More Patent Nonsense from the New York Times

By Kevin E. Noonan --

The New York Times is at it again, proselytizing on its OpEd page about patents and how bad they are.  This time the topic is the Supreme Court's upcoming argument in the Microsoft v. i4i case, involving the standard for determining whether the U.S. Patent and Trademark Office should be second-guessed by a lay jury.

Under current law, the standard for assessing whether the USPTO has improvidently granted a patent is by "clear and convincing evidence," which is higher than the "preponderance of the evidence" standard typically employed in civil trials.  The rationale for the higher standard is that the USPTO is entitled to deference in its area of expertise.  The question in the i4i case is whether that deference is appropriate under circumstances where the Patent Office has not considered art raised by a defendant in asserting invalidity.  It is a provocative argument, and one that the Supreme Court has indicated an inclination to approve, for example in KSR Int'l Co. v. Teleflex Inc.

In the article, entitled "Patently Obvious" the author, Professor Douglas Lichtman (at left) from the UCLA Law School, evinces no appreciation for the subtleties of the issues, involving as it must patent law, administrative law, and the burdens on a private defendant in establishing that an executive agency has erred in the performance of its duties.  All of these issues and others will no doubt inform the Court's opinion, but Prof. Lichtman would have us believe this is just another example of defects in a U.S. patent system that routinely grants "bad patents."  In his analysis, juries are "discouraged" from questioning a patent's validity, meaning that "all too often . . . dubious patents are nevertheless enforced."  This, of course, "inhibits innovation," he says, neglecting to mention that frequently it is the accused infringer who "inhibits innovation" by attempting to expropriate truly innovative technology from those who actually invent it.

Keeping with the theme of "bad patents," Prof. Lichtman asserts that the USPTO cannot possibly perform its duties, due to the number of new patent filings each year and the lack to time patent examiners have to perform their duties.  The cogency of the first argument is diminished by the fact that the same argument has been made for at least ten years, well before the recent backlog of pending applications became an administrative nightmare.  The second argument has more heft, but Prof. Lichtman operates under the mistaken impression that patent examiners have a total of 17 hours to perform their examination, "typically spread over two or three years . . . interspersed with work on hundreds of other open files."  The 17-hour figure is accurate, but only for shorter and less complex applications.  So while it is true that more examiners are needed to devote sufficient time to the examination process (a fact well-appreciated by the Office, which has hired thousands of new examiners over the past six years), the idea that the Office is a "rubber stamp" for patent applicants is ludicrous.  "[I]n practice, even the best examiners are so overwhelmed and so poorly informed that the benefits of their expertise are fully dissipated," according to Prof. Lichtman.  But in situations when that is the case, examiners refuse to grant patents, because the burden is always on the applicant to convince the examiner that her patent application should be granted under the appropriate statutory requirements.

This is something Prof. Lichtman might appreciate if he had any experience with the patent system outside opining on it from academe.  According to his biography, he graduated from Yale Law School in 1997, spent 10 years at the University of Chicago Law School, and since 2007 has been at UCLA.  No matter how intelligent Prof. Lichtman may be, there are some things that require actual experience to understand, and on that score the Professor is woefully lacking.

This is further illustrated by allegations in the piece regarding the ex parte nature of patent examination.  "The only parties" involved in prosecution are "the patent applicant and the applicant's lawyers," Prof. Lichtman notes, contrasting the situation with litigation where a patentee is faced with a motivated adversary.  What he neglects to mention in the equation are examiners on the one hand, who do not want to grant patents improperly, and the strictures of the rules of practice before the Office on the other hand, which require good faith and candor in an applicant's dealings with the Office, with the threat of an inequitable conduct finding if such candor is not maintained (a finding that renders the entire patent unenforceable against any infringer should it be made).

The philosophical basis of Prof. Lichtman's views are set forth in his penultimate paragraph:

If the current approach were abandoned and juries were instead given real freedom to review patent validity, not much would change at the Patent Office.  Examiners would still evaluate the validity of patent applications and document their views.  And, in the event of litigation, those views would still be admissible in court.  The key difference would be that the examiner's view would then rise or fall on the merits, rather than enjoying substantial deference from the jury.

