Next UPSTO Director: Kathi Vidal

Patent

by Dennis Crouch

President Biden has nominated leading patent litigator Kathi Vidal as the next USPTO director.  Vidal is currently at Winston & Strawn, leading the company’s Silicon Valley office. She was previously with Fish & Richardson. [Announcement]

Vidal has all the qualifications.  Bachelor’s and Master’s degrees in electrical engineering (starting college at age 16); JD from Penn (EIC of the law review); Federal Circuit clerkship (Judge Schall); registered patent attorney; and litigated patent cases in courts across the country, including the PTAB.  She represented Chamberlain whose garage door opener patents were obliterated by the eligibility revolution of Bilski–Mayo-and-Alice.  At the same time, Vidal has represented many accused infringers.

Great pick.  I have known Vidal for years, and am confident that she will be an amazing leader of the agency.

The Senate will need to confirm this appointment, but I do not foresee any holdup for this candidate.

 

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173 thoughts on “Next UPSTO Director: Kathi Vidal”

  1. 10

    Look, it doesn’t matter if she is qualified or not. What matters is what are her orders from Biden. What has she promised? She is the general now and are her orders to attack patents or to defend patents? My bet is that her orders are to attack patents.

    Again, the rubber hits the road with predictions. Mine is that in one year she will be seen as worse than Lee for patents and will not be able to understand how or improve prosecution as she has basically zero management background other than a law firm, which is nothing like 10,000 people in a large government organization.

    That is my prediction. I see lots of yapping and nonsense from you lot. Let’s see your prediction.

    1. 10.1

      I have to disagree (at least partially) with you.

      BEING qualified does in fact matter. Have you forgotten Dudas?

      1. 10.1.1

        Have you forgotten Dudas?
        I haven’t. He was an unqualified disaster. In some ways worse than Lee.

        We’ve had Dudas, Kappos, Lee, and Iancu as the last four directors. Based upon that history, I’m not going to automatically assume that a director is going to be good (or bad) based upon the particular political party in the Whitehouse. I can say the same thing about the Federal Circuit judges. Both parties have given us decent ones and really bad ones.

        1. 10.1.1.1

          Wt,

          point taken (Whitehouse party may not control).

          That being said, (based on the Obama/Biden Lee experience, AND the ‘general edict’ of EQUITY), I think that your point carries less under the current administration.

          Goodness – even the President is but a puppet, following someone else’s agenda.

          1. 10.1.1.1.1

            “the President is but a puppet, following someone else’s agenda.”

            One word for who’s pulling those IP strings:

            FAANG

            And by the way, anyone else troubled by Congress and the Executive branch both (rightfully) attacking the FAANG cabal on numerous counts for some years now . . . yet refusing to stop them from stealing and vacuuming up the innovations of others with impunity . . . because the innovation little folks are unable to protect their innovations . . . thanks to the unconstitutional Alice and Mayo decisions?

            1. 10.1.1.1.1.1

              FAANG
              Does FAANG control the conservatives in SCOTUS? There has been a conservative majority at the Supreme Court since 1970. Since 1969, there have been 16 GOP-appointed justices and 4 justices appointed by Democrats (Obama and Clinton each appointed 2).

              I would probably need all my fingers and toes (and probably the appendages from other people) to count the number of patent-unfriendly decisions emanating from the Supreme Court over that time period. If conservatives were reliably patent-friendly, I would have expected to see more patent-friendly decisions from them over the last 50 years. Does anybody think that SCOTUS has been patent-friendly the last 50 years?

              Regarding HR 1249 of the 112th Congress (aka “Leah-Smith America Invents Act), the vote in the Republican-controlled House was as follows:
              Republicans: 168 Aye, 67 No, 4 NV
              Democrats: 136 Aye, 50 No, 6 NV

              The vote in the Senate was 89-9 with 2 NV.

              1. 10.1.1.1.1.1.1

                Well said. I like it not, but stamping on the patent system while simultaneously trumpeting a putative admiration for the patent system is a fairly popular, bipartisan pass time.

          2. 10.1.1.1.2

            based on the Obama/Biden Lee experience
            I give this less credence than you. Biden is his own man and has his own loyalties. Biden has less ties to SV than Obama.

            AND the ‘general edict’ of EQUITY
            Which, to me, is meaningless in a patent context.

            Goodness – even the President is but a puppet, following someone else’s agenda.
            Every President takes the advice of the people surrounding him (him, so far). That doesn’t make him a puppet because I’m sure there are people on both sides of just about any issue providing suggestions. What matters is who the President chooses to listen to.

            Unlike any other politician, a President is at the pinnacle of his profession. There is no greater position to be obtained. Moreover, once a President, always a President. A President is much less constrained than normal politicians.

            1. 10.1.1.1.2.1

              “Biden is his own man and has his own loyalties”

              We will have to respectfully disagree on this point, given the degree of puppetry involved.

          3. 10.1.1.1.3

            “based on the Obama/Biden Lee experience”

            That seems to ignore the Obama/Biden Kappos experience. I don’t understand your emphasis on Lee (the Senate Judiciary Committee voted unanimously in favor of her confirmation, and she was approved by voice vote in the Senate) when she seemed to do nothing more than follow the path set out by Kappos. If she did some policy change that was a significant departure from Kappos, I don’t recall it.

            2. 10.1.1.1.3.2

              She was definitely NOT merely following what Kappos set forth.

              (Your other process points are non-sequiturs).

        2. 10.1.1.2

          Yes Doodoo was a terrible director. We were so lucky to make it out of that administration alive.

        3. 10.1.1.3

          WT, the issue is that we are getting more and more authoritarian.

          What this person should have to do is tell us what she is going to do and then she should be held to it. It should be public.

          Right now I’d wager that there are secret deals that she has made with Biden’s people and will obscure what she is going to do. The whole notion that we vote for people based on party loyalty and they get into office and do whatever they want has to end.

          1. 10.1.1.3.1

            To Night Writer’s point (and to expand on my prior point on the Obama/Biden era), Obama had run not once but twice with a platform of “open government” while operating at the very opposite of that term with record levels of secrecy (as evaluated under metrics such as Freedom of Information Request denials, and “closed door” no agenda or meeting minutes provided meetings between government officials (and especially patent officials) and established Big Corp entities who have vested interests OPPOSITE of innovation protection.

