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(Slashdot)   Patent lawyer loses his cool over rejected patent application. In other news, the Patent and Trademark Office sometimes rejects patent applications   (yro.slashdot.org) divider line 34
    More: Amusing, patent lawyers, official notice, irrigation sprinklers, contingency  
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3552 clicks; posted to Geek » on 29 Apr 2013 at 8:24 PM (1 year ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2013-04-29 07:25:47 PM
Patents? Yes...they OFTEN reject applications. Trademarks? Different story

/Don't get me started on the PCT and then various other countries
 
2013-04-29 07:45:21 PM
Um... not sure why the patent attorney is getting his underwear all in a bunch.   I can't speak for the person working at the USPTO, but to me this wheeled sprinkler tripod:

www.majhost.com

looks a whole lot like this wheeled sprinkler tripod:

www.majhost.com
 
2013-04-29 07:53:19 PM

timujin: Um... not sure why the patent attorney is getting his underwear all in a bunch.   I can't speak for the person working at the USPTO, but to me this wheeled sprinkler tripod:

[www.majhost.com image 425x523]

looks a whole lot like this wheeled sprinkler tripod:

[www.majhost.com image 425x438]


The guy also apparently wrote a second, similarly scathing response in an entirely different case. That one involved a weekend of hookers and blow in Las Vegas. It sounds like he just had a complete meltdown a la "Network."
 
2013-04-29 07:58:04 PM
Submitted for your approval, a link to both rants.
 
2013-04-29 08:04:36 PM
The way the patent system works, they almost always reject the patent initially.  Its your job to then write back and explain why their rejection was wrong, or modify the language of your patent application to make it even more difficult to understand.  Sometimes you have to do this more than once.  Eventually the patent examiner throws in the towel and grants the patent.
 
2013-04-29 08:46:01 PM
What makes me love this story even more is that a 12 year old girl just patented Hamster Bowling like 5 threads ago.
 
kth
2013-04-29 08:56:54 PM
Letter fails for not using the now-required threat of a "coont Punt."
 
2013-04-29 09:23:03 PM

ShawnDoc: The way the patent system works, they almost always reject the patent initially.  Its your job to then write back and explain why their rejection was wrong, or modify the language of your patent application to make it even more difficult to understand.  Sometimes you have to do this more than once.  Eventually the patent examiner throws in the towel and grants the patent.


But if you insult them you can just get it through the first time.
 
2013-04-29 09:25:13 PM

timujin: Um... not sure why the patent attorney is getting his underwear all in a bunch.   I can't speak for the person working at the USPTO, but to me this wheeled sprinkler tripod:

[www.majhost.com image 425x523]

looks a whole lot like this wheeled sprinkler tripod:

[www.majhost.com image 425x438]


Really? 'Cause your latter tripod is missing the whole upright bit and the extendable head (nos. 100, 101, 102, 106, 181, 195 in the first picture).

Don't get me wrong, I'm not saying that his is patentable. But if the Examiner did your rejection, then he would've deserved that screed.
 
2013-04-29 09:29:39 PM
Examiners are evaluated by their score, and earn points for the first office action, points for the response to the applicant, points for the final office action, and so on. Then it gets appealed, which is another source of easily-gamed points, because the examiner's already familiar with the application. More points and application fees for every request for continued examination. Not only are non-final rejections not final rejections, even final rejectioins are never truly final rejections.

It goes on and on and on, a self-perpetuating whirlwind of bureaucracy, legalese, and derp. In the end, most patents are approved, but the negotiation process is as convoluted and adversarial as you might expect anything invented by lawyers to be. To wit, I refer both sides to the reply given in Arkell v. Pressdram.
 
2013-04-29 09:59:23 PM
drewblood.com
 
2013-04-29 10:00:21 PM
I am shocked, SHOCKED, that the patent application process is a clusterfark.
 
2013-04-29 10:17:27 PM

viscountalpha: I am shocked, SHOCKED, that the patent application process is a clusterfark.


We do not accept patents with repeated upper-case letters.
 
2013-04-29 10:27:26 PM
Could be worse, could've tried patenting rounded corners.
 
2013-04-29 10:31:52 PM
"We regret to inform you that your patent application has been referred to the Special Laws Administration Group for adjudication. We urge you not to discuss, disclose or attempt to file for international patents before you receive a ruling on your patent's status"
 
2013-04-29 10:41:37 PM

UsikFark: viscountalpha: I am shocked, SHOCKED, that the patent application process is a clusterfark.

We do not accept patents with repeated upper-case letters.


Appeal: All of the uppercase letters in that sequence are unique; there are no repeating uppercase letters.

/ I can has patent nao?
 