Actually, in that event, real chaos would ensue, as we effectively substituted a layman's views for expert ones, and the value of patents and innovation would suffer.  That would be good for companies who could benefit from the inventions of others without having to compensate them.  (Similar arguments are raised by those who would rather exploit university research without the bother of complying with the Bayh-Dole Act.)  But it would not be good for "genuine innovation," which Prof. Lichtman professes to value.

In the i4i case, the Supreme Court may very well decide that patentees and the Patent Office do not deserve the higher level of deference for art not considered by the Office during patent examination.  Or it may recognize that such a decision would implicate all other administrative agencies, and permit disgruntled citizens to challenge every agency action based on "evidence" not considered during agency review (and the costs that may ensue in encouraging manipulation of when such "evidence" is or is not presented during initial agency review).  In any case, Prof. Lichtman's article becomes just another example of how certain academics and their industry supporters are ready, willing, and able to take any opportunity to tell the public that the American patent system is broken.  It ain't necessarily so.

Comments

[JG]

Gee, Professor Lichtman's comments look an awful lot like another academic who unfortunately now graces the CAFC bench and has wreaked havoc there. That's what you get when you politicize the bench instead of appointing the most qualified personnel.

[Phillies Sweep]

But - but - he's written extensively on patent matters! He went to Yale Law! He MUST know what he's talking about!

[moocow]

Gee, did the NYT disclose that it filed an amicus brief in support of Microsoft?

[EG]

Kevin,

Thanks for exposing this charlatan. According to the USPTO records, Professor Lichtman is not a registered patent attorney. He also appears to have no patent litigation experience. So where is his expertise or knowledge to credibly make statements that our patent system is "broken"?

That he went to Yale Law doesn't count squat in my book on his expertise to comment credibly on patent issues. (I, on the otherhand, went to the "humble" T.C. Williams School of Law at University of Richmond which currently has two IP law professors who are not only registered patent attorneys but also actually practiced in that field of law.)

As I've said before, I grow weary of rank amateurs like Professor Lichtman opining thoughts they have neither the expertise, nor the experience to make about our patent system. That the NYT would use such a person for this editorial is also consistent with that paper's inability to offer views that are credible.

[Josh]

Not sure you supported all of your counterarguments, especially your main one. It may be true that allowing juries to make findings of fact as usual would result in a less effective patent system, but you certainly did not demonstrate that in this post.

You brushed aside the troll issue as cavalierly as you accused the professor of ignoring actual infringement. Not a winning argument.

Nice ad hominen there in the middle, by the way. His argument is right or it is wrong, and his experience has no bearing on that question. Way to keep it classy, not to mention logically sound.

[Kevin E. Noonan]

Actually, Josh, I disagree - his inexperience is an issue, since he made statements about the patent process that are wrong and that if he had any experience he would know are wrong. He doesn't, which is why he can't speak intelligently on the issue.

The troll issue is one of behavior, not patenting. And it is an easy way for big companies to try to get public sentiment on their side. A patent troll is just someone who actually made an invention and isn't going to sit still while a big company steals it. If the invention is unpatentable, it shouldn't be that difficult to find it to be so. And remember that universities are the largest patent trolls, whose work would be (as it was before Bayh-Dole) simply expropriated by others without patent protection.

The OpEd piece wasn't a learned scholarly work, but a polemic raised against the patent system. My comment was also advocacy; if the good Professor (or you) can't stand the heat, perhaps the scholarly approach is the way to go.

[6]

"But in situations when that is the case, examiners refuse to grant patents, because the burden is always on the applicant to convince the examiner that her patent application should be granted under the appropriate statutory requirements."

Is it only when the applicant is male that the burden rests on the PTO to show that the application should not be granted?

