Monday, February 01, 2010

Captain Renault lives on?

One of the memorable exchanges in the movie Casablanca was:

Captain Renault: "I'm shocked, shocked to find that gambling is going on in here."
Emile: "Your winnings, sir."
Captain Renault: "Thank you very much."

In 2010, Congress diverts fees from the patent office and the IAM blog is shocked that no one is outraged?

Poseurs masquerading as Claude Rains? A note to the IAM blog on its post, Where is the outrage? :

In the initial sentence of the IAM post, there is reference to a Patently-O post of 21 Jan 2010 [Director Kappos on the USPTO's (lack of) Funding].

John Schmid of the Milwaukee Journal Sentinel had posted on 29 December 2009 text including:

-->The Patent Office requested a provision that would have allowed the agency to spend up to an additional $100 million, assuming 2010 collections reached an appropriate level; the provision was inserted into early budget drafts. However, it was quietly stripped out at the last minute, the Patent Office said.

"We were expecting a $100 million cushion in the budget, and we were disappointed that it was taken out," an agency spokesman said.<--

So, the Patently O information had been publicly known for over three weeks when IAM used it.

Moreover, Schmid discussed the Congressional point of view:

-->The 1,088-page budget devotes more than three pages to the Patent Office, but omits any mention of the $100 million leeway that Obama and Kappos had requested.

Instead, the document castigates management at the Patent Office, citing "unacceptable deficiencies in USPTO's budget formulation and execution processes." It notes that the agency's fee income fell in part because its high rate of rejections means it collects less income from issue and maintenance fees.

Ironically, lawmakers "remain concerned by the lack of progress toward reducing patent pendency and overall patent backlog," the budget says.<--

The history of fee diversion through 2009 is well documented in the paper by Marla Grossman, so that the incident of December 2009 should be seen as merely another step along a well-known and well-reported path.

Separately, of --I had a look at the websites of both the Patent Fairness Coalition and the Coalition for 21st Century Patent Reform , -- the prior battleground of the lobbying groups had been apportionment of damages, a litigation issue, not a prosecution issue. When the Coalition for Patent Fairness failed on damages last year, they pulled up stakes and went home. It should surprise no observer that the present issue is not a major issue to the IT lobbyist people.

See also

INTERVIEW - Ex-IBM exec tries to reboot U.S. patent office

**related to the comment below, one notes that Congress flexing its muscles on "fee diversion" is hardly a news flash:

Text within the Milwaukee Journal Sentinel post on 29 December 2009 includes a reference to AIPLA:

-->"I can neither justify nor understand why they would do that," said Q. Todd Dickinson, the executive director of the American Intellectual Property Law Association [AIPLA] and a former director of the Patent Office. "Innovation is the traditional way we get out of recessions."<--

IPO and AUTM have long been on record as opposing fee diversion:

-->IPO has long advocated for adequate funding for U.S. Patent and Trademark Office (USPTO) and an end to the diversion of user fees away from the agency. <--

-->We also have and will continue to support efforts to prohibit fee diversion. <-- [from a letter of Oct. 22, 2009 co-signed by the president of AUTM]

I think the positions of these organizations has been unmistakably clear on fee diversion. Was it necessary for them to criticize a "done deal" in Dec. 2009 when their position had already been clear? No need to re-state the cumulatively obvious, especially when it would have no impact. As to the State of the Union, President Obama could have spread his "Citizens United" criticism of the Supreme Court to Congress on this patent matter, but he didn't. Where was his outrage? What impact was the email of Director Kappos to the USPTO staff going to have? Did he address the "unacceptable deficiencies in USPTO's budget formulation and execution processes?"

As to the story being "underreported," the Journal Sentinel article made its way to a number of places, including,, the 271Blog, and even Greedy Associates.


Of -- When the Director of the USPTO is talking in this way and when the office's annual report also paints a bleak picture you can be sure that the situation is a dire one. What I find strange is that there seems to be so little anger in the wider US IP community - at least if its lobbying and advocacy organisations are anything to go by, -- as noted in my previous post, groups such as AIPLA, IPO, and AUTM have already taken strong stands against fee diversion. Sadly, Congress has the right to divert fees, and has been doing so. As Marla Grossman points out, this is the true "tax on innovation," making patent applicants pay money that goes not to examine the patent, but to general revenue. What do you expect the various groups to say: fee diversion is wrong, and this time we really mean it? As to the Kappos email, is an email to USPTO staff going to move Congress more effectively than what Schmid had already published?


Blogger J Wild said...

Lawrence - I linked to the Milwaukee Jounal Sentinel story in my blog of 7th January on USPTO underfunding:

The blog you are talking about here references PatentlyO specifically in relation to an email David Kappos wrote to USPTO staff, which had not been written when the MJS article was published.

The blog above also talks about the AIPLA, the ABA, IPO, LES and AUTM, none of which was set up specifically to deal with issues around the Patent Reform Act. I remain surprised that none of these organisations seem to have spoken out against what is effectively a budget cut at the USPTO.

I am sorry that you do not understand any of this. Joff

8:02 AM  

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