2013-04-30 12:11:08 AM
I  think we just found the stepfather of Rebecca Martinson, former chapter president of Delta Gamma.
 
2013-04-30 12:23:21 AM

Twilight Farkle: Examiners are evaluated by their score, and earn points for the first office action, points for the response to the applicant, points for the final office action, and so on. Then it gets appealed, which is another source of easily-gamed points, because the examiner's already familiar with the application. More points and application fees for every request for continued examination. Not only are non-final rejections not final rejections, even final rejectioins are never truly final rejections.

It goes on and on and on, a self-perpetuating whirlwind of bureaucracy, legalese, and derp. In the end, most patents are approved, but the negotiation process is as convoluted and adversarial as you might expect anything invented by lawyers to be. To wit, I refer both sides to the reply given in Arkell v. Pressdram.


You have no idea how the score system works...
 
2013-04-30 01:14:21 AM
hammer85:
You have no idea how the score system works...


Probably true, on account of I don't work at USPTO and have only vague memories of conversations with co-workers on the other side of the fence. If truth is a three-edged sword, I appreciate that all three edges are doing their level best to play by the rules; I'm just not convinced that the result is promoting the progress of science and the useful arts.

From the other side of the fence, it seems that it's being gamed by all three of the USPTO (as an institution struggling to deal with an egregious backlog of work), individual examiners (some, but not all, of whom may be playing minimax games on scoring), and applicants (who, after enough time has gone by, seem to get all manner of patents approved, albeit - and this is thanks, not in spite of, the examiners - more narrowly than the ridiculously-broad patents for which they typically apply.)

Serious question: if you work there and/or can disclose, how does it work? (I'd probably be the first to agree that the frivolous applications are the root cause of the backlog that is, IMO, the root cause of the problem.)
 
2013-04-30 06:32:29 AM
So, tell me something Corky...

ok I laughed
 
2013-04-30 07:02:03 AM

Theaetetus: Don't get me wrong, I'm not saying that his is patentable. But if the Examiner did your rejection, then he would've deserved that screed.


So no comment on one of your peers acting like a jibbering monkey flinging poo?  Regardless of why the patent was rejected--that type of response is the domain of spoiled toddlers.
 
2013-04-30 07:25:49 AM
The problem with for this guy was using plain english and physical objects. The relatively recent patent on ziplines (an at least 500 year old tool) didn't include any straight english. Most software patents are written in gibberish that comp sci professors would give an F.
 
2013-04-30 08:10:49 AM

ReverendJasen: Theaetetus: Don't get me wrong, I'm not saying that his is patentable. But if the Examiner did your rejection, then he would've deserved that screed.

So no comment on one of your peers acting like a jibbering monkey flinging poo?  Regardless of why the patent was rejected--that type of response is the domain of spoiled toddlers.


I don't agree. Without seeing the application and the rejection in full I can't be sure but it's entirely possible that the rejection was bad enough to deserve that response.  If I received a patent rejection that was completely divorced from the content of my patent application I would expect my lawyer to go apeshiat on them.  Hell i'd rather be told that my patent was rejected because I couldn't explain the device properly rather than have some too proud examiner pretend to understand me and reject me for a stupid reason.
 
2013-04-30 08:29:29 AM

Egoy3k: ReverendJasen: Theaetetus: Don't get me wrong, I'm not saying that his is patentable. But if the Examiner did your rejection, then he would've deserved that screed.

So no comment on one of your peers acting like a jibbering monkey flinging poo?  Regardless of why the patent was rejected--that type of response is the domain of spoiled toddlers.


Yeah, it was. But really, what comment is necessary? It looks like the guy had a nervous breakdown. Maybe his wife just served him with divorce papers, or maybe he spent his last dollar on cocaine and the bank is about to seize his house. Kinda sad, really.

I don't agree. Without seeing the application and the rejection in full I can't be sure but it's entirely possible that the rejection was bad enough to deserve that response.  If I received a patent rejection that was completely divorced from the content of my patent application I would expect my lawyer to go apeshiat on them.

Except that the legal apeshiat method is an appeal, not a rant that will get the practitioner suspended, if not disbarred (once they start looking into every detail of his practice as part of the discipline investigation).
That said, the rejection didn't look that bad, and the patent application wasn't great - the sprinkler specification was 6 pages. My minimum for a simple mechanical device is more like 20-30. We're not talking about an incredible lawyer with a wonderful application and a hugely incompetent Examiner in this case, at least.
 
2013-04-30 10:11:16 AM

Theaetetus: We're not talking about an incredible lawyer with a wonderful application and a hugely incompetent Examiner in this case, at least.


