the no longer secret, ghostly NOLA base.

Some of the buildings on the base were the most off-limits facilities in Louisiana, besides those at Barksdale AFB. Now these strictly classified buildings are abandoned and explored by professionals (The Proper People.)
https://youtu.be/5kTdT_gUu6Y
Something queasy about the formerly busiest spaces being empty and unimportant.

Nuclear close calls and the moments the CPUSSR was genuinely concerned

and then there were regular Wednesday PolitInform briefs by the school's Communist Party representative, in our case the deputy principal. She told us about the US unable to control its nuclear weapons and bombers, suffering incidents. We smirked, assuming creative propaganda, in hindsight the Soviets' sore feelings about aviation. But the Party propaganda was correct about the incidents, which I easily checked. This is serious stuff in addition to the nuclear weapon testing, releasing contamination.

• 1956 B-47 disappearance
• 1958 Mars Bluff B-47 nuclear weapon loss incident
• 1958 Tybee Island mid-air collision  <<<<<<<!!!!!!
• 1961 Yuba City B-52 crash
• 1961 Goldsboro B-52 crash
• 1964 Savage Mountain B-52 crash
• 1964 Bunker Hill AFB runway accident
• 1965 Philippine Sea A-4 incident
• 1966 Palomares B-52 crash^{[6]  <<<<<<<<<!!!!!!!!}
• 1968 Thule Air Base B-52 crash <<<<<<<<!!!!!!

A patent: a time wasted or not

A comment from an inventor questioning whether or not to waste his time and money filing a patent (and disclosing his innovation), if he is going to get screwed by the PTO:

Personally I have been pausing in the wings before I submit several
patent applications, so that I am reasonably assured that it is
worth the time and effort to do so. It may very well be that I am
better off not filing anything at all, if the applications can be
construed as just revealing what I have invented, with very few
options if it costs too much to respond to the PTO, and thus very
little value conferred by doing so.

A great issue for the AIPLA, IPO, or ABA, if any of these groups actually
cared about everyone's interest in a healthy patent system.

If the Patent Reform efforts succeed, we are all just dog meat,
after all, and all of my efforts and my money spent trying to
acquire a US patent will be for naught. Somewhat frustrating, when
I sincerely believe that I have much to contribute in the alternative
energy field.

How PTO management incompetence is destroying small companies

Someone sent in the following ancedote, which is heard way too
often:

I was at an open house for a small IP law firm about a month ago and
was talking to the IP/research VP of a small biotech. They are a
start-up who have been waiting just over 2 years and still haven't
got a First Action on the Merits on their lead invention. They have
had to let almost everyone go and they are just holding on waiting
for that critical patent. It is so sad.

I am hearing this lament more and more, from biotech startups, software
startups, alternative energy startups. Because of PTO delays, they are
having to abandon patent applications, cripple their companies, and delay
hitting the markets with their products. Patent quality? It's suffering,
as everyone inside and outside the PTO is cutting back on searches (well,
that's more crap to bust in the future for me, though there is already
enough such crap).

If you have more such stories, please send them my way. Congress and the
Obama Administration need to hear this suffering, otherwise it is a waste
of billions of taxpayers' dollars to fund new energy/IT technologies, if
the startups, where much of the innovation will come from, can't protect
their breakthroughs in a timely matter. Otherwise, it is another signal
that the Obama Administration is pursuing an industrial policy that
favors large companies.

The Cross Coalition and Its Star Chamber Letter About Patent Battle

This is an interesting turn in the patent reform battle: The Cross Coalition, a group of companies doing business in green and environmental technologies wrote to Congress opposing the proposed patent reform bill. The Coalition is made up of big biochem companies, startups and similar environmental technology operations. The self-hype about anything green in Washington, the Cross Coalition might just succeed. This is similar to a letter that 430 bio and green companies wrote to Congress in 2007, also opposing the patent reform bill. These patent reform bills should be dumped until a new PTO Director can be installed and can put together respectable consensus within the patent world. The text of the Cross Coalition's letter:

