“Whether admitted or not, ‘closing the gap’ by any action of the USPTO affecting patent grant rate of demographically-favored applications, would necessarily mean relaxing the patentability examination standards for those applications. This would result in lower quality patents issued to inventors in such favored groups.”
As previously reported on this blog, a bipartisan group of senators recently reintroduced a bill in Congress called the “Inventor Diversity for Economic Advancement Act of 2021,” or the ‘‘IDEA Act,’’ S.632; H.R.1723. The Senate Committee on the Judiciary is scheduled to hold its hearing on the IDEA Act this Thursday morning. Citing a report that “only 22 percent of all U.S. patents list a woman as an inventor,” the sponsor’s press release explains that the bill’s purpose is “to close the gap that women, minorities, and others face when procuring patent rights in the United States.” To advance this putative goal, the bill adds Section 124 to the Patent Act that will require the U.S. Patent and Trademark Office (USPTO) to annually collect and report personal demographic data from patent applicants including “gender, race, military or veteran status, and any other demographic category that the Director determines appropriate, related to each inventor listed with an application for patent.” Accordingly, the USPTO Director would be granted plenary authority to collect information on “any other demographic category” such as those the sponsors have already identified in their previous version of the bill, namely: ethnicity, national origin, sexual orientation, age, disability, education level attained, and income level. See HR 4075 and S. 2281, both introduced in the 116th Congress on July 25, 2019.
An Unexpected Effect
I have published elsewhere a detailed analysis of the likely effects of the IDEA Act. I strongly support closing the societal gaps in the abilities of individuals to participate in, and benefit from, invention and technological innovations; and I believe that this is also the well-intended goal of the sponsors and supporters of the IDEA Act. I believe that efforts and resources for closing such gaps should be focused where they can actually have real effect—by targeted assistance for STEM education, mentorship, and professional training in the years prior to patenting. The lawmakers sponsoring this bill have established records of supporting strong patent rights and are widely respected for being champions of small business inventors. Unexpectedly, however, this bill would actually harm small business and underrepresented inventors. As explained below, this legislation is contrary to patent law; it proposes a dangerous method for injecting identity politics at the USPTO, where it never has nor should play any role, and where there is no evidence that the USPTO has displayed prejudice or discrimination.
The implied premise of the bill is that “women, minorities, and others” may be disadvantaged “when procuring patent rights in the United States”—that they somehow face discrimination at the USPTO in the patenting process itself. This notion is echoed by an advocacy group’s proposal for removing inventors’ names from patent applications to “mitigate potential gender and racial biases” in USPTO examination. But there is no evidence to support this premise of discrimination at the USPTO. If anything, the evidence and sources compiled in the USPTO’s report under the SUCCESS Act confirms that other pre-filing factors are determinative. Most importantly, whereas Figure 2 in this USPTO report shows the share of women inventors at 22% of issued patents, the report lacks data on women’s share of filed applications. The latter is additionally required for evaluating the “grant rate” (defined as the fraction of applications filed that successfully issue as patents) to assess whether women actually face any disparate outcomes at the USPTO. In and of itself, if found to exist, disparity in grant rate may not prove discrimination in examination at all. This is at least because examiners make rejection errors across all applications and it may only signify that financially-disadvantaged inventors may be unable to afford costly appeals or Requests for Continued Examination (RCEs) at the USPTO to correct these examiner errors and vindicate their right to a patent.
1. The Act’s provisions for handling applicants’ identity contradict the Patent Act and USPTO’s regulations and examination practice. Proposed § 124(b)(2)(B) would require the USPTO to “establish appropriate procedures to ensure … that demographic information is not made available to examiners or considered in the examination of any application for patent.” But concealing such information from examiners is virtually impossible without turning on their head the Patent Act, the USPTO regulations, and its long-established examination procedures.
First, examiner interviews are an integral part of the examination process, wherein the inventors explain in their own words to the examiner the invention and distinctions over the prior art. See 37 CFR § 1.133; MPEP § 713. These interviews are efficient ways to advance prosecution and are mostly conducted by videoconferences. Although inventors are not always present at interviews, they often accompany their patent attorney/agent and would be conducting the interview alone if they were engaged in pro se representation. When an inventor is present at an interview, that would necessarily reveal to the examiner the inventor’s gender, race, color, and approximate age. At least one interview is conducted for one in every three patent applications.
Second, a great majority of inventor names reveal their gender, and sometimes their national origin or race. The USPTO observed that gender can be determined from the name alone with an accuracy of more than 93%. Accordingly, USPTO’s procedures to comply with the Act would necessitate removal of the inventor’s name from any document that examiners consider in direct contradiction with at least the following patent statutes, regulations, and USPTO examination procedures:
(a) 35 U.S.C. § 115(a) and 37 C.F.R. § 1.41 (Inventor’s name “shall” be included in the application).
(b) A published application under 35 U.S.C. § 122(b) contains the name(s) of the inventor(s) on the first page. See 37 C.F.R. § 1.215(c).
(c) The double patenting bar requires the examiner of an application to identify all the inventor’s other patents and applications and to issue rejections when the claimed subject matter is the same, or patentably indistinct, across such applications. See MPEP § 804.
(d) 35 U.S.C. §§ 120, 121, prescribe that inventor(s) of a continuing patent application “which names [the] inventor or joint inventor in the previously filed application” can claim priority benefit of the parent application, necessarily disclosing to the examiner the name of the common inventor.
(e) 35 U.S.C. § 102(b)(1) (post-AIA) excludes as prior art any public disclosures made “by the inventor or joint inventor” 1 year or less before the effective filing date of a claimed invention. Entitlement to removal of such inventor’s public disclosure as prior art is established by the inventor’s name.
(f) Examiners are authorized to require from the applicant a “copy of any non-patent literature, published application, or patent (U.S. or foreign), by any of the inventors, that relates to the claimed invention.” 37 C.F.R. § 1.105(a)(1)(iii). These publications’ authors are identifiable by the named inventor.
(g) Declarations filed under 37 CFR §§ 1.130 and 1.131 to overcome a rejection require the signature of the declarant, who often is one of the named inventors.
Third, as a matter of policy, inventors 65 years or older qualify for expedited treatment of their application under 37 C.F.R. § 1.102(c)(1). Such applications are designated as “special” and are advanced out of turn in examination to the top of the examiner’s docket, thereby informing the examiner of the inventor’s old age.
2. The scant and selective data collected voluntarily would have no utility and thus doom the Act. The proposal is to limit the USPTO data collection to voluntary submissions. There would be “missing data” on inventors, not only from those who do not file patent applications for fear of losing their patent at the PTAB (as inventor Jeff Harding explained), but also from those who file applications but decline to furnish the demographic information. Collection on a voluntary basis would produce very low response rates, rendering any inferences therefrom erroneous and subject to self-selection bias. Note that most inventors do not file their patent applications with which their personal information would be submitted. My analysis projects that voluntary submission will result in less than 1 percent response rate for various reasons, including refusal of patent practitioners to ask their clients for personal information and the fact that companies who file the applications do not keep a record of their employees’ race, declared gender, veteran status, sexual preference, etc. Collection and reporting of such personal information may expose the company to secrecy obligations and further potential liability. Indeed, the U.S. Equal Employment Opportunity Commission’s guidance titled “Prohibited Employment Policies/Practices discourages “inquiries that relate to … race, color, sex, national origin, religion, or age, [as] such inquiries may be used as evidence of an employer’s intent to discriminate unless the questions asked can be justified by some business purpose.” It is an open legal question whether a voluntary response to a survey constitutes a justified “business purpose.”
The voluntary aspect of the IDEA Act may be a temporary feature to assuage initial objectors to the bill. If passed, future sponsors of an amendment to the Act would be able to point to the anemic applicant response rate and the need to increase statistical reliability by making applicants’ submission mandatory.
3. Transforming USPTO examination into an “equality of outcome” operation with identity-driven patent allowance quotas. Under proposed § 124(d)(1), the Act would require the USPTO to publish annually the total number of patent applications filed and the total number of patents issued during the previous year, disaggregated by inventors’ demographics and technology class. By simple calculations taking into account application pendency at the USPTO, these reports will enable any member of the public to estimate the patent grant rate by inventors’ identity characteristics and by examiner technology Work Group.
Inevitably, it would not be too long before activist groups and examiner analytics firms would use this published information to identify specific inventor groups as having disproportionately lower patent grant rate than other groups. Because no inventors’ background information would be collected alongside their demographic data, the reports under the Act would contain no information that could shed light on any of the causes for, or factors underlying the patenting disparities that the data would reveal. In this critical information vacuum, the activists would claim that disparities can be explained by USPTO prejudice—that “equality of outcome” is the only correct measure of “equity”—ignoring confounding factors unrelated to examination. The reported demographic grant rate for half of all examiner technology Work Groups would be below the average. Examiners in these Work Groups may face unfair scrutiny as having “prejudice.”
4. The IDEA Act would reduce patent quality and harm the very inventors the Act seeks to benefit. Whether admitted or not, “closing the gap” by any action of the USPTO affecting patent grant rate of demographically-favored applications, would necessarily mean relaxing the patentability examination standards for those applications. This would result in lower quality patents issued to inventors in such favored groups. The mere upward shift in reported grant rate for demographically favored groups would quickly lead to public stigma, as patent holders in these groups would be perceived as the beneficiaries of less rigorous allowance standards, thus holding lower quality patents. This would harm their reputation and detract from their ability to enforce their patents. Discrimination, for which there is no current evidence, would become very real.
5. Should patent applicants be saddled with loss of patents and the cost of government studies on social disparities? My analysis based on USPTO’s paperwork burden estimates for information collections similar to that contemplated under the IDEA Act projects the recurring costs to the applicant and the USPTO of gathering, furnishing, verifying, and processing the information would total about $310 per application. This does not include the USPTO’s costs for developing and maintaining the separate secure demographic database and reporting infrastructure. Submissions would have to be made mandatory for the information to be statistically meaningful (see Section 1 above); my analysis based on USPTO price elasticity estimates shows that the incremental costs of mandatory submissions would suppress application filings by 2.7%, 5.5%, and 10.9%, for large, small, and micro entities respectively. These reductions in patent application filings entail real social costs manifest as reduced innovation. Clearly, there can be no justification for this negative impact, which would disproportionately adversely affect small and micro entities.
An Alternative Credible Approach
If despite the objections discussed above, Congress insists on adopting a revision of the IDEA Act having the USPTO collect the information, and if burdens are to be imposed on applicants, the effort must be done the right way. Data solely on the number of patents and applications at the USPTO that merely characterize the numerical disparities in patenting would fail to inform any attempt to identify the causal determinants, or the contributing and confounding factors that drive such disparities in patenting.
A sound approach would collect pre-application background information from inventors such as data related to their experiences, education, research, mentorship, prior activities, etc. Only by having such inventor attributes in addition to, and coupled with their demographic information, can useful correlations and causal inferences be made on ways to address actual causes of disparities.
The exact data to be collected from inventors relating to the factors and attributes that may be important predictors and essential explanatory factors for disparity should be determined prior to enactment by experts in technology, education, STEM training, and social sciences. A panel of experts at the National Academy of Sciences (NAS) should be assembled to identify the specific information to be collected. The NAS is the appropriate body because it is charged with providing independent, objective advice to the nation on such matters related to science and technology. They should formulate the charge for the inventors’ survey, instilling public confidence that it is driven solely by scientific expert considerations and not by agendas of activist groups, or political pressures on the agency head.
Let’s Redirect These Efforts
For the reasons explained above, I submit that enacting the IDEA Act as currently written is not a good “idea.” If enacted, it would harm the very inventors the Act seeks to benefit. The USPTO should be kept free from any identity-based task, process, or reporting requirement. The fact that the sponsors of this bill are strong champions of small business inventors engenders hope that they will reconsider this Act, and redirect their efforts to having the NAS undertake the relevant study to determine the data to be collected, and focus on legislation that truly and prudentially restores U.S. patent rights to all demographic inventor groups.
The Senate Judiciary Committee will convene an executive business meeting tomorrow morning to discuss the IDEA Act, as well as S.169, the Artistic Recognition for Talented Students (ARTS) Act, which would waive certain registration fees for copyright claims arising from student art and science competitions sponsored by Congress.
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88 comments so far.
GeorgeApril 14, 2021 04:11 pm
“That was exactly how it was used in my application. It was simply a quality assurance program that they had with a mysterious acronym.”
But shouldn’t that ALWAYS be the case for ALL applications? If that’s the problem, then maybe that’s why so many issued patents are found to later be invalid (on the basis of prior art). Also, if its so hard to find prior art, then isn’t that exactly the argument for doing ‘broad search’ by computer, not limited by just ‘keywords’?!
Computers can look at MILLIONS of references going back hundreds of years! They don’t complain about doing that. They don’t get tired when forming 1000’s of relevant combinations and they can do all that in minutes! Humans will never be able to do that! So why didn’t the PTO try to improve search using computers, starting in 1995, when the SAWS program was devised (since it would have already been possible then, at least to a certain degree)? Why is the PTO ONLY NOW interested in coming up with compute and AI tools? Why weren’t they interested in that a decade ago, when everyone else already was?! They must be ‘pretty slow’ to understand ‘and appreciate’ all the implications of the technologies they issue patents on! I think that’s also called an ‘irony’, isn’t it? Took them over 25 years to go from the ‘secret’ SAWS ‘quality control’ program (as you like to characterize it) to computerized search and greater use of ‘Google’??? REALLY?
“Mysterious Acronym” – LMAO!!! It was a ‘highly secret’ program they didn’t want ANYONE ever finding out about, until the AIA came along to ruin it for them! ‘That damn Congress – why did they have to get mixed up in our business’? It was working so great to block ‘certain patents’ and ‘certain individuals’ who were clearly being marked for retribution! LOL!
It was a BLACK LIST, Mark, and you know it! Now we just need to find out how many inventors were on that list and what happened to their inventions and patents, that’s all. Then accountability and justice must prevail!
And, by the way, do you always just trust and believe what syou are being told by people in authority??? Didn’t they teach you not to be so gullible and trusting in law school? Didn’t they teach you that people (and your own clients) could be lying to you and that you can never really trust anyone and should always ‘trust – but verify’? You didn’t verify anything, Mark!!! You didn’t protect your client’s interests (in getting a patent). You didn’t ‘fight’ for your client! Why? They didn’t pay you enough? I wouldn’t have looked the other way, that’s for sure! I wouldn’t have given the PTO a pass, that’s for sure!
GeorgeApril 14, 2021 02:52 pm
This is all getting way off the topic raised by Ron, but since it’s both an interesting and potentially very important one, it maybe deserves some further discussion here until it is brought up in another forum devoted to specifically to SAWS.
“So, I had a patent application that a patent examiner inadvertently mentioned was in the SAWS program. It wasn’t anything nefarious, quite frankly it was simply something that the patent office wanted to be careful about because if granted they could find themselves potentially coming under criticism for.” – Mark
WHAT???? Of course it was ‘nefarious’, especially because it was a ‘secret program’ that may not even have been approved by Congress! That ‘s the very definition of nefarious, or at least surreptitious! It was nefarious because for over 200 years there was never such a ‘secret program’, especially not one authorize by Congress. The USPTO is not supposed to have secret agendas. It’s not supposed to be concerned about ANYTHING except the statutes. It’s not supposed to worry about the consequences of their decisions, because they are protected by qualified immunity anyway! So, what do they have to worry about? What large corporations and monopolies would think or do? Let’s find out if that’s what they worried about! Let the courts find out what they were so worried about, that they had to keep this ‘special program’ so secret!
