In discussing Mistake #1 – Conclusory assertion rather argument with explanation – I noted that Applicants often fail to make a real argument on appeal. One reason may be that the Examiner hasn't given the Applicant much to work with, so that there's nothing specific to rebut.
But by the time you reach appeal, the Examiner has probably made specific findings about how the reference teaches your claim elements. If so, you need to pay attention to exactly what the Examiner said, and deal with it. Here are a few examples where the Applicant failed to do this and lost:
This passage suggests that the functional circuit design, on which the Examiner reads the recited "initial IC device design" (Answer 3), contains information indicating which structures (e.g., transistors and interconnect lines) are connected to each other, which would appear to be enough to satisfy the claim. Appellants have not explained why the Examiner's reliance on paragraph [0118] is misplaced, instead simply asserting that "[t]here is no language in the cited passages that teaches that the initial IC device design includes a desired relationship between at least two structures within the IC device design" (Reply Br. 6). The rejection of claim 7 is therefore affirmed.
(Ex parte Lukanc, emphasis added.)
The Examiner’s uncontested finding that Yamamoto’s figure 4(c) depicts the locking member 4A (the “connecting member”) having an “abutment section” (the upper right section of U-shaped intermediate portion 41) engaging the lower face of main portion 30 (the “corresponding section of said main holder member”) belies Appellants’ arguments (see App. Br. 8, Reply Br. 2-3) that Yamamoto’s locking member 4A does not have a front abutment section which engages the holder main member 3. See Facts 1 and 4.
(Ex parte Yanagita, emphasis added.)
With respect to Appellants’ argument that Franchere does not teach the “wells for containing a fluid sample therein” feature required by claims 1, 12, 27, and 35, Appellants’ argumennt is unpersuasive of reversible error because it fails to address the Examiner’s stated case, which is based on, inter alia, Franchere’s test tubes and the corresponding openings in Franchere’s modular units, as meeting the “wells” feature required by claims 1, 12, 27, and 35. In this regard, the Examiner finds and Appellants do not specifically dispute that Franchere’s test tubes are capable of containing a fluid sample therein. (Compare Ans. 3 and 4 with App. Br. 6-10 and Reply Br. 2-5). On the present record, the term “well” is any depression that can hold a fluid sample. Accordingly, Appellants’ argument is unpersuasive of reversible error.Don't forget to see if the Examiner has specifically addressed claim construction, and to contest the interpretation if your argument implicitly relies on a different interpretation of that term.
(Ex parte Blouin, emphasis added.)
Next, we turn to the Appellants' argument that neither Carmody nor DeWolf teaches systematically updating the detailed record. Br. 2-5. In response the Examiner construes the term systematical to be "methodical in procedure or plan;" ... then finds that paragraph [0081] of Carmody and paragraph [0008] of DeWolf teach this limitation. Answer 10. The Appellants do not challenge the reasonableness of the Examiner's construction nor do they address the Examiner's specific finding above that Carmody and DeWolf teach this limitation.We are not persuaded by this argument of the Appellants.Finally, you should specifically look for new findings, reasoning, or claim interpretation in the Examiner's Answer. Then you need to file a Reply Brief to address any new stuff, as noted in this BPAI decision:
(Ex parte Capotosto, emphasis added.)
[The Appeal Brief] argument overlooks the fact that the process depicted in Figure 5 is performed at each data rate. ... Furthermore, as pointed out by the Examiner in the Answer, Pinard specifically describes using the data rate as a basis for selecting an AP ... Appellants, who did not file a reply brief, have not addressed, let alone shown error in, the Examiner’s reliance on these column 2 passages.Since I've started this series on Mistakes when arguing at the BPAI, I've heard from several readers who ask how to square the BPAI decisions I've cited with the BPAI's own precedential opinion Ex parte Frye. After all, doesn't Frye say that the BPAI should not give deference to the Examiner's findings?
(Ex parte Backe.)
It seems to me that Frye clearly limits that deference to contested findings.
... Specifically, the Board reviews the particular finding(s) contested by an appellant anew in light of all the evidence and argument on that issue.
Filing a Board appeal does not, unto itself, entitle an appellant to de novo review of all aspects of a rejection. If an appellant fails to present arguments on a particular issue – or, more broadly, on a particular rejection – the Board will not, as a general matter, unilaterally review those uncontested aspects of the rejection. For example, if an appellant contests an obviousness rejection only on the basis that a cited reference fails to disclose a particular limitation, the Board need not review the other, uncontested findings of fact made by the examiner underlying the rejection, such as the presence of uncontested limitations in the prior art.