We write today regarding the importance of the United States patent system to our transition to a clean energy economy. Our companies and those we represent are committed to nurturing the innovation pipeline and subsequent domestic manufacturing capacity that will build the next generation of energy efficient, renewable energy, and renewable fuel technologies, creating thousands of American jobs in the process. However, we are concerned with recent legislative proposals to make fundamental changes to the US patent system that we believe would weaken, rather than strengthen, patent protection, putting this innovation pipeline and subsequent American manufacturing capacity at risk. The patent reform legislation that has been introduced would reduce penalties for patent infringement by changing the law of damages. This change would elevate the importance of one of the factors now considered in calculating patent damages. By giving this one factor - apportionment - a preeminent position in damage calculations, proponents of the legislation would have achieved the goal of reducing damage awards. This type of reduction in the value of intellectual property rights could adversely affect the future of our industries in the United States in two ways. First, in order to meet the demands of a low-carbon energy future, the need for innovation in the areas of energy efficiency, energy crops, advanced biofuels, renewable energy, renewable fuels, carbon capture and storage, and environmental technologies is great. Our ability to rapidly innovate in these sectors is critical to ensuring that we and others will be able to effectively meet our mutual goals of reducing carbon dioxide emissions, thereby reducing the impact of global climate change and reinvigorating the American economy with the creation of green jobs. A significant reduction, or elimination of much of the value of the intellectual property that will be generated through this process will have an effect on the availability of the venture capital required, decreasing the speed at which innovation will occur. Second, we anticipate that our economy will flourish as innovation in environmental and climate technology sectors drives the creation of green jobs. Our companies and our members create these jobs as we manufacture and market our patented products and technologies to domestic and international customers. If the current patent system is modified, making it less costly to infringe on existing or future patent rights, we anticipate that our competitive advantage in the global marketplace will be reduced, impacting the creation of green jobs. As proposals are made to change the U.S. patent system, we encourage you to take into account the impact of these proposals on the viability of our burgeoning green economy and its associated green jobs, as well as our ability to attract the capital required to innovate at the necessary pace to effectively combat global climate change. Drastic changes, such as reducing penalties for patent infringement, will only discourage innovation, resulting in reduced investment and lost jobs at a time when the country can least afford it. We believe the American patent system is the best in the world and we look forward to working with you to ensure that it becomes even stronger. Thereby we can continue to encourage the kind of investment, product creation, and job creation that has been the hallmark of our economy for decades, and will ultimately drive our ability to meet the challenges posed by global climate change. Thank you for considering our views on an issue of fundamental significance to innovation in America.

Members of the coalition include: American Council on Renewable Energy (ACORE) - Washington, DC Biomass Coordinating Council - Washington, DC Ocean Renewable Energy Coalition - Darnestown, MD EESTech Inc. - Chino Valley, AZ Southwest Windpower - Flagstaff, AZ Ceres, Inc. - Thousand Oaks, CA Fallbrook Technologies Inc. - San Diego, CA Viryd Technologies Inc. - San Diego, CA Mendel Biotechnology, Inc. - Hayward, CA IP Checkups, Inc. - Berkeley, CA Environmental Energy Solutions - West Hartford, CT GreenWorld, LLC - Arvada, CO DuPont - Wilmington, DE EarthLinked Technologies - Lakeland, FL International Applied Engineering, Inc. - Marietta, GA Unicoi Energy Services - Marietta, GA Industrial Resource Group, LLC - Schererville, IN Konarka Technologies, Inc. - Lowell, MA Syngenta - Golden Valley, MN Monsanto - St. Louis, MO Solutia Inc. - St. Louis, MO Energy and Environment Research Center (EERC) - Grand Forks, ND Greentech Capital Advisors - New York, NY ECR International, Inc. - Utica, NY ArborGen, LLC - Summerville, SC PetroTex - Cedar Hill, TX The Stella Group, Ltd - Arlington, VA Powered Green LLC - Madison, WI Terra Moya Aqua, Inc. - Cheyenne, WY