At most if an application is identified as having military or national security significance then it can be flagged for that and that was approved by Congress. It can then be sequestered and treated very differently from other applications and denied issuance for a long time. But even then the Applicant is INFORMED of that decision, given the specific reasons for that happening and also be told if their application will ever be allowed to be published or issued.
Hopefully the Morinville v PTO, class action suit, will be allowed to proceed, so the American people can find out what that secret program was really all about! They have a right to know who created it and the real reasons for it! It could have been totally corrupt and criminal Mark (since it denied so many people their rights under the Constitution)!
That you wouldn’t have objected to it much more forcefully and took legal action to expose this secret program, is actually quite troubling, since you did not provide your client with the best legal representation possible – you just ACCEPTED what you were being ‘accidentally’ told and didn’t even go to the press about it! Why didn’t you dig deeper after being informed of what was going on?!
By the way, the link you provided that NOW describes this formerly secret program and explains why it has now been discontinued (due to no ‘voluntary decision’ on the part of the PTO – just because of what the AIA does), WASN’T AVAILABLE BEFORE this program was finally ‘admitted’ to have existed for 20 years!
For once I have to completely agree with Anon (which I can’t even believe)! LOL!
AnonApril 14, 2021 01:04 pm
You quite miss the point. It is NOT “spooky name.”
It is shadow programs in the face of 37 CFR 1.2.
For someone who sees (gender and other ISMs) ghosts that are not there, you are taking a decidedly odd ‘clench tight my eyes’ approach to a clear violation of the CFRs.
Mark AnnettApril 14, 2021 10:49 am
Had the SAWS program been called, “application that deserve more scrutiny because while our prior art search isn’t turning up anything, we are pretty sure there is something out there but just haven’t come up with the right search terms yet to find it program,” would you still have an issue with the program.
That was exactly how it was used in my application. It was simply a quality assurance program that they had with a mysterious acronym.
While I am sure there were different reasons for other applications, they were all likely for one reason or another all basically to insure patent quality. They just choose a “spooky” acronym.
I realize that I am an “n” of one but I challenge you to provide any evidence of a single example to the contrary.
AnonApril 14, 2021 10:00 am
While you may feel (and may do so correctly) that in your case, the result was rather benign, the larger issue here is that the Office is violating 37 CFR 1.2 in conducting shadow programs to which are NOT in writing, and in most instances, the applicant is not even made aware of the true basis for not advancing (the very purpose of 37 CFR 1.2).
Further, the link that you provide contains this:
“The Sensitive Application Warning System (SAWS) program is one of many practical, internal efforts that the USPTO has in place to ensure that only the highest quality patents are issued by the Agency.”
The key phrase here is “one of many”
So even though THIS particular program suffered an ‘oopsie’ moment (and the Office was caught at first trying to deny its existence, and then when that was no longer possible, so ‘graciously’ dropped it), there ARE other clandestine programs still running.
You may have noticed that I have ALWAYS been a staunch advocate for eliminating these shadow programs entirely.
Mark AnnettApril 14, 2021 07:04 am
So, I had a patent application that a patent examiner inadvertently mentioned was in the SAWS program. It wasn’t anything nefarious, quite frankly it was simply something that the patent office wanted to be careful about because if granted they could find themselves potentially coming under criticism for.
Ultimately, the patent was denied and while I and my client didn’t like the outcome, they had a legitimate basis for doing so.
The denial simply took more time because they needed to rely on non-patent literature to do so.
They were simply doing their job, which as a citizen of the United States I appreciated.
You are simply going to have to trust me that this was very benign in this case.
FYI, here is a link to the SAWS on the USPTO’s website https://www.uspto.gov/patents/initiatives/patent-application-initiatives/sensitive-application-warning-system
GeorgeApril 13, 2021 06:11 pm
OK, Anon, I will take your word for it – you’re not a far-right ideologue, just liked ‘some’ of the things Donald Trump did and stood for, like quick vaccine development (but then who could argue against THAT?). You clearly are a guy who cares about all Americans, rich or poor, regardless of what race or ethnicity they may be. I won’t fall for that ‘mistaken impression’ again, OK? You’re a totally unbiased guy (unlike most of us)!
GeorgeApril 13, 2021 05:51 pm
Mark, I file all my own patents already! Been doing that for over two decades now. So I’m am not concerned about myself – I can afford to hire a dozen lawyers if I want (but I won’t). I also stated (somewhere) that I’ve had my own R&D consulting firm for over 40 years, which has now become a full time R&D invention and development company! I could have even retired 5 years ago if I wanted!
So don’t worry about me – worry about the 1000’s of other American inventors out there who are being discriminated against by the U.S. government and the PTO, for one reason or another (including their income).
Get ‘angry’ and demand the truth about the secret SAWS program the PTO ran for two decades! What the hell was THAT all about? Worry about how many inventors got caught up in that and why?! Were their inventions just too good, or valuable maybe?! What other reasons were there that could have justified it (that I just can’t see right now, except maybe for national security reasons)? The SAWS program could end up being a huge scandal and violation of law for the PTO.
GeorgeApril 13, 2021 04:56 pm
Anon, it is pointless even trying to discuss anything with you because even the Supreme Court won’t agree with you or Gene! I don’t necessarily agree with them all the time either, but then I’m not a lawyer and so I have to accept their decisions as authoritative. I don’t have to accept anything you say as being authoritative and I certainly would never retain you as my lawyer (since it’s clear you can’t even think outside the box – a requirement for anyone I hire)!
As far as Oracle vs. Google goes, Google won that argument and I agree on that one! So on that one at least:
Supreme Court interpretation 1
Anon & Gene’s interpretations 0
I like to go with the winners and listen to them, not ‘losers’, Anon. How many times have you lost arguments with the courts? That’s the ONLY THING that counts when it comes to the law, not ideology, philosophy or sophistry! Judges don’t want to listen to ‘philosophers’, Anon! Like I said, I’m 3 for 3 so far!!! So my legal arguments must be pretty good, if judges agree with me! Actually, all three involved breaches of contract disputes! The next (big) one will involve RICO and fraud! Have been preparing for that one for over two years already. So far have I have at least two boxes full of evidence, over 300 pages of ‘notes’ and we expect to get at least 1-2 confessions right after filing (given the alternatives)!
And as far as ‘hobby horses’ go, maybe YOU should take up another ‘hobby’ because it seems law isn’t the best one for you! Like I said, if Google and IBM agree with my line of reasoning about the use of computers and AI in patent law and they are looking into the same thing, then it’s definitely a good ‘hobby’ for me and my company, and could even become a very lucrative one!
So, your ‘put-downs’ about me and my ‘hobbies’ and knowledge of the law don’t bother me in the least! In fact they mean I’ve touched a ‘terrifying nerve’ among lawyers (one they don’t want ever to have touched). But remember the saying: ‘He who laughs last, laughs best’!!! LOL! In a few years, my firm and I may be laughing all the way to the bank! Maybe we’ll even partner with Google, or IBM on that ‘hobby’! Then you could maybe take up ‘knitting’ instead!
Mark AnnettApril 13, 2021 07:55 am
In general, I agree that the economic class barrier to getting a patent.
So for micro entity status, the filing fees for a utility patent are $455 about 2 weeks worth of work on a minimum wage job, if you deduct expenses for commuting. The issue fee is $300 so another week and a half so a months wages, if you are on minimum wage. Most people I know working minimum wage have at least two minimum wage jobs already.
You can check out the book “Patent It Yourself” by Nolo, free from the library, which I think is excellent book. I used myself to file my first patent and I loved it so much I became a patent agent. So it is possible, if you are willing to self study to get a utility patent only needing to pay patent fees. I did it but it took a couple of months of learning and doing.
If you are living in poverty, a months worth of salary is likely an impossibility and you certainly can’t without the capital of a friend, family member or some other fool, afford the $10-15K it costs on average to have your patent filed professionally. This is the real barrier!
You can win pitch competitions to sometimes get some revenue, $500 to a few thousand is certainly a possibility. But then as you as likely have publicly disclosed your idea then you have a year from your first public disclosure to file your regular application otherwise you lose it forever. But having an idea alone is not enough, typically to win a pitch competition you need a business plan, which is another huge hurdle.
There are business accelerators that you can get into but to get into those, you again, need a good business model not just something potentially patentable.
The USPTO funds several clinics around the country, such as at Rutgers Law School here in NJ, where it is possible to get free IP services. However, at Rutgers, they only do trademarks, copyright, and patentability opinions but they don’t do patent filings, so that is helpful but won’t get you all the way there and you still have to pay the fees.
Typically, to have a realistic chance of being successful and capitalizing on a patent this is unfortunately a middle class pursuit, as you need both a certain amount of disposable income and the luxury of time to invest.
Ps, I have not really been paying attention to this post and am only commenting because I happened to notice that you directed this post at me.
Also, I am replying as the discussion is actually is a return back to the central theme of the article. The status quo is the problem. The IDEA act’s overarching goal was to change the status quo and increase the number of people in underrepresented populations getting patents. If they can figure out a way to do this then likely all will in the lower economic status will benefit from what is learned in the process.
GeorgeApril 13, 2021 02:03 am
“Could a proactive patent office intervene when there is patentable material in an application filed, you bet. Are people in underrepresented populations losing out because they have poor representation, you bet. Would collecting data alleviate the problem, of course not.
However, if you don’t collect data you promote the status quo. If you have data then you can effectuate change. Even, if there is no systematic racism practiced at the USPTO, it does not mean that the systematic racism those in underrepresented populations experience in the rest of their life does not have an impact on there understanding of the patent process and their willingness to see a patent all the way through to an allowance.”
Correct! But the Congress now clearly allows the PTO to discriminate against 99% of Americans on the basis of ‘financial class’ alone. This ‘class-based discrimination’ ensures (to the advantage of the rich and affluent) that those without sufficient money can never win the American ‘patent game’ (AKA the ‘sport of kings)!
That may be the most stupid, pernicious and self-defeating thing America could ever have come up with over the last 100 years and something we’d better fix FAST!
I don’t think the Chinese really care if you are rich or poor as long as you have a good idea for them to exploit and maybe they’re even happy to subsidize their citizens if need be to encourage them to file patents. But then I really don’t know, either. It might be they don’t have any special programs based on an inventor’s income, either.
In any case, discriminating against a ‘class of Americans’, whether based on racial, ethnic, or economic class is a violation of every American’s ‘civil rights’, not just their rights under the Commerce Clauses. The Constitution ensures the right of all Americans to be able to get a patent on their creative work, if they can pass tests needed to be awarded one. It makes no mention of having to pay for patents at all. Getting a patent is not predicated on the ability to pay for one (Congress came up with that). That’s why I now think Congress has allowed the PTO to violate the ‘civil rights’ of millions of Americans, by creating a system that makes it all but impossible for them to get a patent, if they they have insufficient money to do so.
The Constitution doesn’t say (or even imply) that persons should have sufficient money in order to be awarded a patent, the intent of which has always been to ‘promote’ science and the useful arts for the benefit of the U.S. (not China). Don’t see anything about ‘helping’ China in our Constitution. Don’t see anything about China at all.
As far as the ‘Meek Inheriting the Earth’ goes, that sure won’t apply to inventors if the PTO and large entities have anything to do about it! Meek inventors will get nowhere with them, except maybe ‘sheared’ (as always). I’m in favor of bringing that practice to an end!
AnonApril 12, 2021 02:40 pm
At 74, your reply is nonsense.
You exclaim “Far Right” in a typical “Left will eat their own” view of anything NOT “Left enough,” is “Far Right.”
It is just not so.
You don’t even know what my political persuasion is. You assert that I am “Far Right,” but I am not. If you must know (and I have shared this several times now), I actually am very much a Centrist. I am merely NOT “Far Left.” Quite in fact, I am a registered Democrat. But, as I have put to you (and you are only too eager to ignore), I abhor the power politics of both “Far Sides.”
“Sorry to say but…”
Now you are just layering prevarication upon prevarication. There is NO “sorry” in your post, just as there is NO “FAR right wing anything in mine.
Well – there is a veiled half truth in your ramblings. There is a “won’t ever be listened to” buried in there. Of course, this is only a “not listen” that you individually are electing to do. All else, all that “majority” that you attempt to place yourself within in phantom, a mirage, not real.
You have shown over and over again that you have no sense of law, thus your attempt to invoke law merely shows your illusions.
As to “Nothing that you or others of your political persuasion are talking about or proposing (which is never much), will ever get us where we need to be…”
“You are clearly ONLY interested in pursuing your own very narrow and immediate concerns and your very self-centered ideology (which is doomed to fail). What have you proposed to help inventors of ‘ordinary means’, not to mention poor but potentially very talented inventors out there? An annual contest maybe? Presidential awards maybe?”
Now I know that you are just spouting off. I am perhaps the most vocal proponent of Strong Patent rights. Maybe instead of focusing on your own hurt feelings, and wanting to jump to all types of errant opinions, you actually pay attention to the arguments, positions, and points that I have been posting with (now over a decade here).
“Now you do have to be ‘already wealthy’ if you want a real chance at the American dream (of old)! But then that’s a Catch-22, isn’t it? We have to eliminate that cruel joke of the ‘innovation economy’, which only applies to the 1% now!
So, the more I hear from you ‘Anon’, the more I really don’t like you!!! ”
Your emotion just does not jibe with reality. I have been a principle speaker AGAINST the trend towards Sport of Kings, and have provided links to historical research on how the Great US Experiment was expressly made to AVOID such “Sport of Kings” mentality. You are indeed :”sorry,” but not for the reasons that you state.
“You have to be really worried that the public (or authorities) might find out who you are, if you can’t even use your real first name in public. Guess I’m not that worried.”
LOL – you cannot help yourself with the vapid ad hominem, can you? So go back and again read my reply to that particular mindlessness.
“P.S. The record will show that have have proposed NO ‘original’ ideas here at all.”
Except, the plain facts show the opposite. Quite in fact, the Kavanaugh Scissors are an express 100% original idea from me. Do you not think that cutting the Gordian Knot of the Supreme Court mess of patent eligibility would improve the intellectual property landscape? Why in the world would think that?
AnonApril 12, 2021 02:25 pm
Your comments – in reverse order:
Perhaps you should learn how to engage in conversation. You continue to apply ad hominem after making incorrect assumptions, as well as seeming to want to argue on points to which I have taken no stand.
You also want to make wild assertions of me not engaging in legal discussions of AI, and then when I inform you an area that I have done so, you imprudently dismiss such as “entirely different, much thornier, and more difficult issue – and then ascribe a false emotion to my views – while not recognizing the actual legal points that I have provided.
There is NO “intentionally avoiding the subject,” because in large part, YOUR ‘hobby horse” of automating legal activities is simply not at point in the various discussions. For those that DO touch on that subject, I have provided to you direct and immediate points that show infirmities, and to those points, you have NOT AS YET actually engaged (with a rather weak “well, someday, those won’t be problems” type of response).
Rather than assert things that you cannot possibly know and only assert them to attack them – rather than the actual points in front of you, maybe you should spend your effort on point.
