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February 27, 2008


"The patent applicant has the most knowledge, the most opportunity, and the most to gain by providing the USPTO with the best possible information about his or her invention."

Unfortunately, this statement is grammatically incorrect. It also simplistically and incorrectly assumes (as a person without patent experience might) that patent applicants have "the most knowledge" of the prior art. In reality, inventors more often than not have no idea what research is being conducted on the other side of the globe (and may as of yet be unpublished), and they have *much* less knowledge of patented prior art than USPTO examiners should. Director Dudas would have inventors become researchers and examiners (rather than inventors), while at the same time dis-"incentivising" the public dissemination of their own inventions through rules expressly designed to deter and obstruct (e.g. through fictitious presumptions) patent application filings. This is no way to promote the progress of the useful arts - though it will reduce the agency's own discomfort with its backlog.

USPTO examiners should have "the most knowledge" of the prior art, and to the extent they don't, this should be considered a failing of the USPTO. To place the burden of assessing the prior art and examining the claims on the applicant only further reinforces the ever-intensifying questions: What do we need the USPTO for? What useful function does the USPTO perform? (In both instances, I am beginning to think, "Nothing!")

Thanks very much for this post. I had no idea that any such hearings were going to take place. At least there is some hope that some of the witnesses discussed some of the criticisms of the Patent Office brought out in the comments on the rules and the briefs in GSK/Tafas v. Dudas, and I look forward to hearing about them.

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