"A patent troll is just someone who actually made an invention and isn't going to sit still while a big company steals it. "

I thought it was a person that was going to sit still and not make their own business while a big company "steals it" and then file suit?

Who told you this mistaken definition which you and whomever informed you of are privy to?

"And remember that universities are the largest patent trolls, whose work would be (as it was before Bayh-Dole) simply expropriated by others without patent protection."

Annnnddddd???????

My comments should not be taken to be advocating Lichtman's views.

[Prior Art]

Experience down in the trenches is one thing, being able to comment on law is another. I think we'll find there are a great number of experts who are respected (or at least recognized) that have little (or no experience) in prosecution.

[Kevin E. Noonan]

6:

In reverse order:

Do you think it is a good idea for university inventions to be stolen by big companies (foreign and domestic)?

Do you think all independent inventors don't try to start new businesses or license their technology to companies?

Do you think that patents should only be sought by big companies who have the power to exploit them? Would that have been a good idea in view of Microsoft/IBM and Apple/Xerox (not to mention the hundreds of startup biotech companies that are now one of the biggest hopes for new drugs)?

Do you reject based on gender?

[Skeptical]

6,

Your comment is not appropriate for this forum.

If you wish to "troll" the issue, I advise you to go Patently-O.

[David Koepsell]

Kevin, you're trending into Gene Quinn territory again, as you sometimes do. Anyone who thinks there are flaws with the current system, who thinks patent rights should be contracted in stead of extended, who thinks the current patent practice and bureaucracy is wasteful or inefficient, or even who cites to studies or purported evidence of any of the above, is stupid, a liar, or a charlatan. Have you ever met a patent you didn't like? Can you not accept that there are honest disagreements about the efficiency and efficacy of the patent systems and its bureaucracies without demonizing your opponents? You don;t know the first thing about Lichtman, but you're willing to write him off and lambast him personally and publicly because he isn't a registered patent attorney. Must one be a registered patent attorney to have an informed opinion about the PTO or patent law? You're better than that, and you and I know it.

[Kevin E. Noonan]

Dear David:

Let’s leave Gene out of this.

The OpEd piece was not scholarship, it was polemic. As you know, the issue in the i4i case is not whether lay juries can invalidate patents (they can) or whether they are “discouraged” from doing so; the issue is whether the PTO deserves deference for its patentability determinations over prior art it has not considered. (I actually agree it does not.) The reason Professor Lichtman’s lack of experience was an issue is that he supported his argument with an inaccurate account of how patent examination is performed. I didn’t accuse him of lying, just being wrong – but when you make the kinds of argument he makes, you have a responsibility to the reading public to check. For example, I checked out Professor Lichtman’s credentials and experience before I posted, to be sure I wasn’t castigating him unfairly.

It is because I have seen patents I think were improvidently granted that I think we need to be accurate about these issues, and my reading of the Professor’s OpEd was as I characterized it – a screed on “what’s wrong with patenting” from an industry and its representatives that would rather not be bothered respecting patent rights. So long as that side of the argument is represented, the other side must be as well.

Now, if you or anyone else wants to write something substantive about wastefulness and inefficiency I’ll read it (and as you know I have). I can either agree or disagree with that type of study. Here, there was little factual and much unfairly slanted in Professor Lichtman’s article. I see no reason to refrain from pointing that out.

Thanks for writing.

[Kevin E. Noonan]

Dear Prior:

To clarify, if you have no experience doing something, then you need to be careful supporting your arguments with information specific to that activity. Professor Lichtman is free to write whatever he likes based on what he knows. But since this is patent law, a subject he teaches, readers may presume he knows what he is taking about. Whatever the problems with patent examination, what he cites isn't one of them.

Then of course there is the fact that he completely mischaracterized the issues in the i4i case, but as a lawyer he is free to do that if he wishes. That is an opinion; the PTO portion of his article was set forth as fact, and inaccurately. Hence the discussion of his lack of experience.