GeorgeApril 10, 2021 03:38 pm
DABUS is an entirely different, much thornier, and more difficult issue, than the one I am talking about in connection with the use of computers and AI for the ‘automation’ of certain legal activities and decision making (some of which wouldn’t even require AI). I think you know that, but are intentionally avoiding the subject (maybe for psychological reasons if you are an attorney whose job depends on computers NOT taking over). If it’s a topic and area of interest good enough for Google and IBM, then it’s certainly good enough for me and my firm (of 40 years by the way)! But maybe you’d prefer to debate Google and IBM? Maybe they’d go easier on you? Don’t worry, Anon, ‘Skynet’ is not coming for you – yet! LOL!
GeorgeApril 10, 2021 02:46 pm
Sorry to say but your ‘content’ is mostly FAR right wing ‘nonsense’, gibberish and propaganda that won’t ever be listened to by the majority of truly ‘open minded’ experts in either law or science.
The problems we are having in patent law have to ALL be solved very quickly now, maybe in just a couple of years (just like our climate change problems do), or we will be in big trouble soon!
Nothing that you or others of your political persuasion are talking about or proposing (which is never much), will ever get us where we need to be within the next decade (including the need to match whatever China might do).
You are clearly ONLY interested in pursuing your own very narrow and immediate concerns and your very self-centered ideology (which is doomed to fail). What have you proposed to help inventors of ‘ordinary means’, not to mention poor but potentially very talented inventors out there? An annual contest maybe? Presidential awards maybe? What have been your proposals to help them, or the many young people who may like to become inventors but can’t now because of their tremendous student loan debt (that young people didn’t have to deal with before)? Do you care about that at all?
Remember Tesla came to this country dirt poor, but he didn’t stay poor for very long! That was in large part because our patent system was very different then (and also the best in the world) and you didn’t have to be wealthy or even need to have much money at all to take advantage of it (and many prospered as a result). Now you do have to be ‘already wealthy’ if you want a real chance at the American dream (of old)! But then that’s a Catch-22, isn’t it? We have to eliminate that cruel joke of the ‘innovation economy’, which only applies to the 1% now!
So, the more I hear from you ‘Anon’, the more I really don’t like you!!! I wonder how many others on this forum may feel the same way. By the way, some here may already know who I am and many others may soon learn who I am. Till then ‘George’ will have to suffice and is better than ‘Anon’, anyway. You have to be really worried that the public (or authorities) might find out who you are, if you can’t even use your real first name in public. Guess I’m not that worried.
P.S. The record will show that have have proposed NO ‘original’ ideas here at all. Certainly no ideas that would help others navigate our complex, astronomically expensive and potentially corrupt, intellectual property landscape. That all has to change – and fast! China is counting on us NOT changing anything and NOT improving our security measures (especially at the PTO).
AnonApril 10, 2021 10:21 am
“Based on the many comments of others and your own off-the-rails comments,”
Please stop thinking that “mob rules” equates to critical thinking. My comments may be sharp, but they are not off the rails by any means.
“By the way, why can’t you even use your first name? What are you so ‘paranoid’ about.”
Why don’t you use your real full name? What are you so ‘paranoid’ about?
That is not a serious question. It just shows your own duplicity. I have MANY times posted about the historical use of pseudonyms (Publius, Silence Dogwood, and on and on). The “out yourself” is a form of ad hominem – perhaps the most pernicious kind, masquerading on a basis of unfounded projected fear and aiming at the person instead of the message. Get back to the message – put your energy there.
“Well, which do you claim to be? does anyone here actually know who you are?”
I have also many times given my background. The editor of the blog knows who I am, because I have used a real email address in the controls against trolls and those who would try to defeat actual dialogue.
All else is — again — ad hominem distraction.
“Also, you have very specifically KNOCKED AI and implied it doesn’t work well at all and except for when I have brought it up, you have never commented on it at all! ”
Patently False. I have been a major (perhaps THE major) source of dialogue on aspects of AI as that technology intersects with patent law. Just search on this site for “DABUS.” As to my “knocking,” you mistake my knocking of YOUR unfounded and overbroad claims (with examples of actual problems of today — to which you have never provided cogent replies) with some larger “anti-AI” stance.
You could not be any more in the weeds.
“When have you ever suggested that computers and AI could do what attorneys and examiners do now.”
What does this non sequitur have to do with anything? 99.9% of posters have not taken up your hobby horse. Are you going to take issue with all of those people?
“Now go back to the cave from which someone who can’t even use their own first name might have come from. What kind of legitimate lawyer (who still has a license) would identify themselves as only Anon and constantly attack other for weeks on this forum??? ”
Lol – and that’s not an attack?
And a mindless one at that.
You clearly don’t get that the large majority of posters use pseudonyms and antonyms. You clearly don’t get that “attacks” are against faulty legal positions, and those that willingly engage in those faulty legal positions. You don’t get that those who spew fallacies are the ones that have being doing so, and not just for “weeks,” but have been doing so for years.
Wake up son.
“And, what kind of unhinged politically charged nonsense is THIS?!!
“I suggest that you inform yourself, as you are clearly close-minded to anything not coming from your “safe zone” of accepted Liberal Left dogma.””
First, it is not at all unhinged.
Second, it is not at all nonsense.
Third, while is is politically charged, it is directly on point for the context in which it was provided.
Maybe you should take a step back and try to understand the entirety of the conversations, rather than seeing “anon says” and go off your rocker?
“LOL! Most scientists, researchers, Nobel Prize winners and ‘serious’ inventors…**”
Let’s divide this appropriately
“… and trial lawyers (the ones that actually go to court) are ‘Liberal’,”
Your first point is in clear error, as most people with engineering backgrounds (with possible exception of coders) are actually center or right of center.
This comes from diligence with objectivity.
Trial lawyers – as distinguished from most registered patent attorneys — typically have liberal arts undergraduate degrees and ARE Left to Far Left of center.
“They also believe that COVID is real (not a hoax) and that masks and vaccines work!!! I already got mine! How about you?”
False presumptions and unfounded assertions of pure ad hominem nature. You are attacking me as a person (and incorrectly so), and this has nothing to do with the content of my posts. For your edification, I believe COVID is real, masks have a certain effect, vaccines have been developed (under Trump, by the way) at a world record pace, and yes, I have received my vaccination. That being said, I do NOT mindlessly believe most all of what Mainstream Media doles out, am suspicious of most all power politics, and have always thought for myself.
None of your rant though has any connection whatsoever to content here. Maybe you should try that “thinking for yourself” thing.
Let me leave you with one further thought: not everyone that disagrees with you is your enemy and not everyone that agrees with you is your friend.
Focus on the content of what I provide, rather than the feelings that such content create in you.
GeorgeApril 10, 2021 02:27 am
Based on the many comments of others and your own off-the-rails comments, I think it is you who need to take a look in the mirror (and probably many others would agree too). By the way, why can’t you even use your first name? What are you so ‘paranoid’ about. That people would find out you are neither a lawyer or an inventor? Well, which do you claim to be? does anyone here actually know who you are?
Also, you have very specifically KNOCKED AI and implied it doesn’t work well at all and except for when I have brought it up, you have never commented on it at all! When have you ever suggested that computers and AI could do what attorneys and examiners do now. When have you ever suggested that computers and Ai might on day replace most lawyers and examiners and even some judges? When have you or anyone else suggested that here? Now go back to the cave from which someone who can’t even use their own first name might have come from. What kind of legitimate lawyer (who still has a license) would identify themselves as only Anon and constantly attack other for weeks on this forum??? When don’t you attack most posters here?
And, what kind of unhinged politically charged nonsense is THIS?!!
“I suggest that you inform yourself, as you are clearly close-minded to anything not coming from your “safe zone” of accepted Liberal Left dogma.”
Were you by chance in Washington DC on Jan 6? LOL! Most scientists, researchers, Nobel Prize winners and ‘serious’ inventors and trial lawyers (the ones that actually go to court) are ‘Liberal’, Anon. Hate to break it to you. They also believe that COVID is real (not a hoax) and that masks and vaccines work!!! I already got mine! How about you?
AnonApril 9, 2021 08:39 pm
“You would have said that Siri or self-driving cars would have been impossible 10 years ago, too!”
Not at all.
If you want to try to hold a conversation, may I suggest that you stick to things that I have actually said. Instead of making up wild things so that you can knock those made-up things down.
As to your last nonsense, NO ONE forces anyone to partake in the patent system.
You are either seriously confused, seriously misguided, or seriously deranged.
GeorgeApril 9, 2021 07:40 pm
Who is FORCING inventors to spend BILLIONS of dollars for patents every year, instead of being allowed to keep that money and use it for actual inventing, product development and marketing?! Wouldn’t that be a lot better for the economy and for the lives of inventors, Anon? That’s our goal. ,
GeorgeApril 9, 2021 07:37 pm
Well, as always . . . time will tell (and I will be proven right again)! Not only that, I’ll be investing (maybe heavily) in AI aided law, especially patent law. You can stick to your stone knives and bear skins. I could care less, because you are just wrong and I don’t have anymore time to waste on this futile debate! You would have said that Siri or self-driving cars would have been impossible 10 years ago, too! You have no idea of what will be possible in the next decade!
AnonApril 9, 2021 06:50 pm
A blizzard of words from you that do not address my post.
You want to jump way too quickly into your “AI is perfectly equitable” stance, and completely miss on the Alice case and why most knowledgeable practitioners know how awful that case was.
I have already put to you (without a cogent response from you) the current difficulties in AI that lay waste to your “perfect equity” ideals.
You spend far too much time and effort speaking on things that you clearly do not know, and attempt far too many insults asserting that I must not know things (and that know those things quite well, thank you).
GeorgeApril 9, 2021 06:28 pm
The courts job is to interpret and ‘clarify’ what laws say and intend. While not perfect, they do a pretty good job most of the time, but of late (and even in the past) politics and agenda do seem to also be involved now. Maybe that’s another reason to let computers adjudicate many complex matters now. They don’t care about politics, who’s in office or even what century it is, they just follow the rules and laws set down in legislation or question the logic or consistency of those laws and rules.
Fundamental to any of those laws, should be their equitable application and exercise. That’s what ‘humans’ spend a lot of their time arguing about now. Computers would only spend ‘seconds’ to analyze and decide such issues. Laws above all things should at least be ‘logical and consistently interpreted’ if not fair (and computers could easily point out of they’re not fair, too).
So, I can’t wait for that future! Everyone would get the SAME computer, programmed in exactly the same way, regardless of race or income! And computers would never become alcoholics or drug users (like, unfortunately up to 40% of attorneys eventually do).
GeorgeApril 9, 2021 05:29 pm
Well, you clearly understand nothing about computers and AI and so you will soon be left behind. Ever hear of ‘electronic discovery’? Yeah, it’s kind of that. And I shouldn’t have to explain either ‘algorithmic decision making’ or how and why Alice is so good at implementing it. Alice basically says that if you are claiming that a computer will assist in enabling a new invention and which couldn’t be done before, without a computer, then the applicant should be required to clearly state what that computer is doing and when it is doing it! It’s not rocket science (unless that’s using a computer too).
So, Step 1: Do THIS first
Step 2: Then do THIS if (a) happens
Step 3: Then do THIS if (b) happens
Those steps and their ‘clear and unambiguous descriptions’ should be substantially ‘original’ rather than ‘obvious’ and should at least summarize the main and most important elements and functions of a referenced computer controller. Merely referring to a ‘computer controller’ is not sufficient anymore, under Alice. Is that so hard to understand, Anon? Is that so ‘unreasonable’ to ask of an invention that incorporates a computer and claims it as an important element of an invention? To me, it’s a ‘no-brainer’ and I have been doing it for over 25 years now! I didn’t need Alice to tell me that – it was obvious to me!
As to what is ‘algorithmic decision making’ it means that you specify and ‘objective test’ that both humans and computers could follow in order to arrive at a logical and consistent decision, absent of emotions, bias, egos, ulterior motives, secret agendas,or any ‘considerations’ involving employment, raises, points, quotas, promotions, bonuses, or any other human-centered concerns involving money, the profits (of others), or concerns of potential future legal problems. It means the ‘test’ (or tests) is all there is! Pass them and you get a patent, fail them and you have to file again and get a do-over (or many of them). If you can never pass ALL the tests, then you can’t get a patent, if you pass some of them, you might get some of your claims allowed and if you eventually pass all the tests, then you will be allowed all the claims you are seeking. Ever take a test (like a bar exam) Anon? If not, then YOU know nothing about law.
And, if I didn’t know anything about patent law, then I doubt I’d be able to get very many high-quality patents, could I? Especially complex ones having many ‘broad’ claims, since we don’t accept anything else (regardless of how long that might take)! After all, what’s the point of getting ‘crappy’ ones???
Computers can only help to make things MUCH easier, MUCH clearer, MUCH more transparent, MUCH faster, MUCH fairer, MUCH more equitable and color, gender and race blind, and MUCH cheaper to boot!!! Computers are doing for everything else, so why not law?! What’s not to like???
Get with the 21st century, Anon, or it will soon steamroll you and other narrow minded, unimaginative, people. And, why do you resist ‘progress’ anyway??? Things aren’t going to stay the same as they were 50 years ago! They can’t, or the Chinese and other countries will eat our lunch! We don’t intend to just stand there and keep doing things the same old way. There’s always a better way to do things and you don’t have to tell Elon Musk, Google, Amazon, Apple, or us that!
AnonApril 9, 2021 02:36 pm
“An excellent example of an ‘algorithmically decidable’ rule and test is actually the one provided in ‘Alice’ (which apparently you and many others don’t like at all)”
Do you grasp just why those who understand patent law so dislike this “algorithmically decidable” rule (which you still have not defined as to what you mean)?
It would help if you understood just how patent law works and why the legislating from the bench is such an affront.
GeorgeApril 9, 2021 01:10 pm
P.S. I’d also like to see the U.S. create laws against plagiarism (including of original ideas – with or without patents). Since the 21st century is the century of information and ideas, it is high time that people who just steal the work of others have to pay a price for doing that, especially if they do it without attribution.
GeorgeApril 9, 2021 01:01 pm
An excellent example of an ‘algorithmically decidable’ rule and test is actually the one provided in ‘Alice’ (which apparently you and many others don’t like at all). I believe it is one of the best rulings of the 21st century and we were already in full compliance with it over 25 years ago! Indeed I think this test should have been required already in the 1980’s and is a test that could easily be carried out by a computer today.
Many other such tests would also be fairly easy to come up with for deciding other important patent issues, thereby saving a great deal of time and money. However doing this for 103 matters would be quite a bit more difficult and maybe take up to a decade to get right.
As far discussing our projects in any detail goes, we are not allowed to do this since we’re a very stealthy company that doesn’t discuss any of our ongoing or future projects unless they are already close to commercial introduction. As far as possibly doing anything on the IP front goes, we’d prefer to just think about that for now and also wait at least 1-2 years to see what others (including Google and IBM) come up with, before venturing into it ourselves. If it looks like Google or IBM will provide all the tools we’d like to see developed, then of course there would be no point in us trying to outdo them and they’d have a much better chance of convincing (and pressuring) the PTO to adopt those tools (which should then allow them to replace most of their examiners as a result). At least that would be our goal. As stated earlier, we’d like to see patents issued in under a week and cost inventors less than $500 to get (and less than $100K to protect). By the way, I’m a Liberal and not a Conservative, much less a Federalist. I always think about what would be best and equitable for everyone, not just myself.
