tag:blogger.com,1999:blog-6733236595417664807.post5024990850766098511..comments2024-03-05T06:00:22.338-05:00Comments on All Things Pros: BPAI reverses when Examiner asserts "anything can be considered substantially rigid" (Ex parte McQueer)Karen G. Hazzahhttp://www.blogger.com/profile/14864564225463528630noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-6733236595417664807.post-72609639332749611162010-09-07T14:42:15.624-04:002010-09-07T14:42:15.624-04:00>{Examiners] do get negative consequences for
...>{Examiners] do get negative consequences for <br />>allowing cases that the "review panel" (if <br />>that still exists) deems not to be patentable<br /><br />Yep, I've heard that too. <br /><br />So unless and until we have some sort of counterbalance, where appeal reversals that rise to the level of RIDICULOUS result in some sort of penalty -- then I don't see this changing. Right now the incentives are all going the wrong way.Karen G. Hazzahhttps://www.blogger.com/profile/14864564225463528630noreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-66605437803265568002010-09-07T14:25:14.512-04:002010-09-07T14:25:14.512-04:00In my experience, many examiners take unreasonable...In my experience, many examiners take unreasonable positions because they would rather the board allow cases. I think this happens because they do get negative consequences for allowing cases that the "review panel" (if that still exists) deems not to be patentable. But, there are no negative consequences when the BPAI allows it. I have personally heard examiners tell me that no amendment would make the case allowable by the examiner and the only way it would be allowed is to appeal it.Chris Gnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-49106703740602781312010-09-07T11:36:41.593-04:002010-09-07T11:36:41.593-04:00>won't change the mindset over there unless...>won't change the mindset over there unless <br />>it's backed up with some serious punishment <br />>for sending garbage like this up to the Board.<br /><br />Seems like I've heard that there are no negative consequences at all for the Examiners, in terms of performance reviews, for reversal on appeal. <br /><br />If that's true, then it seems like the path of least resistance is for the Examiners to send even pitifully weak cases up to the Board. Especially if the word coming down from above is "reject, reject, reject" and "can't allow". <br /><br />I don't think sure knocking the Examiner's performance merely for losing an appeal is fair. After all, the real reason for having the BPAI is to decide those cases where reasonable minds can differ. <br /><br />But yeah, when the Board says "unreasonable" and "without merit", then this should trigger some sort of negative consequences for the folks that sent the case up for appeal. That includes the Examiner and the whoever else signed off at the appeal brief conference. <br /><br />However, I don't see that we need to do anything about the flip side: Applicants that send ridiculously weak cases up to appeal. That's between the practitioner and his client.Karen G. Hazzahhttps://www.blogger.com/profile/14864564225463528630noreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-65734282336106585352010-09-07T10:57:14.132-04:002010-09-07T10:57:14.132-04:00"So what I like even better is the suggestion..."So what I like even better is the suggestion, from another comment thread, of sending APJs (or their clerks) out to the TCs to talk about these sorts of opinions."<br /><br />That of course needs to be done. But it won't change the mindset over there unless it's backed up with some serious punishment for sending garbage like this up to the Board.<br /><br />These useless SPE's and QAS's need to be told in no uncertain terms that the decision in every single appeal they green light is going to be reviewed. And when words like "unreasonable" and "without merit" are used in the decision to describe their position, they are going to be horse whipped.<br /><br />Public flogging would do a lot of good over there.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-34662951885336010232010-09-07T10:36:12.767-04:002010-09-07T10:36:12.767-04:00Yes, this case does show that the pre-appeal proce...Yes, this case does show that the pre-appeal process inside the PTO is a huge failure. <br /><br />I too would like to see Ex parte McQueer marked precedential. Ex parte Givens too. But if Examiners aren't even aware of BPAI decisions -- much less told they need to apply them -- then changing the status isn't really going to help. <br /><br />So what I like even better is the suggestion, from another comment thread, of sending APJs (or their clerks) out to the TCs to talk about these sorts of opinions.Karen G. Hazzahhttps://www.blogger.com/profile/14864564225463528630noreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-2055061285264594822010-09-07T10:35:46.950-04:002010-09-07T10:35:46.950-04:00Thanks you very much for discussing this important...Thanks you very much for discussing this important decision so clearly!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-71067413273789885712010-09-07T10:08:13.859-04:002010-09-07T10:08:13.859-04:00This examiner should be fired. Primaries that thi...This examiner should be fired. Primaries that think such interpretations are "reasonable" have no business examining applications. Fire this examiner.<br /><br />The SPE's who sat in on the appeal conference are even more guilty. They are supposed to keep nonsense examination like this in check. Instead, they are green lighting this garbage to add to the BPAI backlog, which is enormous and growing. They should be fired as well. Actually, firing's not good enough for them. They should be drawn and quartered as well. <br /><br />This decision should be precedential. Hundreds of copies of this decision should be printed out and nailed to the foreheads of the "quality assurance" personnel over there. <br /><br />But I'll bet that everybody at the PTO involved in this cluster foxtrot of an appeal got an "outstanding" rating.Anonymousnoreply@blogger.com