            These are historical facts not open to debate.

            1. 10.1.1.3.1.1

              To ipguy — the historical number of closed door/no agenda or reports visits were under Lee.

          1. 10.1.2.1.1

            Rogan and Dudas come to mind as having been appointed under GWB. Under their “leadership,” the USPTO had a philosophy of being the “Patent Rejection Office” with what seemed to be a rampant reject-at-all-cost mentality.

            2. 10.1.2.1.1.2

              Thanks – so the other was perhaps Rogan.

              Truthfully, I just don’t remember actions that he may have been responsible for (perhaps because Dudas was such an abject disaster).

    2. 10.2

      A couple of years back a Nobel Prize was won by two scientists at MIT. The core of the thesis was that the way to get good politicians is as follows. Make them make promises regarding what they are going to do before they are elected/appointed. And evaluate whether they did what they said they would do after their term has ended.

      You little w a n k i e s go on and on about nonsense. Let’s see your predictions.

    3. 10.3

      Would you predict that she’ll eliminate/mitigate the 2019 Subject Matter Eligibility Update?

      That seems like a fairly concrete, easy to validate prediction. And it seems like something that she’d be very likely to do if your marching order theories are correct.

      1. 10.3.1

        Hm, interesting point. I predict (1) that Vidal will promulgate at least one new bunch of §101 training, and (2) that this training will not explicitly abrogate the Iancu training (although the Vidal guidance may grind against Iancu’s in places).

        1. 10.3.2.1

          I honestly don’t have an expectation of Vidal. Sorry to disappoint. At least you and I still have the Examiner layoff predictions running for a few more years.

          1. 10.3.2.1.1

            I asked for a prediction not an “expectation”.

            But nice deflection Ben. I guess a prediction is just too much for someone that like to spend his time snarking us.

            1. 10.3.2.1.1.1

              So rather than a prediction undergirded by some understanding or expectation, you want a prediction for prediction’s sake?

              Fine. I predict “in one year she will be seen as worse than Lee for patents.”

              I really didn’t mean any snark in my prior lack of prediction. I just don’t see any point in prediction when you’ve no expectation. I don’t follow the NFL, so any prediction I would make regarding the Super Bowl is pretty pointless. Ms. Vidal seems like a blank slate to me, so any prediction I could make seems equally pointless.

              1. 10.3.2.1.1.1.1

                “I really didn’t mean any snark in my prior lack of prediction. I just don’t see any point in prediction when you’ve no expectation. I don’t follow the NFL, so any prediction I would make regarding the Super Bowl is pretty pointless”

                While recognizing that I may broadening your statement (taking “no expectation” to an expanded “no underlying understanding”), your reticence about being “pretty pointless” never stops you from commenting on most any other topic on these pages, Ben.

                1. …

                  I know he pesters me with nonsense about my predictions wanting to split hairs with me and then won’t make a prediction himself and says he has no interest or knowledge.

                  Just nuts.

                2. …

                  “make a prediction himself”

                  I was happy to take the opposite prediction re: examiner layoffs, so this is pretty obviously false.

  2. 9

    Law360 suggests she may encounter a confirmation fight because apparently Tillis has indicated some potential concerns. But I assume so long as the Democratic caucus holds together and/or some other Republicans get on board, she will get through uneventfully. There is no filibuster anymore on even non-Cabinet level appointments, right?

    1. 9.1

      Correct, no filibuster for executive appointments. I expect that Republicans will vote for her confirmation, but they are not necessary.

      1. 9.1.1

        Makes sense.

        They can also repurpose that old bit from Laugh-In: “Ms. Veedul, this is the Patent Office calling!” (But she’s not related to Gore Vidal AFAIK.)

  3. 8

    Once again, I see that I have been passed over. No doubt, the office is going to a worthier candidate, but at what opportunity cost? Ms. Vidal seems like a genuinely clever and talented person, so if she were not leading the USPTO, she could be doing something even more socially worthwhile. I, on the other hand, am no more than barely capable of leading an organization like the USPTO, so you know that appointing me to this office would come at no opportunity cost whatever.

    Well, even if it was a shameful mistake not to appoint me this time, I know that you cannot keep a talent like Vidal’s down for long. She will likely leave office before Pres Biden does. Allow me to start early on lobbying for the job next time it opens up.

    If appointed and confirmed, I promise to:

    (1) Enact regulations requiring that all claims be presented to the examiner in Jepson format.

    (2) Enlist economic modeling to calculate the revenue maximizing rate for all PTO fees, and raise (or lower) fees to those rates.

    (3) Revise the MPEP to require that a prima facie obviousness rejection must identify—with specificity—who is the PHOSitA (ocupation, education, years professional experience, etc) and a practical specific example of the allegedly obvious combination of prior art elements that this person would plausibly make.

    (4) Appoint myself to an expanded PTAB panel to author a precedential opinion holding that a rejection that does not come up to the standard in #3 above must be overturned on appeal.

    (5) Enact regulations requiring that substitute claims in an IPR or PGR must be introduced—if at all—in the patent owner response to the petition. At that point, those amendments will be entered as by right unless the petitioner proves them unpatentable or non-compliant with §112.

    Come on, Joe. Give me the nod, next time. I know that I will do you proud (just barely).

    1. 8.1

      Again with the Jepson.

      Prof. Crouch, perhaps it is time to update that ‘cliff’ chart showing actual use of that format.

    2. 8.2

      “Revise the MPEP to require that a prima facie obviousness rejection must identify … a practical specific example of the allegedly obvious combination of prior art elements that this person would plausibly make”

      Since you’re not a fan of KSR, and apparently supportive of the PTO making up its own interpretation of the statute, why not just return the PTO to the TSM test?

      1. 8.2.1

        It is true that I am no fan of KSR, but I do not see that I am proposing anything especially contrary to KSR. KSR did not purport to overturn or cabin any of the Court’s previous obviousness cases, in which they repeatedly characterize the PHOSitA as a “skillful mechanic” (e.g., Sakraida v. Ag Pro, Inc., 425 U.S. 273, 279 (1976)).

