Wednesday, November 30, 2011

BPAI affirms obviousness of combining computerized rule processing from three different settings

Takeaway: The Applicant appealed an obviousness rejection of claims directed to rule-based processing of medical records. The Applicant attacked the rationale for combining by focusing on the three very different technology areas in which the references used rule processing. The Board affirmed the rejection, finding that it was obvious to combine teachings about network configuration rules and document management rules to the primary reference's teachings about patient rules. "The Examiner applied Harsham simply to show the unremarkable fact that one of ordinary skill knew that using rules to set parameters in a computer system simplified tasks. ... The Examiner applied Vulpe simply to show how one of ordinary skill might implement the records management required by Kerr, with the aid of Harsham’s rules, by using Vulpe’s architecture for records management." Ex parte Schoenberg, BPAI 2011.

Details:
Ex parte Schoenberg
Appeal 2010006290; Appl. No. 10/825,352; Tech. Center 3600
Decided November 17, 2011

The claims on appeal were directed to processing medical records. A representative independent claim on appeal read:

     1. A rule processing computer-based method comprising:
      [1] receiving user input to a processor-based computer for defining a computer-executable rule ... [which] causes the computer to identify a target group of patients chosen from a group of existing patients;
      [2] receiving user input to the computer defining ... a computer-executable action to be taken by said computer concerning one or more patients within the target group of patients;
      [3] scheduling ... an execution time for the action;
      [4] processing, by the computer, a plurality of computer-based medical records against said computer-executable rule to determine one or more of said medical records that satisfy the rule,
           wherein each of the medical records contain at least a portion of a corresponding patient's medical history stored to computer-readable medium; and
      [5] initiating by the computer, in accordance with the scheduled execution time, the action concerning corresponding patients to which the determined one or more medical records that satisfy the rule relate.
(Emphasis added.)

The independent claims were rejected as obvious over a combination of three references. According to the Examiner, the primary reference Kerr taught everything except elements 1 and 4 (emphasized above). Secondary references Harsham and Vulpe were relied on for elements 1 and 4, respectively. As a motivation for adding Harsham to Kerr, and Examiner offered "having a means of configuring a computer network in an object-oriented manner" as taught by Harsham. As a motivation for adding Vulpe to Kerr and Harsham, the Examiner offered "having a means of determining which records satisfy a particular rule" as taught by Vulpe.

On appeal, the Applicant first argued that the combination did not teach elements 1 and 4, focusing on the fact that neither secondary reference had anything to do with medical records. Harsham was directed to network management and the rules in Harsham were used to define configuration parameters for network devices. "Harsham simply makes no mention or suggestion whatsoever of any rules that pertain in any way to patients or to medical references." Vulpe was directed to document management, and describes intersection rules that relate to document architecture. "Vulpe simply makes no mention or suggestion whatsoever of any rules that pertain in any way to patients or to medical records."

The Applicant then argued the Examiner had not provided sufficient rationale to combine. The Applicant again focused on the fact that the references came from different technology areas: monitoring delivery of drugs to patients; configuring a computer network; and document management. "Sufficient rationale has still not been provided to establish why one ordinary skill in the art would be motivated to combine such disparate teachings in the manner applied by the Examiner absent the use of impermissible hindsight in which the present application is used as a blue print to piece the element together in the manner claimed."

In the Answer, the Examiner maintained the rejection without further explanation.

The BPAI affirmed the obviousness rejection. The Board began by noting that in arguing elements 1 and 4, the Applicant had improperly attacked individual references. "The Appellant contends that Harsham fails to describe medical records, although it is Kerr that is applied for such records. ... The Appellant contends that Vulpe does not suggest medical records. Again, the Appellant is attacking the references separately, even though the rejection is based on the combined teachings of the references."

The Board then commented that the Applicant's attack on the rationale for combining was misplaced. While the Applicant focused on the different technology areas in which rules were used in the three references, the Examiner applied the more general teachings of the reference:
The Examiner applied Harsham simply to show the unremarkable fact that one of ordinary skill knew that using rules to set parameters in a computer system simplified tasks. As Kerr describes a medical computer system, Harsham simply shows that one of ordinary skill new that Kerr’s administration could be simplified by using rules. Vulpe shows how to improve the organization of documents using a document management system. The Examiner applied Vulpe simply to show how one of ordinary skill might implement the records management required by Kerr, with the aid of Harsham’s rules, by using Vulpe’s architecture for records management.