All of these arguments by the BPAI are in violation of Ex parte Frye, which requires that the BPAI not give deference to the positions taken by the Examiner.
ReplyDeleteThe BPAI is to review the evidence anew, without deference, on the issues raised by Appellants. It is up to the BPAI to determine whether or not the Examiner's positions/findings are correct or not, based upon the BPAI's own findings, which must be supported by substantial evidence.
Of course, it would be helpful to the BPAI if you specifically point out the error for them, but it isn't required.
BPAI = Fail
>Ex parte Frye, which requires that the BPAI not
ReplyDelete>give deference to the positions taken by the
>Examiner.
I disagree. Frye says that about *uncontested* findings by the Examiner.
My post should have mentioned Frye. Based on your comment, I revised the post to do so.
"This passage suggests that the functional circuit design, on which the Examiner reads the recited 'initial IC device design' (Answer 3), contains information indicating which structures (e.g., transistors and interconnect lines) are connected to each other, which would appear to be enough to satisfy the claim. Appellants have not explained why the Examiner's reliance on paragraph [0118] is misplaced, instead simply asserting that '[t]here is no language in the cited passages that teaches that the initial IC device design includes a desired relationship between at least two structures within the IC device design' (Reply Br. 6). The rejection of claim 7 is therefore affirmed."
ReplyDeleteSo a passage of a reference cited by the examiner can "suggest" that some interpretation given to the claim by the examiner "would appear to be enough to meet the claim" and if the applicant responds that the plain language of the passage does not disclose, or suggest, what is claimed, that's not enough?
Some of these APJ's need some very serious remedial training.
Thank you for all the effort to put this together. Very informative...
ReplyDelete"and if the applicant responds that the plain language of the passage does not disclose, or suggest, what is claimed, that's not enough?"
ReplyDeleteBecause it's a conclusory statement. You have to do what the Examiner is supposed to do....provide reasoning and analysis demonstrating that the Examiner is wrong.
"I disagree. Frye says that about *uncontested* findings by the Examiner."
ReplyDeleteWhy would the BPAI given deference to contested findings but not uncontested findings? You need to clarify.
>Why would the BPAI given deference to contested
ReplyDelete>findings but not uncontested findings?
I don't think Frye's distinction between contested and uncontested findings is weird.
Frye also says you have to show error in the rejection. So part of showing error is contesting the underlying finding, either of fact or of law.
Doesn't that make sense?
An appeal brief is entirely adequate if all it says is "the examiner didn't give an element-by-element explanation of the correspondence"--provided that the examiner in fact was silent.
ReplyDeleteRemember that the examiner has two separate obligations -- a substantive burden to find a good reference, and a procedural burden to explain that reference feature-by-feature or limitation-by-limitation. 37 C.F.R. § 1.104(c)(2); MPEP § 1207.02(A)(9)(c) and (d)(i); Form Para ¶ 12.159.
Only after the examiner discharges the procedural burden does the burden of "persuade of reversible error" shift back to the appellant.
Anonymous at 5:20 and the Lukanc Board misunderstand burden of proof, which has two components.
The "burden of going forward" is a burden of identifying an error, and that's the appellant's duty (Frye). To do that, all the appellant has to do is identify the error - procedural or substantive - exactly what the appellant did in Lukanc.
Then, in the second step, as Frye instructs, the Board reevaluates de novo. The Board has to give an explanation. 5 U.S.C. 555(e), as interpreted by lots of APA cases. In re Vaidyanathan, 381 Fed.Appx. 985 96 USPQ2d 1507 (Fed. Cir. 2010) (unpublished).
If the Board's explanation "advanc[es] a position or rationale new to the proceedings," for example, any new finding of fact, then the Board has to designate a new ground of rejection. In re DeBlauwe, 736 F.2d 699, 706 n. 9, 222 USPQ 191, 197 n.9 (Fed. Cir. 1984); In re Kumar, 418 F.3d 1361, 1367–68, 76 USPQ2d 1048, 1051–52 (Fed. Cir. 2005)
That's the law. Now tactics may be different. Standing on procedure may or may not be a good idea! If you're going to stand on procedure, you better read the reference really thoroughly, and make sure that there's nothing there you missed! It's pointless to make a procedural argument if you're going to lose on substance. It's also a sure loser to argue procedure if the examiner met the procedural obligation but only marginally.