        Mechanics—even skillful mechanics—do not combine prior art teachings for the sheer, creative pleasure of combination. They do so because they have a concrete, particular problem in front of them and they are responding to that very concrete, particular circumstance. Therefore, the right way to approach a prima facie rejection is to identify with particularity who the PHOSitA is, and explain the particular, concrete situation that would motivate the PHOSitA to combine the cited art as proposed.

        I concede that many courts will let you get away with a lot less when arguing invalidity. Still and all, this is the right way (even under KSR) to think about obviousness, so it is not crazy to require as much of the USPTO.

        1. 8.2.1.1

          Greg, thanks for that brilliant Sakraida quote from 1976, a period in time when the newly-created EPO was formulating its by now unassailable “problem/solution” approach to obviousness. Jurisprudence of the USA has so often inspired new law outside the USA but I had not appreciated till I read your quote that the prevailing American view of obviousness back then might have inspired the EPO’s particular and distinctive TSM approach to obviousness.

          Paul Cole, are you there? I know you quote Sakraida often. Can you comment?

          1. 8.2.1.1.1

            The EPO’s problem/solution approach is hardly the unassailable practice you think it is, judging by the decreasing quality of EPO actions I’ve seen recently.

            1. 8.2.1.1.1.1

              By “unassailable” what I meant was that at the EPO it is futile to argue the obviousness issue with any approach other than EPO-PSA. As to declining “quality” at the EPO, tell me more. Start with how you arrive at an assessment of “quality”. My experience is that EPO Examiners get it “right first time” no less often today than in the past. Do you disagree? Is your way to assess “quality” different and better than mine? If so, do tell.

              1. 8.2.1.1.1.1.1

                “no less often today than in the past.”

                LOL – says the same guy that GUSHED about the dangers in the EPO due to changes in volume requirements for examiners FOR YEARS over at IPKAT….

                MaxDrei, being two-faced again….

                1. …

                  Indeed, anon, for years I have been expressing concern about management behaviour at the EPO. But in the (few) EPO cases I still handle personally, I have yet to see any diminution of examining quality.

                  Computer implementations and pharma/bio are not my specialties. Perhaps Greg or NW have a view about quality trends at the EPO in those fields?

                2. …

                  So….

                  You clamor (when it suits you), but then put on your second face when that suits you…

                  Color me unimpressed.

        2. 8.2.1.2

          To define PHOSITA is to construe the invention.

          “Do it On a Computer” inventions have special problems in locating the art.

          Is it found in computing, or is it found in the thing being digitized, or is it a hypothetical mix, and if so, in what proportions?

      2. 8.2.2

        KSR would be fine if examiners didn’t just make stuff up, and pretty much just say “because KSR.”

  4. 7

    Nearly every comment so far is some version of the point that Vidal’s record of advocacy for law firm clients doesn’t tell you much about her policy beliefs for purposes of predicting what decisions she’d make as PTO Director.

    No one seems to doubt that she’s qualified for the job. Everyone seems to be using this post as a starting point to air various grievances that have little or nothing to do with Vidal.

    She seems like a good choice, or at the very least like someone whose resume makes her a totally normal, unsurprising choice for PTO Director. Assuming she’s confirmed, I hope she does the job well.

    1. 7.1

      This is a silly comment given today’s political atmosphere and the fact that the director expressly is there to carry out the will of the President.

      The comments below go to the fact that she hasn’t expressed or be in a situation where she has had to assert her own beliefs.

      Absent this we can only assume with what we know that she is going to be worse than Lee given the recent push to all trade secrets and the recent push to double down on IPRs by the big tech companies.

      Nice yap, though.

      So, what is your prediction for what it will look like in a year? I made mine below. That is where the rubber meets the road.

      1. 7.1.1

        I predict that she will be effective in carrying out the agenda dictated to her.

        Whether she reflects Iancu or Lee will reflect what that agenda may be.

        1. 7.1.2.1

          No one has accused this president of a problem with stopping thinking.

          Actually thinking…. That’s a different matter.

    2. 7.2

      “Everyone seems to be using this post as a starting point to air various grievances that have little or nothing to do with Vidal.”

      Utter nonsense (and self-contradictory with

      “Nearly every comment so far is some version of the point that Vidal’s record of advocacy for law firm clients doesn’t tell you much about her policy beliefs for purposes of predicting what decisions she’d make as PTO Director“.

      1. 7.2.1

        grrr… she’s a hired gun but I hate silicon valley and the biden administration and she’s a woman so must be unqualified. what did I miss?

        2. 7.2.1.2

          please pardon potential repeat…

          You missed your own comment for starters (while taking ONE person’s view and attributing that to “most all”).

    3. 7.3

      Best post so far. The majority of commenters on here are former high school debaters, who think they’re way smarter than anyone else (or, alternatively, are libertarians), and are looking for any excuse to spout political (and often misogynistic–this topic is a two-fer) malarkey under the guise of being professionals on the topic. You’ll note that they have lots of free time.

        1. 7.3.1.1

          To mangle a wise man’s astute observation, “I like liberty, but not libertarians.” For pretty close to the same reasons. No one but a libertarian likes a libertarian, and I’m not even sure it goes that far.

          1. 7.3.1.1.1

            …does that go for those who like democracy (but not Democrats)?
            …does that go for those who like a republic (but not Republicans)?

  5. 6

    “She represented Chamberlain whose garage door opener patents were obliterated by the eligibility revolution of Bilski–Mayo-and-Alice.”

    So perhaps not a fan of the current state of Section 101 jurisprudence.

    1. 6.1

      Paid gun on that matter – not sure if one can take away any personal views of counsel there.

      (IIRC, she’s also been on the other side of the ‘v’ on the eligibility issue)

    3. 6.3

      this link features:

      She also argued and won the SAP America, Inc. v. InvestPic case for SAP at the Federal Circuit, in which the court held that InvestPic’s patent claims at issue were patent ineligible as abstract because “[t]heir subject is nothing but a series of mathematical calculations based on selected information and the presentation of the results of those calculations.”

      link to ipwatchdog.com

      1. 6.3.1

        The Investpic decision you referenced was a Rule 36 affirmance. As such, I had to dig a little deeper to identify the patent at issue: USP 6349291.

