Somebody somewhere is pissed off, because patent examiners at the USPTO are apparently not putting in time sitting at their desks interfacing with their computers.
According to this story in today's Washington Post, the Office of the Inspector General conducted an investigation prompted by one or more whistleblowers who think that Examiner are "gaming" the work-at-home system.
Let's just remember a few things, shall we?
The work-at-home thing was necessitated because there isn't enough space at the USPTO for all the examiners to have someplace to sit.
Before the USPTO moved to its new campus, back when they were all crammed in to makeshift space in Crystal City, VA, there was PLENTY of gaming of the system that went on, notwithstanding the fact that the examiners were purportedly sitting at their government-provided desks in their supervisor-monitored offices. Anybody remember "mortgaging" files?
Does anybody really think that the solution to the patent "quality" problem is to have examiners sitting at their computers from 9-5 Monday through Friday?
But by all means, let's have the USPTO lease a couple thousand more offices in Alexandria, and chain the examiners to their desks. That'll ensure that the taxpayers applicants are getting their money's worth out of the examination process.
On Wednesday, a group of five* U.S. Senators sent this letter to the Secretary of Commerce. They're offering their advice on how to improve the examination process at the USPTO, to insure higher-quality patents.
My first reaction is to dismiss this out of hand. What do these guys (yes, they're all men) know about examining patents? I'm guessing, not much.
On the other hand, maybe what this needs is a fresh look from some outsiders. And they offer five clear recommendations.
1. The USPTO should continually review and asses the operational examiner management system and performance metrics in place to ensure that they incentivize quality over quantity. Examiner evaluation should particularly ensure that it does not improperly incentivize the approval of low-quality patents.
NOTE: This is exactly right. Make sure that examiners are only being rewarded for allowing good patents. It's just like this:
2. Examiners should be clearly directed on how to ensure application records are fully built-out so that resolution of any ambiguity in the initial examination process is documented. Application files should provide a clear history of clarified terms and original intent so that an approved patent cannot later be twisted to cover future inventions, and examiners should have clear guidance on the level of detail that should be provided as they document their communication with patent applicants during the examination process.
NOTE: There's nothing that's worse than patents being twisted to cover future inventions. Except, maybe, reading stuff written by people who evidently have no idea what they're talking about. For example, they're not saying here that you shouldn't be able to write a broad claim that dominates a later, narrowly-drafted patent claim, are they? Or are they? I wish there was some way to resolve this ambiguity.
3. The USPTO has taken additional steps to address functional claiming concerns. The effectiveness of these measures should be assessed to determine whether they are sufficient to address concerns that functional claiming provides a loophole from definite, precise claims and that nor all functional claims are held to the relevant standards.
NOTE: "Functional claiming concerns" apparently refers to the concerns some people have about claims that have functional limitations. I presume they're not talking about means + function limitations. It would be helpful here to have some clearer idea of exactly what they see as the problem.
4. As the USPTO continues to identify ways to improve patent quality and ensure claim clarity, it should expand the use of crowdsourcing and data analysis to identify types of patents and specific characteristics that are most likely to give rise to ambiguity and produce litigation risk and specifically target those areas for stronger measures.
NOTE: There's that "ambiguity" word again. The way these guys are obsessed with ambiguity, you'd almost think that they'd never been to law school. [I just checked - three of the five didn't go to law school, and Senator Begich didn't even graduate from college. So maybe that explains that].
5. Finally, the USPTO should ensure public access to information about patents and there histories, which is one of the agency's duties. In particular, continuing to expand the information publicly searchable on the USPTO's website is important.
NOTE: Mission accomplished!
*Jeff Merkley (D - Ore.); Mark Begich (D-Alaska); Martin Heinrich (D-N.M.), Tom Udall (D-N.M.); and Mark Warner (D-VA). BTW, the letter has space for eight signatures, but only five signed. Why would you leave those extra three lines on there? It just looks like three people backed out at the last minute.
If a monkey grabs my camera and takes a picture of himself, do I have any rights in the picture? Does the monkey? Does anyone? You can read about the controversy here. Basically, photographer David Slater was taking pictures of monkeys. He left his camera alone for a minute, and the monkeys grabbed it and started messing with it. The picture posted above was taken by the monkey shown in the picture (yes, it's a "selfie"). Slater is asserting copyright in the picture. Web denizens, including Wikimedia Foundation, disagree. This is such a simple problem. All Slater needs to do is give the monkey a banana. The monkey took the picture using Slater's equipment, for which the monkey was remunerated. Work for hire! Problem solved.
