I don't have the background or time to express an opinion on the main question posed by this article but I do have some comments on some statements you've made:
I'm just drawing some related (and unrelated) examples of how ridiculous the patent process has become, due in part to the employeee productivity quotas set at the USPTO, and due in part to laziness.
Yep, production requirements as well as all sorts of deadlines has been a chronic problem for over the last 30 years, and management has tightened the screws even more over this period. In addition, it has been made harder to make prior art rejections due to court rulings requiring more explicit showings from the prior art references, and less ability of examiners to make reasonable inferences from those references, as was originally permitted. There may be instances of laziness, but most of the problem is management pressure for production and making dates. If you don't make the numbers you get an unsatisfactory rating and get shown the door.
A friend of mine invented a product related to automobiles and the USPTO rejected it because the clerk who received the application did not believe the invention would perform as claimed (since when is that the acid test for a patent?)
It's one of the "acid tests" for a patent, 35 USC 101, the key adjective being "useful." This is known in patent law as the "utility" requirement; the invention must actually work. This is the legal basis to reject claims for "perpetual motion" machines or "pyramid power" inventions. It's unfortunate that your friend had to go through all this expense to prove utility, but examiners are responsible to pass on this issue as part of examination. As a counter example, look at the case of the recently issued anti-gravity patent where this wasn't challenged. It would be great if this could be correctly determined each time, but it's not practical for a bureaucratic, production based system where even the limited art areas assigned to individual examiners can encompass many different actual areas in the "real world.
Now companies are patenting story plots...
Stay tuned, this one is only a published application; AFAIK it's hasn't received a first action yet.
...20-to-50-yr-old computer methodologies, and tons of other prior art which would be rejected outright by any patent clerk not only enforcing patent law and doing his job, but also possessing even the slightest amount of common sense.
Well, chalk this up in some cases of examiners not doing their jobs within the constraints of the current PTO working environment, but most of the problem, as commented above, results from the lack of time available coupled with the requirement to have the prior art explicitly discuss why they are doing things, not just show them. All the common sense arguments in the world these days will be rejected by the courts (mainly the Court of Appeals for the Federal Circuit, the de facto court making patent law given the paucity of Supreme Court decisions on these matters).
Well, on the one hand, structuring fees this way rather than collecting everything up front does tend to encourage more filing by lowering the price to enter the game, but, on the other hand, if an issued patent is not "paying off" there is an incentive to let the patent lapse before it's full term is completed. In the US, the concept of maintenance fees was introduced sometime in the 1980's. I don't know what the statistics are concerning how many patents have laspsed, so far, for failure to pay maintenance fees (and were not previously declared invalid or disclaimed under some such duress).
Remember, the more up front the requirements, the more it favors patents only going to the big corporate players, although these days the "basement inventor" is rarely a player. Perhaps the phased approach could be limited to the "small entities" (indiviuals and small businesses).
Exactly. The patent grant is a right to exclude others; it confers no inherent right to make, use and sell the invention claimed in the patent to the patentee.
A common scenario is: A gets a patent for foo, not coevered by any preexisting patent; B subsequently gets a patent for foobar, where foobbar is covered by A's claims; B can't make sell or use foobar without cutting a deal with A. On the other hand, A can't make use or sell foobar without cutting a deal with B, although A can make sell or use an improved foojr which is not covered by B's claims. A's patent is said to dominate B's patent.
IAANAL, but, in brief, I don't think so. The general principle, at least for the US Federal Government (and all state governments, for that matter) is the legal concept of Sovereign Immunity; the Government can only let others sue it under grounds and for reasons provided by law.
In the case of the PTO, AFAIK, it it is not possible for a party to sue the Government for damages arising from a patent infringement suit, or a threat of a suit by other parties. It's sort of similar to the fact that a litigant can't sue a judge who initially ruled against him, but was subsequently reversed on appeal. Perhaps a real lawyer will comment on this issue.
First off, this guy prosecuted this application pro se, that is, without a patent attorney or agent.
Secondly, this guy had the case made special on the grounds it dealt with superconductivity, one of the areas for which you can get your case advanced in the queue.The original application was filed in 2003, but was refiled as a continuation in 2005 without ever having even been docketed to an examiner, for reasons I couldn't discern from the publicly available papers
But, most importantly, the application was issued on the first action; no rejections under 35 USC 101 (lack of utility for not working), 112, first paragraph (not adequately disclosed), or 102 or 103 (prior art). Just straight out the door with a minor Examiner's Amendment to correct some formal claim language. There's a bunch of prior art of record, cited by the applicant, including some papers from respected scientific journals (such as Physical Review). The only hint of any consideration of the art, other than the cited prior art, is the examiner's reasons for allowance, the substance of which reads "None of the prior art of record taught or dislosed the claimed superconducting shield and electromagnetic field generating means structure."
Since the application has only been published, one should inquire as to what its status is.
If you click on the "Transaction History" tab and scan the entries (Listed in descending date) you will see that the application has been assigned to an examiner, but has not received an action on the merits, as least as of the date the database has been updated. Also, calling this a "Provisional Patent" is simply incorrect; there are Provisional Patent Applications, but they never receive an examination until they are converted to a full regular application; they are used solely to preserve an effective filing date.