How to reconcile this with the cases set out above?
Lukanc is a November 2008 decision, from the days when the Board was Toupin's cabal of Mafioso enforcer goons, not a fair appellate tribunal, when the Board had delusions of being an Article III court that applies a "convince us error" standard, rather than the legally-required "preponderance of evidence" standard. Fortunately several of the moron SOB's on the Board that were driving this crap have been "retired," and Deputy Director Barner has been pulling the reins of the remaining. We'll see what happens after she leaves at the end of next week. (Blouin shows that APJ Colaianni doesn't get it yet.)
In Yanagita and Blouin, apparently the examiner did make an appropriate finding and explanation, and the applicant didn't address it. From the decision, it looks like Yanagita tried to dodge the broadest reasonable interpretation (but that's a different error).
On appeal to BPAI, it is Appellant's burden to show harmful error
ReplyDelete(Aside from contesting the major fact finding errors, one should contest the erroneous claim construction steps and erroneous applications of law, i.e. wrong 103 analysis)
>the Lukanc Board misunderstand burden of
ReplyDelete>proof, which has two components.
>[To satisfy the "burden of going forward"] all
>the appellant has to do is identify the error
>- procedural or substantive - exactly what
>the appellant did in Lukanc.
>
>Then, in the second step, as Frye instructs,
>the Board reevaluates de novo ...
Sounds to me like you view Lukanc as a decision in which the Board summarily affirmed because the Applicant did not meet the burden of production. And that you find the Board to have acted improperly because the Applicant did in fact meet that burden, by simply arguing (paraphrased) ref-does-not-teach-claimed element.
Another way of reading Lukanc is that the Applicant's argument met the burden of production, but not the burden of proof. The Board weighed the Examiner's position against the Applicant's position, and found the Examiner's position more persuasive.
I think it's hard to tell what the Board was really thinking, since the Board's decision doesn't explain using the proper framework (burden-of-production and burden-of-proof).
Just as an aside - does anyone have or know where to find a list of APJs that have been appointed since Kappos became director?
ReplyDeleteKeren at 12:47:
ReplyDelete> Another way of reading Lukanc is that
> the Applicant's argument met the burden
> of production, but not the burden of proof.
> The Board weighed the Examiner's position
> against the Applicant's position, and found
> the Examiner's position more persuasive.
But that's not what the Lukanc Board did, is it. The appellant did exactly enough--demand an explanation or an allowance. The Board gives no analysis or explanation of the reference, just "we're not convinced." The Lukanc Board violated the Patent Act by shifting burden of persuasion, and violated APA section 555(e) as interpreted in State Farm by not explaining the facts and the rational connection between the facts found and choice made.
"Because it's a conclusory statement. You have to do what the Examiner is supposed to do....provide reasoning and analysis demonstrating that the Examiner is wrong."
ReplyDeleteYou are wrong, wrong, wrong, wrong.
You absolutely do not have to "demonstrate" that the examiner is wrong. All you have to do is contest the examiner's findings and then the Board has to review the findings de novo, with ZERO deference to the examiner.
So if the examiner says, "Jones discloses the invention of claim 1. See column 1, line 1 through column 20, line 65." and you don't agree, all you have to do is SIMPLY ASSERT, "No Jones does not." You don't have to "explain" a GD thing. The Board has to review the examiner's "finding" de novo. They cannot dismiss your argument by whining like a bunch of little cry babies that you didn't "explain" why the examiner was wrong.
Having said that, I agree with Karen that it is better to explain, rather than just argue. Besides, it's more fun "demonstrating" what a moron the examiner is by pointing out how shitty the rejection really is.
Adding some editorial comment to what Anon-6:23 PM had to say, using the burden framework that Boundy explained.
ReplyDelete>All you have to do is contest the examiner's
>findings
This meets the burden of production.
>then the Board has to review the
>findings de novo,
>with ZERO deference to the examiner.
You get this de novo review because you've met the burden of production.
>[Board] cannot dismiss your argument by
>whining like a bunch of little cry babies that
>you didn't "explain" why the examiner was
>wrong.
Though they might find your argument UNpersuasive because you didn't explain.