Per this Official Notice, effective immediately, visitors to the USPTO's Alexandria campus from the following states will not get past security by showing their driver's license (or other state-issued ID card):
Alaska
American Samoa
Arizona
Kentucky
Louisiana
Maine
Massachusetts
Minnesota
Montana
New York
Oklahoma
Washington
If you're from one of these states, you will need to show a Federally-issued ID, such as:
Passport
Passport card
DoD’s CAC
Federal agency HSPD-12 ID
Veterans ID
Military dependents ID
Trusted Traveler card – Global Entry, SENTRI, or NEXUS
An article published today in the New York Law Journal looks at decisions relating to the "idefiniteness" standard since the Supreme Court's decision last June in Nautlius v Biosig. (572 U.S. __, 2014). You'll recall that the Supreme Court chucked out the Federal Circuit's "insolubly ambiguous" standard in favor of a new rule: "that a patent's claims, viewed in light of the specification and prosecution history, inform those skilled in the art about the scope of the invention with reasonable certainty." Much clearer, right? Anyway, according to the article, a number of courts have applied the "new" standard since June, and most of the time, they're not having trouble figuring out what claims mean.
...In Hand Held Prods. v. Amazon.com, C.A. No. 12-768-RGA-MPT, 2014 BL 175317 (D. Del., June 24, 2014), Magistrate Judge Mary Pat Thynge found that the defendant in that case had failed to prove by clear and convincing evidence that certain terms, such as "bar-coded information" and "bar-code readable information," are indefinite. In reaching this conclusion, the court specifically noted in several instances that the defendant had provided "no expert testimony in support of its indefiniteness argument," and instead relied on attorney argument. In Endo Pharm. v. Watson Labs., Case No. 2:13-CV-192-JRG, 2014 BL 173773 (E.D. Tex., June 23, 2014), Judge Rodney Gilstrap rejected the contention that certain terms, such as "with increased penetration" and "reducing inflammation" which defendant considered to be "words of degree," were indefinite. In Augme Techs. v. Yahoo!, No. 2013-1121, 2014 BL 171920 (Fed. Cir., June 20, 2014), a panel of the Federal Circuit rejected a contention that the term "receiving, by an ingest server, the unique identifier to the digital content," was indefinite. Citing the standard in Nautilus, the court stated that this term "is clear on its face and unquestionably meets this standard." And in Purdue Pharm. Prods. v. Actavis Elizabeth, No. 12-5311 (JLL), 2014 BL 162761 (D.N.J., June 11, 2014), Judge Jose L. Linares disagreed with defendant's argument that the term "without residual sedative effects" was indefinite because the patent failed to identify which of several methods disclosed in the specification for determining whether a person taking zolpidem wakes up "without residual side effects" governs.
We'll have to wait to see what the Federal Circuit does with Nautilus on remand, but in the meantime, District Courts are not treating this like a directive from the Supreme Court to strike down claims as indefinite.
In her testimony before the House Committee on the Judiciary on Wednesday, Director Lee was asked by Congressman George Holding (R - NC) to comment on the Australian law that prohibits manufacturers of tobacco products from using their trademarks. Lee confessed that she was unfamiliar with the topic, and promised to check and get back to him with an answer. This seemed to satisfy the congressman. The issue wasn't familiar to me, either, but a quick internet search turned up lots of stories from three years ago about this, which I had heard about:
Since 2012, all cigarettes in Australia are required to be sold in packages that look like these. You'll notice the word "brand" on the bottom front of each box. These are mock-ups; on a real package of cigarettes the word "brand" would be replaced by, say, "Marlboro" or "Camel" or "Winston" in that same plain text on an olive-green background.
The aim of these packages is to deter smokers. And according to this story in the Financial Times apparently it's working. Which explains why the representative from North Carolina is particularly interested in this issue.
What makes it an IP issue is that the Australian government has taken the position that having a trademark doesn't grant you the right to use the mark; all it does is grant you the right to exclude others from using the mark. This concept, while familiar to most IP attorneys, is difficult for most laypeople (and some members of the U.S. Supreme Court) to grasp.
The Australian law is currently the subject of a dispute at the WTO, that was originally brought by Ukraine (!), although it has since been joined by a number of other countries, including the U.S., accusing Australia of being in violation of the TRIPS agreement. So this bears watching, particularly as there are reportedly other countries, including the U.K., Ireland, and New Zealand. And while it's confined to tobacco products now, this kind of regulation could theoretically be applied to any product or service that a government wants to discourage.
