Thursday, October 15, 2009

Pablum from the PTO?

Patent Docs reported on a meeting in Chicago involving Cameron Kerry and Sharon Barner. The Patent Docs discussion evoked a "meet the new boss, same as the old boss" theme, with comments like:

However, he also said that the PTO administration needed something more in order to solve the problems the Patent Office is facing. That something more is patent reform, and as became evident, particularly and specifically substantive rulemaking authority for the PTO. This is what is needed for the Office to provide "quality" patents (the first red flag), and "certainty" (another), and of course improve patent litigation and promote global patent harmonization.

Yes, the "new" USPTO dropped the rules package. But recall, the rule on limiting continuing applications did NOT survive the CAFC, and would not have had a significant impact on backlog. The more important thing to note is that the "new" USPTO crew is pushing "patent reform" legislation, just like the "old crew" did.

We still have the usual hand waving about quality with no real insight. Patent Docs noted: it has been evident for some time (and maybe it was always the case) that the definition of a "good quality patent" is one's own patent, and "bad" or "poor quality" patents are those held by one's competitors. Mr. Kerry also asserted that a "bad" or "poor quality" patent is one having a claim or claims that should not have been granted, thereby echoing the standards of the "second pair of eye" review that has led to a precipitous drop in allowances (and ironically has contributed to the financial shortfall experienced by the Office over the past year).

There was a suggestion of lack of hands-on knowledge: Ms. Barner said that most examiners want to do their job and want to do it well, and that they have been trying to do so under some "very trying" circumstances. She believes there has been "abuses" of the rules that "keep applications churning" in the Office (frankly, demonstrating a lack of understanding about how examination has been happening in recent years). Mr. Kerry noted that Mr. Kappos had reached out to the examiners and the union to try to address their concerns.

One notes that patent reform efforts, especially as to apportionment of damages have NOTHING to do with running the USPTO.
Patent Docs concluded: leave patent reform efforts (benighted or otherwise) to others.

Of "patent reform", while some characterize this as "IT vs. big pharma," one must recall that other players are involved. Dow Jones noted: An Oct. 15 letter by 12 Senators to Senate leaders backs criticism against the legislation being levied by independent inventors and academics who argue the bills favor major technology companies.

Pharma is not the only entity opposing S.515, AND the USPTO should not be lobbying for one group of inventors over another.


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