WHY IBM'S KAPPOS IS UNFIT TO BE NEXT PTO DIRECTOR

I am totally opposed to Kappos being appointed as the next PTO Director, for his involvement in multiple IBM efforts over the last ten years to undermine any attempts to improve patent quality. It would be a horrible message to send to inventors to have a lawyer from the most abusive patent playing company, IBM, as head of the PTO. One reason the PTO's backlog is so great is that companies such as IBM flood the PTO with tons of crappy patent applications, to jam up the system making it hard for competitors to get patents that could challenge IBM's markets. Anyone forget IBM's airplane-bathroom-reservation patent? I also post this classic 1997 article from Business Week that pretty much describes how IBM invented trollism (shaking down companies by asserting lots of crappy patents, and some good ones, from their massive portfolio). IBM was a major player in the Software Patent Institute scam (a 1990s effort to deflect any resources from a serious attempt to improve prior art handling at the PTO), and is a major player in the SPI's child, the 2000s scam otherwise known as the Public Patent Peer Review project. For many of these undermining efforts, Kappos was involved. He should not be awarded Directorship of the PTO. Slashdot this week has a summary of criticisms of IBM's attempts to get U.S. bailout money so it can fire U.S. workers and move more of its jobs overseas. "As his company was striving to hide the bodies of its laid off North American workers, IBM CEO Sam Palmisano stood beside president Obama and waxed patriotic: 'We need to reignite growth in our country.', Palmisano said. 'We need to undertake projects that actually will create jobs." While Sam positions IBM to get a slice of the $825 billion stimulus pie, IBM is quietly cutting thousands of jobs and refusing to release the numbers or locations." The country deserves someone coming from some other company to be the next PTO Director, if the next choice is a corporate one. Kappos is a much smarter version of Jon Dudas, and will be as effective, if not more, in overseeing the further degradation of PTO capabilities with regards to patent examination (which again, is in IBM's interests). So everyone, make copies of the BusinessWeek article below, and send it to your Congressional representatives, asking them to not allow any lawyers from IBM to become the next Director of the PTO.

WORKING AT THE IBM VS. WORKING AT PTO

On the Kappos bit, however - granted that the past behavior is that of a quisling, could there not be a scintilla of benefit to bringing in the management style of IBM? Regardless of IBM's manipulating the (Patent) system to their own ends, IBM has had one of the most ruthless, effective and fair management styles. At least it did have, in earlier times (which was pre-PC and women executives, when it was mandatory to wear dark suits, ties and laundered shirts - professionally laundered, not in the home washer). This discipline, which surpassed the military of then (and assuredly the military of now, that permits work clothes and tiger suits off-base and battle-rank is worn openly) was the epitome of equality in the one most important aspect: The higher one rose in IBM, the tougher it got. A single grievance by client or employee resulted in immediate reallocation of your resources until a hearing was held. If you were exonerated, the employee was terminated and you were free to pick up the pieces. At the PTO, the situation is ack-basswards: The main pressure is put on the lower ranks, with the incentive to rise being exponential increases in pay and bonuses with far, far less responsibilities - not to mention the relief from escaping the production system used as a cattle-prod on examiners. A common refrain of managers is that they are "constrained" by HR and OPM (from doing their jobs). On more than one occasion, I have been told that an examiner cannot be reassigned because the person is of a protected persuasion and a) the manager/supervisor/director fears scrutiny, or b) the manager/supervisor/director is being already scrutinized or c) the employee has a civil rights appeal pending. In short, the unprotected lower class is overworked and under-supervised, the "protected" lower class is under-worked and under-supervised, the middle management is overpaid, underworked and inexperienced. While the customers - the US Citizens and the Country - are abused and neglected. So, bring in a lackey of IBM. Perhaps some of the discipline from the old school will rub off. It might sound tough, but it was a hell of a lot easier to work in a system where your supervisor was paid twice your salary - because they worked twice as hard - rather than the upside-down world of today's PTO.