Even the Board finds your conclusory argument unpersuasive, the APA requires them to explain why they affirmed the Examiner (ie, State Farm's requirement to explain the facts AND the rational connection between the facts found and choice made)
David, Karen, and all:
ReplyDeleteForm Para ¶ 12.159 is a great citation. Why is this only stated as a requirement for examiner answers in MPEP 1200? Shouldn't it be part of regular 131/132 examination? Can I get away with citing this in respond to bad 131/132 Office Actions? After all, shouldn't the statements of the rejections be symmetrical, or else introduce new grounds of rejections under De Blauwe, Wiechert, and Kumar, etc.?
"Though they might find your argument UNpersuasive because you didn't explain."
ReplyDeleteAgain, Karen, I agree with you that it is better to argue and explain than just argue. My point though is that the BPAI can't simply "dismiss" your "simply asserting" that, let's use your example, "a blodget is not a widget" and affirm the examiner because you didn't "explain" why a blodget is not a widget. The BPAI has to review the decision of the examiner. And they have to provide their reasoning as well. So ideally the BPAI will provide some analysis of how they are construing the claimed widget (e.g. was applicant acting as own lexicographer or is the term used according to its plain and ordinary meaning?) and some analysis of its fair reading of the reference. I think a little hand holding for the APJ's is a good idea, but should you really have to explain that a blodget is not a widget if the examiner is simply making sh!t up, which is the case in a majority of the "fact finding" that is done by examiners.
Kip,
Great cite to form paragraph 12.159. Can't say that I've ever personally seen an examiner's answer that even comes close to meeting it, except in some high profile reexam appeals.
"You are wrong, wrong, wrong, wrong.
ReplyDeleteYou absolutely do not have to "demonstrate" that the examiner is wrong. All you have to do is contest the examiner's findings and then the Board has to review the findings de novo, with ZERO deference to the examiner.
So if the examiner says, "Jones discloses the invention of claim 1. See column 1, line 1 through column 20, line 65." and you don't agree, all you have to do is SIMPLY ASSERT, "No Jones does not." You don't have to "explain" a GD thing. The Board has to review the examiner's "finding" de novo. They cannot dismiss your argument by whining like a bunch of little cry babies that you didn't "explain" why the examiner was wrong.
Having said that, I agree with Karen that it is better to explain, rather than just argue. Besides, it's more fun "demonstrating" what a moron the examiner is by pointing out how shitty the rejection really is.
"
I'm pretty sure that everyone knows what your nonsensical position is, and it being favored by K man. However, nonsensical positions seldom last long in patents, and your making a conclusory statement and then supposedly obligating the board to complete the examiner's analysis hardly even fits within the definition of "review". And frankly, I doubt if this position will end up carrying the day as we move forward. More reasonable minds will prevail.
"The appellant did exactly enough--demand an explanation or an allowance."
See, like David so eloquently puts it, the applicant doesn't really want "review" what he wants is another examiner to explain the rejection to him. Frankly, it shouldn't be tolerated. That's not what the board is there for. And note that David in his typical tomtoolery/douchebaggery forgets that the board does not allow applications.
"The Lukanc Board violated the Patent Act by shifting burden of persuasion, and violated APA section 555(e) as interpreted in State Farm by not explaining the facts and the rational connection between the facts found and choice made. "
Or maybe they were just simply persuaded, and neglected to make explicit all the factual findings and rational connections which the examiner already provided.
David's toolbag wish for the board to be "super examiners" rather than a legitimate review body will likely be short lived.
>[The Board can't] affirm the examiner
ReplyDelete>because you didn't "explain" why a blodget
>is not a widget. The BPAI has to review the
>decision of the examiner.
OK. Legally, the BPAI "can't" affirm solely because you didn't explain your position. Once you've met the burden of production by identifying the error, they must review the contested finding without deference.
I'm not sure we have agreement here on what it means to contest a finding. Some say that "blodget is not a widget" amounts to contesting. The Lukanc Board seemed to say the contesting had to be more specific, and respond to the Examiner's specific finding.
We all agree that, practically speaking, you're more likely to be persuasive when you explain.
Also, the BPAI won't always say "we affirmed because you didn't explain." If they didn't explain their decision in terms of the burden of proof, then how do you know they simply weren't persuaded by your "blodget isn't a widget" argument.
