonymous)
2008-04-08 01:52 pm UTC (link)
I would love to have more technical training, but upper management considers 4 hours a year of technical training plus reading applications to be enough.

When I had a chance to do an examiner education trip a few years back, most of the questions I had at the various companies were related to what trends they saw in the future etc.

(Reply to this) (Parent)
Cost?
(Anonymous)
2008-04-02 01:29 pm UTC (link)
These rules never had a chance, so it's not really a wow that they went down on summary judgment.

Hopefully there will be some fallout for the deranged PTO policy wonks that came up with this plan as the cost of these failed rules is staggering (~12 hours training time for each examiner, hundreds of hours in PTO attorney time in drafting the rules and responding to comments, many thousand dollars in wasted client money in preparing strategies for complying with the new rules, etc.).

Toupin (PTO General Counsel) is already squawking about appeals all the way to the Supreme Court. Instead of wasting more money andtime with frivolous appeals, perhaps the PTO could spend this money and time on IT improvements and more AU-specific examiner training.

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Re: Cost?
(Anonymous)
2008-04-03 03:05 am UTC (link)
Who were these examiners that got 12 hours of training on the new rules? I got one hour, and it barely even qualified as training. I'm happy to see the rules die.

No magic bullet for reducing pendency, but here's two obvious steps:

1. Improve examiner retention--this has been discussed ad nauseam, but the bottom line is that experienced, higher-graded examiners get through more application, and the more you retain, the fewer you have to hire, so less time and resources is spent on training.

2. Calibrate examination to allow more close calls.

I don't like any ideas that would try to reduce the number of applications filed, aside from the fact that most of these ideas seem to be illegal, more applications means that business is good for everyone.

(Reply to this) (Parent)
proposed solutions
(Anonymous)
2008-04-02 03:35 pm UTC (link)
1) Create satellite USPTO offices across the nation to take advantage of the deep well of engineers and scientists who would likely make excellent Examiners but do not want to relocate to the DC area.

2) Increase filing and related fees to pay for the new offices and Examiners.

I know that this may sound like just throwing more people and money at the problem (and maybe it is :-)) but I believe that the quality of examination could improve if the agency were to take greater advantage of the talent we have nationally. From a personal standpoint, I may have had a career as an Examiner had an office been located in any one of the major cities in my region.

I also believe that applicants would also be willing to pay more (as long as the increase wasn't prohibitive - ESDs anyone?) for examination. After all, obtaining patent protection is an expensive endeavor, and any nominal to moderate increase wouldn't deter someone from seeking a patent on their invention if they believe it would be worthwhile from a business perspective.

My two cents.

(Reply to this)

Productive suggestions
(Anonymous)
2008-04-02 03:43 pm UTC (link)
from David Boundy

1. Follow the statute - set fees at a cost recovery level

One of the problems the PTO seeks to cure is the costs the PTO bears when applicants are aware of a large number of prior art references and find themselves obliged to submit them to comply with their duty of disclosure.
The PTO has both the authority and the obligation to set fees for submissions of large IDS'es. 35 U.S.C. § 41(d)(2) (Office “shall” set fees at a cost-recovery level). Instead of following Congress’ instructions, the PTO’s most recent proposal was to reduce the fee for precisely the activity that it complains of as creating the greatest burdens.
The PTO should follow the law, set fees at cost-recovery levels, and place burdens where they belong.

2. Follow the Statute - Implement Deferred Examination

The PTO should implement deferred examination.
Alone among major world patent systems, the U.S. Patent Office is the only one that fully examines applications that applicants have decided to abandon. Every other country has a “deferred examination” system, in which an applicant can wait a few years after filing to later request examination. A third party can request examination at any time. That way, only applications that are still “live” and have some economic effect are examined. In deferred examination countries, between 10% and 20% of applications are allowed to die with no expenditure of examination resources.
But the U.S. PTO has not implemented this “deferred examination,” even though Congress specifically authorized it in 2004. When the PTO wastes examination on a “given up for dead” application, it exerts 70% of its total effort for 1/8 of the revenue. The 10-20% of applications that could be purged from the system are more than the PTO’s backlog growth.
Also, the misallocation of resources is a large factor in the PTO’s difficulty in delivering quality examination.

