Patent Law

The Snake

By Gary Odom and Jordan Kuhn

Criticism of the USPTO has reached comical proportions, and the joke is on us: inventors and prosecutors. When there is a universal howl from the U.S. patent bar about the agency, while the PTO itself crows about a lurch down in allowance rate, and a federal court rules that the PTO acted illegally, you may think something afoot. Jeff Wold of IAM Magazine, sitting comfortably across the pond in merry old England, wonders.

Wold, in his 15 Jun 2008 entry, criticizes fellow blogger Gene Quinn for lambasting the PTO and lamenting "that the Patent Office has stopped working and examiners are outright not following the law and refusing to issue Patents all because PTO Quality Review has become punitive." Wold's where's-the-beef critique: "Maybe all this is true. But if it is, where is the evidence?"

Wold thinks Quinn should worry about bad publicity:

More serious than all of that, however, is the potential harm that those making unsubstantiated accusations could be doing to the system that they say they care so much about... [I]f you keep telling innovators and investors that, in fact, they are living in a country whose government, in the words of Mr Quinn, "does not have the ability, resources and knowledge to handle innovation" and one where "most patents issues will not stand up under real scrutiny during litigation", what kind of message does that send out? To my ears, it is advising innovators and investors to stay well clear of the United States. If they start listening to that message, where is that going to leave Mr Quinn and his colleagues in the US patent bar?

Wold, showing how he thinks by projection, thinks that all patent attorneys should think about is what's good for their business.

Gee Jeff, perhaps it should occur to you that maybe Mr. Quinn is a bit less self-interested, less concerned about what foreigners will think, and more worried about a return to sanity in examination practice, for the sake of integrity in the U.S. patent system.

Consider the source. Jeff Wold = USPTO apologist.

March 22, 2008: "What the Patent Prospector and other Dudas critics fail to acknowledge is that fee diversion has ended on his watch." Needless to say, the Patent Prospector had its answer to that.

Last October, Wold had no criticism for the PTO with its illegal attempt to limit examination with its cutoff claims and continuation rules.

If the lawsuits fail and the rules do become an established element in the US patent application process, practitioners will find a way to live with them - they will have no other choice. This is, no doubt, what the USPTO expects to happen. Indeed, some in the office say in private that they believe the rules will very soon be turned into an opportunity by firms, which will develop specific continuations expertise that can be sold at a premium to clients.

The most significant angle Wold reported on the continuations rule-making was that screwing inventors out of their inventions could be good for patent agent business. Do we see a pattern to Wold's cogitations?

In the same article, Wold had a Rodney King "can't we all just get along?" moment:

[I]t seems to me that the relationship between the USPTO and practitioners is profoundly unhealthy at the moment. That cannot be good for anyone who is interested in the future of the US patent system. There is real venom - sometimes even contempt - in the language I have been hearing from members of the US patent bar over the past few days when they speak about the office. It is actually quite shocking. Fences need mending and they need mending fast.

Quite shocking indeed. Wold acknowledges the venom, but can't see the snake.

Full post as published by The Patent Prospector on June 15, 2008 (boomark / email).