My two cents: I think the Board's rationale is persuasive. But there is a more important lesson here.

My first impression of the Applicant's arguments was: the Applicant completely missed the boat by not addressing the combination. (A topic I have written about before here as "Mistake #5: Failure to address the combination".)

On further reflection, I see failure to address the combination as the symptom of a bigger problem: focusing on the specific teachings of the references rather than the more general understanding which a POSITA would get from the references.The lesson here is thus: be on the lookout for what a reference teaches in general and don't get stuck in the details.

Here, the Applicant focused on the different areas in which the three references applied rules to record processing: healthcare information systems; network management; and document management. By focusing on the different fields of application, the Applicant appeared to miss what a POSITA would see in all three references about rule processing in general.

The Board did a good job of explaining how the secondary reference Harsham, when read with a focus on the big picture rather than the details, fit with the primary reference Kerr. Harsham stood for the general teaching that users can create rules to define parameters and these rules can be applied to data – rather than the specific teaching that users can create rules to define configuration parameters for network devices and these rules can be applied to data describing network devices. When this general teaching in Harsham is combined with Kerr's use of rules in a different context – to identify groups of patients –  the result something that's at least in the ballpark of Applicant's claim limitation 1.

Said another way:

receiving user input defining a rule which causes the computer to
[specific teaching of 2nd reference = ] define network configuration parameters
[generalized to => ] define parameters
[applied to heatlhcare context of 1st reference => ] define parameters which identify a target group of patients chosen from a group of existing patients;

Here, the Examiner did give an important clue as to how he was generalizing the secondary reference – as long as you read the rejection very carefully. After acknowledging that the primary reference did not teach limitation 1, the Examiner asserted that the secondary reference taught not 1, but 1' :
receiving user input to a processor-based computer for defining a computer-executable rule
Thus, it's clear upon careful reading that the Examiner is relying on primary-modified-by-secondary to get from 1' to 1.

A similar analysis holds for limitation 4, taught by the third reference:
[specific teaching of 2nd reference = ] processing document intersection records against the document intersection rule to determine one or more of said document intersection records that satisfy the rule
[generalized to => ] records and rules
applied to heatlhcare context of 1st reference => ] processing medical records against the rule to determine one or more of said medical records that satisfy the rule

Examiners don't always clearly explain how they are abstracting a feature from one reference and applying the abstraction in the specific context of another reference. But I believe many obviousness rejections can best be understood using this sort of framework.

So Applicants, the next time you find yourself saying "X teaches a widget and Y teaches a green blodget, but neither reference teaches my blue widget", I challenge you to step back and think instead about what the reference says about widgets in general, about colors as applied to blodgets, and about how widgets might be similar to blodgets. With this in mind, you can then evaluate whether or not the combination teaches the element in question, and further, whether the combination is proper.

28 comments:

  1. Karen,

    The problem is that "abstraction" runs a grave risk of engaging in impermissible hindsight. Suppose a ref teaches narrow X. Narrow X doesn't quite meet the claim language. But the Examiner relies on the ref for broad X. Even though the ref never talks about, or discusses, broad X in the abstract, the Examiner interprets it that way.

    But where does this abstraction come from? Somehow we've gone from narrow to broad, but none of the references are doing the work - the Examiner is doing the work. The Examiner, with the benefit of the Applicant's clams and disclosure before him like a roadmap, sees that narrow X won't work, and so "abstracts" broad X from it.

    Of course, the counter-argument is that the person of ordinary skill is a person of ordinary creativity, and not an automaton. I think that KSR statement applies more to the question of whether it would be obvious to combine known elements, rather than the question of whether it would be obvious to abstract a general teaching from a narrow reference, where the abstraction is not otherwise known.

