Tuesday, October 27, 2009

MaxDrei comments at IPBiz on post-grant review

In a first for IPBiz, MaxDrei has posted a comment, related to post-grant review [see
Kappos on the USPTO: "the nose of this airplane is pointed down"

Dreaming is what it is, but one can see how post-issue validity proceedings could be the solution. Go to registration only, and decide post-issue validity on the preponderance standard, but retain the Presumption of Validity. The PTO could do a great job of deciding validity, in the context of disputed, inter Partes proceedings, post-issue. But could it be done in a year? Again, I think so. The English High Court does it that quickly, utterly routinely, with discovery, expert reports, cross-examination, full trial. If London can do it, why not also DC?

Now, if we can get MaxDrei to read Deming, we may be getting somewhere.

As a first point, the objective of the patent system is to get public disclosure of inventions which are useful, novel, and nonobvious, which are written down so one of ordinary skill understands "what" they are and "how" to practice them. We don't want an "anything goes" registration system where anybody gets a patent on anything. This is overburdening the public with chaff. If the IT folks aren't reading patents now, imagine what they do in a registration-only system!

As a second point, once we understand "why" we have patents, then we apply Deming. If one has a problem with production of product (here, examination for useful, novel, etc.), we do NOT apply a product inspection step (eg, post-grant review). That is a waste. We allocate resources to fix production (eg, examination).

As to dreaming, the USPTO is supposed to conduct re-exams with dispatch. The record speaks for itself. Our question is not what the English High Court might do, but what the USPTO already has done. Case closed.

(posted from Washington, DC)

**As to the comment below, IPBiz does not believe small inventors find "first to file" beneficial to them, and, if small inventors lose their incentive,... But if the rumors are true, first to file and PGR are done-deals.

As a distinct point, there was someone at the BIO-IPCC who believed that the USPTO could offer a speedy post-grant review.
IPBiz would prefer giving the USPTO the amount of resources it needs to conduct a more thorough exam in the first place, so we would not be talking about a speedy product inspection step. We should not be controlling quality by inspection AT ALL. That is so anti-Deming.

Also, European clones of MaxDrei at IPCC were saying that KSR was merely adopting the European approach...


Blogger MaxDrei said...

Hi Mr Ebert, nice that you give me such prominence. Good luck with the blog.

And nice that we agree on the objective of a patent system.

Can we agree that this objective is better served by a First to File than a First to Invent system? Can we agree that the information dissemination function is discharged by the WO/A publications but that a functional subject matter classification system is also essential, so the IT boys can effectively monitor emerging WO publications?

12:13 AM  

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