Patents, The $50 Billion Fraud and Globalism

Business Week columnist Michael Mandel has an excellent article just published about how the last ten years of American and global finance was built much on lies. The article is at: "Madoff and the Global Economy: The world was told the U.S. was a low-risk, high-return investment. But like the Wall Street trader's victims, we are learning the truth." The article is at: www.businessweek.com/bwdaily/dnflash/content/dec2008/db20081214_802212.htm Why was the U.S. not a low-risk, high return investment economy? "First, the U.S. economy was supposed to be on the cutting edge of innovation. Innovation through technological change, by nature, is a very risky activity. Sometimes it pays off and sometimes it doesn't. If the investment in innovation pays off, the economy booms, as it did during the second half of the 1990s. But innovation has fallen short in recent years. Biotech and nanotech still have not come to fruition, and alternative energy is moving slowly. As a result, the U.S. economy as fallen short of expectations. The income isn't there, and the debt just piles up." Important to this is the ability for investors, domestic and foreign, to be able to recognize real innovation. While real innovation is measured much by commercial success (a reason the secondary factors of Graham should be the primary factors), one measure of real innovation is the association of the innovation with a quality patent, a vital role of the Patent Office in the national economy. The patent indicates that the inventor thinks there is enough commercial potential to more than cover the costs of patent prosecution and litigation (a useful sign to an investor). A high quality patent lessens the risk of the litigation on the side of the inventor (which is why large companies like IBM encourage the PTO to issue tons of crappy patents - it hurts IBM's competitors more than it hurts IBM). High quality patents help minimize the risk for investors in investing in recent innovation. (And to correct Michael, there wasn't much real innovation in the second half of the 1990s, if you look at those patents. The Internet bubble was driven as much by the arbitraging of personal information about consumers and their spending habits, as opposed any great advances in computing technology). But that association (innovation and quality patent) simply isn't happening. I ask, when the average patent issues, can the average investor really say that the patent is novel, unobvious and fully enabled? No, they can't. Sure many patents do have reasonable quality, but many don't - enough of a parity that without paying a lot of money for a validity opinion, the average investor has to guess which patent is high quality. PTO management's solution: reject everything, which while killing the crap, also kills patents that protect real innovation. For this reason alone, much of current PTO mismanagement has to be swept out by the next PTO Director. And that the PTO Board of Appeals has to distort engineering principles to help PTO management reject everything is reason enough for the next PTO Director to do a sweeping overhaul of the Board. Small companies with real innovation are being hurt in two big ways. First, they are running out of money in this economic climate to pay to fight idiotic rejections and other games being played with appeals. They are being forced to abandon their patent applications. Second, assume they survive an increasingly expensive examination process while doing what it takes to obtain a high quality patent (starting with good searching), their quality patent gets lost in the noise of all of the crappy patents being issued, in most cases, to big companies such as IBM that flood the PTO with uninnovative patent applications. So if all of the politicians in this country, starting with President Obama, really believe their mindless chanting about how technology and innovation is going to save the U.S. economy, they better start paying attention to the incompetence and corruption at one of the chokepoints in innovation commercialization - at the Patent Office. As one of the worst PTO Directors in recent times, Bruce Lehman (so horrible of a PTO Director that Congress passed a law requiring the PTO Director to be competent in patent and trademark law, which Lehman wasn't) once said: "Issused patents should be checks in the banks, not licenses to sue." Checks in the bank, as in the issuance of a high quality patent should lead to investment dollars for those patentees seeking such support. A high quality issued patent is an information signal to the investment markets. It should be relatively easy for investors to detect such signals. But right now, the signal/noise ratio is too high. Because of incompetent PTO management. Which betrays the investing public. This country can't afford to play politics with the appointment of the next PTO director - no legislative aides, no academics, and no one whose experience is at companies that have undermined the patent system. Also, someone suggested to me that the next PTO Director must be someone who publicly opposed the continuation rules package, and/or publicly opposed the PTO in Bilski.