The matter of the inventor, Knight, asserting any rights sounds like a bunch of self-promoting puffery; having a pending application confers no rights at all; of course, if any claims have been allowed it would serve some sort of notice to the public what might be comming, but no rights can be be enforced until the patent is actually granted by issue.
The search for the application data seems to show that Knight is, indeed, a rocket scientist, although I didn't research the other applications/patents to see if they are for real or if this guy is just a "Gyro Gearloose" nutcase. In any event, I wonder if he really thinks he will be the pioneer of a whole new class of patentable subject matter or if he's just trying to make a point about how absurdly 35 USC 101 can be stretched. All bets are off if this ever makes it through the Court of Appeals for the Federal Circuit.
Read my reply to CasTroy for a description of the working environment in the PTO.
One of the cynical ideas that floated around the Office in the old days after a long, but fruitless search for something you just "knew" was obvious but couldn't find the prior art needed to justify your rejection was "Put it on the market!" or "Let the courts settle this" Remember, most examiners' dockets typically include many areas in the real world, each with their own little world of competitors, as wll as lone wolfs and oddballs. It's often tough to get to really learn what's going on in a given technical subculture, which is really needed to be savy in what's going on. It's even worse for examiners who's docket, while nominally small in terms the the subcasses assigned, does not have a cohesive community of people working in it, so that different aspects of a claimed invention could be scattered all over the place, making it harder to combine those references in an obviousness rejection and meet the current case law interpretation of exactly what kind of showing the prior art references have to expressly show to justify combining them. So, your hypothetical reference showing a restraining bar used to secure drinking mugs on a shelf might not be a good reference to use against a claimed restraining bar used to secure cue sticks for a billiard parlor cue stick rack in the hypothetical patent application; the applicant will argue "non-analogous art" and, given the current legal environment, will prevail. So, you either try even more searching for a "magic bullet" in the billiard rack art, or jsut say "I can't spend forever looking for this; I've spent too many hours and got nothing; it's stupid, but I have to allow it" and move on, knowing that evenf with your diligent searching you now have even less time to work on other applications in order not to let your production slip, with the consequences stated in my other post.
First, i'd like to know if your numbers have any real fact to them, or whether its just made up.
Yes, they have some fact to them. I am an ex-examiner who left back in 1991. My "expectancy" was, as I recall, 17.4 hours/balanced disposal - a "balanced disposal" is the average of all first actions on the merits and all disposals (allowances, abandonments and appeal briefs). Thus, for each application, you get one count when you act on it the first time and another count when it's disposed. Thus, two counts divided by 2 = 1 balanced disposal, or, using a common formula expressed in the Office, (n + d)/2.
If a patent application gets accepted, then your job is done. But if it gets rejected, it could possibly come back, with feedback from the person filing, about why it really should be valid, when you said it wasn't. You'd then have to either pass it, or go through the trouble of writing up a rebuttal to this, or something of the like. It's probably a lot less work to just let the patents slip through instead of actually researching any prior art and having it come back later to defend the prior art you found
Yes, that is correct. Based on my explanation for how production is calculated. if an application is issued on the first action (i. e., no rejections, or formal objections or restrictions, etc.) then you get both a "new" count and a "disposal" count; one balanced disposal in one, relatively easy to do action.
The only check against examiners just willy-nilly "putting a blue slip" on every application ( a reference to the old days when a small, blue colored multi-carbon form giving the classification data for the allowed application was stapled to front inside face of the case file wrapper) is what PTO management policies (both stated and actually done in practice) do. Since production is automatically monitored and tracked (religiously, along with other "assembly line metrics, such as acting on responses within two months of submission, first action on the oldest new application every two bi weeks, etc.), but checking the merits of the examination including the search area (which is recorded), evaluating all the prior art of record in the case, reading and understanding the application, and, most significantly, checking the prior art against the claims) is a lot of work for the supervisor, and with the upper managment's constant screaming to get pendency down, you can guess what gets emphasized and monitored like a hawk, and what gets decidedly pushed back as "nice to have", but "don't let it get in your way of making your numbers".
The reaction to this by working examiners runs the gamut, as in any organization with multiple players. Some, clearly, just take the attitude "I'll just give them wnat they want". Depending on their orginizational political skills they know how not to raise alarms about pushing out work that "looks" shoddy; managers, who have to report to their bosses who are also monitoring the numbers of the units mangaed by their reports, quickly learn to take the attitude "you have to do the best job you can within the time alloted." These examiners usually get rapid promotions up the top working grade of "Primary Examiner" (The production requirememnts go up with each promotion) and are likely candidates to move into management, thus, perpetuating the management culture. Other examiners, realizing that the time provided is inadequate, work extra hours to meet the numeric metrics, and, if they still end up slipping and can't produce cosnsistantly over 100% end up being harassed by production-obsessed managers. Of course, such examiners tend never to make it to management, and, the first time they end a quarter with production below 95% (marginal) or 90% (unsatisfactory) they will immediately have actions taken against them. If they don't get over 95% they get fired, no matter how good their cases are.
