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Comment Re:Made up numbers do not support credible argumen (Score 2) 91

Examiners don't get paid more to allow an application than to reject it. So whatever institutional incentives you might believe are present, you'd need to show what incentives exist for examiners to allow - especially when continuing to reject and forcing applicant to file RCEs is definitively in the examiner's interest.

Comment Re:Revolving Door Policy (Score 1) 91

First, Kappos was head counsel at IBM before coming to the PTO, and he worked out very well. Second, there is a Silicon Valley Office; it is currently staffed by Board judges: Third, the point of the branch offices was to attempt to recruit Patent Examiners from these areas. It has been very difficult for the PTO to convince qualified engineers in California to come to the Alexandria campus for training. Examiners are required to work on-site for at least the first two years, and even eligible Examiners do not all work from home. Applicants have a right to have in-person interviews with Examiners. So not everything is done online.

Comment Re:Why Should EA Profit from His Likeness? (Score 2) 207

Making reference to real world characters is one thing. But imagine if someone had tried to make the movie "Being John Malkovich" without actually hiring or getting permission from John Malkovich. Then you have the situation that the movie is being sold based upon the likeness. You have a first amendment right to talk about other people, as long as you don't say something slanderous or write something libelous. You can even make money off of what you say about those people. But if you use someone's likeness merely to add value to your product, you ought to pay them. Otherwise, why shouldn't I take a picture of my favorite actor and put him in an ad for my next product? It is the same thing with model releases - you have to get specific authorization to use a model's likeness to sell products.

Regarding unauthorized biographies or documentaries: The difference - and this is where the EFF's analysis is flawed - is that documentaries and biographies are selling an interpretation of events, not using a likeness strictly to sell a product. If EA wanted to publish a list of player stats as a fact book, or a NCAA encyclopedia, they probably would've been able to do so with no problems. They could have included the players' pictures without permission.

Doesn't EA pay pro athletes to depict them in video games? This just seems like they are taking advantage of college athletes, and trying to get away with doing something never could with pro players.

Comment Re:Fatal flaw with biological storage (Score 1) 234

I actually had a great, if somewhat unusual, method of backing up my photographs- I got a deer to memorise them. I know it sounds weird, but it turned out to be quite effective, at least with the males (does, on the other hand, were less reliable). I trained it to understand basic commands and in response, it scratched out a basic reproduction of the requested image, eventually improving to quite impressive quality after a period of time.

So what you're saying is that they learned your pictures by hart?

Comment Re:Google desktop did it in 2004 (Score 1) 140

Your taxes comment is fatuous. The running of the PTO is covered by fees. The OP's comment was not directed toward external costs.

What do you even mean by saying "the actual patent was only realized once all the examiner's objections were addressed?" The specification may not substantially change throughout prosecution; any changes to the content of the specification or claims that were not disclosed as of the filing date are considered new matter under 35 USC 112, 1st paragraph, and subject to a rejection under that section. If an applicant were to slip new matter by the examiner, the patent would be invalidated by the court, or the limitations would be construed such that they still only covered the original disclosure. The claimed subject matter does change over the course of prosecution - the idea is that applicant is better defining the invention by more specifically claiming the novel and non-obvious features. But those changes still may not depart from the original specification as filed.

As far as "previous attempts go," they are actually relevant, as the prosecution history may represent estoppel in future litigation.

Comment Re:Google desktop did it in 2004 (Score 1) 140

The USPTO is fully fee-funded, at no cost to the taxpayer (

Regarding multiple rejections, this is common in patent prosecution. A first Office Action is almost always Non-Final. Applicant has the opportunity to rebut the arguments of the examiner and/or file amendments to overcome the alleged prior art. If these arguments and/or amendments are not persuasive, or the examiner has new rejections (such as new prior art) necessitated by the amendments to the claims, the next Office Action is generally Final. At that point, applicant may either appeal the rejection to the Board of Appeals, or applicant may file a Request for Continued Examination, paying the USPTO a fee to consider additional arguments or amendments. Many cases go through several rounds of this process before they are either allowed to issue or are abandoned by applicant.

This process does not mean that the same application is being re-submitted (re-filed, I assume the parent means). That would generally mean a continuing application or a divisional application, and those (are supposed to) go to the same examiner who examined the original application, especially if the claims are not patentably distinct.

What generally happens is that the applicant finally argues persuasively or submits a sufficient amendment to overcome the art of record, and the examiner can't find prior art sufficient for a rejection of the amended claims. And yes, such a case ought to have an effective date as of its filing. The point is that you invented it as of the filing date, so you are entitled to patent protection from that date, regardless of delays at the USPTO or the lag caused by ordinary prosecution.

Comment Re:Does it really matter? (Score 1) 346

Maybe not "just an IP address," which is why content owners subpoena ISP records to show that the IP address was assigned to a particular person's account and modem/router. And I disagree with your reading of the GP's post. His post must be taken in context with the original question - which presupposes that infringement has occurred and is traceable to the OP's home.

I really think you should refrain from giving out legal advice. Someone is going to follow it and be ruined as a result.

Comment Re:Does it really matter? (Score 1) 346

Actually, and technically, that's not correct. That is harassment, attempted coercion, interference with a legal contract, and a groundless, malicious suit, which are illegal in many if not most states. (It is even possible it falls under the category of a SLAPP suit, but that might be reaching a bit.)
I'm not saying that they don't sometimes get away with it, but what they are actually doing in those situations is ILLEGAL.

If they have evidence that their products were shared illegally using a connection with your name on it, none of your breathless characterizations is accurate. Being "100% legally in the clear" does not innoculate you from being legitimately sued. It is only a determination that is made after the suit has been brought. Your argument is like saying that every criminal defendant found not-guilty was maliciously prosecuted.

Comment Re:I'd like to take this time to patent.... (Score 0) 368

If your application was rejected under 35 USC 102(b), which is a statutory bar, you cannot swear behind (backdate) the invention to overcome the prior art. This situation applied when the prior art reference was published more than one year before filing of the application it was being used against.

If your application was rejected under 35 USC 102(a), you would only, at most, need to backdate the application by a year, since if the reference were older than that it would have been applied under 102(b), and thus a statutory bar.

If your application was rejected under 35 USC 102(e), you could backdate as far as necessary. This is the situation where the application was rejected based on another patent or patent publication, which could have priority going back years.

In practice, however, swearing behind prior art references is difficult to do and requires a lot of evidence to be effective. It is rarely done.

Comment Re:No more prior art? (Score 0) 368

So this means the concept of prior art is moot?

It might not be so detrimental except that I imagine the legislation in question will not improve the quality of work of patent examiners who will continue rubber-stamp approval of obvious ideas.

I think it's especially repulsive that some well-known useful tool people have been using for years could suddenly become patented by a troll who had no involvement in its creation and would then have the legal standing to demand license fees of the community.

Shit sucks.

And no matter what you may have been told, patent examiners do not just "rubber stamp" applications.

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