3. Calibrate Examination Time to Application Complexity

The PTO has observed that it makes more errors in examining large applications than small ones. The reason is simple: the PTO gives every examiner a uniform time budget for each application, small or large, complex or simple. Of course examiners make more errors when they have to give the same amount of time to larger applications.
Applicants pay higher filing and examination fees for more-complex applications (which, as a practical matter, are the most commercially important ones). This greater fee income for complexity should be passed on to examiners in the form of greater examination time for complex applications. This would have the important collateral effect of focusing examination on the most important applications.
The examiners’ union has been asking for complexity-scaling of examination time for years.

4. Follow Executive Orders and other Written Law, Including Procedural Law

The PTO has no enforcement mechanism for its procedural rules – the PTO states that examiners are given “freedom to independently decide” the rules, which procedures to ignore and which to apply, and when to make up new rules against applicants out of thin air. The PTO restated its refusal to provide any enforcement mechanism for its procedural rules in the August 2007 Final Rule notice. 72 Fed. Reg. 46752, col. 2-3 (issues relating to examiner failure to comply with “procedural terms” will not be reviewed by any tribunal in the Office); Ex parte Siefert, 2003 WL 25277985 (Bd. Pat. App. 2003) (Board cannot review procedural issues, and because of the procedural breaches, Board has an insufficient record to review substantive issues). Much of the PTO’s inefficiency and lack of quality arises because the Office wastes so much time correcting its own errors, rather than enforcing its procedures to ensure quality examination.
If the Patent Office simply implemented the President's instructions in Executive Order 13422 and OMB instructions by compelling its employees to follow written rules, many many problems would be solved.

These are all simple ideas that would pay big dividends. Others have commented that the problem is PTO management. I add my observation that the PTO's General Counsel is off on an arrogant policy-making thrill ride, instead of advising his client to follow the law.

(Reply to this) (Thread)
Re: Productive suggestions
(Anonymous)
2008-04-02 03:52 pm UTC (link)
Great suggestions David Boundy, but in what sense is examination in the EPO deferred? These days, the EPO FAOM (called the EESR opinion) issues with the search report, just a month or two after filing the app. I guess you mean that Applt doesn't have to reply straight away, but the EESR represents a ton of work for the EPO Exr. in nearly all cases way way over 50% of all the time spent on the case.

(Reply to this) (Parent)
Re: Productive suggestions
(Anonymous)
2008-04-03 01:15 am UTC (link)
Great post and great ideas. Regarding #3, how about tying the number of counts to application and/or number of independent claims. Once the application gets to a certain size, at least the FAOM would earn the examiner 2 counts instead of 1. Then, drop back to one for subsequent count opportunities, since presumably the Examiner would understand the case by that time.

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Re: Productive suggestions - (Anonymous), 2008-04-05 12:49 pm UTC (Expand)

(Anonymous)
2008-04-02 05:05 pm UTC (link)
Posted over on Patently-O, but thought I would put it here, too, since it fits.

"My" solution (actually may have read some of it somewhere 1st) would take care of many of the problems we discussed as well as (I think) help with the backlog, as well):

1. NO substantive amendments to the claims after a 1st action int he case. This ensures that the applicant can/will have claims in accordance with the MPEP (broadest they think they are entitled to down to the most narrow they are willing to accept). The only amendments that can be entered would be rewriting in independent form, cancellations, or minor amendments to correct typos/antecedent basis/grammar, or to put in proper form for 101 (not going to argue that here).

2. After the 1st 20 or so claims, drastically (e.g., exponentially per claim) increase the fees for additional claims filed.