From what I've heard from a friend who still works there, t
Figure, roughly, on average, on the order of 20 hours per application, the actual figure depending on Grade/signatory authority level and the "complexity" factor of the art. This time includes almost everything regarding an application from the time it's first picked up to when it's abandoned or issued, including reading the specification and claims, planning and performing the search, considering any prior art submitted by applicant, formulating and writing office actions, reading responses and amendments, and handling subsequent office actions, etc.
Well, actually, the minimum time period reported is the bi-week, and many an SPE (i. e., supervisor) will harass you if your production is low. The bigger period, however is the quarter; if your last 4 quarters are below 95% (just below the rating of "fully successful") of your "goal" (i. e., quota) you can expect an "oral warning" and given 90 days to bring your production over 95%.
Of course, even those who come in between 95% and 100% often get harrased to do 100% as a minimum, and of course, even more.
Versions of Greasemonkey in the 0.5.x series (including the current, stable release) will not work in Deer Park, nor will any future 0.5 release. Support for GM in DP is being developed in versions 0.6.x, which is now in beta. This is discussed here. It includes a link to the current beta (0.6.2 as of this writing).
I installed this beta this morning, and, so far, the only problem I encountered was that, when I close some tabs, a JavaScript alert pops up with a diagnostic message. I'm not sure if this is a real error or just being used by the Greasemonkey development team to monitor some condition that might be handled without effect in a future, offical release of 0.6. There do not seem to be any harmful effects after dismissing the alert; the tab gets removed and FireFox can continue to be used as normal.
But, has MTA licensed anyone to reproduce its maps? If so, what were the terms? Has it set a policy under which these maps be licensed?
Certainly MTA could desire to derive income from the distribution of its maps, but there could also be another financial motive, namely, protecting against liability arising from lawsuits.
Imagine that, shortly after the TA ( the subsidiary of MTA that runs the NY subways) changes some routing. The MTA immediately changes the maps under its control, but someone else downloads a map from a third party which has not updated the map, uses it to select a train to go to A but ends up at B in a "bad neighborhood") due to the rerouting, and gets mugged at B. The person then sues MTA (the "deep pockets" here), arguing that MTA tacitly approved the third party to distribute the map and was negligent in not insuring that the proper map have been made available.
This may sound like like a far fetched scenario, but, unfortunately, lawsuits like this are all too common, especially in the greater NY area. By licensing the distribution of the maps, MTA can impose conditions on the redistribution of the maps, including insuring that appropriate disclaimers be provided by the distributor. Of course, nothing can prevent a determined litigant from filing a lawsuit, but, at least, licensing can give MTA the power to protect itself against such lawsuits.
1) As another reply has indicated, independent invention is not, per se, a defense against infringement. Of course, the timing and nature of the various acts leading to the invention by the inventor and the infringer could have an effect on the validity of the patent claims.
Firstly, if the inventor (that is the person(s) identified as the inventors in the patent) copied the invention from anyone else (the accured infringer or a third party) the patent claims are invalid under 35 USC 102(f). Also, if the the invention was patented or described in a printed publication, or in public use or one sale in the US more than one year prior to the effective filing date of the patent application it is similarly invalid.
2) The patent, from the day it is issued, can be applied against the acts making, using, and selling of the invention, regardless of when the accused infringer started those acts; liability for infringing, however, can only be assessed for those acts actually occuring on or after the issued date; previous acts don't count. Also, regarding liability, acts more than 6 years prior to filing the infringement case don't count. This, of course, applies only in cases brought relatively late in the life of the patent.
Additionally, and most important in the case of newly issued patents, the Court can enjoin the infringer from performing further such acts as part of the remedies granted the patentee. This is how, other than the costly assessment of damages, that the patentee can shut down the infringer's actions.
There is an interesting doctrine I vaguely recall that might be relevant in some circumstances of timing to software patents, that accused infringers might be able to escape liability if they were practicing a method covered by a method claim in a patent; this doctrine is called a "shop right". While searching title 35 (the patent law) I stumbled on 35 USC 273 which on a quick glance, seems to express that long held judicial doctrine. Traditionally, this protected a person using a secret method to make something from being shut down due to another getting a patatent on the method, if the the infringer came up with the method prior to the inventor of the patent. Perhaps an IP lawyer can comment on that.
A aid effort centered at a hospital just outside of New Orleans set up by a couple of local and nearby members of a political blog site (no, I'm not going to risk/.ing them by posting a link) ran into this problem after setting up a PayPal link.
As people frequenting the blog started to make contributions, PayPal's automated anti-scam detector cut them off. After a number of frantic calls to the first level support operation they were basically told to piss off, and were finally referenced to a "Executive Escalations" department, but they couldn't get through to anyone with any authority. The members raised some hell on the blog and got other members to blast on PayPal. There were some suggestions that they would raise bloddy hell on the blogosphere if PayPal didn't correct the situation, and, finally, they got hold of somone in authority, who verified their "bone fides" and removed the block on the account, promising that a note had been added to it to prevent a repetition.