        This is claim 1 of that patent:
        1. A method for calculating, analyzing and displaying investment data comprising the steps of:
        (a) selecting a sample space, wherein the sample space includes at least one investment data sample;
        (b) generating a distribution function using a re-sampled statistical method and a bias parameter, wherein the bias parameter determines a degree of randomness in a resampling process; and,
        (c) generating a plot of the distribution function.

        I don’t know about you, but I have a hard time believing that these claims would have held up post-Bilski but pre-Alice. The description of “a series of mathematical calculations based on selected information and the presentation of the results of those calculations” seems fairly accurate. Given the circumstances, I wouldn’t rely upon this case alone to paint Vidal as being a tool for the anti-software crowd. She may very well end up to be that tool, but I’m not going to let her positions regarding this particular patent guide me to that conclusion.

        1. 6.3.1.1

          fair enough – as I noted, her work as a hired gun means just that: she has been a hired gun; and that may be difficult to forecast her views in this different role

          1. 6.3.1.1.1

            she has been a hired gun
            Agree. As a hired gun she doesn’t get to pick her battles — those battles get picked for her.

            This is from her firm bio:
            Kathi is conversant with source code, schematics, and technical materials, and explains complex concepts clearly to courts and juries. Her technical background includes a solid grounding in mathematical physics and programming, combined with a bachelor’s and master’s in electrical engineering. Kathi’s master’s thesis in the early 90’s was in the field of artificial intelligence (AI).
            One would hope with that kind of background, she would show some sympathy for those technologies involving the same. Basically, all of these technologies are under heavy fire based upon the expansion of the judge-made exceptions to 35 USC 101.

            To me, the importance of the USPTO director is less about managing the actual nuts and bolts of the USPTO — she doesn’t get to make the law. Rather, to me, the importance of the USPTO director is more about how the USPTO advocates positions before Congress and before the Courts. I think it could make a difference if someone with the gravitas of the USPTO director leads the fight to address the quagmire involving subject matter eligibility law.

            1. 6.3.1.1.1.1

              “combined with a bachelor’s and master’s in electrical engineering”

              I like her better already.

            2. 6.3.1.1.1.2

              Good comment., Wandering Through. But your chosen pseudonym worries me in that it suggests to me that your heart might not be in making contributions here, on an ongoing basis. I really do hope you choose to stick around, because I find your contributions (unlike many others in these threads) full of valuable insights.

              The patents judges in England are drawn from the ranks of the stand-out advocate litigators. Over at least a decade, they have represented patent owners and accused infringers in equal measure. Following years of plotting with their clients in the proverbial “smoke-filled rooms”, they bring to the bench a visceral urge to improve both the clarity of the jurisprudence and the efficiency of the procedure. My hopes are that Ms Vidal is bringing the same urge to the USPTO. How much remaining energy she has, at this stage of her career, to push through all the reforms that are needed, I have no idea.

              I am reminded of the life cycle of the sea squirt, and how it compares with that of an academic achieving tenure. USPTO Director is not a post with tenure, OK, but I must say, I wonder how much can a Director achieve, in just one short Presidential term.

              So I guess you’re right, that her most important task as Director, especially now, is advocacy. And she’s good at that, isn’t she.

              1. 6.3.1.1.1.2.1

                “But your chosen pseudonym worries me in that it suggests to me that your heart might not be in making contributions here, on an ongoing basis.”

                As if your moniker — and as confirmed with your posts — does not ’cause worry’ in the sense of EPO Uber Alles….

                “I really do hope you choose to stick around, because I find your contributions (unlike many others in these threads) full of valuable insights.”

                You haven’t been paying attention – in at least two ways.
                1) Wt has been a regular now.
                2) Wt and I (with whom you do not find my comments “full of valuable insights” agree FAR more than we disagree.

                “How much remaining energy she has,…”

                Why in the world would you even bring such up? There has been zero indication of such anywhere.

                1. …

                  WT contributes valuable insights in plain text. More frequently, I imagine, than in the past. Alas, such valuable insights as exist inside your head fail to make it through to me, on the page. But if you could write more straightforwardly, for example like WT, that would surely help.

                  What prompted me to bring up the “remaining energy” point? Two thoughts. First, generally speaking, people do have more energy when they are young than when they are older. Second, the amusing and self-deprecatory “sea squirt” point I already mentioned, first made by Daniel Dennett but seen by me for the first time only this week. Hope you agree with me that it is funny and sorry, folks, if you all know it already.

                  Here a Link:

                  link to goodreads.com

                2. …

                  That would be a YOU problem, seeing as Wt has expressed agreement with my posts as written (and not within my head).

                  Your feeble attempt at gas-lighting is rejected.

              2. 6.3.1.1.1.2.2

                I find [WT’s] contributions… full of valuable insights.

                Agreed. WT makes a worthy contribution to this forum.

              3. 6.3.1.1.1.2.3

                I find [WT’s] contributions… full of valuable insights.

                Agreed. WT makes many salutary contributions to this forum.

        2. 6.3.1.2

          Wandering: “I’m not going to let her positions regarding this particular patent guide me to that conclusion.”

          Nor should any of us.

  6. 5

    What about you guys put it out there?

    My bet: in one year we will see her as harder on patents than Lee and that most new initiatives are anti-patent. Also, given her lack of prosecution experience, which is the primary job of 90 percent of the people at the PTO, I’d say the odds of her improving prosecution are nearly ZERO.

    So let’s see who will put out a prediction.

    1. 5.1

      I can understand how the above might be mistaken for a prediction, but it is not really. “Anti-patent” is just a meaningless neologism. At the end of the stipulated year, you could code any given initiative as “anti-patent” or not, as per your whim, and no one could objectively dispute the designation, because the word means nothing objectively. To qualify as a “prediction,” you would need to define a number of terms (what qualifies as an “initiative,” as “anti-patent,” as “harder,” etc).

      1. 5.1.1

        So, in other words, you’d rather not put out a prediction.