[EG]

David,

There are patents I don't like, but they aren't the ones usually lamblasted (like a method for training a cat) that are odd but have minimal real impact. Instead, those, like the late Lemelson (the "submarine admiral") who abused the system with the never-ending series of patents on "bar code" technology are much more worrisome. But what's interesting is that even the courts, as well as the USPTO, realized the abuse and created appropriate estoppel doctrines to combat them.

Kevin and I are also not saying the current system is perfect. With ~6200 patent examiners, you're not going to get "perfect examination" for each application. (Some of my clients would even say you get examination that makes no logical sense in unduly hampering allowance of worthy applications.) But if you look at what is being proposed in the current oxymoronic "America Invents Act," it does minimal, if anything, to address improving the front end of the examination process, only the backend. And addressing the "symptoms" at the backend favors primarily large corporations who only view our patent system as an "evil" they have to deal with. In fact, most of the impetus for the current so-called "patent reform legislation" comes from the larger computer hardware and software firms who are unhappy with being nagged by smaller entities that patent their technology, and then hold the larger firms accountable for not innovating. And the language in this legislation is so poorly drafted (Kevin has pointed out repeatedly why) that I dread how truly "bad" the current system will become if this legislation becomes law.

What bothers me (and likely Kevin) about the erroneous and factually unsupported statements being made by an "amateur" like Lichtman is that those statements are given greater credence by the popular media than they deserve. Has Lichtman done any patent prosecution (a practice I've been in for 33 years)? Has he ever done a patent search (I even did 4 summers of patent searching the old fashioned hard way), knows what truly goes on in a patent file wrapper, or interviewed a patent examiner? In short, does he even know the basics of patent prosecution to know what he's talking about? Lichtman isn't alone in that ignorance. I've seen many attorneys trained for patent litigation who are pretty much clueless as to what actually goes on in the USPTO.

I'm also not down simply on IP law professors. There are some such as Janice Mueller at Pittsburgh (who I don't always agree with), Michael Risch at Villanova, and Chris Cotropia at my law school alma mater who know what they're talking about and make sense to me. What bothers me most are those who opine as if they know what they're talking about but don't and Lichtman unfortunately falls squarely into that category. He's entitled to his opinion, but he's not entitled to being treated as an expert on the patent examination process which he is certainly not.

[6]

"Do you think it is a good idea for university inventions to be stolen by big companies (foreign and domestic)?"

I don't think that using university inventions is stealing. In fact, I don't think using any invention is "stealing", although it might be infringement.

And before you ask, no I don't think that using publicly funded "university inventions" ought to be infringement either. At least in so far as they are paid for (or mostly paid for) by public money. If the "university" aka a professor etc. at a university comes up with an invention not funded by public money then I see no reason why he (note not "she") is any different than any other inventor in the country except he may not have a contractual obligation to just hand his rights over to a corporate master as most "ordinary" inventors likely do. But bottom line, individuals are inventors and small groups of people sometimes collaborate and share the glory of the invention, but I see no reason to go worrying about whether or not they happen to work at a university or not.

"Do you think all independent inventors don't try to start new businesses or license their technology to companies?"

Whatever on earth would make you think I do? Of course not.

"Do you think that patents should only be sought by big companies who have the power to exploit them? Would that have been a good idea in view of Microsoft/IBM and Apple/Xerox (not to mention the hundreds of startup biotech companies that are now one of the biggest hopes for new drugs)?"

Nah, the members of my family are all encouraged to send in a patent application for their inventions, just as I encourage everyone else in the US to do. And no it wouldn't be a good idea in view of those examples.

"Do you reject based on gender?"

Not yet, but I thought (and was hoping) you were trying to tell me that the lawl was different for female applicants. People over at PO swear up and down that the applicant doesn't have to prove the patentability to the office, the office has to prove the unpatenability. But if that is reversed for women then if you can show me where this springs from in the lawl I'll start rejecting on this basis immediately.

[6]

"but when you make the kinds of argument he makes, you have a responsibility to the reading public to check."

This from the same man that posted:

"But in situations when that is the case, examiners refuse to grant patents, because the burden is always on the applicant to convince the examiner that her patent application should be granted under the appropriate statutory requirements."