It's clear that PayPal is nowhere near being a useful mechanism for such acute, ad hoc situations, although the ability to quickly move funds to where it is needed is certainly attractive. I have idea what system combines the conflicting needs of authenticity and speedy flexibility
OK, I just couldn't let this go, so I did a little digging and I think I found the Apple application, it's 10/282,861, and the this is the link to the image file wrapper, which has all of the prosecution history.
The rejection is a 102(e) "anticipation" over Microsoft's allowed application, which, like a 102(a) rejection referenced in my parent post, might be overcomed by a "131" declaration, and, in fact, the inventors appeared to have done just that ( including Steve Jobs, who signed his copy). The declarations were filed on April 11 2005. A final rejection was submitted on July 11 and mailed two days later. What is very puzzling, however, is the examiner did not mention the 131 affidavit at all, which he should have done, even if it was grossly ineffective to establish an earlier date of invention for whatever reason(s). I can only speculate that the declarations were not properly forwarded or timely scanned into the file wrapper database and that the examiner was unaware of them at the time the action was prepared. Certainly, if the applicant files an amendment/response after final rejection this will be pointed out.
BTW the evidence contained in the 131 declaration is a press release announcing the ipod on November 9, 2001. My knowledge of 131 practice is weak so I don't know if the press release is sufficient to legally establish that the iPod as announced, with all the features, actually existed. I certainly know that if the press release were being used to reject claims like here in some hypothetical patent application by, say, Microsoft that it wouldn't suffice; you'd have to show something with more details that actually show that the features were actually there and were not "just press release vapor". I'm sure that the iPod was public and that it did have all the features claimed, but that would need to be shown more concretely than a press release. In any event the 131 declaration should have been addressed in the final rejection.
If Apple's date of publication were more than one year prior to Microsoft's filing date, then it would constitute a "statutory bar" under 35 USC 102, more specifically paragraph (b). However, since the presumed disclosure date is less than one year prior to the filing date, then paragraph (a) must be applied. And the relevant event for the applicant is not the application filing date, but, rather, the "invention" by the applicant.
Since applicants don't provide the date of invention as part of the application, for the purposes of patent application prosecution, the filing date is presumed to be the date of invention. If the applicant wants to overcome a rejection based on 102(a) prior art (also applies if the prior art is used in an obviousness rejection under 35 USC 103) then the applicant must establish this via an oath or declaration under 37 CFR 1.131 (sorry, too lazy to get the link) to "swear behind" the date of the prior art. In the case where the prior art is a US Patent which claims "the same" invention, however, then this procedure cannot be used; the priority of invention must be determined by a vastly more complex procedure called interference, where the two parties battle it out to determine priority of invention.
And that last sentence raises a question in my mind... if the Microsoft allowed application's claims are ones that Apple could make then why can't Apple copy Microsoft's claims and provoke an interference? Without seeing both files it's hard to judge what's technically and legally going on here, although PC Mag's story notes the Microsoft application as 20030221541 (series 10 application No 158,674 for those brave enough to look at the image file wrapper). I haven't found a clear source for the identity of Apple's application. The Register's story has some links, but the speculated Apple application doesn't appear to be the one being discussed.
A person who would shill you out on behalf of a marketer (and be compensated for it) could hardly be considered a friend, at lest as I interpret the word. If most of your "friends" are like this you probably need to replace them with real friends.
If what you mean is that you do have genuine friends who are easily susceptible to advertizing then you will recognize this and discount their influence. Or, you will get older and recognize that chasing every popular fad is nothing more than costly consumerism.
Not only is it only an application, it hasn't even had a first action yet (at least, according to the Public PAIR system ( use "application number" and "10/750,361")
Sorry I'm late to this discussion, but I might as well post this "for the record."
The underlying fix that PTO management has found itself has been brewing for decades; it started back in the 1960s with the concepts of "Compact Prosecution" and "Balanced Disposals". It is exacerbated by the fact that production is an easy thing to measure, but quality requires some judgement, some effort to check the search to see if better prior art can found, etc.
Thus, management promised Congress that it could reduce average pendency from the then prevailing several years down to 18 months ("18 by 87", anyone?). Thus, production and process became king; examiners don't examine patent applications, they "process" them. Better act on your the oldest filing date and effective filing date application every other bi-week. Don't you dare fail to act on an amended application past 60 days, nor respond to an amendment after final within (was was it?) 3 days. Tighten the screws down on "other" time.
And don't even think of producing less than 100%, but, even then, we really want (such as you indicated) 110%
Quality? Well, just make it look credible; if you do 115% nobody will be taking a fine-tooth comb through your cases; we'll save that for the 96% guys. Oh, and if Quality Review kicks back an allowance, well, just don't make a habit of it, but keep cranking out at 115%; besides, the more you crank out, the lower each QR kickback counts toward the dreaded "error rate"
So, now management's has had it's nose rubbed in sh*t over quality....what to do, what to do...I know! Let's review even more; "second pair of eyes", "third pair of eyes" more certification. Yes! This is how we'll work our way out of this mess, and all without allotting even a millisecond more examining time; in fact we'll force examiners to spend more time justifying what they did, dragging in other examiners from their examining (and without giving them any other time). God forbid we even consider giving more time for examination to improve the search (not that that will be needed much if they get their way on outsourcing the search)
In brief, to improve the effectiveness of the system, just add more counterbalancing constraints ; brilliant!