        I could be more precise but there really isn’t much point as the proof will be in how she is judged by the patent community.

      2. 5.1.2

        ““Anti-patent” is just a meaningless neologism. ”

        Translation: “Wah, I don’t like to be classified as anti-patent (even though that is EXACTLY what I am – in relation to certain things like the computing arts).”

        Greg is beyond a bore.

    2. 5.2

      From the Announcement: “Kathi is registered to practice before the PTO and prosecuted many patent applications early in her career.”

      1. 5.2.1

        Many is equal to 6. Typically litigators at F&R do some patent prosecution mixed in early with litigation. It is very minimum and they basically have no idea what they are doing.

    3. 5.3

      I think she’ll do nothing to reverse TRP, and that more and more examiners will be assigned applications which they are unqualified to examine, and that quality will rather precipitously decline because of this.

      But I’d predict that for almost any nominee.

      1. 5.3.1

        “quality will rather precipitously decline because of this.”

        I should qualify this as primarily affecting technologies with high amounts of backlog. Technologies with low backlog will be routed to genuinely appropriate examiners. But fast growing areas (think machine learning) with too few examiners on staff will suffer as new examiners are assigned these cases with minimal training time.

        1. 5.3.1.1

          Why isn’t your Union “protecting” you in situations in which you cannot possibly perform at a professional level?

          (or do you ascribe to 6’s view of your union – in which case, why do you really bother having one? Why not de-certify that one?)

          1. 5.3.1.1.1

            I’ve seen no evidence the union does anything for the examiner’s benefit. I don’t know if the union has no power or just no desire to help the examiners, but I welcomed Trumps limiting “official” union time. I felt the elected union reps were only running for office to get their pay and not have to work like the rest of us.

            As to why not de-certify, I recall in a recent that election someone ran for union president on that platform. If I recall, they didn’t receive many votes. I’m not a dues paying member, so I don’t have voting rights in the union. I only know of one person who is a paying union member.

            1. 5.3.1.1.1.1

              Thank you for the reply, Examiner X.

              I am puzzled though by the emotion that I am picking up, so let me see if I am not misconstruing your views.

              You have not bothered to actually join the union, which I am supposing means that you cannot vote in any elections.

              You indicate that of the comrades you work with, you know of only one single person who has bothered to join the union, which means that by and large, your circle mostly cannot even vote in any elections.

              You also state that you have seen no evidence of the union doing anything for the examiner’s benefit, that you like the fact that 45 constrained union time (in the vein of they should be working and not goofing off with that union stuff), AND that there had been some that did care enough to run on a type of ‘decertifying’ platform.

              Apathy (perhaps justified), and non-engagement runs smack into being a part of the problem when the problem is (as YOU note) “seen no evidence [that] the union does anything for the examiner’s benefit.”

              The union is there ONLY for the examiner’s benefit.

            2. 5.3.1.1.1.2

              “I felt the elected union reps were only running for office to get their pay and not have to work like the rest of us.”

              That’s not true at all bro.

              “I only know of one person who is a paying union member.”

              There’s many that just don’t advertise it. Iirc it’s around half of examiners. Don’t quote me on that tho I might not remember correctly.

          2. 5.3.1.1.2

            “Why not de-certify that one”

            Anon bro, de-certifying it doesn’t actually help anything lol. Just formally “getting rid of” this formal entity and making a new formal entity would have the new one be the same as the current one lol.

            “I’ve seen no evidence the union does anything for the examiner’s benefit.”

            Examiner 6, they actually do a lot behind the scenes for benefits, and advocating on behalf of examiners who are up for discipline and a variety of things.

            1. 5.3.1.1.2.1

              “getting rid of” this formal entity and making a new formal entity would have the new one be the same as the current one lol.”

              Not at all.

              Why would you think that?

              If one musters enough “voice” to oust, why in the world would that then turn around and put back in what was ousted?

              Makes no sense — even from you.

              1. 5.3.1.1.2.1.1

                “Why would you think that?”

                For one thing, because as the examiner above told you, there was a smallish push to have this done back a few years back and the popa leadership already explained it. There is no magic “we’ll make a better union”. The unions, as a whole, are, as I’ve explained to you a bagillion times, restricted in what they can push for and influence and what have you. And I already ran you through how several times already.

                “If one musters enough “voice” to oust, why in the world would that then turn around and put back in what was ousted?”

                Because that which is in place, is the only substantive type of union org that is allowed to exist derp herp, as I’ve explained to you now a thousand times. The current popa isn’t just “being mean to the examiners” or “denying examiners full say” or “denying examiners pushback against mgmt” or whatever dreamy mcdream world sht you imagine the current org is doing. They are restricted in what they can do, and so would be the newly formally formed popa replacement union if one were formed.

                “Makes no sense — even from you.”

                How does unions, as a whole, and especially federal unions in specific, being regulated via various means in what they can do, whether they are old unions or formally newly created ones, not make sense to your dumas?

                1. …

                  LOL – maybe address the point at hand instead of reverting to a baseless and ambiguous insult there 6.

                  Again – If one musters enough “voice” to oust, why in the world would that then turn around and put back in what was ousted?

                  You are not addressing that specific point.

                2. …

                  “If one musters enough “voice” to oust, why in the world would that then turn around and put back in what was ousted?”

                  Because it’s the only thing that is allowed rtard.

                  This is like asking, in an airline industry where only prop planes are permitted to exist by the gov, why, if a group that was pro a jet airline being founded would, after ousting the mgmt of an airline industry, install another mgmt team that was only permitted to fly prop planes. They would install such because it’s the only thing allowed by the gov you ta rd.

                  Anon: “it makes no sense why you would install the most pro-you thing that is allowed by law after you mustered the will to get rid of the previous thing which was also the most pro-you it was allowed to be by law tee hee”

                  You’re just re tar ded, I have nothing more to say on this.

                3. …

                  Fn count filter nabbed again…

                  “This is like asking, in an airline industry where only prop planes are permitted to exist by the gov, why, if a group that was pro a jet airline being founded would, after ousting the mgmt of an airline industry, install another mgmt team that was only permitted to fly prop planes”

                  No.
                  It is precisely NOT like asking that.

                  Try again.