About which I sorely wish Kev had some authority to cite.

[David Koepsell]

Kevin,

I know, it was me you accused of lying. That still stings. But the broad claim that academics cannot possibly opine about the down and dirty of patent law, or any thing else practical, reeks of populist disdain for the ivory tower. Some of us actually have practiced law before joining the academy (and no, I clearly wasn't a patent lawyer). Academics may also have insights, informed opinions, evidence from studies, etc., that give them bases for their opinions. I was clearly not the only one to detect the whiff of ad hominem in your attack on the op ed.

And no, I don't think you're anything like Gene. You're a cut above, clearly. But your anger was showing. "beware. Anger, fear, aggression. The dark side are they."

Best,
David

[Kevin E. Noonan]

Experience, 6.

[6]

Yeah I know Kev, but we have appearances to maintain! You can't tell outsiders how things really go down!

And David, grow up man. Seriously? What are you? 8?

[Skeptical]

David Koepsell,

I must say that you display either unbelievable chutzpah or a brazen disregard for reality in posting an attack on Mr. Noonan's article by making wild accusations and including an ad hominem yourself against a completely separate Blog writer.

Perhaps the thought of an academic posting on subject matter beyond his ken strikes a little too close to home for you. I have seen your discussions and yes, your lack of experience with patents is telling. It is not as you would rephrase it here that academics cannot possibly opine, it is that those that opine should at least understand that which they are opining about.

Clever word play is no substitute for substance.

[David Koepsell]

@Skeptical:

Well, Kevin and I have a decent relationship, I consider him a friend, actually. We exchange pleasantries about our families in social contexts, and I feel comfortable telling him I think it is a technical ad hominem to switch from a reasoned critique of an argument to then criticizing the author's credentials for lacking patent bar experience, when he may well be a stellar IP Prof. I was even more disturbed by Eric's claim of "Charlatan."

Kevin is pretty classy, usually, and doesn't easily succumb to the blogosphere's tendencies to low-blows. He had made his point in his article above aptly without pointing out and making light of Lichtman's credentials, I was not the only one to detect ad hominem. I wasn't attacking Kevin at all, just surprised that he was driven to do what was clearly a technical ad hominem (an attack on the person rather than the argument).

Quinn and Noonan have different styles, and it's telling that you consider my comparison to be a form of ad hominem. Having been friendly with each over the past few years, I didn't view the comparison that way at all. It was jarring to see Kevin switch styles, is all. I felt I was suddenly reading IPWatchdog (a blog I have written for, and which I enjoy reading, though the tone is markedly different than this one)

I have no stake in the underlying dispute either, I could care less which way the supreme court rules in this case.

@6 ? What's wrong with a good Star Wars quote? I was 8 when the first one came out in 1977. Does that satisfy you? Lighten up, man.

[David Koepsell]

Oh, and yes, I have a lot of Chutzpah, and those of us who know our Yiddish know that's a good thing ;-)

[Dale B. Halling]

Can Professor Lichtman explain why we should even have a patent office if an issued patent has no more validity than a random assertion in any civil trial? Why should we spend the money on the patent office? Just think of the money we could save by closing the PTO, since the process of obtaining a patent has no meaning at trial? It appears that basic logic is not taught at Yale, which is not surprising since all the problems of the world have been caused by dead white guys. Unfortunately, I doubt we can expect anything better logic from SCOTUS. After all they don’t even understand that all inventions are combinations of known elements – it’s called conservation of matter and energy.

[Skeptical]

David,

What part of "Anyone... is stupid, a liar, or a charlatan." as an attribute of Gene Quinn is anything BUT an ad hominem attack?

For one to come out and lambaste, you really should come to the party with clean hands.

Your further denigrations of "a cut above" and "at least Dr. Noonan is classy" also evince a disingenuous propensity for word play. Do you really think it matters that you "don't view the comparison that way at all"?