More on the USPTO v. Tafas & GSK Appeal

USPTO v. Tafas & GSK Appeal - Dec. 5, 2008 14 November 2008 By Gene Quinn The United States Patent & Trademark Office appeal of the Tafas and GlaxoSmithKline case regarding the claims and continuations rules that were famously enjoined by Judge Cacheris of the Eastern District of Virginia is set for oral arguments on Friday, December 5, 2008, at 10am. I will be in attendance at the hearing and blogging immediately thereafter with my thoughts on the hearing, providing my perspective and insights, that is assuming there is an oral argument that day at all. I know it is scheduled for then, but let me be perfectly open and honest about my intentions. I want to see the Patent Office and/or the Department of Justice step in and do the right thing and withdraw the rules and moot the appeal. That is the only responsible thing to do and the fact that those making the decision to move forward with this case have not seen fit to save themselves this embarrassment demonstrates that they are out of touch and simply don't care what damage will be done to not only the Patent Office but all Administrative Agencies. It is irresponsible and reckless to do anything other than withdraw the rules, and we all need to do whatever we can to bring pressure to bear in the coming weeks to get our government to do what is obviously the right. The fact that this case has gone this far is an unfortunate testament to the fact that the Patent Office and the Department of Justice are hell-bent on forcing the Federal Circuit to issue a decision that is going to be nearly ruinous for all of the agencies of the Federal government. How is it possible that a lame duck administration at the tail end of its time in office can continue to push and appeal a case where the outcome is so certain? This is going to be a disaster for all agencies, and a decision that should be made by the next leaders of the Patent Office and the Department of Justice. The claims and continuations rules should be withdrawn and this appeal mooted. That is the only responsible thing to do, so please Mr. Dudas, on the way out do the right thing here and don't risk the decision of the Eastern District of Virginia being ratified by a Court of Appeals and thus becoming precedent that will allow for the challenge of virtually any administrative rulemaking decision. On Tuesday, August 19, 2008, the United States Court of Appeals for the Federal Circuit issued a decision in Cooper v. Dudas, which makes it clear what the outcome of the PTO appeal of the GSK & Tafas case will be. As I pointed out in my post titled Trouble Ahead for the PTO, the Cooper v. Dudas case, although a win for the PTO, laid the foundation for the Federal Circuit to ratify the decision of Judge Cacheris lock, stock and barrel. In this decision the Federal Circuit explained that the PTO does not have the authority to make substantive rules, explained that substantive rules are those that effect a change in existing law or policy that will affect individual rights and obligations. The Federal Circuit went on to explain that in the Cooper v. Dudas case the PTO was fine because they were merely setting a working definition of an ambiguous term used in a statute. That is hardly the case in the Tafas & GSK appeal. The statute is clear, inventors have the right to file as many claims as they want and file as many continuations as they want. There is nothing in the language of the statute that supports any limitation, and what the Patent Office tried to do clearly and unambiguously was affecting substantive rights. Changing rules in the middle of an application process cannot be characterized any other way. You had the right to do something yesterday, no right to do it today. That is a change, and it impacted a lot of pending applications. It should not come as a surprise to anyone that the Federal Circuit might signal in decisions leading up to an important case which way they are leaning. They do this all the time. In fact, if the Patent Office and the Department of Justice actually force the Federal Circuit to issue a decision you can expect that the decision will cite the Cooper v. Dudas opinion liberally. They have inched the law closer to where it needs to be to support what it is that they are about to do without it being viewed as a shift in the law. It is rare that the Federal Circuit so abruptly changes course like they did in Bilski without moving that direction slowly. So I predict that if the Federal Circuit issues a decision it will be to affirm Judge Cacheris. Now why would the Patent Office and/or the Department of Justice want a Court of Appeals to affirm a decision that is such an indictment of Patent Office rulemaking? I have no idea. It is reckless and is something that should be stopped. Someone in the government, whether in the DOJ, Department of Commerce or Congress, needs to step in and be the voice of reason. We all know there are a lot of needless and irrational challenges to actions taken by Administrative Agencies, and while this is not one of those meritless situations, an indictment of rulemaking that will flow from a Federal Circuit decision will do nothing more than embolden challenges and flood the court system with cases that will for years require district courts and the regional Courts of Appeals to set the appropriate balance. The only way that will happen is by further indictment of the Patent Office as judge after judge explains just how bad the Patent Office rulemaking was and that in whatever case is before them the clear disregard for the law shown by the Patent Office is not what is at issue. When the Federal Circuit ultimately issues its decision after the new PTO administration is in place the claims and continuations rules will be once and for all thrown out and there will be no doubt left that the Patent Office did not have the authority to directly contradict the patent laws enacted by Congress. The truth is that the Patent Office tried to do something they didn't have the right to do and they were challenged, thankfully, by Dr. Tafas and GlaxoSmithKline and the many amici who filed briefs explaining exactly how and why the rules were bad and not supported by the law. Why do our lame duck political leaders want to turn a clearly bad decision to act contrary to the overwhelming weight of public comment and contrary to the Patent Act itself into a miserable precedent that will undoubtedly embolden legions of challenges to legitimately rulemaking? Because if you continue down that path this is exactly what will happen, and someone needs to point that out to our leaders and get them to accept reality. About the Author: Gene Quinn is a US patent attorney and the founder of IPWatchdog.com, and is the Editor and chief contributor to the PLI Patent Practice Center and is on the PLI Patent Bar Review faculty.