    Moreover, allowing examiners to liberally "abstract" things from prior art runs counter to the legal requirement to read the prior art "as a whole." Reading the prior art "as a whole" includes considering "teaching away" arguments, but is not limited to those arguments. In my view, the requirement to read the prior art as a whole means that examiners do not have a liberal power to dissect and excise selected portions of references, out of the context in which they are found, to abstract or otherwise modify their teachings so that they fit the claim language. That's practically the definition of hindsight bias.

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  2. "In my view, the requirement to read the prior art as a whole means that examiners do not have a liberal power to dissect and excise selected portions of references, out of the context in which they are found, to abstract or otherwise modify their teachings so that they fit the claim language."

    Very well said. Unfortunately, an Examiner seeing this as the only way to make a rejection isn't going to care because rejections are "good." Also, unless you get an APJ that hasn't beeing tainted by the "reject, reject, reject" mentality at the USPTO, this argument likely isn't going to work either.

    That being said, I'm going to use some of you arguments. I oftentimes see generalized "teachings" extracted from the prior that just don't exist, and it is hindsight.

    "the counter-argument is that the person of ordinary skill is a person of ordinary creativity, and not an automaton."
    I always cringe at this inaccurate generalization from SCOTUS that clearly shows that they are divorced from reality.

    The person of ORDINARY skill and ORDINARY creativity has NEGLIGIBLE creativity. Anybody working in the real world should quickly figure that out.

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  3. >problem is that "abstraction" runs a grave
    >risk of engaging in impermissible hindsight.

    Thanks for the thoughtful comment. I'll need some time to formulate a reply.

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  4. "After acknowledging that the primary reference did not teach limitation 1, the Examiner asserted that the secondary reference taught not 1, but 1' :

    receiving user input to a processor-based computer for defining a computer-executable rule
    Thus, it's clear upon careful reading that the Examiner is relying on primary-modified-by-secondary to get from 1' to 1."

    This is the typical nonsense you get from examiners, and very unfortunately from the Board. Ref. A doesn't teach the feature, Ref. B doesn't teach the feature, and you argue that even if it would have been obvious to combine the references the combination would not have resulted in the claimed invention. What you get back is garbage form paragraph citations to In re Keller, which is completely inapposite to the application.

    Regarding your colored widget example, this is also nonsense. I have a case under appeal where the claim recites recording only those widget signals that meet a certain criteria.

    Ref. A teaches recording all widget signals. And it's very clear from the disclosure of Ref. A that all of the widget signals have to be recorded in order for the invention of Ref. A to actually work.

    Ref. B teaches recording blodget signals that meet a certain criteria. Not widget signals that meet a certain criteria, but blodget signals that meet a certain criteria.

    How does combining Ref. A and Ref. B, neither of which teaches recording only those widget signals that meet a certain criteria, result in the claimed invention? The answer is: it doesn't. It's total bullsh!t. Claimed features that are not shown by any reference of a combination cannot magically appear out of thin air upon the mere suggestion of combining the references by a patent examiner. Or even a panel of "affirm at all costs" APJ's.

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  5. "Examiners don't always clearly explain how they are abstracting a feature from one reference and applying the abstraction in the specific context of another reference. But I believe many obviousness rejections can best be understood using this sort of framework."

    Indeed, and yet the permissibility of abstracting the teachings of a given reference to make a combination is often up for grabs and something you don't hear a lot about in cases.

    "The problem is that "abstraction" runs a grave risk of engaging in impermissible hindsight. Suppose a ref teaches narrow X. Narrow X doesn't quite meet the claim language. But the Examiner relies on the ref for broad X. Even though the ref never talks about, or discusses, broad X in the abstract, the Examiner interprets it that way."

    All too true, and I try not to do that too much myself, and the permissibility of "genericifying" the teachings of a reference is often at issue in a case and nobody much brings it up.

    "Of course, the counter-argument is that the person of ordinary skill is a person of ordinary creativity, and not an automaton. I think that KSR statement applies more to the question of whether it would be obvious to combine known elements, rather than the question of whether it would be obvious to abstract a general teaching from a narrow reference, where the abstraction is not otherwise known.
    "

    I would tend to agree, but sometimes I also feel strongly that a certain teaching could be abstracted into a more generic teaching.