I didn't think so anyway. I'd be more than willing to bet that 99.99% of the time issues in communication are caused by a poorly written application rather than an examiner who isn't up to par.
 
2013-04-30 12:13:59 PM

Twilight Farkle: hammer85:
You have no idea how the score system works...

Probably true, on account of I don't work at USPTO and have only vague memories of conversations with co-workers on the other side of the fence. If truth is a three-edged sword, I appreciate that all three edges are doing their level best to play by the rules; I'm just not convinced that the result is promoting the progress of science and the useful arts.

From the other side of the fence, it seems that it's being gamed by all three of the USPTO (as an institution struggling to deal with an egregious backlog of work), individual examiners (some, but not all, of whom may be playing minimax games on scoring), and applicants (who, after enough time has gone by, seem to get all manner of patents approved, albeit - and this is thanks, not in spite of, the examiners - more narrowly than the ridiculously-broad patents for which they typically apply.)

Serious question: if you work there and/or can disclose, how does it work? (I'd probably be the first to agree that the frivolous applications are the root cause of the backlog that is, IMO, the root cause of the problem.)


Friend works there.  It's a quota system based on how much they think you can get done in two weeks.  Every case is 2 points (though apparently they're doing it by "hours" now), basically.  You can get the 2 points upfront by allowing, or over time through non-final, final, abandon, or non-final -> abandon, or non-final -> allow, etc.

If you have to re-reject (because you screwed up the first time, or second time, or whatever), you get nothing.  So you spent all the extra time and effort and it heavily penalizes you because if it takes 10 hours to do-over, you now have to make it up somewhere else.

The backlog happens because there arent enough examiners in certain areas, or due to applicants themselves.  There is nothing to stop a company from keeping a case open eternally.  Examiners don't want that, because it's annoying in general, but as long as the dudes pay, they get to keep opening the case.  Each RCE until recently apparently gave you less and less points (1.75 instead of 2 for the first, 1.5 instead of 1.75 the 2nd, for example), so they dont want to keep doing the same work for less reward (though after the 2nd rce you've basically finished working on the case and are just arguing back and forth).

When I asked him how he can game the system he said the only way is with after-final amendments, which he doesn't have to accept.  If something looks allowable, he can say it requires further consideration so they will have to file the RCE, which means currently hed get 2 points instead of .5 and a couple hours of other time if he had just allowed it right there.
 
2013-04-30 01:24:11 PM

hammer85: When I asked him how he can game the system he said the only way is with after-final amendments, which he doesn't have to accept.  If something looks allowable, he can say it requires further consideration so they will have to file the RCE, which means currently hed get 2 points instead of .5 and a couple hours of other time if he had just allowed it right there.


Yep. We've had Examiners subtly insist that even though they think something looks patentable, they really need to do another search and we should file an RCE, hint, hint, nudge, wink... and we do, and bam, get a notice of allowance. It's corrupt, but there's nothing we can do from outside the system.
 
2013-04-30 01:32:59 PM

Theaetetus: hammer85: When I asked him how he can game the system he said the only way is with after-final amendments, which he doesn't have to accept.  If something looks allowable, he can say it requires further consideration so they will have to file the RCE, which means currently hed get 2 points instead of .5 and a couple hours of other time if he had just allowed it right there.

Yep. We've had Examiners subtly insist that even though they think something looks patentable, they really need to do another search and we should file an RCE, hint, hint, nudge, wink... and we do, and bam, get a notice of allowance. It's corrupt, but there's nothing we can do from outside the system.


Still better than doing that and doing a rejection afterwards.  Then he's just a dick.
 
2013-04-30 01:54:49 PM

hammer85:
If you have to re-reject (because you screwed up the first time, or second time, or whatever), you get nothing.  So you spent all the extra time and effort and it heavily penalizes you because if it takes 10 hours to do-over, you now have to make it up somewhere else.

The backlog happens because there arent enough examiners in certain areas, or due to applicants themselves.  There is nothing to stop a company from keeping a case open eternally.  Examiners don't want that, because it's annoying ...


That sounds... pretty reasonable, actually. Whether measured in points or hours, it's both "a points system" and something that makes sense as part of an iterative process: an initial reward for the presumably labor-intensive initial search (or, in the case of a frivolous application, for the rapid weeding-out of the low-hanging fruit), but the fact that there's a diminishing return on subsequent iterations means there's an incentive for the examiner to limit the number of rounds of back-and-forth. Your explanation goes a long way to explaining the gap between the my (mis)perception of the system and reality; people who hear about "a points system", particularly in tech, are prone to jumping the conclusion that whenever a metric is involved, said metric will inevitably be gamed. Thanks for the encluement, I definitely needed it.
 