Slashdot Mirror
Yep, production requirements as well as all sorts of deadlines has been a chronic problem for over the last 30 years, and management has tightened the screws even more over this period. In addition, it has been made harder to make prior art rejections due to court rulings requiring more explicit showings from the prior art references, and less ability of examiners to make reasonable inferences from those references, as was originally permitted. There may be instances of laziness, but most of the problem is management pressure for production and making dates. If you don't make the numbers you get an unsatisfactory rating and get shown the door.
It's one of the "acid tests" for a patent, 35 USC 101, the key adjective being "useful." This is known in patent law as the "utility" requirement; the invention must actually work. This is the legal basis to reject claims for "perpetual motion" machines or "pyramid power" inventions. It's unfortunate that your friend had to go through all this expense to prove utility, but examiners are responsible to pass on this issue as part of examination. As a counter example, look at the case of the recently issued anti-gravity patent where this wasn't challenged. It would be great if this could be correctly determined each time, but it's not practical for a bureaucratic, production based system where even the limited art areas assigned to individual examiners can encompass many different actual areas in the "real world. Stay tuned, this one is only a published application; AFAIK it's hasn't received a first action yet. Well, chalk this up in some cases of examiners not doing their jobs within the constraints of the current PTO working environment, but most of the problem, as commented above, results from the lack of time available coupled with the requirement to have the prior art explicitly discuss why they are doing things, not just show them. All the common sense arguments in the world these days will be rejected by the courts (mainly the Court of Appeals for the Federal Circuit, the de facto court making patent law given the paucity of Supreme Court decisions on these matters).
Well, on the one hand, structuring fees this way rather than collecting everything up front does tend to encourage more filing by lowering the price to enter the game, but, on the other hand, if an issued patent is not "paying off" there is an incentive to let the patent lapse before it's full term is completed. In the US, the concept of maintenance fees was introduced sometime in the 1980's. I don't know what the statistics are concerning how many patents have laspsed, so far, for failure to pay maintenance fees (and were not previously declared invalid or disclaimed under some such duress).
Remember, the more up front the requirements, the more it favors patents only going to the big corporate players, although these days the "basement inventor" is rarely a player. Perhaps the phased approach could be limited to the "small entities" (indiviuals and small businesses).
Exactly. The patent grant is a right to exclude others; it confers no inherent right to make, use and sell the invention claimed in the patent to the patentee.
A common scenario is: A gets a patent for foo, not coevered by any preexisting patent; B subsequently gets a patent for foobar, where foobbar is covered by A's claims; B can't make sell or use foobar without cutting a deal with A. On the other hand, A can't make use or sell foobar without cutting a deal with B, although A can make sell or use an improved foojr which is not covered by B's claims. A's patent is said to dominate B's patent.
IAANAL, but, in brief, I don't think so. The general principle, at least for the US Federal Government (and all state governments, for that matter) is the legal concept of Sovereign Immunity; the Government can only let others sue it under grounds and for reasons provided by law.
In the case of the PTO, AFAIK, it it is not possible for a party to sue the Government for damages arising from a patent infringement suit, or a threat of a suit by other parties. It's sort of similar to the fact that a litigant can't sue a judge who initially ruled against him, but was subsequently reversed on appeal. Perhaps a real lawyer will comment on this issue.
First off, this guy prosecuted this application pro se, that is, without a patent attorney or agent.
Secondly, this guy had the case made special on the grounds it dealt with superconductivity, one of the areas for which you can get your case advanced in the queue.The original application was filed in 2003, but was refiled as a continuation in 2005 without ever having even been docketed to an examiner, for reasons I couldn't discern from the publicly available papers
But, most importantly, the application was issued on the first action; no rejections under 35 USC 101 (lack of utility for not working), 112, first paragraph (not adequately disclosed), or 102 or 103 (prior art). Just straight out the door with a minor Examiner's Amendment to correct some formal claim language. There's a bunch of prior art of record, cited by the applicant, including some papers from respected scientific journals (such as Physical Review). The only hint of any consideration of the art, other than the cited prior art, is the examiner's reasons for allowance, the substance of which reads "None of the prior art of record taught or dislosed the claimed superconducting shield and electromagnetic field generating means structure."
And, with payment of the issue fee, it issued.
It might be 6,963,867 ("Search query processing to provide category-ranked presentation of search results") - 6,963,867
This one's assigned to Amazon subsidiary A9.com
Yeah, the usual slashborgs are going ballistic.
Since the application has only been published, one should inquire as to what its status is.
If you click on the "Transaction History" tab and scan the entries (Listed in descending date) you will see that the application has been assigned to an examiner, but has not received an action on the merits, as least as of the date the database has been updated. Also, calling this a "Provisional Patent" is simply incorrect; there are Provisional Patent Applications, but they never receive an examination until they are converted to a full regular application; they are used solely to preserve an effective filing date.