    "Moreover, allowing examiners to liberally "abstract" things from prior art runs counter to the legal requirement to read the prior art "as a whole.""

    I'm not entirely sure I agree with this, indeed, reading the prior art as a whole may very well be describing reading the generic teachings of the reference as well as that which is explicitly set forth.

    "That's practically the definition of hindsight bias. "

    With that I will have to definitely disagree. Reading a reference in a more generic rather than mroe specific light can most certainly be done without just as easily as with any hindsight. Indeed, you can pick up a reference right now, abstract its teachings, and have a whole new thing which is taught independent of you even having an instant application in front of you for analysis.

    "The person of ORDINARY skill and ORDINARY creativity has NEGLIGIBLE creativity. "

    Idk brosensky, I can spend 5 minutes with a given tard off the street and get them to come up with something innovative. They might not do it routinely without prompting, but the ordinary tard off the street has more than negligible creativity.

    "The answer is: it doesn't. It's total bullsh!t. "

    In your example I'd have to agree, in other exemplary situations I may not agree so strongly, but on the whole it is usually just bs. Indeed, the a great portion of the PTO floats thereupon.

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  6. I should note for those reading however, that regardless of whether or not it is permissible to genericify the teachings of a reference you will certainly see CAFC judges do it sometimes and not do it other times. For instance, see In re Odom. They were missing quite a few limitations and they genericified one limitation from a reference then combined and ignored the other missing limitation.

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  7. "A person of ordinary skill in the art is also presumed to be one who thinks along the line of conventional wisdom in the art and is not one who undertakes to innovate..."

    Standard Oil Co. v. American Cyanamid Co., 774 F.2d 448 (Fed.Cir. 1985).

    Innovate - to introduce something new; make changes in anything established.

    I think it's pretty clear that none of the black robed 9, nor any of their law clerks, ever reviewed any of the case law on POSITA before they all took a dump on a stack of paper and called it their decision in KSR.

    This notion of "generifying" or "abstracting" a prior art reference is complete and total horse sh!t. One of ordinary skill in the art, i.e. somebody who is not looking to introduce something new or make any changes in what is already established, is not running around for other areas in which to apply these wonderfully abstract notions that a prior art reference supposedly contains. And isn't always amazing that the one area where POSITA decides to apply these wonderfully abstract principles is exactly in a claim of a patent application? Is that just a coincidence? Or is it hindsight?

    "For instance, see In re Odom."

    He's a joke. He's got another post about how all patent attorneys are incompetent, but he and his ex-examiner turned patent agent can draft "litigation proof" patents. The only patent that he's ever drafted that got litigated, his own, got shot down in flames. His little agent hasn't been practicing long enough to get an application allowed, let alone litigated.

    And then when somebody challenges him to back up his nonsensical claims, he gets mad and closes the comments on his site.

    Loser.

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  8. "I think it's pretty clear that none of the black robed 9, nor any of their law clerks, ever reviewed any of the case law on POSITA before they all took a dump on a stack of paper and called it their decision in KSR. "

    True, but then again, where did the Fed. Circ. (and/or the courts that came before) get off calling POSITA a complete dumas? And, even if POSITA was a complete dumas in the 80's does that mean that they are today? Ours is not called the information age for naught.

    "This notion of "generifying" or "abstracting" a prior art reference is complete and total horse sh!t."

    While I would tend to agree, it is often terribly hard to find teachings of generic things which one of skill does indeed know. And I can say that without any "hindsight bias" as I have no instant case in front of me. I can rattle off 50 different things which one of skill in my art knows without even trying but it would be hard to find a reference explicitly stating a great portion of them. Much is learned on the job, much is the consequence of basic reasoning over technical results of experiments, and so on and so on. However, it may be somewhat easier to find references generically disclosing them by having disclosed more specific species in their embodiments.

    That said, I am generally sympathetic to those genuinely engaging in the useful arts and their disclosure of something which hasn't been made explicit. My boss is somewhat less so, but I do try to engage him on the topic from time to time.

    "One of ordinary skill in the art, i.e. somebody who is not looking to introduce something new or make any changes in what is already established, is not running around for other areas in which to apply these wonderfully abstract notions that a prior art reference supposedly contains. "

    I guess I'm the only one that does that... mmmm, yeah idk about that.