Presentation details severe confidence crisis at the European Patent Office

What follows is the text of a presentation detailing the crisis conditions at the European Patent Office, with both management and examiners being increasingly miserable. The same memo could be written about the U.S. Patent Office. Look folks, I do not make this stuff up - I can't afford to drink that much Beaujolais to do so. We have massive engineering workflow institutions (PTO, EPO) on the verge of collapse. Is the IP world totally devoid of leadership for someone to step forward and .... lead? We face a perfect storm of troubles: - incompetent people appointed to high management positions - lack of accountability quality, imposed costs/fees, and productivity - legislatures ignoring their oversight role while getting milking the system for lobbyist dollars - courts blatant with their contempt for science, technology and semantics in their decisions - "professional" bodies (AIPLA/IPO/AIPPI/ABA) devoid of leadership The result: despite the outright lies of Jon Dudas and his foreign counterparts - patent quality continues to drop, patent fees continue to rise, patent pendency continues to rise, and more. The next head of the PTO has to be a true, competent, professional leader. Or let's just take 35 USC off the books. So as you read what follows, ask yourself: where has been any leadership in the IP world that we have arrived at management memos as below? This is the text of a presentation given by a management representative, not from a Union representative. You be the judge: The EPO as an organisation has moved from duality to crisis. We will explain how and why and will describe the steps that are necessary to reconstruct a common culture and a positive social partnership. A dual organisation. The sociological analysis based on the results of the human capital survey of 2006 had shown that the EPO was a dual organisation; a dysfunctional system that finds its equilibrium in the creation of two separate universes; - the "executive management universe" focused on a defensible production level, defensible backlogs, and a defensible financial situation, and - the "operational universe" focused on staff autonomy, intellectual content of the work and existing working conditions (Salary, benefits and job security) These focus points are essential to maintain a balance. A change in one or more of these conditions would jeopardize the status quo. This is exactly what has happened. Change of the conditions of the duality. Management expressed strong concerns about the production level, strong concerns about the increasing backlogs and strong concerns about the financial situation. On the operational side, one felt some pressure on the autonomy (more control tools, micromanagement, lack of trust), some fear concerning the intellectual content of the work (e.g., the possible mutual recognition with other players having a lower quality or the delegation of activities to national Offices) and a high level of fear concerning working conditions (the pension system revision being often considered as the first step to multiple changes of the working conditions.). With the disappearance of all conditions necessary to maintain the equilibrium of the duality, the EPO could only slip into crisis. Characteristics of the crisis. Work is valued but the organisation is not trusted. The work as such is a source of positive feelings. Experienced as interesting, rich and motivating it is considered as a service of quality for others. But the organisation (including all actors from management to staff representation and union representatives) is the subject of negative feelings and perceptions. Contradictory information influenced by clearly opposed point of views harm the capacity of the people to understand issues properly. Consequently they loose their common references and don't know "who" or "what" to trust anymore. Negative collective perception of change. The crisis is a disturbance of the capacity to perceive reality. All actors have a subjective perception of how the world works. Because of the differences between these subjective perceptions, change is collectively seen as a source of disorder and contradiction. At an individual level the organisation is perceived as a threat. At an individual level, change is perceived as elusive, irrational and distressing. It is felt to be change for change's sake or even worse, for individual and