Ron KatznelsonApril 7, 2021 08:46 pm
George @61 asks “why don’t you just call for repeal of the AIA?” The Massie RALIA bill essentially does this, and I fully support it. However, it is extremely difficult to repeal an act of Congress in its entirety after powerful forces lobbied for its enactment for more than 6 years. I am just a realist on this issue and I see great difficulties for small entities in persuading Congress that there is a crisis warranting even small changes. So realistically, I would set targets lower. For example, I would consider leaving the First-to-File for resolving priority contests among inventors claiming the same invention around the same time (amend pre-AIA Section 102(g) on interference) but restore the full grace period of pre-AIA Section 102 so that no prior art or public disclosure dated after the invention date can invalidate the patent.
As to making more laws “algorithmically decidable,” I do not understand your meaning. Perhaps you can explain how such methods would shape the patent law. Try to contact me directly to discuss this and some of your other projects.
GeorgeApril 7, 2021 06:26 pm
Thanks for your response. I appreciate your efforts to point out all the problems with the AIA prior to its almost unanimous passage. Apparently not enough of your colleagues agreed with you. As for my efforts, unfortunately I never had the audience you seem to have enjoyed, but I did vehemently oppose the effort to harmonize our groundbreaking and extremely successful original patent system with that of Europe, since it was obvious which system produced superior results and which was more equitable. I was not attacking you, just trying to find out exactly where you stood on the matter.
So, why don’t you just call for repeal of the AIA (like we are) by telling those responsible for it: “I told you so!”??? That would be easier than trying to pass yet another ‘bandaid’ solution that could just make things worse, not better.
When things are ‘all messed up’ and don’t work anymore, sometimes it’s best to just scrap everything and start from scratch. It’s clear that in the 21st century we need something much better than what we have now. That’s why I am proposing making more laws ‘algorithmically decidable’ (something that would not have even been possible in the 20th century). This would result in 100% consistency in the interpretations of many laws and would eliminate most if not all ways to object to those decisions (except by a formal algorithm review process that could still involve the courts and ‘experts’ in each subject matter).
We are actually starting to outline how this could be done (and the problems that would have be solved first) and maybe in 1-2 years we’ll seriously start to pursue this goal – in stages. Could end up being worth many billions of dollars – even if never implemented by the courts or the PTO. Indeed some other companies have already started doing this, including Google. These various efforts would also put a whole lot of pressure on the PTO to adopt this new way of doing things (that would be consistent & SUPER-FAST) and at least far better than what humans are capable of.
Also, I don’t care if anyone knows me well, it doesn’t really matter to me at all – I just want them to pay me eventually and appreciate what I’ve done! I also want them to appreciate and respect my ‘ideas’, not just my inventions and patents! There are a LOT of inventors named George out there, Ron but, unfortunately, I like to work on the really hard stuff (as if inventing isn’t hard enough)! You may be hearing more about me soon, though. I might even sue the PTO(/government) on behalf of 1000’s of American inventors, in a couple of years! Can’t right now, because I’ll be filing another ‘huge’ lawsuit by the end of the year. LOL!
Ron KatznelsonApril 6, 2021 04:02 pm
George @58, you seem to vent against the wrong person. You ask me “what was your ‘stated position’ on [the AIA] when it was being proposed and after its passage? Did you support it or oppose it? Did you predict all the problems it’s caused and having now?” Apparently, George, you were not there at the time because you would have heard of my strong public advocacy on behalf of small business and startup inventors against the patent “reforms” advocated through the precursors of the AIA in S.515, S.23, to H.R. 1249 (the AIA), including after its passage.
For example, in an effort to draw attention to the devastating effects that the AIA would bring, I organized a joint IEEE-NSBA open forum two weeks before the AIA’s passage, “The Overhaul of U.S. Patent Law,” Washington D.C. (August 30, 2011). http://bit.ly/2011-Forum. Several Hill staffers attended. In my presentation at the Forum, I provided evidence exposing the proponents of the AIA as the large old multinational companies that drain our domestic R&D jobs, showing that the AIA will harm domestic job creation, startups and individual inventors. I explained why the European model based on large incumbent companies suppressing disruptive new market entrants is fundamentally infirm and should not be emulated here in America. See http://bit.ly/RDK-Forum.
This last-minute effort followed years of my work to educate and advocate against patent law “Harmonization” and the pernicious effects of what would become the AIA. You can find some of the advocacy material still posted on my website at https://works.bepress.com/rkatznelson/:
1. I organized a conference and moderated a panel “Do Not Fix That Which is Not Broken in The US Patent System,” Southern California Law Associations Intellectual Property Spring Seminar (2007);
2. Presented “The Perfect Storm of Patent Reform?” Fenwick & West Lecture Series Inaugural Symposium, UC Davis School of Law, (November 7 2008);
3. Testified against the “First to File” proposal from my own personal experience: “Patenting Strategies Under a Proposed First-To-File Patent System,” Statement at the Federal Trade Commission’s Hearings on The Operation of IP Markets (2009);
4. Authored and organized startup companies’ protest group letter to Congress: “Letter on loss of grace period” under the First To File proposal (2010);
5. Presented “Patent Reform 2010 — Selected Topics”, 3rd Annual Inland Empire Intellectual Property Institute (2010);
6. Published an article advocating against patent legislation in favor of: “Patent Reforms Must Focus On The U.S. Patent Office, Medical Innovation & Business Journal (2010).
Following the passage of the AIA, I alerted against its negative effects and advocated for protecting small entity inventors:
7. Published “The America Invents Act May Be Constitutionally Infirm if It Repeals the Bar Against Patenting After Secret Commercial Use, Federalist Society’s Engage (2012).
8. Testified on behalf of IEEE-USA before the Patent Public Advisory Committee on the disproportionate user fee hike in the front-end of the patenting process. See “Brief Comments on the USPTO’s User Fee Proposal.” (2012).
9. Explained why the USPTO overstepped its statutory authority by increasing user fees beyond the level authorized by Congress: “The U.S. Patent Office’s Proposed Fees Under the America Invents Act—Part I: The Scope of the Office’s Fee-Setting Authority: Patent, Trademark & Copyright Journal (2012).
10. Keynote speech: “Surviving the America Invents Act’s overhaul of U.S. patent law – Startup and small business perspectives, Utah IP Summit (2013).
11. Wrote a detailed critique of further efforts of AIA proponents to double-down with a further assault on patent rights: “The mandatory stay provision of the 2013 joint House-Senate patent bill, Patent, Trademark & Copyright Journal (2013).
Throughout this period, in public discourse and advocacy, and during my rounds on the Hill to advocate for the small business and startup inventors, I have not encountered any person on our side named “George.” What did you do for this cause before the passage of the AIA and shortly thereafter?
GeorgeApril 5, 2021 04:00 pm
“As explained below, this legislation is contrary to patent law; it proposes a dangerous method for injecting identity politics at the USPTO, where it never has nor should play any role, and where there is no evidence that the USPTO has displayed prejudice or discrimination.”
Except they HAVE BEEN very prejudicial against pro se applicants, independent inventors, minority and women inventors. The PTO’s own statistics prove this. If getting a patent were much easier & far less expensive and more likely to improve a persons odds of success in the ‘marketplace of ideas’ and in the ‘information age’, then of course many more women and minorities could afford to at least – try – to get a patent on their ideas (whether they succeeded or not). Let’s face it, the main deterrent to anyone getting a patent is money, not time, not effort, not creative abilities or inventive abilities. As an example, young people today cannot afford to get a patent today, because they already have huge amounts of student debt! What would be more important to them, paying off that debt, buying a car or home, or getting a patent with a 1/1000 chance of a big payoff? Instead they could probably buy a car, head to Vegas and ‘maybe’ make out a lot better (all the while having a LOT more fun too)! By the way, most states now allow online betting too, so if anyone has a spare $10K, their ‘luck’ might be a lot better with one of those options too! In fact, the chances of you losing ALL your money gambling, are far lower than the chances of the same happening by trying to be an inventor in America today!
The odds of being a highly successful inventor in America today, are LOWER than winning the lottery (if you were to buy 10,000 tickets)! You know that is true, Ron! How many inventors have made money after spending $20K to get a patent? How many have even broken even? How many inventors have made any money even after getting 10 or more patents (minus the costs involved in doing that)? Do you lecture your students about the ‘odds of winning’ in the IP game? If not, you should. If the goal of making money is good for everyone else (especially lawyers) than it should be the goal of all inventors too. don’t you think? So, how could those odds be greatly improved, Ron? That’s what Congress needs to ask itself now.
“I believe that efforts and resources for closing such gaps should be focused where they can actually have real effect—by targeted assistance for STEM education, mentorship, and professional training in the years prior to patenting.”
How can we produce more ‘successful’ inventors in America? It’s not JUST by having them study more STEM subjects, by them being ‘mentored’ (like maybe how Edison ‘mentored’ Tesla), or by ‘professional training’ (whatever that means), Who even offers a degree or ‘professional training’ in becoming a successful inventor in America (and what difference would it make if the system remains ‘rigged’ against them?)
We will produce more inventors in America by doing ‘whatever is necessary’ to allow them to become successful again and by financially supporting and rewarding the talented ones, if necessary (at least until they become financially successful). We create more good inventors in America by basically ‘guaranteeing’ the success of at least a subset of them from all classes, races, ethnic groups and genders. We develop more ‘successful’ inventors in America by instituting whatever may be necessary to do that! After all we (the taxpayers) provide all kinds of support to academics and university researchers. If we have money for that (which rarely results in new products, companies or jobs being created), then why not provide financial support for those who CAN create those new technologies, products, companies & jobs of the future? Seems like a ‘no-brainer’ to me! What? – we can’t afford $20K-$40K/yr to help support a talented but struggling new inventor, especially a young one? We can afford billions to support sports in America and many billions more to support academics, but not even $20M/yr ($20K x 1,000) to support a small number of ‘potentially brilliant’ inventors in America? Come on, America, we can do better than that!!! You don’t think China will eventually offer that to its inventors? Sure they will, that’s why we should do it first, Congress!
GeorgeApril 5, 2021 02:49 pm
First of all your “Restoration Act” is just = ‘Repeal of the AIA’.
So, no need for a ‘new’ Act. And speaking of the AIA, what was your ‘stated position’ on it when it was being proposed and after its passage? Did you support it or oppose it? Did you predict all the problems it’s caused and having now?
I am also going much further than you are, by alleging that there could be both corruption and serious security issues at the PTO, that didn’t exist 30-40 years ago. All of those things WOULD BE ones that the PTO obvious would have control over and be responsible for (if its management cared at all).
If the PTO retains bad, incompetent, or even corrupt examiners and supervisors and don’t care about their security measures, then it’s THEIR problem not Congress’. If the PTO has ‘secret’ policies or programs (like SAWS), or unspoken practices that are not documented – it’s their doing, not Congress’.
We now have ample ‘documented evidence’ of wrongdoing at the PTO. This includes one incident where an examiner had to be removed by an Administrative Judge (and likely fired) as a result of outright lying, for the purpose of ‘forcing’ an abandonment (by claiming an OA response had not been received). Needless to say, that was an obvious case of ‘fraud’ and the Judge immediately withdrew the abandonment and assigned a new examiner! But that’s just one example of what we’ve encountered over the last 10 years, and I am sure there are many more examples that could be exposed if Congress actually held hearings, or if the FBI investigated the PTO.
Has the PTO ever been audited, or had a thorough investigation of its operations done by the IG, Congress, FBI, or DHS? I doubt it. Why not? It’s about time and we’ll be pushing Congress to have one. We think the PTO is now operating in the same way the VA was operating several years ago and that was definitely NOT good!
Also, we don’t have decades to fix all these problems one by one, Ron, they ALL have to be fixed within a couple of years, or we’ll be in serious trouble vis-à-vis China and others. There is no time for a slow piecemeal approach. We have to identify ALL problems at once and fix them at the same time. We have identified at least a half-dozen already (most of which could be solved by computers & AI)!
Ron KatznelsonApril 1, 2021 09:49 pm
George @56: I agree with much of your lament on the dismantling of our patent system, which was not the topic of my article, and has nothing to do with anything I said. Read the article again and pay attention to the meaning of the text you quoted before declaring it incorrect by proclaiming “that’s not really the problem” and “You KNOW there clearly is a ‘class’ problem when it comes to who does and does not get a patent in this country, anymore!”
My statement you quoted was narrowly focused on “closing the [grant rate] gap by any action of the USPTO affecting patent grant rate of demographically-favored applications.” And contrary to your assertion, it would “be the problem” if the IDEA Act were to be enacted, as my article explains. The point I made has nothing to do with things of which the USPTO has no control, such as disparity in filings or the your ‘class’ problem of “who gets a patent and who does not.” The latter problem cannot be solved by the USPTO – it requires a “Patent Force Restoration Act” of Congress, addressing many of the issues you correctly raised.
Digressing from the subject of the article, I call it “Restoration Act” because what is necessary is the restoration of what we have had for nearly two centuries: (a) complete grace period not only for publications but also for ‘public use’ and ‘on-sale’ events – the Helsinn v Teva decision confirmed that no such grace period exists after the AIA. The AIA’s grace period transition from “First to Invent” to “First to File” is really a transition from “First to Conceive” to “First to Reduce to Practice,” wherein the latter favors large corporations with ample resources to the detriment of small business and individual inventors; (b) abolishing AIA trials and restoring Article III courts’ role in patent invalidity challenges; (c) restoring the right to injunction against infringers to all patent holders regardless of their business model; (d) restoring the law of patent-eligible subject matter as enunciated in Diamond v. Diehr and abrogating Mayo and Alice. I believe that fixing these four areas will go a long way toward much needed relief to those who need patent protection the most.
GeorgeApril 1, 2021 06:45 pm
“Whether admitted or not, ‘closing the gap’ by any action of the USPTO affecting patent grant rate of demographically-favored applications, would necessarily mean relaxing the patentability examination standards for those applications. This would result in lower quality patents issued to inventors in such favored groups.”
You KNOW that’s not really the problem, Ron! You KNOW there clearly is a ‘class’ problem when it comes to who does and does not get a patent in this country, anymore! You know that wasn’t the case 100 years ago! You know that 100 years ago you didn’t have to be wealthy or work for a big corporation or a monopoly to be able to get a good and even ‘very broad’ and valuable patent in America!
So what happened? Be honest. The inequities in our current IP system has far less to do with the quality of ‘ideas’ being submitted for consideration (although that could also play a role) but rather almost entirely to do with how much money a person or particular demographic group has! You know this is a fundamental problem with our current patent system (that didn’t exist 100 years ago). You know that even ex-slaves were able to get many patents over 100 years ago, despite having very little money. You know that that easier access to patent protections actually HELPED THEM become affluent and even rich in some cases! You also know that if you have $50K – $100K you CAN eventually get the patent you want (including maybe a broad patent).
So why can’t African Americans & other ‘financially disadvantaged’ minorities, along with many more women become rich from their inventions, today?! Is that a GOOD thing for the American economy and job creation? Do you prefer a few dozen ‘giant companies’ doing everything and having a stranglehold on what THEY determine as being ‘adequate innovation’ for the U.S.?
Instead I want an American again where 1000’s of very innovative people help to create millions of new jobs! This will never (again) be possible, if we don’t DRASTICALLY CHANGE (back?) how patents are now examined and allowed or denied – which at least I believe is mostly now determined (directly or indirectly) by ‘class’, ‘wealth’ and ‘power’ over others. This is not right. This isn’t fair!
By the way, if my accusation of discrimination by the PTO on the basis of class is true, then THAT would not only be a serious question of fairness, but also a very serious constitutional question, that the courts might have to soon look into! Perhaps we will even be the first to make such a claim of ‘civil rights’ violations based on this potentially ‘very effective’ argument.