                4. …

                  6,

                  To him, the union is only a means to personal absolution. If you could somehow convince him of the impotence of federal employee unions, he would just return to his “not my problem” stance.

                  Speaking of union impotence, do you have inside knowledge of why the union is so docile? I know there’s basically nothing they can do, but why do they speak in such soothing tones when they tell us to bend over?

                5. …

                  Ben,

                  Just how many paint chips did you have as a child?

                  How in the world would ANY situation of your union be any type of “personal absolution” for me?

                  Nothing at all about your Union even intersects, let alone changes my view that You (the Royal You) need to do your Fn job as an examiner — and not conflate your internal metrics with what has been paid for by my clients: a full examination under the law, and one not constrained by your internal metrics of ‘time.’

                  There is NO time related to what my clients have paid for. The fee schedule simply is NOT geared to “x” hours of examiner effort.

                  How in the world do you not understand this yet?

                6. …

                  “Speaking of union impotence, do you have inside knowledge of why the union is so docile? ”

                  They have a pretty decent relationship with mgmt as I understand it. I mean at base it’s a bunch of engineers/scientists having a professional relationship with other engineers/scientists who usually just got done having the job that the former group has currently (other than the political appointees). So, you know, it’s usually fairly cordial. Not sure what you think they’re being super docile on overall, but there are some subjects they cannot influence.

                  “I know there’s basically nothing they can do, but why do they speak in such soothing tones when they tell us to bend over?”

                  Oh I see what you’re talking about. That would probably be because they want to maintain a good relationship with mgmt and they know there is nothing they can do to change it as it is basically law/regulation/overall political matters that they ultimately cannot control, so may as well make do. And popa people have the inside view sometimes as well where you’ll see people that “fail” production but then are kept on anyway so, you know, there’s that.

                7. …

                  “How in the world would ANY situation of your union be any type of “personal absolution” for me?”

                  If the union is, as a factual matter, supposed to be the ones doing negotiating (that is, individuals cannot negotiate), and if they are are the ones that are supposed to be “pushing back” on not enough hours to do a professional job, and if they are not doing this then they carry all the responsibility for the current mess and etc. etc. And thus you and all attorneys who are members of the patent bar etc etc. (from whose ranks the director is always chosen) and are involved in the patent system are absolved of any guilt/responsibility/etc. for the current sh it show, or having to join with examiners in demanding better conditions. If for no other reason than your precious glorious examination being actually accomplished for your client.

                  “Nothing at all about your Union even intersects, let alone changes my view that You (the Royal You) need to do your Fn job as an examiner — and not conflate your internal metrics with what has been paid for by my clients: a full examination under the law, and one not constrained by your internal metrics of ‘time.’”

                  The only issue is that the only entity in the universe that has that going on inside their minds is u dumas.

                8. …

                  “ and if they are not doing this then they carry all the responsibility for the current mess and etc. etc. ”

                  This is NOT personal absolution FOR ME.

                  This would be an “Examiner do your Fn job” thing and YOU (the Royal You) Be otchin about how tough it is for your own INTERNAL metrics.

                  Again – my position has been steadfast and needs NO absolution of any kind (personal or otherwise): the applicant — my client — has paid for a job to be done, and THAT has nothing to do with YOUR internal metrics.

                  Stop making YOUR problems into the problems of my clients.

                  “The only issue is that the only entity in the universe that has that going on inside their minds is u dumas.”

                  Not at all – it’s there for every one in the system that Congress actually set up. If YOU disagree, please go ahead and show Congress’s direction that applicants pay for “X” hours of examination.

                  You will not because you cannot.

                9. …

                  “This would be an “Examiner do your Fn job” thing”

                  That’s absolution for you derp derp. Anon, the simpleton. If you’re making statements where you have no responsibility, you are ABSOLVED by those statements. Derp derp. This is true in all situations, simpleton.

                  “it’s there for every one in the system that Congress actually set up”

                  And yet, only you have it in your mind dumas. Strange that.

                  “If YOU disagree, please go ahead and show Congress’s direction that applicants pay for “X” hours of examination.”

                  Congress is aware of the count system derp derp. They understand money n sheet. Derp derp.

                10. …

                  Maybe you should try to understand what the word absolution means there 6.

                  Your attempted use is nonsensical.

                  The topic is ABOUT EXAMINERS — there is nothing in that topic for me to be receive absolution for.

                  I did not ask you if Congress was aware of your internal metrics, “DERP.” Try to stay on point. As I stated, (awareness or otherwise) Congress did NOT set out for applicants to pay for “x” hours of examination, now did they?

                  (hint: try to realize that you simply cannot prevail on this point)

                11. …

                  “understand what the word absolution means there 6”

                  Me and the other dude do, you don’t. Lelz. Poor anon, so socially SUPREME. lol.

                  “The topic is ABOUT EXAMINERS — there is nothing in that topic for me to be receive absolution for.”

                  Uh, mr. socially SUPREME, he changed the topic to you, derp derp.

                  “Congress did NOT set out for applicants to pay for “x” hours of examination, now did they?”

                  They set out the system, they know how it works. Derp.

                12. …

                  Sorry but no, 6.

                  He tried to change the topic to me, but I pointed out that such simply did not make sense.

                  It still does not.

                  This simply is not aimed at me — in any plausible way, shape or form.

                  “They set out the system, they know how it works. Derp.”

                  To be clear – they set out the system between my client and the patent office DIRECTLY.

                  Whether or not they are aware of how the Office goes about its internal metrics simply has no connection to the point at hand.

                  So, yet again, if you actually want to say something on point, please do so. THAT point is what is the deal for my clients with the patent office (as set by Congress).

                  But please, 6, try again. I do find your attempts, as pitiful as they are, to be “SUPREMELY” entertaining.

                13. …

                  “I pointed out that such simply did not make sense.”

                  Only to u re re. To the rest of us it makes complete sense, as you can tell, social geniooos who is socially supreme in all things social, from my understanding what he stated immediately.

                  “This simply is not aimed at me — in any plausible way, shape or form.”

                  His comment is. Mr. Socially supreme in your supreme understanding of all things social.