3. Let the applicant determine how many claims they want examined. They must have all independent claims examined. Dependent claims are optional to be examined. They pay an examination fee for all that they want examined.

4. MAYBE allow some substantive amendments (adding limitations, not deleting) upon filing an RCE/CON/CIP? Negotiable.

What this will also effectively do is "encourage" the applicant to do some preliminary search & see what is out there already since they can not claim the world & then narrow it down depending on what is found. It does not MAKE them do it, though it would usually be good sense to do it.
"Enlightened self-interest" is usually the best way to get people to do what you want them to do.

Opinions?

Thanks,

LL

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(Anonymous)
2008-04-02 05:25 pm UTC (link)
1 and 4 don't make any sense.

What happens if applicant discovers 102(e) art (e.g., art that was not public when the application was filed) during prosecution? Is the applicant forced to abandon the application instead of claiming some more narrow (but possibly valuable) features that are fully disclosed in the (now published) application?

Wouldn't it be easier to amend 35 USC to abolish patents?

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Why don't we hear more about the cost of bad examination - (Anonymous), 2008-04-06 06:37 pm UTC (Expand)

(Anonymous)
2008-04-04 01:53 pm UTC (link)
LL,

How the heck are we supposed to anticipate just what reference, or more likely, what combination of references the examiner will use to make a rejection? Presently I'm in a telecon where I've discussed a rejection where the examiner pulled some 1940s patent as a secondary reference, which is IMO, way outside the field of relevance (because he couldn't find a key limitation in the more relevant art). And now with KSR essentially eviscerating the concept of analogous art, all bets are off.

Limiting the applicant to a single substantive amendment under these circumstances would be entirely unfair.

bierbelly

(Reply to this) (Parent)
Backlog of CIPs
(Anonymous)
2008-04-03 05:45 pm UTC (link)
How many continuations are filed because of some combination of (i) final rejections without real understanding of the claimed invention, and (ii) reluctance of applicants to appeal a final rejection? So, give an applicant, who receives a final rejection, some productive options other than filing a CIP, RCE or an appeal. None of the present options reduce the number of pending applications, and indeed, may increase the number.
http://leethomason.com

(Reply to this)


(Anonymous)
2008-04-03 05:47 pm UTC (link)
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

Not so serious suggestion: Put some teeth into the "useful" part of 101. Quite a few times I read applications and ask myself "Why would anybody do this?"

(Reply to this) (Thread)

(Anonymous)
2008-04-03 09:43 pm UTC (link)
it has teeth... there's a utility requirement stemming from the word "useful" in 101... it serves to filter out inventions that do nothing (either by design or by laws of physics)

-MM

(Reply to this) (Parent)
Two random suggestions
(Anonymous)
2008-04-10 08:17 am UTC (link)
Here are two random suggestions for cutting backlog:

1. Allow multiple RCEs, but charge exponentially more at each (such that persistent applicants essentially pay the PTO to hire and train more staff). This idea could be expanded to include continuations--or any way for an applicant to pursue more prosecution by the office for a given filing date and specification. That is, first RCE or CON, on the order of 1K dollars. 2nd, about 2K. 3rd could cost 7k and the fourth could cost 14k. You see where this goes. If your client really, really wants the protection, and believes that it's novel and non-obvious and valuable, they could pursue it. And those people could pay for some more examiners and training.

2. Examiner's search results go to applicant before FAOM, setting a 60 day SSP, essentially allowing for an optional preliminary amendment. In this hypothetical scenario, the examiner doesn't have to draft the first OA, just send the search results. I imagine that in most cases, the prosecuting attorney would review the examiner's search results and find some limitation in a dependent claim that overcomes prior art, and build it into the independent claim, but would also remove some limitations from the independent claims. This might effectively allow another "round of prosecution", in which PTO staff don't have to do so much work. This fits the spirit of letting a clear issue develop between the applicant and the examiner. This could have the outcome of speeding up prosecution in patent cases.