And I did not mean "chutzpah" in a positive manner - reference the definition in at least at http://wordnetweb.princeton.edu/perl/webwn?s=chutzpah

- yet more evidence of your desire to engage in word play and twisting that should not be on this forum. I know where to go to get such interactions.

[David Koepsell]

Skeptical, you seem to have trouble understanding. Quinn uses those terms freely, he doesn't exhibit those traits. Pay closer attention.

And I grew up in a house where Yiddish terms were used regularly as part of our heritage, and having Chutzpah, used colloquially, is quite better than being a nebbish, so I thank you. Dershowitz's book with that title uses the term in its positive connotation too. If you want to insult me, choose terms you're more familiar with.
Good day.

[tifoso]

Some errors in comments above. An Op-Ed is called that because it is printed on the page Opposite to the Editorial page. The Op-Ed page is, in essence, a forum for views which may or may not agree with positions taken by the paper's editors. The NYT regularly prints and has printed op-eds from conservative writers including Will, Safire, Brooks, Buchanon, and even Buckley. By printing Lichtman's views, the NYT is not taking sides in the dispute.

Moocow stated that the NYT had filed an amicus brief on behalf of i4i. If so, the brief is not listed among the briefs filed by 19 March. See http://www.i4ilp.com/papers.php. As any good reporter must ask, Moocow, what is your source?

[Kevin E. Noonan]

Dear tifoso:

You are generally correct about the contend of the OpEd page, except that the NYT chooses just which opinions it prints on its OpEd page, and it has a history of the opinions it has printed there and on its editorial page. It's hard to find many editorials or OpEd pieces that defend the U.S. patent system. Indeed, the paper has printed several editorials consistent with Professor Lichtman's position. If his views were the occasional exception, or even if opposing views were printed, the post would have had a different title.

Thanks for the comment.

[Skeptical]

David,

You persist in your twisted word games.

I took the opportunity to read through some of Gene Quinn's blog and the many links - including links back to this blog (a good reference point is http://ipwatchdog.com/2010/03/31/hakuna-matada-the-aclu-gene-patent-victory-will-be-short-lived/id=9925/ ).

Your habit of dodging the substantive issues and playing hit-skip sound bytes (dating back at least two years) makes me even more skeptical of your position on this topic or your rationale in applying ad hominem by comparison (whether you see it that way or not, that is what you did).

In line from the history I see, I do not expect any substantive reply from you.

[tifoso]

Kevin - You state that it is "hard to find [in the NYT] many editorials or OpEd pieces that defend the U.S. patent system." Can you cite any paper, including the conservative Washington Times, that regularly publishes editorials or OpEds defending the current US patent system? Can you cite any instance in which the NYT declined to publish a well-written and contrary view from someone with even minimal credentials? Why don't you give it a try?

[Skeptical]

David,

At the risk of turning this thread into something I do not like, let me correct you when you comment back to me with "Pay closer attention."

It is you that needs to pay closer attention.

I was not saying that you called Gene those terms. I was pointing out that your comments concerning Gene using those terms in an unclassy way (and by comparison that Dr. Noonan was unclassy in such emulation of Mr. Quinn) was itself an ad hominem attack, completely out of line here.

Your ability to twist comments and not accept them as plainly provided (witness your admonition of me to "use terms I am more familiar with") is likewise out of line. Just because your use of the term has a positive connotation, I explicitly noted the negative connotation I intended to use (with proper reference to an explicit definition source). It is not up to you to do such twisting to my obvious message.

Once again, such word games are inappropriate and are better left to other forums.

[Kevin E. Noonan]

Dear Ti:

Actually, I can - the Milwaukee Journal Sentinel, in articles written by John Schmid and Ben Posen. You should check them out.

I agree though that someone should try to OpEd in the NYT in favor of patenting. I'll let you know how that goes.

Thanks for the comment.