Forget obsessing about questions of race or gender discrimination – our Constitution expressly PROHIBITS discrimination on the basis of one’s class! That could become a ‘ginormous’ problem for the PTO now, especially if their own statistics could be used to prove that has been going on at least since passage of the AIA (if not 10-20 years before that). If a pattern of denials – or application abandonments (intentionally ‘forced’ or otherwise) – could be shown to be based almost solely on financial status, then this would be devastating for the PTO’s argument that it does not discriminate in any way against certain individuals or classes of individuals. And, even better, if it could be shown that ‘now’ 99% of Americans have ALMOST NO CHANCE of ever getting a ‘good’ and ‘legally enforceable’ patent in America anymore (compared to large corporations or millionaires), that would ‘absolutely prove’ that our patent system is just ‘rigged’ in favor of existing corporations and wealthy individuals.
Either of those two discoveries would of course be ‘indefensible’ and would likely lead to our current patent laws, or at least their implementations and adjudications are unconstitutional and therefore must be changed (along with compensating ALL past applicants who may have been harmed by provable prior discrimination). That could also require re-examining millions of past applications and compensating all those American inventors who may have been cheated over the last 30 years! Maybe as many as 100,000 of them? Maybe even more? If true, how much should they each be entitled to, Ron? $100,000? $1M? Stay tuned! You might find out who this ‘George’ guy (trouble maker) is.
GeorgeApril 1, 2021 05:29 pm
Didn’t know about 3649 – sounds like an almost ‘secret’ society for pro se applicants! LOL! What’s really sounds great is that it ‘might’ be much easier to get a patent from that unit (although I am skeptical about the types of claims that such applications would get). It actually could be a ‘trap’ for pro se applicants since it might only issue ‘crappy patents’ to them that have no legal value. That would allow the PTO to address charges that they’re not treating those applicants well. They could then just point to allowance rates for those applicants, compared to the lower rates for regular applicants. Until and unless the ‘quality’ of those patents is compared to attorney prepared applications (or applications turned over to attorneys after a 1st OA rejection), we really can’t conclude anything based on these limited new statistics. See below
GeorgeApril 1, 2021 01:27 am
“THIS IS AMERICA AND WE CAN DO ANYTHING WE PUT OUR MINDS TO, SO IT IS LUDICROUS OF YOU TO SAY OTHERWISE!!!”
ONLY if lobbyists (for pharma) for big, powerful, and monopolistic companies (you all know who they are), along with attorneys and a MAJORITY of legislators are willing to go along with making possibly ‘drastic changes’ to how the PTO operates. Such as by reducing the cost and time required to obtain a patent – by maybe 90% – and allowing the PTO and/or its employees to be held accountable if they deliberately ‘mess up’ an application.
Such legislation should also hold examiners personally accountable if they or their SPE’s ‘intentionally attempt’ to render potentially broad patents, legally worthless, by ‘insisting’ that amendments be made to claims that knowingly would limit them in such a way as to render them entirely worthless and/or easily circumvented (usually without the applicants even learning of it until it’s too late to do anything about it).
Congress would need to make many reforms to our patent laws (including possible repeal of the AIA), to examination guidelines, patent fees and what’s allowable claims language. Claims should be much less formal and much more easily understood (by at east an expert in the field, if not to a lay person). Interpreting claims and giving them their broadest possible scope should be fairly easy to mandate – again! That’s how patents were interpreted in the past, when ‘Letters Patents’ were first introduced. They didn’t even require lawyers to prepare. But then the lawyers did come along to change all that (in order to get a big piece of the actions)! Nothing was easy anymore!!!
Determining if a patent is valid and/or infringed should take no more than a day! If necessary, outside experts in each particular field should be charged with making such determinations – not lawyers, judges, or lay juries, who may not understand anything about what they’re evaluating, or its significance to the field in question (like CRISPR).
Only ‘real experts’ can determine if an invention is adequately described and discloses anything really ‘significant’, new, non-obvious, or in some cases even something that’s potentially a true ‘breakthrough’ or even ‘revolutionary’.
Of course, as proposed above, we could also replace unbiased, ‘incorruptible’, and highly trained experts (in every imaginable field of science) with computers and AI. Computers can obviously work 24/7 including on weekends and holidays, so they could easily handle a million applications/year. No sweat!!! In fact several computers and servers could easily handle a ‘billion’ applications a year (including correcting all spelling and grammatical mistakes and even suggesting better ways of describing things and claiming them) – all with ‘guaranteed confidentiality’! Computers could also (ironically) make hacking and/or ‘in-person spying’ almost impossible, which would force the Chinese and Russians to get their ‘new ideas’ from somewhere else (especially ones important to our national security).
Humans can NEVER be guaranteed to behave in an ethical and unbiased manner, or to protect against the illegal or unethical acts of others – especially humans that, by nature, are driven by the desire for money (and/or sex). Computers don’t have those desires or needs. They wouldn’t care if you were a penniless homeless person or a wealthy Einstein. ONLY the quality, viability (i.e. adherence to the laws of physics and engineering), logical consistency and possibly ‘significance’ of your ideas would matter at all to a computer. Indeed, if someone came up with a new product or service that could take down all of Google with just a SINGLE patent, a computer wouldn’t care at all – you could still get a potentially very valuable patent that would allow you to do that! Bye, bye, Google! Bye, bye, Amazon! Bye, bye, FaceBook, etc.!!! I don’t know why, but I really like THAT idea. You know the idea of providing a TRUE ‘level playing field’ for all inventors, that would not in any way depend on a persons ‘class’ in society! That’s how a TRUE AMERICA should work anyway! Going from ‘rags to riches’ (given the right idea at the right time), should still be possible in a TRUE AMERICA! No ‘special protections’ for rich would be allowed in a TRUE AMERICA (as was the intent of our Founders).
Since I’m at it, the above would not only solve pretty much all our current patent problems, it would also help solve the huge wealth gap problem we now have (which we didn’t have in the 1950’s and 60’s)! Wealthy companies (and monopolies) would then have to the license the technologies they want to use or ‘borrow’ (that they didn’t develop in-house) and people would have jobs JUST LOOKING for all those possible new technologies that they might like to use! That could potentially be 100’s of new patented inventions every year! How may ‘new’ millionaires’ might that create every year and how many new ‘jobs’ might result from requiring large companies to license 1000’s of new patents every year? How many of newly created millionaires would then go on to, directly or indirectly, create every year? Maybe 10,000’s more? And, how many future kids would become motivated to study science and technology in order to potentially become the next ‘successful’ full-time inventors and entrepreneurs of America (as kids used to dream of becoming)?
Bottom line: Giving creative people and full-time inventors, much better quality, ‘broader’ and legally binding patents, would greatly INCREASE innovation and thereby greatly help our economy – not harm it. That’s what it did 150 years ago! It created the industrial revolution! We don’t need any ‘new experiments’ to find that out! We already know it worked great in the past! Why did we intentionally KILL America’s ‘golden goose’? Why did we do that (especially with the AIA)?! The need to license ideas from others ISN’T the problem here – it’s the solution!!! Good ‘ideas’, in and of themselves (even without patents), are worth something in a civilized society. They always have been. At the very least they SHOULD be worth a promotion, or raise, or a bonus. Right now, they’re all treated as being worthless! That’s not good. That’s TERRIBLE! Why would anyone want to study hard and work hard, only to have their ideas dismissed as being ‘worthless’ by someone who was just lucky enough to get or have more money than they do? And if ‘ideas’ aren’t worth much, then why was a NFT (essentially a cyber piece of ‘nothing’) valued at $69M recently? And why are Bitcoins valued at what their currently valued at? They don’t even exist as ANYTHING ‘tangible’. You could never patent an NFT, or bunch of Bitcoins. In that sense all those things are truly ‘worthless’, aren’t they? Something to ponder.
And Mark, please spare me the ‘Shark Tank’ pep talks – you know that’s not ‘really’ how things work in America anymore! You know we have a completely rigged system now! You know Blacks don’t stand a chance, because they have no wealth at all! Same for most single women. Their ‘ceilings’ are not fictional or imagined. By your own admission though, you have never had to face those ceilings. Lucky you!
Ron KatznelsonMarch 31, 2021 10:52 pm
Mark Annett. You apparently cannot justify your YES answer that exposes your indefensible position, which all readers can now clearly see. Therefore, you resort to ad hominem attacks, which I will not dignify with any further response.
Mark AnnettMarch 31, 2021 10:08 pm
@ Ron Katznelson
You are not making progress you are spewing nonsense by stating what I believe! Which you have no right to do.
I have demonstrated the flaw in your logic but you won’t accept so instead you claim to be a mind reader.
I don’t have time to teach you quality assurance or statistics so go and read some books and then come back and talk to me.
I have tried to be as patient as possible with you and respond to all your childish requests but at some point you have to say enough is enough.
Your extremist views are flawed! The USPTO has the ability to simultaneously close the gap and increase patent quality and shame on you for denigrating them by saying that they can’t!
I believe the USPTO is comprised of very hard working talented individuals that can have two simultaneous goals at once. You have said they can’t. You are the one that is besmirching the USPTO not I.
Ron KatznelsonMarch 31, 2021 09:07 pm
Now we are making progress! Thanks Mark @49, answering affirmatively my Question 1 –- he believes identity-based remedies to the patenting gaps are to be applied at the PTO. It follows that he believes that the PTO needs “fixing” due to one of two reasons (i) that there is identity-based prejudice at the PTO, which his proposed remedies would help correct; or (ii) that there is no prejudice at the PTO (as he argues above), but the PTO should be the place where the disadvantages that women and minorities suffered throughout their life experiences are to be “corrected” by some “affirmative action” of a government agency that had no role in creating the gaps in the first place. This is the classic “equal outcome” infirm policy regardless of root causes.
Either way, Mark’s proposed identity-based remedies would necessarily require the PTO to make examiners affirmatively cognizant of the demographic identity of the applicants – a result that even the IDEA Act attempts to avoid.
AnonMarch 31, 2021 07:49 pm
There is no moral reasoning that would provide for such treatment to “these groups” as opposed to all applicants.
You are de facto disadvantagely treating your non-preferred groups, and engaging in the very ISMs that you seek to “correct.”
Mark AnnettMarch 31, 2021 06:33 pm
@ Ron Katznelson
(1) Do you believe that the PTO should implement what you proposed earlier as measures to be applied only for certain demographic groups: (a) preferentially assigning very senior examiners to their cases; (b) preferential treatment of measures prescribed in MPEP § 707.07; and (c) establishing check sheets to “make sure that [such] actions were in fact done for these [groups]”?
While I would ask the employees of USPTO if they have better ideas, my answer is YES!
Ron KatznelsonMarch 31, 2021 05:47 pm
Correction to the penultimate paragraph of my comment @47: strike “Section 5.” I meant “Read Section titled An Alternative Credible Approach of my article for an explanation of the reasons.”
Ron KatznelsonMarch 31, 2021 02:49 pm
Read my posts. My last post did not question you on general points. Please focus on the nature of my question – it is about the identity-based measures you proposed. For the last time, I will repeat the questions that you failed to answer:
(1) Do you believe that the PTO should implement what you proposed earlier as measures to be applied only for certain demographic groups: (a) preferentially assigning very senior examiners to their cases; (b) preferential treatment of measures prescribed in MPEP § 707.07; and (c) establishing check sheets to “make sure that [such] actions were in fact done for these [groups]”?
(2) If you do not believe that such identity based measures should be applied at the PTO, please state so explicitly and we will move on with no remaining dispute. In answering this, please do not substitute my question for one I did not ask by deflecting to general measures not based on demographics.
In your last post you seem to attempt answering my question with a non-answer: “It is that elevated level of care and support shown to those pro se clients that I personally believe has the best opportunity to close the cap and hence the reason for the specific proposals I made.” But surely you must know, Mark, that pro se applicants include all demographic groups not only women and minorities. So this special treatment of pro se applicants is general because they are self-represented and need special assistance on PTO practice that others do not need. For that reason, the PTO has a special Art Unit for pro se applicants (AU 3649) and it has nothing to do with “closing the gap” for women and minorities. And this does not answer my questions (1) and (2) above.
So are your other deflections from the question of whether the PTO should institute identity-based measures. Special economic treatment for micro entities is not instituted by the PTO –- it is the act of Congress –- and it is applied <generally, not only for women and minorities. And of course I support financial breaks for small and micro entities. I have studied and documented their financial hardships and disproportionate lower usage of appeals and RCEs, which likely results in their lower grant rate. See https://innovationalliance.net/wp-content/uploads/2019/10/Katznelson-Statement-Senate-Judiciary-Subcommittee-on-IP-Nov-5-2019.pdf#page=8 . But please do not conflate closing economic gaps with closing patenting gaps for women and minorities, and please directly answer Questions (1) and (2) above.
Finally, you say “Do we need to collect demographic data to understand what to do, absolutely!” This is the sophistry I warned against in my article. We would absolutely not “understand what to do” by collecting the bare information the IDEA Act calls for. Read Section 5 of my article for an explanation of the reasons. As that section explains, the mere demographic information would provide no explanatory information. An expansive survey directed at actually finding the correlates and causal factors for the gap would have to be devised by objective scientific and non-political methods. Only then, with all relevant inventor attributes included in a multifactor analysis, would we “understand what to do.” And chances are that whatever needs to be done, and there is much to do, would not be at the PTO but in the formidable years prior to invention and filing of patent applications.
Mark, have I said this before? Please finally answer Questions (1) and (2) above.
Mark AnnettMarch 31, 2021 07:32 am
For what it is worth, I use my iPad to read and respond to these posts and it doesn’t show me the numbers associated with the posts. So when you say (@23), I actually have no idea what post you are referring to.
As such, I have been replying to the most recent post in front of me and assumed I had previously responded to your post and you simply didn’t like my answer. If I truly have missed responding to something then that was not my intention.
I will continue my practice here and simply respond to your most recent post on the assumption that you have pulled forward what you want me to respond to.
You wrote, “In a deflective mischaracterization of my arguments, Mark said…”
I was not trying to “mischaracterize” your arguments. I was merely stating my own beliefs, which are that…“Trying to close the disparity gap does not mean that the PTO needs fixing. Nor have I said that ‘discrimination permeates the PTO.’ Again, I have in fact stated the opposite that I don’t personally ‘do not believe patent examiners care about the demographics of the applicant.’”
So, let me state once again that these are my beliefs! I will not argue with you what I believe as you have no basis for stating that my beliefs are not my beliefs. All you can do is point out inconsistencies in my beliefs from your standpoint but you cannot dictate what my beliefs are.
Surely, you see the absurdity of dictating someone else’s beliefs when they have stated their own.
You go on to state, “So now we only need Mark to also deny unequivocally that he implicitly believes the PTO is biased and prejudicial, as evident from his proposed identity-based measures that he felt were necessary to be applied at the PTO.“
This statement is a little incomprehensible to me so I am going to do my best to unpack it.
First off, I did not propose the IDEA act so the collection of demographic data and the efforts to close the gap in underrepresented populations were not mine. That said, I believe such measures would be extremely helpful and valuable to the health of our nation.
It is absurd for you to conclude that just because I believe that it would be both helpful and necessary to collect demographic data of underrepresented populations in order to close the gap that I have to believe that the PTO is biased and prejudiced.
There is a gap, correct? That is real correct? Can you realistically fix something if you don’t collect data? The answer is almost always no, unless you make the problem impossible to occur.