2013-04-30 03:14:08 PM

Twilight Farkle: hammer85:
If you have to re-reject (because you screwed up the first time, or second time, or whatever), you get nothing.  So you spent all the extra time and effort and it heavily penalizes you because if it takes 10 hours to do-over, you now have to make it up somewhere else.

The backlog happens because there arent enough examiners in certain areas, or due to applicants themselves.  There is nothing to stop a company from keeping a case open eternally.  Examiners don't want that, because it's annoying ...

That sounds... pretty reasonable, actually. Whether measured in points or hours, it's both "a points system" and something that makes sense as part of an iterative process: an initial reward for the presumably labor-intensive initial search (or, in the case of a frivolous application, for the rapid weeding-out of the low-hanging fruit), but the fact that there's a diminishing return on subsequent iterations means there's an incentive for the examiner to limit the number of rounds of back-and-forth. Your explanation goes a long way to explaining the gap between the my (mis)perception of the system and reality; people who hear about "a points system", particularly in tech, are prone to jumping the conclusion that whenever a metric is involved, said metric will inevitably be gamed. Thanks for the encluement, I definitely needed it.


You know, I'm just going to admit it. I'm an examiner.

We really just have no incentive to drag things on forever. And professionally and personally I despise any case that hits a 3rd go around (2nd rce). Sure, it's a lot of points overall, but come on, we're dealing with lawyers, and who wants to do that over the course of years :p.

I don't even like doing finals, to be honest. They are just a waste of time when I can spend a couple hours instead looking for the most allowable subject matter and then spending an hour making calls and having interviews to get things out the door.

Not everyone does things the same, but I enjoy giving (valid) patents than endlessly rejecting them. The cases I hate the most are the ones where I tell attorneys to put something in the independent claim to make it good and they refuse, and now they're on nearly the third rce just arguing incredibly broad subject matter that there's not a chance in hell I'm letting go.
 
2013-04-30 03:53:20 PM

hammer85:
You know, I'm just going to admit it.


(That's OK, I won't tell.)

Most of my limited experience with the process is from watching things work their way through public PAIR (which, incidentally, is one of the awesomest things in the history of awesome), so some of my frustration arises from what appears to be an almost random timeline. For any given application, sometimes it's a perfectly reasonable week or two between reasons for allowance, document verification, and notice of allowance, and other times it's a month or two. /headscratch. In retrospect, the randomness in the timing at that late stage probably has more to do with unrelated bottlenecks in the process than it has anything to do with the patent itself.
 
2013-04-30 04:18:28 PM

Twilight Farkle: hammer85:
You know, I'm just going to admit it.

(That's OK, I won't tell.)

Most of my limited experience with the process is from watching things work their way through public PAIR (which, incidentally, is one of the awesomest things in the history of awesome), so some of my frustration arises from what appears to be an almost random timeline. For any given application, sometimes it's a perfectly reasonable week or two between reasons for allowance, document verification, and notice of allowance, and other times it's a month or two. /headscratch. In retrospect, the randomness in the timing at that late stage probably has more to do with unrelated bottlenecks in the process than it has anything to do with the patent itself.


Not sure what you mean by that gap (generally the notice of allowance and reasons of allowance should be the same document).

But in general there are a lot of clerical and other paperwork issues that go on, from fee payments, after allowance ids filings, etc. Sometimes we take too long to reply in a case, sometimes they take a long time to reply to us. Some cases I've completed from first action to allowance in a month, sometimes it takes 6 months to get back to me, then wait for it to get processed (which has been vastly improved in speed than when I started working), then it sits on my desk for 3 months because its a particularly distasteful case, and all of a sudden from non-final to final you're now at nearly a year before a final or notice goes out
 
2013-04-30 04:46:20 PM

hammer85:
Not sure what you mean by that gap (generally the notice of allowance and reasons of allowance should be the same document).


Just the time gap for all the clerical stuff you mentioned. From the outsider's perspective (that is, someone who isn't an applicant), there's no way to tell why something took as long to get through the last formalities. It could also be the applicant's side as much as USPTO's side; if there's only one person at the company actually signing the papers, and that person happens to go on vacation for two weeks, and by the time they get back, their correspondent is snowed under with something else... yeah, I can see things like that happening.
 
2013-05-01 08:07:59 AM

timujin: Um... not sure why the patent attorney is getting his underwear all in a bunch.   I can't speak for the person working at the USPTO, but to me this wheeled sprinkler tripod:

[www.majhost.com image 425x523]

looks a whole lot like this wheeled sprinkler tripod:

[www.majhost.com image 425x438]


I guess he's never seen a vegetable garden.  Tripod mounted sprinklers are nothing new. I see them all the time around here.
 
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