                  “To be clear – they set out the system between my client and the patent office DIRECTLY.

                  Whether or not they are aware of how the Office goes about its internal metrics simply has no connection to the point at hand.”

                  Ok ta rd.

                  “So, yet again, if you actually want to say something on point, please do so.”

                  How about I just call you a tar d? And let everyone else look upon your ta rdation? How about that bruh?

                14. …

                  Try again 6.

                  By the by, when all that you do is your mindless name calling and cannot be on point, I find your flailing “SUPREMELY” enjoyable.

                  So either way, I win. You can recognize that I have the better position, or you can keep digging yourself deeper.

  7. 4

    With her great patent litigation experience she should be able to tackle PTO issues that are within her authority as Director to fix. [I.e., those not requiring legislative or Fed. Cir. fixes.] E.g., fixing PTAB Fintiv IPR denials based on misleading proposed trial dates. Also, getting prompt and really thorough 103 examinations [including in 35 USC 145 defenses] of Hyatt and other grossly extended patent term patent applications.
    Other such doable suggestions?

    1. 4.1

      The issue is what is her intent? With SV trillions we have seen just about everyone turn to corruption. We see all the top D people magically worth 10’s or 100’s of millions of dollars.

      Why would we think that her goal is any different than Biden’s to make a person fortune while burning down the country?

      1. 4.1.1

        We know from recent polling and discussions that the large SV firms want patents weakened.

        Why in the world would you think that this person isn’t going to get in there to weaken patents?

        We know 1) picked because she is a woman; 2) embedded in SV; and, 3) Biden picked her and the Ds are in bed with the large SV firms.

        So given all that has been going on why is she being treated with a presumption of innocence’s?

      2. 4.1.2

        “We see all the top D people magically worth 10’s or 100’s of millions of dollars.”

        Why NWPA, it’s all about diversity and inclusion brosefus, not at all $$$.

    2. 4.2

      Other such doable suggestions?

      It seems to me that examination quality could be greatly improved with only minimal extra cost if the office were to require that claims be presented in Jepson format before they will be taken up for examination (in much the same way that the office requires that claims be presented in English before the examiner will take them up).

      1. 4.2.1

        “if the office were to require that claims be presented in Jepson format”

        You do realize that that is not (at all) a driver in poor examination quality, right?

      2. 4.2.2

        Most of mine are already in jepson format unofficially and informally anyway, so I’m not sure how that will help tremendously.

        1. 4.2.2.1

          Who knows whether it would help “tremendously”? Even if it helps only a little, it costs very little to implement, so it is almost certainly a cost-effective reform. It is possible that it makes no difference, in which case one can scrap the initiative (it would cost very little to wrap up, just as it costs very little to roll out). Worth a try.

          1. 4.2.2.1.1

            Tell me Greg – what is the current use of that optional claim format? (has it dropped to less than a half percent by now)

            And WHY are you so hot and heavy to have it implemented?

        2. 4.2.2.2

          “unofficially and informally anyway”

          What does that even mean?

          You either use Jepson or you do not.

          1. 4.2.2.2.1

            As has been explained to you a bazillion times by MM et al:

            A device inc:
            a
            b
            c
            wherein c has xyz property, size etc.

            Guess what the prior submitted in the IDS lacks?

            2. 4.2.2.2.1.2

              Filter still active…

              Well, it looks like another response won’t break out of Count Filter purgatory.

              Near as I remember 6, my response was on the order of:

              What have you been smoking? Malcolm never attempted any “explanation” along your pa thet 1c lines here because what you wrote has ZERO relation to what a Jepson claim format is (implicit, “unofficial,” “informal,” or otherwise).

              Nothing after the “inc:” would be considered to be in Jepson claim format.

              I expect better from you 6.

      3. 4.2.3

        “if the office were to require that claims be presented in Jepson format before they will be taken up for examination”

        Has something changed in the USPTO’s rulemaking authority since they lost on the 5/25 claim rule? It doesn’t seem like the PTO could get away with this.

        1. 4.2.3.1

          The CAFC held in Tafas v. Doll, 559 F. 3d 1345, 1364 (Fed. Cir. 2009) that the 5/25 rule was within the PTO’s authority. In other words, the PTO lost on that one in the ED Va. The PTO won that point on appeal.

          1. 4.2.3.1.1

            I didn’t know that, thanks.

            But I still think this rule would be a much hire bar to grab than the 5/25 rule.

            1. 4.2.3.1.1.1

              The case law is clear that the PTO lacks “substantive” rule-making authority on patent law matters, but it does have “procedural” rule-making authority. “[T]he critical feature of the procedural exception is that it covers agency actions that do not themselves alter the rights or interests of parties, although it may alter the manner in which the parties present themselves or their viewpoints to the agency.” JEM Broadcasting Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994)

              Applying that standard, the obligatory Jepson rule should be fine. Requiring that claims be presented in Jepson format does not affect the substantive scope of how much the applicant may claim. Rather, this rule affects the form in which the claim is presented.

              1. 4.2.3.1.1.1.1

                “Applying that standard, the obligatory Jepson rule should be fine”

                Absolutely wrong.

                But what IS it with your seeming 0bsess10n over that format?

                By the way – as the format IS optional, the Office ‘deciding’ to make it NOT an option changes the format from a mere procedure to a substantive matter. You cannot change “optional” to “non-optional” and still claim non-substantive.

                1. …

                  I don’t see the Jepson rule as necessarily only procedural.

                  I don’t think that is slam dunk.

    3. 4.3

      I half agree, but a you proposing MORE interference by PTO in disputes over issued patents? The PTO should not be interfering with pending litigation, unless the presiding judge requests assistance. The new Director should focus all efforts on examination, where the agency has exclusive jurisdiction. If there is dispute over a patent AFTER the PTO grants it, they should defer to the judge in the first filed case. That would make PTAB consistent with Congressional intent and would address the 316(b) factors.

  8. 3

    So about 80 percent of the candidates are nixed as not being a woman or POC.

    But that is the new D party.

    I’d have to see more to know if she is going to be any good. So many of those large law firm people are just team players and do whatever they are told.

    So we can’t really know what she is going to do without more. Personally, I doubt that she is pro-patent in her current incarnation given that she is in SV and Biden picked her.