    "And isn't always amazing that the one area where POSITA decides to apply these wonderfully abstract principles is exactly in a claim of a patent application?"

    Well, to be sure, they are also applied in other inventions around the world day in and day out... I don't know if the fact that one (or even many) invention upon which an application is made for a patent gets caught up in this type of rejection is an indication that something is horribly amiss or that hindsight is somehow present.

    I don't know, all in all, it almost seems like something that needs to be taken case by case imo.

    "He's a joke."

    Well I'm not denying that, and I'm certainly not saying that his patent was supar valid as I express no opinions about such things, but the even bigger joke is how his patent was treated in a court of lawl. And I say that even considering the massive disrespect he was a spoutin' in his pleadings.

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  9. "I can rattle off 50 different things which one of skill in my art knows without even trying but it would be hard to find a reference explicitly stating a great portion of them."

    POSITA is a hypothetical person, not a real person. POSITA is presumed to have knowledge of all of the pertinent prior art. If you can't find evidence that some feature is in the prior art, then POSITA doesn't know about it. It really is that simple. The tired old excuse of "well, it's so notoriously old and well known that nobody ever bothered to write it down" is not a substitute for evidence of what POSITA knows.

    "However, it may be somewhat easier to find references generically disclosing them by having disclosed more specific species in their embodiments."

    It's not my position that an examiner, or APJ, or USDC J, can't argue from the specifics of a prior art reference to the general, but it has to be done with caution. For instance, in this case the idiot APJ wrote that "As Kerr describes a medical computer system, Harsham simply shows that one of ordinary skill new that Kerr’s administration could be simplified by using rules. Vulpe shows how to improve the organization of documents using a document management system. The Examiner applied Vulpe simply to show how one of ordinary skill might implement the records management required by Kerr, with the aid of Harsham’s rules, by using Vulpe’s architecture for records management." What one of ordinary skill in the art "might do" with his hypothetical knowledge has no relevance in the determination of obviousness. A finding that an invention is obvious is a determination that POSITA would modify a reference or combine references. POSITA is not looking to innovate. POSITA is not wandering around aimlessly looking to apply abstract notions to the state of the art. There are also the considerations that the modified and/or combined references must actually include all of the claimed features, and that the modification/combination has a reasonable expectation of success without changing the principle of operation of the prior art and/or destroying the functionality of the prior art. None of those considerations appear to have been addressed by this panel of overpaid and underworked APJ's. Instead, it's just another "affirm at all costs" decision.

    "...but the even bigger joke is how his patent was treated in a court of lawl."

    He behaved like a petulant child and was treated accordingly.

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  10. "None of those considerations appear to have been addressed by this panel of overpaid and underworked APJ's."

    You can insult APJs all you want, but they are not underworked.

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  11. Tell that to the Applicants of the 26,000 applications in the backlog.

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  12. They are overpaid.

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  13. "You can insult APJs all you want"

    Thanks. I will. But I don't need your permission.

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  14. "They are overpaid. "

    You're trying to tell me the people you qq to are overpaid? Then perhaps we should lower their salary, and perhaps when there are no people for you to qq to then you will want them back so that you have someone to qq to.

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  15. "Then perhaps we should lower their salary, and perhaps when there are no people for you to qq to then you will want them back so that you have someone to qq to."

    Where are they going to go? Back to examining? Trust me, they ain't going anywhere.

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  16. "Tell that to the Applicants of the 26,000 applications in the backlog."

    Big backlog -> underworked is an obvious fallacy. You can't ignore other factors like: how long does it take even a hard worker to issue a quality decision, how many APJs are there, and how many appeals are there each year. If you just look at the backlog numbers, then a single APJ who decides 500 cases in a single year would still appear "underworked." That kind of logic is a joke, and it's unfair to the APJs.

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  17. "...how long does it take even a hard worker to issue a quality decision..."

    You mean a decision like the one in the previous topic, where the APJ's waste everybody's time discussing an issue (enablement of a prior art reference) that isn't even necessary to the resolution of the case (and on top of all that, get it wrong)?

