Saturday, May 23, 2009

USPTO examiners told to allow more cases?

A post on 22 May at IPWatchDog titled Patent Examiners Told To Issue Patents includes the text: The patent examiner told Mark that about 2 weeks ago management told the examining corps that they need to start issuing patents. This may seem strange to those who are not familiar with how the Patent Office has been operating, but this is sadly important news to report. IPBiz notes that allowance rate has always had a political component. We can thank Cecil Quillen and his fanciful assertion of a 97% grant rate for provoking Jon Dudas into the recent rejection frenzy, which now may be abating because of economic reasons.

Elsewhere, on 21 May, IAM noted the continued absence of a USPTO director:

It is now three weeks and counting since Gary Locke, the US Commerce Secretary, stated that he had made the choice as to who would be the next Director and that the only thing that stood in the way of revealing his identity was the vetting procedure. Well, it must be one heck of a vetting procedure is all I can say.

Back at the Obama ranch, there was time to name Charles Bolden, a four-time space shuttle astronaut and retired Marine general, as administrator of NASA. No time for patents, though.

Separately, IAM noted the following:

More than 20% of companies in North America plan to decrease their spending on innovation during 2009, according to a recently published survey conducted by the Boston Consulting Group. In Innovation 2009 - Making Hard Decisions in the Downturn, BCG also reports that globally innovation is seen as a top three priority by 64% of responding companies. That is down from 72% in 2006.

I know that it is wrong to equate spending on innovation with patent filings, but I can't help wondering whether this means that the recent declines in the number of applications we have seen in many patent offices - including the USPTO - is set to continue for some time yet, with the US perhaps being among the most affected. Some of the findings of a recent study of Fortune 1000 companies undertaken by BTI Consulting may also indicate that this is a possibility. Having spoken to senior corporate counsel at 370 companies, BTI reports that legal budgets are set to increase in the second half of 2009, after 12 months of decline. However, the picture is not so rosy when it comes to IP. In contrast to areas such as regulatory and bankruptcy/restructuring, general IP spending is forecast to go down by 4.4% during the rest of this year, while the amount dedicated to IP litigation is set to fall by over 7.5%.

IPBiz suggests IAM recall "who" the authors of "plagiarize with pride" were.

Separately, 271 Blog went to Patent Docs for some insight on Tafas v. Dudas:

Prof. Duffy, noting his background in administrative law, suggested that Ms. Knowles would not be happy if the Supreme Court ever got their hands on the case. When Ms. Knowles stated that she thought the Supreme Court would provide a more favorable ruling for GSK than the Federal Circuit did, Prof. Duffy jokingly advised her to hire some new attorneys. When asked about his Supreme Court prediction after the session, Prof. Duffy indicated that the Supreme Court (where he once clerked) was not as familiar with patent law as it was with administrative law, and therefore, the Court would likely defer to the USPTO with respect to its interpretation of 35 U.S.C. § 120, and thus find the rule limiting continuations to be consistent with that section.

IPBiz suggests the plain language of 120 would not get the USPTO past step 1 of the Chevron two-step. Further, right now, the USPTO needs all the applications they can get. Why appeal?

Finally, and separately, a "where are they now" moment. Back on 26 March 2008, MATTHEW L. WALD of the New York Times ran a puff piece titled For Carbon Emissions, a Goal of Less Than Zero which included the text:

More audacious is a plan by two professors at Columbia University to suck carbon dioxide out of the air, using waste heat from a solar plant, which has no smokestack.

Peter M. Eisenberger, a professor of earth and environmental sciences whose résumé includes positions at Exxon and other major companies, and Graciela Chichilnisky, an economist and mathematician, have proposed a “global thermostat strategy,” which would adapt a chemical process for capturing carbon dioxide from smokestacks.

Ordinarily, the process requires a large amount of energy. But the professors noted that McMahan L. Gray, a scientist at an Energy Department laboratory, has modified the process so that the relatively small amount of waste heat from a solar-generating plant could do the job. They estimate that they could remove about five pounds of carbon dioxide per kilowatt-hour of electricity produced. (A coal plant emits about two pounds when it makes that much electricity.)

Fast forward to fall 2008 to see how the corresponding PCT [PCT/US2008/064311; WO 2008/144708] of the "audacious plan" fared with a USPTO prior art search.
[see the last page of the publication.] For all Quillen's squawking about bad searches by the USPTO, and low quality patents, the USPTO did a lot better than the New York Times.

As one other footnote to the Wald article, in the old days, when a person to be featured in an article worked for Bell Labs and for Exxon (as Eisenberger did), an author would emphasize the Bell Labs connection. Here, Wald omitted Bell Labs. Wald also omitted that Eisenberger is actually a physicist by training and experience.

**Totally separately, note

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