How much of this procedural stuff can you bring up on appeal to the Fed Cir?
Suppose you have the BPAI *on record* saying:
"We didn't review the Examiner's findings because the Applicant didn't actually contest the Examiner's specific finding about the blodget in the reference, and instead merely made a conclusory statement that 'blodget is not a widget'."
Can you simply bring this up at the Fed Cir and frame the issue as "There is no substantial evidence in the record for the reference teaching the claimed widget"?
>the applicant doesn't really want "review"
ReplyDelete>what he wants is another examiner to explain
>the rejection to him. Frankly, it shouldn't
>be tolerated. That's not what the board is
>there for.
I want review on the current record. So having an Examiner's side of the record that is incomplete, makes no sense, etc. would be good for me.
But what I get is the Board doing extensive claim construction and fact finding. So I get a "review" based on a position I've never seen before. And to add insult to injury, the BPAI doesn't usually even make it a new ground of rejection.
Maybe appeal isn't the best way to deal with Examiners who do a crappy job of examination. But there aren't any viable alternatives. Petitions are no good: too slow; and decided by Examiner's boss (ie, petitions to the Tech Center director). What else? Civil suits under the APA? That's ridiculous.
"The Lukanc Board seemed to say the contesting had to be more specific, and respond to the Examiner's specific finding."
ReplyDeleteThis is nothing more than an example of the BPAI indulging in what is the examiner's favorite past time: making sh!t up.
The appellant in the Lukanc case did "contest" the examiner's finding. The idea that there's something more required, or some "magic words" that the appellant is required to chant in order to "contest" the examiner's findings is just made up nonsense from the BPAI.
Go back to the case you discussed a few weeks ago where the examiner interpreted a reference that disclosed that an element was "rigid" as reading on a claimed feature that was "flexible." If the appellant argues, "There is no language in the cited reference/passages that discloses or suggests the claimed flexible element" is the BPAI going to find that argument unpersuasive on the grounds that all appellant did was "simply assert" that the reference didn't teach the feature? Talk about ridiculous.
It appears that Mr. Kappos is going to have sit in on another BPAI panel and smack these lifer APJ's upside the head and explain to them that "contesting" a finding/conclusion by the examiner is too be interpreted broadly, and that when appellants "contest" an examiner's finding(s)/conclusion(s), thes lazy APJ's are going to have to do their statutory duty: provide a de novo review of the contested issue and provide their analysis and reasoning for either affirming or reversing.
Mr. Kappos, don't delay.
"So having an Examiner's side of the record that is incomplete, makes no sense, etc. would be good for me. "
ReplyDeleteUntil you try to get an application allowed that is. Don't concentrate so much on winning the battle at the board that you still lose the allowance war you're fighting.
"But what I get is the Board doing extensive claim construction and fact finding. "
So in other words they're explaining to you what the examiner said to you that you were too dmb to understand? Well, ok, but remember, you're going for an allowance, not a win at the board. Next time it might behoove you to take a second look at the rejection and the reference cited and keep an open mind as to claim constructions before you go to the board. Or take five minutes to explain factual findings and claim constructions to the examiner and then ask him what his are since you're having trouble figuring them out. I don't know, be a professional or some sht like that?
I put up with the same kind of nonsense from on my side. People making conclusory statements, not stating that they're contesting the claim construction when that's what they're doing, not stating that they have an issue with my factual finding etc. etc. As a competent member of the patent community it behooves us to school those around us during our interactions so that they might be less incompetent in the future.
It is quite a burden, I admit.
" And to add insult to injury, the BPAI doesn't usually even make it a new ground of rejection. "
This might come as somewhat of a surprise to you, but most people don't give two shts about it being a new ground. If you think it is a new ground, then talk to the examiner about it afterwards and see if you can't get your free OA or whatever it is you're wanting as a consequence of it being a new ground.
"Maybe appeal isn't the best way to deal with Examiners who do a crappy job of examination."
I might have been wrong about you, you might be smarter than you seem in our day to day.
"But there aren't any viable alternatives. "
Sure there are. As long as the spe is competent. Two people from my AU were let go not long ago. And I'm quite sure my spe was getting an earful every week, possibly for every rejection. I got a few of their cases, the applicants got good art on the next action, and they have commenced normal prosecution. Sure, they had bad luck to begin with, but this is life.