The matter of the inventor, Knight, asserting any rights sounds like a bunch of self-promoting puffery; having a pending application confers no rights at all; of course, if any claims have been allowed it would serve some sort of notice to the public what might be comming, but no rights can be be enforced until the patent is actually granted by issue.
The search for the application data seems to show that Knight is, indeed, a rocket scientist, although I didn't research the other applications/patents to see if they are for real or if this guy is just a "Gyro Gearloose" nutcase. In any event, I wonder if he really thinks he will be the pioneer of a whole new class of patentable subject matter or if he's just trying to make a point about how absurdly 35 USC 101 can be stretched. All bets are off if this ever makes it through the Court of Appeals for the Federal Circuit.
Read my reply to CasTroy for a description of the working environment in the PTO.
One of the cynical ideas that floated around the Office in the old days after a long, but fruitless search for something you just "knew" was obvious but couldn't find the prior art needed to justify your rejection was "Put it on the market!" or "Let the courts settle this" Remember, most examiners' dockets typically include many areas in the real world, each with their own little world of competitors, as wll as lone wolfs and oddballs. It's often tough to get to really learn what's going on in a given technical subculture, which is really needed to be savy in what's going on. It's even worse for examiners who's docket, while nominally small in terms the the subcasses assigned, does not have a cohesive community of people working in it, so that different aspects of a claimed invention could be scattered all over the place, making it harder to combine those references in an obviousness rejection and meet the current case law interpretation of exactly what kind of showing the prior art references have to expressly show to justify combining them. So, your hypothetical reference showing a restraining bar used to secure drinking mugs on a shelf might not be a good reference to use against a claimed restraining bar used to secure cue sticks for a billiard parlor cue stick rack in the hypothetical patent application; the applicant will argue "non-analogous art" and, given the current legal environment, will prevail. So, you either try even more searching for a "magic bullet" in the billiard rack art, or jsut say "I can't spend forever looking for this; I've spent too many hours and got nothing; it's stupid, but I have to allow it" and move on, knowing that evenf with your diligent searching you now have even less time to work on other applications in order not to let your production slip, with the consequences stated in my other post.
Yes, they have some fact to them. I am an ex-examiner who left back in 1991. My "expectancy" was, as I recall, 17.4 hours/balanced disposal - a "balanced disposal" is the average of all first actions on the merits and all disposals (allowances, abandonments and appeal briefs). Thus, for each application, you get one count when you act on it the first time and another count when it's disposed. Thus, two counts divided by 2 = 1 balanced disposal, or, using a common formula expressed in the Office, (n + d)/2.
Yes, that is correct. Based on my explanation for how production is calculated. if an application is issued on the first action (i. e., no rejections, or formal objections or restrictions, etc.) then you get both a "new" count and a "disposal" count; one balanced disposal in one, relatively easy to do action.
The only check against examiners just willy-nilly "putting a blue slip" on every application ( a reference to the old days when a small, blue colored multi-carbon form giving the classification data for the allowed application was stapled to front inside face of the case file wrapper) is what PTO management policies (both stated and actually done in practice) do. Since production is automatically monitored and tracked (religiously, along with other "assembly line metrics, such as acting on responses within two months of submission, first action on the oldest new application every two bi weeks, etc.), but checking the merits of the examination including the search area (which is recorded), evaluating all the prior art of record in the case, reading and understanding the application, and, most significantly, checking the prior art against the claims) is a lot of work for the supervisor, and with the upper managment's constant screaming to get pendency down, you can guess what gets emphasized and monitored like a hawk, and what gets decidedly pushed back as "nice to have", but "don't let it get in your way of making your numbers".
The reaction to this by working examiners runs the gamut, as in any organization with multiple players. Some, clearly, just take the attitude "I'll just give them wnat they want". Depending on their orginizational political skills they know how not to raise alarms about pushing out work that "looks" shoddy; managers, who have to report to their bosses who are also monitoring the numbers of the units mangaed by their reports, quickly learn to take the attitude "you have to do the best job you can within the time alloted." These examiners usually get rapid promotions up the top working grade of "Primary Examiner" (The production requirememnts go up with each promotion) and are likely candidates to move into management, thus, perpetuating the management culture. Other examiners, realizing that the time provided is inadequate, work extra hours to meet the numeric metrics, and, if they still end up slipping and can't produce cosnsistantly over 100% end up being harassed by production-obsessed managers. Of course, such examiners tend never to make it to management, and, the first time they end a quarter with production below 95% (marginal) or 90% (unsatisfactory) they will immediately have actions taken against them. If they don't get over 95% they get fired, no matter how good their cases are.
From what I've heard from a friend who still works there, t
Figure, roughly, on average, on the order of 20 hours per application, the actual figure depending on Grade/signatory authority level and the "complexity" factor of the art. This time includes almost everything regarding an application from the time it's first picked up to when it's abandoned or issued, including reading the specification and claims, planning and performing the search, considering any prior art submitted by applicant, formulating and writing office actions, reading responses and amendments, and handling subsequent office actions, etc.
Well, actually, the minimum time period reported is the bi-week, and many an SPE (i. e., supervisor) will harass you if your production is low. The bigger period, however is the quarter; if your last 4 quarters are below 95% (just below the rating of "fully successful") of your "goal" (i. e., quota) you can expect an "oral warning" and given 90 days to bring your production over 95%.