    If they have time to discuss irrelevant issues, they can't be overworked.

    Not one of the lifer APJ's (who are still a majority) gives a damn about the backlog. They have no clue that applicants are waiting 2+, sometimes 3+ years to get a decision, and that actual business decisions need to be made concerning the applications under appeal. They're busy telling applicants, "No, you're wrong that the reference is not enabling, but we agree it doesn't show all the features." They're not overworked.

    "...how many APJs are there..."

    Hire more. They hired a whole bunch in April from their ranks of patent attorneys. Some of them were GROSSLY unqualified. Not marginally unqualified, not clearly unqualified, but GROSSLY unqualified. They hired one who had ZERO patent examination or prosecution experience. None.

    They just had 3 rounds of postings for the positions. I'm sure they got plenty of applications. If a guy who graduated from law school in 2008 and started working as a "patent attorney" at the Board in March 2009, with ZERO prior examination or prosecution experience, is qualified to be an APJ, then every single second year associate or above at a law firm who submitted an application, and every single examiner with a JD and a couple years examining is qualified to be an APJ. So hire them. What's the problem? What's the hold up? The applicants are there. Hire them. But stop the nonsense we constantly hear that they can't find any applicants. They hired a guy with LITERALLY ZERO examination or prosecution experience. Under that policy every single person with a JD and a pulse who's ever seen a patent is qualified. So hire them.

    "...how many appeals are there each year..."

    Here's an idea: instead of wasting time deciding the issue of whether a reference that doesn't actually show all of the claimed features is enabling, why not set up some meetings with the TC Directors and SPE's and show some examples of the really sh!tty rejections that get sent up (e.g. the McQueer application, amongst others) and tell those morons, "STOP SENDING THIS SH!T UP TO US!!!!!!!" That would be time better spent than deciding that clearly non-enabling references are enabling.

    "... it's unfair to the APJs."

    QQ

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  18. "What's the problem? What's the hold up?"

    Congress and dolla dolla bills yo? And maybe even somewhat a lack of applicants for the job?

    "Here's an idea: instead of wasting time deciding the issue of whether a reference that doesn't actually show all of the claimed features is enabling, why not set up some meetings with the TC Directors and SPE's and show some examples of the really sh!tty rejections that get sent up (e.g. the McQueer application, amongst others) and tell those morons, "STOP SENDING THIS SH!T UP TO US!!!!!!!" That would be time better spent than deciding that clearly non-enabling references are enabling."

    I would tend to agree. However, at the same time, I already know that a great many of those types of "sht" are already shot down. A fact which you waste no time reminding us of at every opportunity.

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  19. "And maybe even somewhat a lack of applicants for the job?"

    There's no lack of applicants. A former colleague of mine with 8+ years in private practice has been at the PTO for the past 2 years as an examiner, got his JD 4 years ago, submitted his application and within a week got an e-mail from HR informing him that he wasn't qaulified.

    WTF?

    "However, at the same time, I already know that a great many of those types of 'sht' are already shot down."

    Not enough apparently. Not nearly enough.

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  20. "Congress and dolla dolla bills yo?"

    The PTO's budget in FY 2011 was about $2.1B. For FY 2012 it's about $2.7B. That's $600M they got to spend.

    If they hired 200 APJ's, and each one's salary and benefits was $175k a year (probably a high estimate, but let's go with it), that would cost them $35M, or about 5.8% of the increase in their budget.

    They have a 26,000 case and almost 3 year backlog of cases, and new statutorily mandated procedures that must be handled by the Board. Shouldn't they put 5.8% of their increase into hiring for the Board?

    Start hiring.

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  21. "There's no lack of applicants. A former colleague of mine with 8+ years in private practice has been at the PTO for the past 2 years as an examiner, got his JD 4 years ago, submitted his application and within a week got an e-mail from HR informing him that he wasn't qaulified."

    Well man idk I don't work HR. What are the qualifications for the job anyway?
    If they say he isn't qualified then I suppose he probably isn't qualified. As to the other ill qualified guy, maybe he's the reason they upped the req's lol, or maybe he had a guy on the inside (always helpful).

    "That's $600M they got to spend."