But you're right in the case of an isolated incident, every examiner will do a bad job occasionally, as will anyone at any job. There are very few alternatives to going to the board. However, I still feel like the most powerful one is the alternative called "persuade the examiner". And if you're good at it, then you will have little troubles. If you're bad at it, then look on the bright side, you can always get better.
On the other hand, you have Kappos at the helm atm, you guys should use the opportunity to get him to establish something like the ombudsman program for incompetent actions.
"Go back to the case you discussed a few weeks ago where the examiner interpreted a reference that disclosed that an element was "rigid" as reading on a claimed feature that was "flexible." If the appellant argues, "There is no language in the cited reference/passages that discloses or suggests the claimed flexible element" is the BPAI going to find that argument unpersuasive on the grounds that all appellant did was "simply assert" that the reference didn't teach the feature? Talk about ridiculous."
ReplyDeleteThat's a great example. What you have is the applicant arguing a factual issue where the real issue is claim construction and/or a more specific factual finding, whether or not the term "flexible" was open to a low flexibility to the point of being rigid. But of course, the applicant doesn't bother to be specific, and is thus unconvincing to the examiner, leading to an appeal.
And again, the board is there to review, not to explain the rejection, or even sort out what the real issue is. If you can't be bothered to bring the real issue to the forefront then idk about making the board do it for you.
"Or take five minutes to explain factual findings and claim constructions to the examiner and then ask him what his are since you're having trouble figuring them out. I don't know, be a professional or some sht like that?"
ReplyDelete"However, I still feel like the most powerful one is the alternative called 'persuade the examiner'."
Your continued belief that you can persuade people who are so idiotic as to think that a rigid element meets the broadest reasonable interpretation of flexible element has persuaded me that your shield of persistent ignorance is impenetrable, 6tard.
JDtard, let's be clear I never said any such thing. In that case you're right, you could also indicate that the construction must be within the broadest reasonable constructions/interpretations available and discuss that as an issue with them as well.
ReplyDeleteAlso, I believe the word you're looking for is "moronic" or something to that effect. "idiotic" has a specific meaning that doesn't fit within the context of what you're trying to convey.
In any event, I never said that it was easy to convince everyone in the whole wide world of patents. Indeed, it may be very difficult or impossible in some limited circumstances. However, some of us, like myself, are better at it than others like JDtard. This of course causes them to have considerable frustration and to be very jealous of us that make it seem effortless.
Don't be jealous JD. I mean, look how far you've come since toilet paper holders. Bravo.
>So in other words they're explaining to you
ReplyDelete>what the examiner said to you that you were
>too dumb to understand?
Gee, you're sure reading a lot into what I said. I didn't give any specifics about what the Examiner said or didn't say. So I'm not sure where you get the idea that I'm too dumb to understand something the Examiner said.
>it might behoove you to take a second look
>at the rejection and the reference cited and
>keep an open mind as to claim constructions
>before you go to the board.
By the time I go to appeal, I have spent lots of time trying to figure out what the Examiner might be thinking about claim construction and about the teachings of the references. Based on that, I do everything I can to make the Examiner explain on the record what his position is. Only then do I appeal.
You're preaching to the choir.
>As a competent member of the patent >community it behooves us to school those
>around us during our interactions so that
>they might be less incompetent in the >future.
My blog is full of stuff about mistakes made by patent attorneys. Once again, you're preaching to the choir.
>most people don't give two shts about it
>being a new ground.
I have no information about whether or not people care about this.
I care about the Board properly designating a new ground because it allows me to reopen pros after appeal without paying for an RCE.
>I still feel like the most powerful one is
>the alternative called "persuade the
>examiner".
I'm doing my best to persuade the Examiner. By making real arguments rather than conclusory statements, by addressing claim construction, etc.
>And if you're good at it, then
>you will have little troubles.
Kinda sounds like you're saying that attorneys who appeal aren't good at their job.
This is a bit simplistic, isn't it? There are many reasons why cases are appealed, including ignorant attorneys, ignorant Examiners, and even ignorant clients. Not to mention a reasonable difference of opinion to be resolved by another body.
There are some Examiners who won't be persuaded. Seems like there just isn't enough incentive and/or consequences for not doing so. Some will even tell you flat out they're not allowing your claim because it's too broad. Or because their SPE told them not too.
What really persuades the Examiner is narrowing the claims. Some clients don't want that.