Of course, even those who come in between 95% and 100% often get harrased to do 100% as a minimum, and of course, even more.
Versions of Greasemonkey in the 0.5.x series (including the current, stable release) will not work in Deer Park, nor will any future 0.5 release. Support for GM in DP is being developed in versions 0.6.x, which is now in beta. This is discussed here. It includes a link to the current beta (0.6.2 as of this writing).
I installed this beta this morning, and, so far, the only problem I encountered was that, when I close some tabs, a JavaScript alert pops up with a diagnostic message. I'm not sure if this is a real error or just being used by the Greasemonkey development team to monitor some condition that might be handled without effect in a future, offical release of 0.6. There do not seem to be any harmful effects after dismissing the alert; the tab gets removed and FireFox can continue to be used as normal.
But, has MTA licensed anyone to reproduce its maps? If so, what were the terms? Has it set a policy under which these maps be licensed?
Certainly MTA could desire to derive income from the distribution of its maps, but there could also be another financial motive, namely, protecting against liability arising from lawsuits.
Imagine that, shortly after the TA ( the subsidiary of MTA that runs the NY subways) changes some routing. The MTA immediately changes the maps under its control, but someone else downloads a map from a third party which has not updated the map, uses it to select a train to go to A but ends up at B in a "bad neighborhood") due to the rerouting, and gets mugged at B. The person then sues MTA (the "deep pockets" here), arguing that MTA tacitly approved the third party to distribute the map and was negligent in not insuring that the proper map have been made available.
This may sound like like a far fetched scenario, but, unfortunately, lawsuits like this are all too common, especially in the greater NY area. By licensing the distribution of the maps, MTA can impose conditions on the redistribution of the maps, including insuring that appropriate disclaimers be provided by the distributor. Of course, nothing can prevent a determined litigant from filing a lawsuit, but, at least, licensing can give MTA the power to protect itself against such lawsuits.
1) As another reply has indicated, independent invention is not, per se, a defense against infringement. Of course, the timing and nature of the various acts leading to the invention by the inventor and the infringer could have an effect on the validity of the patent claims.
Firstly, if the inventor (that is the person(s) identified as the inventors in the patent) copied the invention from anyone else (the accured infringer or a third party) the patent claims are invalid under 35 USC 102(f). Also, if the the invention was patented or described in a printed publication, or in public use or one sale in the US more than one year prior to the effective filing date of the patent application it is similarly invalid.
2) The patent, from the day it is issued, can be applied against the acts making, using, and selling of the invention, regardless of when the accused infringer started those acts; liability for infringing, however, can only be assessed for those acts actually occuring on or after the issued date; previous acts don't count. Also, regarding liability, acts more than 6 years prior to filing the infringement case don't count. This, of course, applies only in cases brought relatively late in the life of the patent.
Additionally, and most important in the case of newly issued patents, the Court can enjoin the infringer from performing further such acts as part of the remedies granted the patentee. This is how, other than the costly assessment of damages, that the patentee can shut down the infringer's actions.
There is an interesting doctrine I vaguely recall that might be relevant in some circumstances of timing to software patents, that accused infringers might be able to escape liability if they were practicing a method covered by a method claim in a patent; this doctrine is called a "shop right". While searching title 35 (the patent law) I stumbled on 35 USC 273 which on a quick glance, seems to express that long held judicial doctrine. Traditionally, this protected a person using a secret method to make something from being shut down due to another getting a patatent on the method, if the the infringer came up with the method prior to the inventor of the patent. Perhaps an IP lawyer can comment on that.
A aid effort centered at a hospital just outside of New Orleans set up by a couple of local and nearby members of a political blog site (no, I'm not going to risk /.ing them by posting a link) ran into this problem after setting up a PayPal link.
As people frequenting the blog started to make contributions, PayPal's automated anti-scam detector cut them off. After a number of frantic calls to the first level support operation they were basically told to piss off, and were finally referenced to a "Executive Escalations" department, but they couldn't get through to anyone with any authority. The members raised some hell on the blog and got other members to blast on PayPal. There were some suggestions that they would raise bloddy hell on the blogosphere if PayPal didn't correct the situation, and, finally, they got hold of somone in authority, who verified their "bone fides" and removed the block on the account, promising that a note had been added to it to prevent a repetition.
It's clear that PayPal is nowhere near being a useful mechanism for such acute, ad hoc situations, although the ability to quickly move funds to where it is needed is certainly attractive. I have idea what system combines the conflicting needs of authenticity and speedy flexibility
To properly parse that sentence I think a comma should appear after "4-bit microprocessor" since otherwise it would kinda read as applying to Inte....
oh, wait, never mind...
OK, I just couldn't let this go, so I did a little digging and I think I found the Apple application, it's 10/282,861, and the this is the link to the image file wrapper, which has all of the prosecution history.