personal benefits and careers. The lack of a clean break with the past and the absence of future perspectives create a psychological confusion that express itself either as a complete lack of interest in the change process or as clear opposition to it. Mutual "demonisation" of the actors. For all actors, the system has become threatening and impossible to master. The energy of frustration is diverted to an excessive personalisation of collective problems. Opposed actors become mutual "scapegoats". For the Union, the executive management is the only source of problems and has all possible flaws. For the executive management the union is the major threat to the good functioning of the organisation. The actors are totally dominated by these negative emotions. "Lies", "incompetence", "hidden agenda"; are words that are becoming common in the organisation vocabulary. Incapacity to imagine the future. The individual and collective capacity to dissociate oneself from the present in order to imagine the future is "anaesthetised" by the crisis. Fatalism is omnipresent and one can easily observe a clear absence of real alternative thinking about the functioning of the organisation. How to come out of the crisis? Shared values have disappeared and constructive communication has become impossible. Reason and common sense have been replaced by negative emotions and systemic distrust. Attempts to communicate and to explain methodically turn into conflict. Every action (even the most positive) is interpreted through the filter of negativism and transformed into a potential threat. Subjectivity dominates and everything consolidates the negative perception. "The more you try, the worse it becomes". The problem seems therefore quite unsolvable and can only be addressed through radical and unusual ACTIONS supported by formal AND informal steps framed to transform the system. Step 1: Take the pressure off by acknowledging the crisis. First the intangible but enormous fear and pressure felt by almost everyone has to disappear. The only way to do it is to say "STOP", make a step backward and get a common acknowledgement of the crisis by all actors. Only the President can initiate this. In the present atmosphere, a declaration of intent will not be sufficient. The current global scepticism would transform it in "one more useless speech". It has to come with an important decision that would show an indisputable determination to REALLY tackle the crisis. For example, put the SRP on hold and revise it in the frame of step 2 would be a major sign. Step 2: Back to the essentials Once people agree about the crisis it will be necessary to go back to what could be called "the essentials". What are we? What is our purpose? Why do we exist? What does society expect from us? Through the crisis the very identity of the organisation has been lost and the essentials have to be reintroduced as a foundation for the reconstruction of a common culture which is the first step of the re-appropriation process. We need to be professional, proud and ambitious together. We need to reconcile quality of product and quality of process; how can we apply the EPC, maintain and even increase the quality while reducing the backlogs? How can we show and increase the importance of our role for the future of Europe? These questions should now be asked and answered by each and every one of us. Step 3: Redesign a vision for the future based on these essentials. When the two first steps are done, the presentation of an inspirational image of the future will be the way to move forward as a united Organisation. But this vision of the future (and this does not refer to "The vision" formal tool designed professionally as part of a process) has to be based on the rediscovered essentials defined by all actors of the Organisation. Obviously the President of the Office will have to become the "Champion" defending this vision, the Champion of our Quality and the first representative of the EPO's significance for the future of Europe. Conclusion These three necessary steps will not be easily implemented. It will require courage, imagination, a good understanding of the crisis, commitment, lots of perseverance and possibly the capacity to act against one's own current conviction for a higher purpose. But unless it is done, the Office, lost in its identity crisis, won't get a chance to move forward taking thereby the risk to leave its future in someone else's hands.