    Wait wait wait, we don't get that money until they pass a budget iirc. And if you've been keeping up with the news at all you might recall that they're not very near doing that, the supercommittee failed and congress is nowhere near passing a real budget, they keep going with the continuing resolution sht. We're still operating on the lower amount iirc. All that extra is just going in our account.

    Also, why start hiring when you can simply let the BPAI situation implode? Someone is bound to sue on the grounds that they're being denied due process or their ability to appeal is being denied due to the delay eventually. Then there will be a big hubbub and I'll get substantial lulz. Which is what its all about baby :)

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  22. Actually nm, it looks like they may have passed a budget for the PTO in FY2012. Maybe, idk, I can't hardly understand all this sht on financial bills on my interwebs. It may just be another continuing resolution.

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  23. http://www.patentspostgrant.com/lang/en/2011/11/uspto-secures-increased-funding-for-2012

    Yeah nm, looks like we got funding for this year and we need at least 100 APJ's. They could just make me one, like, an honorary one, if they want.

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  24. "Idk brosensky, I can spend 5 minutes with a given tard off the street and get them to come up with something innovative. They might not do it routinely without prompting, but the ordinary tard off the street has more than negligible creativity."

    No 6 ... the fact that you can lead somebody down a path doesn't mean anything. One having ordinary skill in the art doesn't have an Examiner giving them hints as to how to create an invention.

    Again, if you ever find yourself in the real world, you'll figure this out. However, the USPTO is as far from the real world as anyplace I know.

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  25. "No 6 ... the fact that you can lead somebody down a path doesn't mean anything. "

    Tell that to the countless attorneytards inventloling for their clients every day by asking leading questions. To them it means an awful lot.

    "One having ordinary skill in the art doesn't have an Examiner giving them hints as to how to create an invention."

    How do you know? lulz.

    "Again, if you ever find yourself in the real world, you'll figure this out. However, the USPTO is as far from the real world as anyplace I know. "

    I know right? I was reading "About Time" and man it has taught me to appreciate our conception of time so much more and how it came to be. Einstein for example is very interesting. A myth has popped up in our popular culture holding that Einstein was just having a little stay in a placeholder job while he was working out his grand theories. As it turns out however, nothing could be further from the truth, he spent time examinin' on timekeeping and time coordinating devices (both of which were attrocious in his time), pondering day in and day out what it truly means to have something occur at the "same time". Indeed, just as I myself do on occasion! Being at the USPTO definitely gives you a new perspective on things. It's like a mini-academy to be awesome.

    It occurred to me that the origin of the Theory of Relativity may well have been in a certain examiner bsing a limitation lol. He's like "orly? these things happen at the same time?" I don't think so mo fer! My New Theory of Gravity says it didn't!

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  26. "They could just make me one, like, an honorary one, if they want."

    If you had a law degree, you would be more qualified than several of the APJ's they hired in April.

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  27. "POSITA is a hypothetical person, not a real person."

    The problem is that applicants rarely ever require examiners to make an explicit determination of skill level. Examiners typically use the end-run around making that determination that was devised by the BPAI (restated as an informative opinion in Ex parte Jud).
    Typically, if you call them on it, Examiners will get bad advice from their generally equally uninformed SPE that they do not have to explicitly determine the skill level if they merely state that the prior art itself reflects the appropriate level of skill. The counter to that is by their own admission, they must explicitly state on the record WHY the prior art allegedly reflects an appropriate level of skill (it's not enough to say that the art is analogous as neither the Field of Endeavor nor the Problem to be Solved have anything to do with LEVEL of skill...you're asking the Examiner to state something about apples and they are replying about oranges).

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  28. "Tell that to the countless attorneytards inventloling for their clients every day by asking leading questions. To them it means an awful lot."

    Wow ... for someone who has never set foot outside of the Alexandria campus, you seem to know a lot of nothing about nothing.

    "How do you know? lulz"
    No sane person would ever ask an Examiner for advice about patents -- all you would have is the narrowest claims that anybody could get around.

    "Being at the USPTO definitely gives you a new perspective on things. It's like a mini-academy to be awesome."
    Unfortunately for you, "fail" is your middle name.

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