The rejection is a 102(e) "anticipation" over Microsoft's allowed application, which, like a 102(a) rejection referenced in my parent post, might be overcomed by a "131" declaration, and, in fact, the inventors appeared to have done just that ( including Steve Jobs, who signed his copy). The declarations were filed on April 11 2005. A final rejection was submitted on July 11 and mailed two days later. What is very puzzling, however, is the examiner did not mention the 131 affidavit at all, which he should have done, even if it was grossly ineffective to establish an earlier date of invention for whatever reason(s). I can only speculate that the declarations were not properly forwarded or timely scanned into the file wrapper database and that the examiner was unaware of them at the time the action was prepared. Certainly, if the applicant files an amendment/response after final rejection this will be pointed out.
BTW the evidence contained in the 131 declaration is a press release announcing the ipod on November 9, 2001. My knowledge of 131 practice is weak so I don't know if the press release is sufficient to legally establish that the iPod as announced, with all the features, actually existed. I certainly know that if the press release were being used to reject claims like here in some hypothetical patent application by, say, Microsoft that it wouldn't suffice; you'd have to show something with more details that actually show that the features were actually there and were not "just press release vapor". I'm sure that the iPod was public and that it did have all the features claimed, but that would need to be shown more concretely than a press release. In any event the 131 declaration should have been addressed in the final rejection.
Not so fast.
If Apple's date of publication were more than one year prior to Microsoft's filing date, then it would constitute a "statutory bar" under 35 USC 102, more specifically paragraph (b). However, since the presumed disclosure date is less than one year prior to the filing date, then paragraph (a) must be applied. And the relevant event for the applicant is not the application filing date, but, rather, the "invention" by the applicant.
Since applicants don't provide the date of invention as part of the application, for the purposes of patent application prosecution, the filing date is presumed to be the date of invention. If the applicant wants to overcome a rejection based on 102(a) prior art (also applies if the prior art is used in an obviousness rejection under 35 USC 103) then the applicant must establish this via an oath or declaration under 37 CFR 1.131 (sorry, too lazy to get the link) to "swear behind" the date of the prior art. In the case where the prior art is a US Patent which claims "the same" invention, however, then this procedure cannot be used; the priority of invention must be determined by a vastly more complex procedure called interference, where the two parties battle it out to determine priority of invention.
And that last sentence raises a question in my mind... if the Microsoft allowed application's claims are ones that Apple could make then why can't Apple copy Microsoft's claims and provoke an interference? Without seeing both files it's hard to judge what's technically and legally going on here, although PC Mag's story notes the Microsoft application as 20030221541 (series 10 application No 158,674 for those brave enough to look at the image file wrapper). I haven't found a clear source for the identity of Apple's application. The Register's story has some links, but the speculated Apple application doesn't appear to be the one being discussed.
A person who would shill you out on behalf of a marketer (and be compensated for it) could hardly be considered a friend, at lest as I interpret the word. If most of your "friends" are like this you probably need to replace them with real friends.
If what you mean is that you do have genuine friends who are easily susceptible to advertizing then you will recognize this and discount their influence. Or, you will get older and recognize that chasing every popular fad is nothing more than costly consumerism.
...last year on /.
Parsing terms from Art. I, Section 8, clause 8, into the current implementations of Copyright and Patent,
Copyright
Patent
Only responding to this since you've been modded up already.
As noted by others, it's an application, and, as far as I can tell, hasn't even been acted on, yet.
Not only is it only an application, it hasn't even had a first action yet (at least, according to the Public PAIR system ( use "application number" and "10/750,361")
Sorry I'm late to this discussion, but I might as well post this "for the record."
The underlying fix that PTO management has found itself has been brewing for decades; it started back in the 1960s with the concepts of "Compact Prosecution" and "Balanced Disposals". It is exacerbated by the fact that production is an easy thing to measure, but quality requires some judgement, some effort to check the search to see if better prior art can found, etc.
Thus, management promised Congress that it could reduce average pendency from the then prevailing several years down to 18 months ("18 by 87", anyone?). Thus, production and process became king; examiners don't examine patent applications, they "process" them. Better act on your the oldest filing date and effective filing date application every other bi-week. Don't you dare fail to act on an amended application past 60 days, nor respond to an amendment after final within (was was it?) 3 days. Tighten the screws down on "other" time.
And don't even think of producing less than 100%, but, even then, we really want (such as you indicated) 110%
Quality? Well, just make it look credible; if you do 115% nobody will be taking a fine-tooth comb through your cases; we'll save that for the 96% guys. Oh, and if Quality Review kicks back an allowance, well, just don't make a habit of it, but keep cranking out at 115%; besides, the more you crank out, the lower each QR kickback counts toward the dreaded "error rate"
So, now management's has had it's nose rubbed in sh*t over quality....what to do, what to do...I know! Let's review even more; "second pair of eyes", "third pair of eyes" more certification. Yes! This is how we'll work our way out of this mess, and all without allotting even a millisecond more examining time; in fact we'll force examiners to spend more time justifying what they did, dragging in other examiners from their examining (and without giving them any other time). God forbid we even consider giving more time for examination to improve the search (not that that will be needed much if they get their way on outsourcing the search)
In brief, to improve the effectiveness of the system, just add more counterbalancing constraints ; brilliant!