    Any papers she’s written that illustrate her positions?

    Is she aiming for the corruption highway like Lee? You know a corporate job after the PTO to pick-up their 10-30 million.

    Don’t buy it that she is going to be a good director. Very unlikely that anything from Biden is going to be a good choice. Need to know a lot more.

    1. 3.1

      I mean be real. She was picked because she is a woman and the whole country is nothing but a bunch of corrupt prostitutes who want some of that crazy money from SV.

      The odds of this being a good pick is probably 1 in 100 and only if she goes against what Biden thought she would do.

      Be real.

        1. 3.1.1.1

          Meh – it’s not as awful as you pout.**

          Unless you want to not remember the last time we had a SV influenced director….

          ** this is NOT to say that I agree with the comment’s content.

        2. 3.1.1.2

          Dennis, then what is your prediction of what she does?

          I made my prediction above.

          Let’s see how she is judged in one year and what she is worth (extra) five years out of being the director.

          You know reality.

        3. 3.1.1.3

          These types of comments are why I rarely post.

          Did Night Writer go to college when he was 16? I think not.

          1. 3.1.1.3.1

            “Did Night Writer go to college when he was 16?”

            I think early college experience is more indicative of parental attributes than student attributes. It is plausible that NWPA also happened to win the parental lottery, which would unfortunately undermine the point you’re trying to get at. There are better accomplishments to characterize her by.

          2. 3.1.1.3.2

            And yet BobM, you CONTINUE to post if only to whine on and on.

            We heard you the first time. Put away the “Be Polite-Heckler’s Veto.”

            Thanks in advance.

        4. 3.1.1.4

          “Is there anyone more qualified?”

          Presumably any ex-Director? I struggle to imagine how any nominee could be more experience for a job than someone who had actually performed the job for a few years. I’m not a fan of Iancu, but I’d begrudgingly acknowledge him to currently be better qualified than anyone who hasn’t been the Director.

          I know this is a nitpick, but it’s part of why the frame of “most qualified” should be avoided. For a job like USPTO Director, finding someone reasonably qualified should be sufficient. The best person for the job probably has something better to do.

          1. 3.1.1.4.1

            For a job like USPTO Director, finding someone reasonably qualified should be sufficient. The best person for the job probably has something better to do.

            +1

        5. 3.1.1.5

          Dennis asks, “Is there anyone more qualified?”.

          Yes, Dennis, You Are.

          You absolutely are.

      2. 3.1.2

        “the whole country is nothing but a bunch of corrupt prostitutes who want some of that crazy money from SV”

        Have you relocated, or is this an admission that you, NWPA, are a corrupt prostitute?

      1. 3.2.1

        How does your “True Equity (TM)” relate to the actual term of equality?

        Do you understand the difference between “identity of outcome” and “identity of opportunity?” Is this difference recognizes in your view (whatever that view may be)?

        (some of us have been around long enough to recognize just how misogynistic you have been in the past, and how your Trumpeting of ISMs plays out)

        1. 3.2.1.1

          “How does your “True Equity (TM)” relate to the actual term of equality?”

          Not at all. More or less. It’s equity, not equality.

          “Do you understand the difference between “identity of outcome” and “identity of opportunity?””

          Never heard of those that I recall, and don’t know what you’re talking about.

          “some of us have been around long enough to recognize just how misogynistic you have been in the past”

          WAT? ME? MISOGYNISTIC? AND ARE YOU ACCUSING ME OF INTERNALIZED OR EXTERNALIZED MISOGYNY?

          1. 3.2.1.1.1

            I literally laughed out loud at your fake umbrage (all caps – hilarious).
            There is no accusation from me, 6 – your own (past) words do that.

            Further, if you don’t know what I am talking about in regards to identity of outcome, then you really are only faking your “pro-equity” stance, as the two are intricately woven together.

            1. 3.2.1.1.1.1

              Alright for real anon, what specifically did you regard as misogynistic?

              “identity of outcome”

              Are you trying to say “equality of outcome” in fancy terms?

              1. 3.2.1.1.1.1.1

                I am purposefully avoiding the conflation of “equity” and “equality.”

                As for the misogynistic, I can still remember your “babe-conquering” boasts, and your other, well, Trump-sounding discussions (well before Trump was on the political scene).

                1. …

                  Me, conquering babes. Hmmmm, I don’t remember ever having said as much. I’m not even sure such is possible in lesbian lovin’ and I’m sure you’re not deadnaming me as someone that was also named 6 but who IDed as a white cis hetero mail. Are ya now?

                2. …

                  “deadnaming me as someone that was also named 6 but who IDed as a white cis hetero mail. ”

                  LOL – HOW you choose to “ID” has no bearing on the factual actions that YOU have completed.

                  You cannot “ID” those away.

                6. …

                  Your reply is just not on point, 6.

                  YOU are trying to ID yourself away from your past – it’s just not working.

                8. …

                  Absolutely wrong 6.

                  This has zero to do with me, so lobbing an ad hominem completely misses.

                  This is merely YOU cannot escape your own history.

                  (gee, that should sound familiar to your new “cloak” – shouldn’t it?)

    3. 3.3

      I am sure that you protested just as loud in the past where de facto candidates were nixed as not being a white male. Show me your statements back then, and I will consider your statements now to have any merit.

      1. 3.3.1

        “I am sure that you protested just as loud in the past where de facto candidates were nixed as not being a white male.”

        According to him he actually did do such. Tho I’m not sure he was really old enough to get back to the times when that was really a thing, pre-70’s, shall we say. But it is super cool how leftists think we’re still living like 80-100+ years ago.

        1. 3.3.1.1

          6,

          Liberal Leftist (and OSitA has shown itself to fall into this category) simply cannot comprehend that identity politics IS the very ISM that they say that they want to fight.

          A race to victimhood helps no one.

          1. 3.3.1.1.1

            “A race to victimhood helps no one”

            Perhaps not, tho it seems to perhaps have helped the new director, maybe, maybe not. But my shiba inu up 40% already sure is, and so is the following “corporate structure” that makes you near invincible financially.

            link to youtube.com

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