So I believe that the data collection is both necessary and helpful to close the gap.
You on the other hand have bizarrely concluded that any attempt to close the patent gap will necessarily lead to lower patent quality in the patents of the underrepresented.
I objected to the absoluteness of your assertion. Maybe you don’t understand basic logic. But if you say X will always occur and I provide one example that X doesn’t have to occur then you are wrong. X will not necessarily occur.
You are simply wrong here! It is not necessary that “ANY action of the USPTO affecting patent grant rate of demographically-favored applications, would necessarily … result in lower quality patents issued to inventors in such favored groups.”
You have to realize your argument fails if I can come up with a single instance where it is untrue. You continue to focus on a single argument of mine and dismiss the whole quality assurance industry is so doing but that is fine. However, you ignore the others.
Explain to me how micro entity status decreased patent quality, you can’t! Or at least you have made no effort to try. As you are placing demands on how I must respond to you and that If do not respond you can draw adverse inferences, I will do the same.
I will now insist as a prerequisite to continued conversation that you either address micro entity status or that your failure to do so is an acknowledgment that you know your argument is flawed.
So to respond to your direct request and to “clarify for record, I state the following:
Systemic racism is a fact in the US. Does that mean that it is an inherent part of the PTO, absolutely not. Do I have any reason to believe it is based upon my personal experience of representing underrepresented populations before the PTO, absolutely not. The one caveat I have to state here is that I come from a privileged class so how I am treated may or may not be the same as when underrepresented populations represent themselves. However, I have seen a few instance where patent examiners have bent over backwards to try and support pro se clients in underrepresented populations. So, with pro se applicants, I have noted an elevated level of care and support, which I have found to be commendable, and the opposite of being indicative discriminatory practices on behalf of the PTO.
It is that elevated level of care and support shown to those pro se clients that I personally believe has the best opportunity to close the cap and hence the reason for the specific proposals I made. It is things like this and many others that can over come some of the systemic problems in society that create barriers to us as a country patenting as much IP as possible.
Do we need to collect demographic data to understand what to do, absolutely! Does supporting the status quo support the privileged class over the underrepresented populations, of course it does. Does supporting the status quo hurt our countries financial health and security because we are not patenting as much IP as possible and other countries are waging an innovation war against us, you bet!
So can the USPTO close the gap without decreasing patent quality? THIS IS AMERICA AND WE CAN DO ANYTHING WE PUT OUR MINDS TO, SO IT IS LUDICROUS OF YOU TO SAY OTHERWISE!!!
Mark AnnettMarch 31, 2021 05:09 am
I understood where you were coming, which is why I tried to thoughtfully respond to your post and no apologies were necessary.
If you do want to look me up then you can find me and we can continue the conversation, as we share a lot of the same concerns and I might be able to help guide you,
Ron KatznelsonMarch 30, 2021 03:15 pm
You are digressing from the theme of the article into whether automated methods for eliminating identity-based bias and prejudice at PTO could be instituted, where there is no evidence that any such prejudice exists at PTO.
Even Mark Annett now openly acknowledges this. In a deflective mischaracterization of my arguments, Mark said (@ 33): “Trying to close the disparity gap does not mean that the PTO needs fixing. Nor have I said that ‘discrimination permeates the PTO.’ Again, I have in fact stated the opposite that I don’t personally ‘do not believe patent examiners care about the demographics of the applicant.’”
So now we only need Mark to also deny unequivocally that he implicitly believes the PTO is biased and prejudicial, as evident from his proposed identity-based measures that he felt were necessary to be applied at the PTO. But Mark evaded responding to my question (@ 23, 31) of why he would make such proposals if he did not think them necessary to remedy PTO’s bias and prejudice. Instead, he redirected his arguments to general quality control measures, conspicuously failing to deny his implicit belief that the PTO is biased and prejudiced.
So one more opportunity for Mark to finally answer my questions and clarify the record: if you believe the PTO is not biased, please retract as inappropriate your proposals for PTO measures to be applied only for certain demographic groups: (a) preferentially assigning very senior examiners to their cases; (b) preferential treatment of measures prescribed in MPEP § 707.07; and (c) establishing check sheets to “make sure that [such] actions were in fact done for these [groups].” If you do not retract those identity-based proposals, we will conclude that your assurances that you do not believe the PTO is biased are disingenuous and are in words only.
GeorgeMarch 30, 2021 02:56 pm
Thanks for you detailed reply, A lot in it so I’ll have to get back with you in a little more detail later, but basically I agree with you. Also, thanks for more info about your background and I apologize if I made some unjust ‘assumptions’ about you and what you do (didn’t look up your name, as I probably should have). I’m looking at these problems strictly from the standpoint of an independent inventor and entrepreneur, not a lawyer.
Things have gotten a LOT harder for entrepreneurs than they were even 30 years ago (not to mention in the good’ole days of 100 years ago – when you could get rich with just ONE patent on a telephone, phonograph or light bulb). In fact, modern IP policies and restrictive interpretations, have now become a huge economic problem too, not just a philosophical, ethical, or legal one.
Startups just aren’t getting the investments they need to succeed and become prosperous (thereby allowing them to create lots of new jobs, that existing companies clearly WON’T do). And, this is why we have ALSO proposed that Congress should now allow ANY American to be considered ‘qualified’ in to ‘invest in’ almost any private company or startup they want (subject to strict regulations though), since Americans are now allowed to WASTE and ‘gamble away’ as much of their money as they want with the allowance of legal online gambling, or backing – unregulated – multi-million dollar Kickstarter projects, or even new (unregulated) ‘NFT’s’. While ONLY the ‘already rich’ are allowed to invest in private companies and startups (often making them even much more money both before and after a private company possibly goes public)! That doesn’t make anymore sense in the 21st century, when (again) computers together with, say, the IRS (rather than SEC) could easily monitor in real time (with required approval) everything that might go on within a privately funded and operated businesses (particularly things such as money transfers and executive pay).
But that’s another subject for a different forum (i.e. how to ‘best fund’ American inventors and entrepreneurs so their success is not dependent on the ‘generosity’ of the rich or existing corporations). Why not let ‘ordinary Americans’ support our inventors & entrepreneurs, ‘directly’?! Another ‘radical idea’, right, Mark? We believe that would free up at least another $200B – $500B/yr. in available capital that might otherwise just be wasted (partly in buying more ‘stuff’ made in China)! This additional ‘new capital’ would be particularly beneficial for infrastructure and green energy projects and creating new jobs in those sectors.
The world ‘doesn’t have time’ for ONLY the rich to pick all the winners and losers in our 21st century economy, and personally we’re not waiting for them (or the government) to do that. We ‘bootstrap’ if necessary . . we don’t ‘beg’ or do ‘elevator pitches’ to the already wealthy. Indeed ‘Shark Tank’ is what’s wrong with our so-called ‘innovation economy’ now. There’s plenty of innovation, but not enough money and PUBLIC support for it! The ‘Robinhood’ incident also proved the demand for more investment options – being opened to ALL – not just VC’s, ‘Angels’, hedge funds and institutional investors. We need public support and funding for ‘invention’, whether patented or not. After all Facebook was ‘just an idea’! So was ‘Google’, so was Amazon and so was SpaceX and Tesla! They’re success was almost guaranteed because they got LOTS of money – fast! They also never had to show any sales or profits BEFORE they got that money, either! So ‘showing proof of revenues’ or profits IS NOT what allowed these companies to succeed beyond anyone’s wildest dreams. A ‘good idea’, along with adequate funding – early on – is what made all those companies so successful, NOT the need for ‘patented ideas’ or even any early sales or profits. There is NO NEED to demonstrate profitability anymore, for a company to succeed in America. That’s the way things used to be 50 years ago!
GeorgeMarch 30, 2021 12:44 pm
Flaws in computer systems can ALWAYS be corrected once identified (it’s part of how we got to the moon). Getting ‘humans’ to always tell the truth, or stop being biased (or worse) seems to be the only TRULY IMPOSSIBLE thing to do (as evidenced on Jan 6).
Computers DON’T exhibit malice and don’t seek revenge. They have neither emotions, egos, or ulterior motives (such as protecting large corporations and monopolies). They don’t care about money and who might end up making it. I’ll trust a computer’s ‘logic’ over a human’s ‘opinions’ any day! I’ll trust science over speculation and endless philosophical and linguistic debating any day. As you might surmise, I have little trust in the decisions of humans – they just don’t seem to be that good at it (or we wouldn’t have climate change)!
Of course it always takes time to make anything work perfectly (just like any new invention). That’s why algorithms should never be relied on for anything really important UNTIL they perform BETTER than humans (like winning at Jeopardy, winning at Go, doing symbolic math, folding proteins, driving cars, or reading X-rays).
The same would be true for the ‘algorithmic examination’ of patents that we’re proposing here and have been for several years now (and now seriously considering as a new project – if we get investors). We believe we could accomplish this in less than 20 years.
As I stated, this will either be accomplished by someone in the US, or by someone in China! Let’s see which one comes true first. Personally I’d like it to be us that does it first. I’d like it to be us to be the first country to replace TOTALLY INCONSISTENT examiners and legal adjudicators with 100% consistent computers that at most can be accused of making ‘understandable errors’ but can’t be accused of incompetence or corruption.
I would find lots of comfort in knowing that any two computers will always agree on their ‘logical decision making’ and always produce the same results, unlike humans that often don’t know or care about the rules of logic (which can also include judges and obviously juries too).
I’d like a patent system where issued patents are 99% likely to be held valid once issued, wouldn’t you? And if a computer does make errors in judgement, then those errors can always be identified and fixed ‘retroactively’ if necessary. Just update the algorithms and run affected past decisions through the new algorithms and accept then apply the new outcomes! Easy peasy!
As you (unintentionally) pointed out, the ‘scientific method’ WORKS and there is no reason to believe that it can’t work for patent examination and adjudication too (or any other area of law). As you pointed out, flaws in facial recognition algorithms have now been pointed out and until they are able to be fixed they won’t be ‘relied on’ for law enforcement purposes. But no need to abandon AI approaches to solving problems just because they may not work all that well, yet. All new ideas need time to be perfected. Unfortunately, even after 200 years of trial and error (mostly error), we have been unable to fix our patent system so that it is truly fair and equitable. Computers could finally make that a possibility. Computers could be the ultimate arbiters of fairness, where humans have ‘failed miserably’ in this goal. Humans have self-serving biases. For instance Examiners wouldn’t want to lose their jobs and neither would patent attorneys. Why would they want that?
We will eventually have self-driving cars. Whether or not they are perfect now doesn’t matter – we WILL have them within the next decade and insurance companies will not only cover those vehicles, they’ll probably be happy to do it. And in law, computers are already doing ‘electronic discovery’ and Google is all AI driven. Same for Siri, etc. So, it’s clear that the future is bright for computers in the practice of law. In fact, I’m sure they could already ace any Bar exam!
It took over 20 years for the company Boston Dynamics to make two legged robots able to walk, run, fall down and then get up, and maintain their balance over all kinds of terrain and even when intentionally being pushed over, but now they can not only do all that, but they can also dance and even do back flips! Can you do a back flip, Anon? I can’t.
Night WriterMarch 30, 2021 11:17 am
@34 AAA JJ “‘Equity’ according to the left is a guarantee of equality of outcome as determined by your group percentages where the group is based on race, gender, sexual orientation, and so forth.” That’s not what it means. To the left or to anybody else other than readers of wing nut talking points.
Wow AAA JJ you have no idea what you are talking about. That is exactly what the left says “equity” means. In fact, the intellectuals agree with what I wrote. Google criticism of “critical race theory” and you can find lots of intellectuals at places like Harvard and Columbia who will say exactly what I did. And some of them are black too.
AnonMarch 30, 2021 08:55 am
And another: https://www.theverge.com/2021/3/29/22356180/openai-gpt-3-text-generation-words-day
Which contains this quote:
“Another worry about the rise of text-generating systems relates to issues of output quality. Like many algorithms, text generators have the capacity to absorb and amplify harmful biases.”
AnonMarch 29, 2021 07:40 pm
I am curious George [pun intended]
My Netflix reminder had just gone off. it flashed an upcoming item that its algorithm had flagged as being of potential interest to me.
Coming on April 5, th documentary of Coded Bias will be debuting.
The promo states: This documentary investigates the bias in algorithms after M.I.T. Media Lab researcher Joy Buolamwini uncovered flaws in facial recognition technology.
This seems to be a rather serious flaw in your premise.
Mark AnnettMarch 29, 2021 05:13 pm
I will respond to your second post first since you are directly addressing questions to me and then transition to the larger issues.
First of all, I have been a corporate inventor where I designed spinal implants and worked on neurological stimulators and heart pumps. I left corporate to among others things become an independent inventor and I now run a think tank, which creates intellectual property and attempts to turn it into companies, everything from robotics to snack foods.
The only patent work that I do for others is for independent inventors where I believe that I can actually benefit them so I don’t make my living of patent fees, I make it off of my investments in technology.
I am also a seed stage angel investor in several other companies and I also teach entrepreneurship in the summers at nearby university. So I am extremely actively engaged in the startup world and it is hard! Pandemic or not!
It is almost impossible to get investment, if all you have is a patent. You need to understand the market, you need to have a team in place, and some traction before you can get any sort of professional investment.
One way to think of patent is that it is a monopoly on your future sales. If you never get current sales, or the high potential of them, then your patent has little value. The unfortunate reality is that companies are unlikely to license your patent unless it increases there current sales, because creating new markets are really expensive. So they will wait for you to create it and the acquire you.
Currently, the patent system is too heavily weighted in favor of large corporations over individual inventors. China is actually now doing a better job of protecting the rights of individual inventors then here in the US, which is moving towards your larger point.
You mentioned China in both your first post (regarding the potential for AI patent examiners) and the second post (regarding your criticisms of the US patent system). I think you raise some interesting points, though I am not looking forward to AI patent examiners. 🙂
Rather then getting too far a field, I am going to respond to you indirectly but begging with a general comment related to the article and the threat posed by China.
As a general comment, it is not in the United States best interest for us not to patent as much patentable IP as we possibly can. It should be statistically obvious, unless you believe in racial and male superiority that, for whatever reason, we appear to be under patenting in our underrepresented populations.
The sad truth is that depending on what metric used, we are no longer the world’s biggest economy https://nationalinterest.org/feature/china-now-world’s-largest-economy-we-shouldn’t-be-shocked-170719. In critical areas, China is innovating faster than the US, particularly in AI.
Counties are waging economic warfare against us through innovation and we are losing ground. To counter this, we need to figure out a way, to get all of our countries patentable IP patented.
This simply makes sense for our countries financial health and economic security. However, the status quo is not in our countries long term best interest because as George validly points out it doesn’t adequately support individual inventors anymore.
The contention of the article is that by trying to close the gap we must inevitably weaken our patent system, which I believe is an absurd notion.
However, I will contend that not closing the gap is a far greater threat to our financial health and security as a country. Especially when you have a country like China that is actually paying a bounty to its citizens to file patents. https://ipcloseup.com/2020/11/10/hoping-to-leapfrog-the-us-in-growth-industries-like-ai-and-aerospace-china-secures-thousands-of-ip-rights/. As such, I believe the staw man here is the premise of the article.