Just two totally random ideas.

Zack

(Reply to this) (Thread)
Re: Two random suggestions
(Anonymous)
2008-04-10 07:37 pm UTC (link)
With suggestion 1, applicants will just appeal after maybe the first RCE (whenever it gets to be cheaper to appeal). This could be either a good or a bad thing.

With suggestion 2, no attorney worth his registration number is going to take search results with no rejection articulated, read into them a rejection that may or may not be made in the future, and limit his client's claim scope around it. At least that's what I think, I'm not an attorney yet. JD or any of the others who railed against the ESD could probably go into more detail, as I think the arguments would be similar (though in this case they could just ignore the search results; with the ESD they would have been required to shoot themselves in the foot).

-MM

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Love Conquers Evil !
(Anonymous)
2008-04-25 03:21 am UTC (link)
I've been quiet lately. I am so happy, so so happy. Happy happy happy.

I had to get that out. Hope everyone else is doing fine. PTO, this is the beginning of the end of the black plague. Wonderful news.

Regards and remember, love is all you need!

JohnG

(Reply to this) (Thread)
Re: Love Conquers Evil !
(Anonymous)
2008-04-25 01:52 pm UTC (link)
Well Dag-nabit! Of course! Duh! Love is the answer. Thanks for sharing.

Can you send a little lovin' Mr. Darlings way, I sense he could use some.

BTW are you smokin' or snortin' this happiness?


Zaminer

(Reply to this) (Parent)
Proper training of new examiners
(Anonymous)
2008-05-07 06:47 am UTC (link)
The academy is definitely teaching the new examiners how to apply statues and write a rejection. However, from what I have seen, the office is failing to train examiners how to "think" like a patent examiner. When I say "think" like a patent examiner, I mean how a new examiner breaks down a claim and applies art, as well as properly explaining to an attorney how a portion of a reference reads on a claim, especially if a broader read on the claims is applied. This is critical for production survival and workflow.

I've also noticed that the environment down in the training classes is far from relaxed. How can new examiner's be retained, if they are constantly being pressured and stressed out by the trainers? It's not a secret that if you don't get your production up to par by the time you leave the academy that you are going to be let go, why not just mention this every now and then and concentrate on properly training the new examiners, instead of stressing them out.

Half the people I know that have left, just can't stand the unneeded stress. These people have engineering degrees, it's not like they can't go elsewhere to find a job with less stress and with properly train them to do their job properly. The office should respect and recognize this, because without a more targeted training program, retention problems will continue.

I do think the academy has it's positive points. New examiners get more time to ramp up and learn the art and certain points are being stressed that were not stressed when I first started (such as focusing in on the problem the invention is trying to solve). I just think we can do better. Once we do I really think a dent will be made in some of the problems at the office. New examiners can meet production easier, therefore creating less stress and we won't lose as many people.

(Reply to this)


(Anonymous)
2008-05-07 05:05 pm UTC (link)
The PTO filed an appeal to the CAFC

Stay tuned.

-GratefullyExExaminer

(Reply to this)

change how applications are examined to stop backlag
(Anonymous)
2009-02-16 04:02 am UTC (link)
Three examiners should look at each application. Two must agree on art cited and rejections. As done now the one examiner can cite anything, change the drawings, change the wording, get angry at the patent attorney,and reject for no just reason. When amendments and/or arguments are made the same examiner replies " not persuasive " ,forcing the inventer who knows he has a patentable item to spend time and money on a continuation.Then you receive notice " submit new drawings, we ruined the ones first submitted". There are many continuations on your shelves that should have been issued patents years ago. This prevents good items from reaching market and helping the economy.Thirty years ago when the USPTO tried to help me get a patent I could get one in a year. Now when the USPTO does everything possible to keep me from getting a patent I can not get one in four years. I have many inventions that I want to patent,but not enough years remaining to do so . I am 71 years old.

(Reply to this)

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