[Gary Johnston]

Skegenepticquinnal:

You're THAT bothered by what David said? Geez. David is correct. Kevin was hitting below the belt (who cares that the professor never prosecuted or litigated a patent)?, and that's something you don't typically get from him. Maybe you can argue that David was doing the same thing with his comment about Gene/you, but David didn't say that Gene's/your ideas were bad, just that anyone who doesn't share Gene's/your ideas about the patent system tends to be deficient in some way. He's right. Have you ever read Gene's/your blog posts?

Kevin:

tifoso seems to get it. You rarely see editorials or op-ed pieces in major news publications that defend the U.S. patent system. But that's just the way it is. How many times do you see warm and fuzzy pieces on FDA? Who makes more money, Hannity or Colmes? Criticism sells, fluff pieces do not. The New York Times is not unique in this regard, and yet it is FAR AND AWAY your favorite target. The title of your post is "More Patent Nonsense from the New York Times." Nonsense? Really? I don't share Professor Lichtman's views, but they are hardly nonsense.

[David Koepsell]

Gary is spot on.

I don't think Gene pretends to be classy or even very civil. His blog is fun to read partly because of the gutter-brawl style. I no longer enjoy participating in that nonsense, though, so I read patendocs more often these days.

Each has it's tone, and it's purposes.

All my best,
David

[Skeptical]

Gary Johnston,

It appears you think it humorous to have someone wantonly malign another and yet complain of that same behavior.

I imagine that you thought you were clever by insinuating that I am Gene Quinn (I am not Gene Quinn). Rather than clever, you are a bore and a disgrace to the efforts that the Patent Doctors attempt to keep these comment threads free of the crap that pervades the likes of Patently-O, and I would add IP Watchdog. Gene may be a bit over the top when it comes to his views, but he keeps his site clean and has banned those that wantonly distort either another's views or legal holdings.

You quite miss the point that David hardly comes to the table cleanly, complaining as he does of ad hominem.

David,

Your lack of judgment is further exmplified by your "spot on" agreement with someone who should not be posting here. I can further hypothesize that the reson you no longer enjoy participating in "that nonsense" is that you were rather forcibly called on the carpet for your style of hit-skip-run soundbyting and had no substantive reply to the call to actually stop and address issues.

Thanks but no thanks - I will pass on "your best"

[KIR]

"Keeping with the theme of "bad patents," Prof. Lichtman asserts that the USPTO cannot possibly perform its duties, due to the number of new patent filings each year and the lack to time patent examiners have to perform their duties. The cogency of the first argument is diminished by the fact that the same argument has been made for at least ten years, well before the recent backlog of pending applications became an administrative nightmare. "

So if you warn people for a long time, during which the situation you are warning about about gets worse, then the force of your argument is diminished?

Doesn't seem right ...

[JLP]

I love registered patent agents who believe that they know more about patent litigation issues than anyone else. Kevin, your glance at Prof. Lichtman's resume neglects the fact that he has consulted on patent cases for more than 10 years. He is not a pure academic in any sense, he has worked on many trials. I'm not sure how his connection to Yale and Chicago is supposed to diminish his credentials (would it be better if he had his JD from John Marshall?)

As some with both a patent litigation and administrative law background, I also find it highly amusing that you think Prof. Lichtman fails to grasp the subtleties of agency deference. Deference under the APA is not based on what an agency did not consider. Indeed, look at cases where courts apply hard look review, and remand cases to agencies for failing to consider all relevant information.

Why should the PTO be given special treatment compared to any other federal agency? What other agency receives deference for issues that it did not consider?

[Kevin E. Noonan]

Dear Foo:

He may grasp them, but he didn't address them. And I agree (and said so upthread) that it's hard to argue that the agency should get deference for what it has not considered.

I find it funny when patent litigators opine about what happens in the Office. Even more funny when litigation consultants do it.

Thanks for the comment.

[Skeptical]

I have my doubts about deference for even that art "considered," given the quality, if you want to call it that, of that "consideration" on Office action after Office action wherein the references are brutally misapplied. Easily 70% of my docket for the last five years shows first Office actions that leave you scratching your head as to what "consideration" means.