GeorgeMarch 29, 2021 03:51 pm
@ Mark Annett
If it’s so great to be an independent inventor in America today, and if the patent system of this country works so well to protect them and make them ‘prosperous’ or at least reward them so well for their ‘contributions to society’ (as you put it and seem so concerned about), then why aren’t YOU one? You have a background in STEM don’t you? You know more about science and engineering than most inventors, right? And you MUST HAVE SOME really good ideas, once in a while, right, and it would be a cinch and super cheap for you to file your application, right and probably be successful in getting a ‘pretty good’ patent, right? But you know EXACTLY WHY you’re not an independent (or even corporate) inventor in America, don’t you? You know it ALMOST NEVER PAYS (with odds greater than those for winning a lottery), right?
You know that less than 1% of independent inventors in America ever even get back the money they payed to you and the USPTO to get their patents. And you know American inventors now have a ‘snowball’s chance in hell’ of ever making a significant amount of money from their ‘great inventions’. You also know their ‘chances’ of getting rich from their inventions are less than 1/1000, don’t you?
So, how many of your clients have actually ‘gotten rich’ from their great inventions, Mark? Remember, if they got a patent for their invention they are no longer JUST (dime a dozen) IDEAS! They are often $20K+ ideas! But then they are easily enforceable, right? They are a government issued property right then, right?They can be used to stop others from doing the same thing, right and patent attorneys are ‘happy’ to protect those patents on a contingency basis if necessary (if their inventors don’t have the millions of dollars needed to do that), right? Our patent works great to actually protect inventors and their inventions, right and you clearly have no big problems with it, right? How about your clients, Mark? Are they happy? I doubt it!
How many jobs do your clients get to create with their patented inventions?! How much money do they make on average? Can they afford to quit their day jobs to pursue their inventions (like they easily could 100-200 years ago). Do they have an easy time attracting investors with those patents? What impact do patents to individuals have on the US economy (assuming they are not just stolen by existing entities who clearly have NO INTENTION of creating more jobs with those ideas)?
Our current patent system is indeed completely broken and totally ‘unfair’, isn’t it, Mark? It’s not doing what it was ‘intended to do’ by the drafters of our Constitution, is it??? How can it if < 1/100 inventors can even break even now? It's more of a 'scam' now, isn't it? It totally discriminates against people based on 'class' doesn't it now? If you can't afford to get a patent – you CANT get one, right? It's no longer a basic right of ALL Americans, is it? It's no longer an 'equal right' of single women, or poor people, is it?
What little money most inventors have (usually very little) doesn't go to create new businesses and new jobs, instead it goes to provide jobs for PTO staff and to make sure lawyers stay employed.
The fact that most of America's inventors (and not just women & minorities) will soon become EXTINCT (since clearly invention no longer pays and THAT will become even more widely known) doesn't seem to matter, does it? At least Congress seems to finally be waking up (a little) about this huge problem now, but it could be too late when it comes to our competition with China! But what's needed now is a rapid and 'radical' change to how the PTO operates and it's lack of speed, efficiency, fairness and its 'poor outcomes'. The PTO now needs to be at least 90% taxpayer funded – for national applicants. They should also be required to provide government salaried lawyers to help pro se applicants 'of limited means' apply for patents on a reasonable number of invention 'attempts' – for free, with maintenance fees waived for them as well. The government should also directly 'promote' the inventions of its nationals, not 'make it easy' for those inventions to be infringed. There should be at least a 10% chance of profiting from the process of inventing and especially for the chance of creating millions of new jobs based on those inventions! Seems like a 'no-brainer' to me and also seems like that's what the Founders intended for patents. They wanted patents to 'spur innovation' and help rapidly grow a fledgling economy at the time. They didn't just want those 'Constitutional rights' to be documents that in many cases would just be 'void on delivery' and only suitable for framing and hanging on a 'demoralized' inventor's wall!
P.S. You should be commended on using your real name by the way, since most people posting here (including me) don't have the courage to do that.
GeorgeMarch 29, 2021 02:50 pm
I have an ‘idea’ (lol)! How about we just let computers and AI decide most patent matters, especially who should and shouldn’t be entitled to get one?! Problem solved.
Computers don’t give a damn about ethnicity, who you are or what sex you are, or even how big or powerful your company is (or how much they pay the PTO every year, compared to others)! And – YES – it WILL soon be possible to do this if it’s not already possible now (and we’re already looking into doing just that). And if some might reject that ‘solution’ as being far-fetched or impossible, or if we just refuse to do it (for whatever reason), I’m sure the Chinese will try it, if only because they don’t have the ‘love affair’ with lawyers that we do here in America. In China, everyone’s job might eventually be replaced by computers, if they can figure out how to do it. The Chinese like speed, precision, and low labor costs – always. They are also investing much more than we are in AI and starting to use it for everything!
If China should be us to this ‘ultimate’ solution, they’ll not only get to ‘brag’ about beating us in using computers for examination of patents, but also because they will have demonstrated yet again, how advanced their AI capabilities are compared to ours. The latter would then be an even greater embarrassment to the US. So, we can’t let that happen, can we?!
“We can’t allow there to be a mine shaft gap!” – General “Buck” Turgidson (lol)
AnonMarch 29, 2021 01:40 pm
Still waiting for you AAA JJ to give your understanding of how equity is not the same as equality.
(and it is NOT the “Right” wing nuts that the general populace needs to be afraid of for this point)
AAA JJMarch 29, 2021 11:37 am
“‘Equity’ according to the left is a guarantee of equality of outcome as determined by your group percentages where the group is based on race, gender, sexual orientation, and so forth.”
That’s not what it means. To the left or to anybody else other than readers of wing nut talking points.
Mark AnnettMarch 28, 2021 09:38 pm
The change in tone and acknowledgement is appreciated.
I don’t recall ever stating that “the PTO need fixing.” Trying to close the disparity gap does not mean that the PTO needs fixing. Nor have I said that “discrimination permeates the PTO.” Again, I have in fact stated the opposite that I don’t personally “do not believe patent examiners care about the demographics of the applicant.”
I simply come at this differently than you do. I think that we as society benefit when there is equal opportunity for everyone to successfully participate in our patent system.
I will give you the example of one of my patent clients, Michele Valdespee, US10064383B1. Michele is a self described 74-year-old cat lady. Michele has sever arthritis and could not bend over anymore to clean out the kitty litter for her six “kids.” So, Michele invented the litter lift, http://bendnomore.com. Michele is an amazing individual and with a little support and coaching she was able to not only become a patented inventor, she won a business pitch competition, was accepted into a business accelerator, and got onto the Passage to Profits, radio show, all at 74. She has gotten farther than many other entrepreneurs ever do and her journey isn’t over yet.
Why should we not all celebrate someone like Michele making a run at being an inventor? She had a problem and she solved it! Would she have gotten there without extra support, no.
Why does helping her along the pathway, mean that her patent is going to be in anyway inferior? When I asked Michele if I could use her story in this comment, she said, this sounds just like Brown v. Ferguson all over again.
Why is collecting demographic data so that we see if we can improve outcomes for individuals like Michele such a threat?
With respect to your straw man assertions, the performance of any activity there is always a bell shaped distribution. For activities that there is no quality measurement system in place that distribution can be quite wide. Measuring a quality metric has a natural tendency to both tighten the distribution and shift it towards improved quality. So the very act of of consistently measuring an activity, even if previously performed has been shown time and time again to improve the quality. There is no straw man here. These are fundamental principals of quality assurance.
You are the one who is insisting that the decrease in patent quality is a certainty. You are the one who painted yourself into a corner. All I need is one example to refute your hypothesis. You don’t like my initial arguments because they negate yours, then what is your counter to the fact that micro entity status closes the cap without decreasing patent quality. That in and of itself disproves your fundamental premise that the decrease in patent quality is inevitable.
Or, what is your response to @afollowup’s thoughtful comment that “maybe changing the name of “rejections” to “requests for more information/discussion” or something, might also meet the goal of making the patent process more accessible to ALL groups of people, with a focus on the needs of those currently most underrepresented?”
The absolutism of your premise is the problem with your theory.
I want to close by emphasizing once again that it is my experience that the examination of applications is not influenced by the demographics of the applicant. However, that is not to say that PTO can’t do better. The principles of continuous quality improvement are that you always can and collecting data helps guide that effort.
However, this data being collected represents real people, like Michele that are creating IP that is a value to society. Half the country will eventually suffer from arthritis and a third are cat owners. Being forced to give up your pet because it has become a physical chore that you can no longer perform can be devastating. What isn’t well known is seniors pet owners over 65 actually take more pain killers because they can’t not care for their pet. What a loss it would be to us, if the IP people like Michele creates never sees the light of day.
What is the threat here?
Is it possible that the PTO could try and close the gap in such a way that it decreases the patent quality, sure. But if you want to talk about accusing the PTO something, I think they should be offended by your comment that implies that they are so incompetent that they can’t possibly have simultaneous priorities.
Michele, is not your enemy. The loss of her IP to the benefit of society is.
Pro SayMarch 28, 2021 09:06 pm
Ron @ 31: A tad tough to rebut a moving argument, no?
Reminds one of trying to rebut the ridiculous, hop-scotching 101 / eligibility arguments of the CAFC / Dist. Cts. / PTAB.
Ron KatznelsonMarch 28, 2021 03:16 pm
Mark Annett @ 26, 29. To the extent underrepresented groups can benefit from professional support outside the PTO, I applaud practitioners like you who serve pro-bono such groups in prosecuting patent applications. It is indeed likely that assistance and support from people like you – outside the PTO — can help close the patenting disparity gap.
That said, your earlier-proposed measures to be taken at the PTO with respect only to applications of underrepresented populations are predicated on your strawman assumption that the PTO discriminates against such groups – that it does not apply quality measures uniformly, a proposition for which there is no supporting evidence. You yourself contradict your strawman by stating (@29) that you “do not believe patent examiners care about the demographics of the applicant” and that your “experience is that I have not experienced that there is any bias within the USPTO.” If so, why would you even think of proposing those identity-based remedies to be applied at the PTO? The latter defensive statement does not appear credible given your manifest posture that the Office needs “fixing” in order to “close the gap.”
I have explained (@24) why your strawman is false and why there could be no patent quality changes were the PTO to apply that which it has in place already. But you choose to ignore it and merely repeat your statement (@26) predicated on a falsehood: “I have provided an example of how that isn’t necessarily true and how attempting to close the gap could actually lead to higher quality.” This was refuted with silence on your side.
Instead, your responses now do not address the issue at hand with respect to the Act but shift away. You redirect your proposed identity-based prejudicial “quality measures” and make them general by stating (@26): “Ensuring that quality related activities are being performed, leads to greater quality, even if they are currently being performed at 100% compliance, because it is a constant reminder of just how important these activities are.” Quality improvements are always good. But this is mere platitude on the importance of quality control measures applied generally and has nothing to do with “closing the gap” in patenting disparities. You appear intent on blurring and conflating these distinct issues to deflect from your manifest position that discrimination permeates the PTO. So we have a moving target; have you given up on your identity-based measures at the PTO?
Mark AnnettMarch 28, 2021 10:41 am
I loved the thinking behind your statement, “Or treating all applicants the same, but changing the structure of examination, for ALL applicants, in such a way that “speaks” to the norms of underrepresented groups, such as by improving the process, maybe changing the name of “rejections” to “requests for more information/discussion” or something, might also meet the goal of making the patent process more accessible to ALL groups of people, with a focus on the needs of those currently most underrepresented.”
I think that is a brilliant example!
Mark AnnettMarch 27, 2021 10:16 pm
@ Ron Katznelson
So just to be clear when I stated, “ As someone who actually serves the underrepresented populations that the bill is trying to support, I can tell you that I do not believe patent examiners care about the demographics of the applicant.” I was specifically trying to make it clear that my experience is that I have not experienced that there is any bias within the USPTO.
When I stated, “Even, if there is no systematic racism practiced at the USPTO,” I probably should have added, “,which I do not believe there is,” before making my larger point that the “it does not mean that the systematic racism those in underrepresented populations experience in the rest of their life does not have an impact on their understanding of the patent process and their willingness to see a patent all the way through to an allowance.”
If you deny that systematic racism exists in this country then I feel sorry for you. You are right, there is no point in having any further conversation with me. However, your assertion of what “I believe” are not only false but are not even logical based on my statements.
afollowupMarch 27, 2021 07:35 pm
Thank you for continuing the conversation (at #26). I was generally in agreement with the others here, but your last statement regarding micro-entity status has helped me see your side a bit better. Micro-entity status has no bearing on actual examination, but I can see how it helps get a broader diversity of applicants involved in the patent process.
I still maintain that treating applicants differently, during examination, would lead most likely to a reduction in examination quality for one or the other groups.
However, treating applicants differently at other stages of prosecution, such as different fees, might actually be effective.
Or treating all applicants the same, but changing the structure of examination, for ALL applicants, in such a way that “speaks” to the norms of underrepresented groups, such as by improving the process, maybe changing the name of “rejections” to “requests for more information/discussion” or something, might also meet the goal of making the patent process more accessible to ALL groups of people, with a focus on the needs of those currently most underrepresented. I don’t have any specific ideas, but I’m sure others do.
Basically, if there is a way to adjust the system to be more inviting to all potential applicants, but that still treats each Applicant equally, I would look favourably on such a change. But so far, it seems that the solutions being presented involve treating some applicants different than other applicants. That, to me, is generally not okay.
AnonMarch 27, 2021 11:41 am
Mr. Annett, your Activist Privilege is showing.
I am offended.
Mark AnnettMarch 27, 2021 09:51 am
@ Ron Katznelson
It is a well established axiom in quality assurance that what is measured is what gets performed. Ensuring that quality related activities are being performed, leads to greater quality, even if they are currently being performed at 100% compliance, because it is a constant reminder of just how important these activities are.
You have stated categorically that trying to close the cap will lead to lower patent quality. I have provided an example of how that isn’t necessarily true and how attempting to close the gap could actually lead to higher quality. I am an outsider looking in. I am sure the talented folks at the USPTO can come up with even better solutions than I, because they are constantly focused on improving patent quality.
My patent practice is almost exclusively focused on underrepresented populations and I do a lot of quasi pro-Bono filings.
Systemic racism exists in this country that is simply a fact. You need only look at some of the support in the comments that your article has engendered, as proof.
In my practice, what I have noticed is that there is often a tendency of those in under represented populations to want to give up at the first office action, because a state authority has told them no. This in spite of being told ahead of time that this is to be expected, and part of the process.
If you believe the system is rigged against you, which it is in so many aspects of their life, just how likely are you to file an RCE, especially when you have limited financial resources.
Micro-entity status has been a huge gap closer. Did micro entity status change the quality of patents being issued? That alone nullifies your premise that attempting to close the gap will always lead to decrease patent quality.
In China, citizens actually were receiving financial incentives for filing patents. We could do the same thing for underrepresented populations, were we could paying people to file patents. Would such an action automatically decrease the level of patent quality, of course not?
A huge problem in the industry is the predatory practices of people in our profession that will simply take the money of underrepresented populations and file for stuff that has no chance of getting an allowance, especially from the invention services that advertised on TV.
I am often ashamed of our profession when I see the unethical filings that have occurred on behalf of these individuals.
As someone who actually serves the underrepresented populations that the bill is trying to support, I can tell you that I do not believe patent examiners care about the demographics of the applicant. However, it is far too often those on our side of the fence that have failed/exploited them. I believe this is the kind of thing that collecting demographic data may very well reveal and I welcome it.
Could a proactive patent office intervene when there is patentable material in an application filed, you bet. Are people in underrepresented populations losing out because they have poor representation, you bet. Would collecting data alleviate the problem, of course not.
However, if you don’t collect data you promote the status quo. If you have data then you can effectuate change. Even, if there is no systematic racism practiced at the USPTO, it does not mean that the systematic racism those in underrepresented populations experience in the rest of their life does not have an impact on there understanding of the patent process and their willingness to see a patent all the way through to an allowance.
AnonMarch 27, 2021 08:20 am
And yet again to Ron’s points, the underlying and more pernicious aspect is that Mr. Annett has engaged (whether purposefully or not) in virtue signaling with the implicit tone that somehow Ron must want “the bad” because Ron has not accepted the offering of “the good.”
An oft unstated “good” is that a result is mandated, and the Means to that mandated result is glibly treated.
“Pay no attention to that man behind the curtain.”
“Obey and do not question.”
“From each according to their ability, to each according to their need.”
“Who is the neediest? Who ‘wins’ the ‘most victim’ game?”
Demand equity – and pretend that there is no difference between equity and equality.
Ron KatznelsonMarch 26, 2021 09:17 pm
Mark Annett @ 21: the measures proposed “would lead to an increase in the patent quality. So, I still dispute your fundamental assertion that collecting demographic data will lead to poorer patent quality.”
First, my answer is formulated above: the measures proposed are already applied to all applications and applying that which is already in place cannot “lead to an increase in the patent quality.” Mark’s assertion that these measures are not applied in examining applications from certain demographics amounts to an accusation of PTO discrimination, for which there is no evidence.
Second, to be precise, I did not assert “that collecting demographic data will lead to poorer patent quality.” My article contends that pressures to “close the gap” in reported patenting disparities applied at the PTO will lead to lower quality patents. Other than relaxation of allowance standards, Mark has offered no measure to “close the gap” that is not already in place. His argument on patent quality fails.
Ron KatznelsonMarch 26, 2021 06:46 pm
Mark Annett @ 21: “one of the remedies I mentioned but Ron [@13] left out was assigning a senior examiner to the file, which is not done for every case.” Presumably, Mark’s logic here is that senior examiners do higher examination quality job in working with the applicant pursuant to MPEP § 707.07, resulting in beneficial allowance outcomes for favored demographic groups.
But here too, Mark’s remedy is predicated on a counterfactual. He appears to assume without factual basis that examination quality at the PTO is graduated depending on the seniority of the examiner. However, uniformity of examination quality must be presumed, as the Office strives for equalization by specifically accounting for examiner seniority in the allocation of examination time allotted per application. The Office does this through adjusting its examiner production expectancy goals by what it calls seniority “Position Factor.” The most junior examiner graded at GS-5 has a Position Factor of 0.55, ranging up to the highest level GS-15 with a top Position Factor of 1.5. See Patent Examiner Performance Appraisal Plan (PAP) Guidelines, at 3-4 (2012). https://perma.cc/B8Z9-XPNM. In other words, junior examiners are given nearly 3 times more hours to dispose of an application than the most senior examiners. That additional time includes time spent on guidance from their supervisor (a very senior examiner) and a “do over” time to get it right, and thereby achieve more uniform results across the examiner corps.
Mark concludes with a proposal that would require “simply having a check sheet that an examiner needed to fill out to make sure that the actions were in fact done for these files.” (My emphasis). So here again, Mark presumes that examiners must be pushed disproportionately to treat favored applicants as they must already treat every applicant.
One can now see how, even without intent, Mark is currently engaged in none other than implicitly accusing the PTO of discrimination. This is what my article cautioned would happen were the IDEA Act to become law: Mark implicitly accuses the PTO of not applying measures prescribed in MPEP § 707.07 for the benefit of disadvantaged demographic groups; of withholding high quality examination (using senior examiners) that would favor such groups; and of neglecting to “make sure that the [beneficial] actions were in fact done for these [groups].” The underlying premise of the remedies that Mark prescribes is that the PTO discriminates against certain demographic groups. Otherwise, he would not propose them.
AnonMarch 26, 2021 03:43 pm
You are pulling your reincarnation of Malcolm Mooney bit again.
It’s not a good look.
Mark AnnettMarch 26, 2021 02:14 pm
@ Ron Katznelson wrote:
“But all these measures are exactly what the examiners are presumptively obligated to do for each and every applicant”
Just for the record, one of the remedies I mentioned but Ron left out was assigning a senior examiner to the file, which is not done for every case. 🙂
Of the remedies mentioned, while all of those actions are supposed to happen for every file, simply having a check sheet that an examiner needed to fill out to make sure that the actions were in fact done for these files could be enough.
Such an action would not lead to an inevitable decline in the patent quality. It would lead to an increase in the patent quality. So, I still dispute your fundamental assertion that collecting demographic data will lead to poorer patent quality.
Night WriterMarch 26, 2021 01:09 pm
@17 AAA JJ
Wow, if you don’t know that then you have not been following politics at all.
“Equity” according to the left is a guarantee of equality of outcome as determined by your group percentages where the group is based on race, gender, sexual orientation, and so forth.
“Equality” means the opportunities are equal in that people are treated the same based on merit regardless of their group.
The left is defined now by many intellectuals as neo-Marxists that are using race instead of class. Just do a google search of critical race theory.
AAA JJMarch 26, 2021 01:01 pm
So you can’t explain? That’s what I thought. Thanks for confirming.
AnonMarch 26, 2021 12:25 pm
You are kidding right?
Do you think that there is no difference?
I suggest that you inform yourself, as you are clearly close-minded to anything not coming from your “safe zone” of accepted Liberal Left dogma.
AAA JJMarch 26, 2021 11:51 am
What is the “real world difference” between “equity” and “equality”?
Pro SayMarch 26, 2021 10:48 am
Here a gap, there a gap . . . everywhere a gap.
Eric BlattMarch 25, 2021 09:25 pm
Nice article, Ron.
I spent 6 years as an examiner. Under my typical practice, I did not look at the inventors’ names until I had evaluated the claims and made a preliminary decision on patentability. I wanted to reach decisions quickly, so I started with the most relevant information (the claims), and then moved on from there.
Inventor names were part of the process, but, at least for me, they came in at the end. Sometimes, inventors file many patents in succession on similar technology, so I felt that I could not make a decision on patentability before I ran a search for other patents filed by the same inventors. This was essentially pro forma–I ran these searches after I had already reached a decision.
Occasionally, when the claims were very badly written in terms of their syntax, I looked to see whether the inventors were located overseas to see if the claims might have written by foreign lawyers. I didn’t care where the inventors were from, but I used this information as a proxy to see whether the law firm that was calling the shots had a firm grasp on US patent practice.
I doubt that most patent examiners notice or care about the race or gender of the inventors. The face of a patent application, from the examiner’s perspective, is the lawyer–not the inventors.
AnonMarch 25, 2021 05:57 pm
To Ron’s point at post 13, it is critical to understand the (unfortunately intended) real world difference between “equity” and “equality.”
Ron KatznelsonMarch 25, 2021 02:40 pm
Mark Annett @9 designates as false my statement about the PTO ceding to pressure by relaxing the allowance standards for favored inventor groups. As contrary examples, he contends that the Office instead can “insure that when there is patentable material within a patent that it doesn’t get lost;” that the examiners “could draft office actions to decrease the number of RCE’s that need to be filed, encourage examiner interviews, and they could encourage more examiners amendments when the examiner sees allowable subject matter that the applicant isn’t seeing.”
But all these measures are exactly what the examiners are presumptively obligated to do for each and every applicant –- not merely for those in favored demographic groups. See MPEP §§ 707.07(d), 707.07(j)(I), and 707.07(j)(II). Given that these measures are already being taken, I suggest that Mark think again as to what is really going to happen in the examiner corps when faced with implicit or explicit pressure to “close the gap.”
BPMarch 25, 2021 11:05 am
Thank you Ron:
“I believe that efforts and resources for closing such gaps should be focused where they can actually have real effect—by targeted assistance for STEM education, mentorship, and professional training in the years prior to patenting.”
Another area of concern is Big TechBig Ad. Simply consider the firing of minority/female members of Google AI ethics or Susan Fowler’s “Reflecting on one very, very strange year at Uber”.
We need to focus on greedy politicians that take money from certain entities. Those entities hide behind think tanks, academics and others as they seek to further weaken the USPTO and the patent system in general.
The “Access to Justice” deregulation by faulty regulation movement that is destroying state bars across the country is being led by LegalZoom and Google’s RocketLawyer (so-called “disrupters”). They want to prey upon the disadvantaged just as Wall Street did in the premeditated mortgage crisis.
Compare workforce statistics and conditions at Google AI and Uber to the USPTO, as set forth by Director Iancu:
Today, at the agency I am now honored to lead, women comprise 36 percent of our total workforce, and 39 percent of our senior executives. In Trademarks, Office of Policy and International Affairs, Office of Chief Financial Officer, and Office of the General Counsel, approximately 63 percent of our workforce is female.
And while half of women in STEM jobs leave their fields after a decade, at the USPTO, there is less than 5 percent attrition for female patent examiners over that same time. These numbers are important because they reflect the USPTO’s mission, which is to promote American innovation across all geographic regions of the country and across all demographics.
So, where’s the problem? Politicians too ready to take dark money from their handlers (Big Tech/Big Ad) to destroy the USPTO under the guise of “justice” and “equality”.
Instead, the politicians should be focusing on workforce equality at Big Tech/Big Ad. What did young women (and all women) learn from Uber and Google? You are not welcome – Big Tech doesn’t need you or want you. And, if you happen to land here, good luck, we will make your life a living hell.
We need to focus squarely on discrimination, mainly the men (school boys) that head/fund the entities that seek to weaken our institutions and pit people in the US against each other.
Dear politicians, what are you doing about illegal practices in Big Tech/Big Ad and their poor records as to hiring and retaining women and minorities? Strike at the root!
Come On, ManMarch 25, 2021 10:07 am
Opposing data collection efforts because they don’t go far enough is a straw man argument. The patent office doesn’t need to (and probably won’t) be the place where we solve the disparities identified by the SUCCESS act. But it’s a good place to collect the data. None of the challenges identified here should prevent data collection from happening.
TishaWashingtonMarch 25, 2021 09:43 am
Seems like the most important outcome is overlooked: any “lower quality” patents will be obliterated in post grant proceedings…
Mark AnnettMarch 25, 2021 09:03 am
I do not believe the Pro Say’s comments, which discuss racist and sexist thinking have respectfully added to the discussion.
The theoretical Tom in this scenario is a vile individual who needs therapy.
We need to do something exactly because far too many people think exactly like the not-so-hypothetical Tom in that scenario.
We as society need more conversation where people are saying congratulations to Suzy (a low-income, gay, black 70-year old woman from Haiti) on getting your patent!
What we don’t need in society is racist and sexist people like the not-so-hypothetical Tom and the more Suzy’s that get patents the fewer Tom’s we will have.
I further reject the premise in the article that “whether admitted or not, ‘closing the gap’ by any action of the USPTO affecting patent grant rate of demographically-favored applications, would necessarily mean relaxing the patentability examination standards for those applications. This would result in lower quality patents issued to inventors in such favored groups.”
This is simply a falsehood. There are lots of actions that the patent office could take that would not necessarily mean relaxing the patent standards. For example, they could assign more senior examiners to examine patents from these groups to insure that when there is patentable material within a patent that it doesn’t get lost. They could draft office actions to decrease the number of RCE’s that need to be filed, encourage examiner interviews, and they could encourage more examiners amendments when the examiner sees allowable subject matter that the applicant isn’t seeing.
All of the actions I just specified would simultaneously increase the patent quality and increase the allowance rate!
So the authors premise is flawed and gives too little credit to the excellent woman and men at the USPTO, who can walk and chew gum at the same time.
I am not saying that the bill isn’t flawed. I am simply saying that the premise that demographic data collection will “necessarily” lead to lower patent quality is absurd and perpetuates the racist and sexists thinking of the not-so-hypothetical Tom’s of the world.
We are better than this!
DaveRMarch 25, 2021 09:02 am
Why should even “liberals” (“progressives”) even care about such matters and statistics? Aren’t they the same misguided people who want to eliminate all references to gender in all laws, regulations and matters in which the federal government has issued any written statements? Do your own part where and when you can to help stop the raging mass insanity that is (has) overtaking our country and society.
TFCFMMarch 25, 2021 08:53 am
I propose a far simpler alternative to the IDEA Act — and one that ought surely to please the bean-counters who proposed it:
Let’s simply declare, upon patent issuance, that certain inventors are women, African Americans, left-handed Albino differently-Abled “alternative” gender what-have-yous, or whatever.
Apart from satisfying said bean-counter’s “equity and diversity” goals, this system even permits us to retroactively “correct” past perceived-faults, such as by declaring Thomas Edison to have been an African American woman.
Night WriterMarch 25, 2021 06:11 am
The other thing too is that I’d bet that a real statistical study would prove that the examiners don’t even notice the demographic of the applicant.
I’ve spent 20 years as a patent attorney and know personally lots of examiners as I grew-up near the USPTO. I’ve never even remotely heard a comment about the demographics of the applicant. Nothing. I’ll bet that few examiners even notice the names or think about it. There are so many names and so much work who in the world has time to even notice or think about the names and demographics of the applicants?
Night WriterMarch 25, 2021 06:06 am
Thanks for this.
I have never seen any evidence of discrimination at the USPTO based on gender, religion, or race of the applicant. I am a patent attorney with 20 years experience.
There probably is bias that favors well-known large tech companies.
And…drum roll…the fact is that most of the examiners in the AUs I work within are women or minorities. I’ve never seen any examiner at the USPTO even remotely care about the demographics of the applicant. Never even remotely.
Stephen PotterMarch 25, 2021 05:18 am
Not a good IDEA!
There are already discussion in Europe about differentially favouring applications that are being promoted as “green”, “sustainable” and so on…
These descriptions, as well as those from “diverse” inventors can only promote politically and ideologically loaded behaviours and decisions.
I freely accept that we are all living in societies which have their own such bases but to depart from the concept that patentable inventions are those which are Novel, Not Obvious and Industrially Applicable and load them up with other capabilities
doesn’t seem a sensible way forward.
Pro SayMarch 24, 2021 09:42 pm
Great exposition Ron.
Overheard conversation between two friends . . . should this well-meaning-but-will-make-things-worse bill become law:
Suzy: “Hey Tom — take a look at my new patent from the Patent Office!”
Tom: “Congratulations Suzy!” (while secretly thinking to himself: “The only reason she got a patent is because she’s a low-income gay black 70-year old woman from Haiti”. The Patent Office would have never given ME a patent on such an alleged “invention.”)
Does American really need any more of this?
AnonMarch 24, 2021 06:01 pm
Aside from any other item,
“and any other demographic category that the Director determines appropriate”
Immediately is a threat to disintegrate into a “victim race” due to the very nature of intersectionality, identity politics, and the nature of the power grab of Neo-Liberalism.
Julie BurkeMarch 24, 2021 05:49 pm
Thank you, Ron, for posting this article. I agree with many of your points. It would be logistically near-impossible for the USPTO to create and maintain two parallel prosecution files, one a working file which somehow shields Examiners from seeing the inventor names on all the types of documents your article lists and a second, official, complete file that displays the inventor’s names. Further, if it is deemed necessary to collect and maintain demographic information submitted by patent applicants and/or patent practitioners, on a voluntary basis or otherwise, I’d suggest that function would be more appropriately handled by an independent and impartial entity such as the EEOC.