The Supreme Court is likely to sideline patent cases

The 29 September issue of Barrons has an article by their D.C. reporter, Jim McTague, on patent issues at the Supreme Court next year. He got his gossip from Seth Waxman (author of one of the more scientifically-poor anti-Bilski briefs) of Wilmer Hale. McTague writes: ... points out that the [Supreme Court] has an unusual docket because, for the first time, there are no patent cases scheduled [for the 2008-2009 term]. Not only are patent cases a regular feature of the court's calendar - they also represent the most significant body of law for U.S. business today. Is that really true - patent law is the "most significant body of law"? If so, that's ironic, because much of patent law governs the activities of one of the most significantly mismanaged government agencies - the PTO. Maybe there would be less of a need for patent caselaw if the PTO was run by professionals. McTague writes further: ... thinks the Supremes want to give the lower courts and the U.S. Patent and Trademark Office time to digest prior decisions and actions now making their way through the lower courts, including attempts to patent business processes. The Supreme Court is passing on patent cases while the justices take some remedial college courses on basic science and engineering.

Examiner's hard drive crash costs him his job

Also in the September issue of the PTO Examiners' Union's newsletter: Examiner fired after computer crashes When managers in Technology Center 2700 offered next to no catastrophic time after the hard drive crashed and burned for a probationary examiner who was producing at 100 percent, the examiner's production unsurprisingly suffered and the USPTO fired him because he had "not progressed at the expected rate". Maybe the examiner could have progressed at the expected rate with a crashed hard drive if the examiner was working from a beach in Hawaii. Any patent reform that does not start with an overhaul of PTO management is corrupt patent reform.

PROCTER AND GAMBLE SUES IRS TO RECLAIM ITS PATENT DONATION DEDUCTION

Speaking of which, Reuters reports that Procter & Gamble is suing the IRS, asking to have $435 million in patent donations reinstated. The news is from http://www.reuters.com/article/americasIpoNews/idUSN1952932320080919 In 2005, the IRS audited P&G's tax returns for 2001 through 2005, with the IRS in 2008 sending P&G a letter asking for extra taxes and interest, which P&G paid upfront without agreeing with the IRS assertions. Now P&G is suing to protest the extra taxes, which it wants back. From the article: "P&G said the IRS asked for more money after looking into tax credits the company claimed for technology donated to colleges and universities, as well as artwork donated to the Cincinnati Art Museum and the National Underground Railroad Freedom Center. The IRS also denied certain credits related to spending on patent work and research, among other items."

Tax reform kills used car donations

The 10 September Wall Street Journal, page D3, reports that far fewer people are donating their automobiles to charities after the tax laws were changed so that donors could only deduct the sales price of the automobile after the charity sold the car, not the book value. In 2004, under the old rules, 901,000 taxpayers claimed the deduction for a total amount of $2.4 billion, while in 2005 under the new rules, 297,000 people claimed the deduction for a total amount of $470 million, a two billion dollar difference. This tax law change came about in part because large U.S. companies were donating patents to universities, and similarly claiming large values for the patent (see the relevant post), even if the recipient did nothing economically with the patent. Under the new tax law, companies donating patents can only deduct whatever the recipient earns from the patent, much like with the automobile deductions. And I suspect much like the automobile deductions, there has been significant drops in the number of companies claiming large deductions for their donated patents. In both cases, the taxpayers were being scammed.

Elections looms closer and the USPTO is doomed

It doesn't matter who gets elected as president, the major problems at the Patent Office (IT management, labor relations management, quality control) will continue to get worse. The problem with McCain and Obama is that they don't have much experience or knowledge in technology, and neither do their VPs, and neither do many of their economic advisors (just as Carly wrecked HP). McCain most likely will continue the Bush legacy of tolerating incompetent management and using the PTO as a political tool, while Obama (distracted with other things) will allow Leahy to sell the PTO to the highest bidder (and Obama has too many Lemley/Moore-like academics advising him). In the end, neither candidate really cares about reinvigorating American's economy (with all their campaign trail bickering about silly and irrelevant issues - I mean, this country had to waste two days of its life watching grown(?) men argue about lipstick on a pig [which is animal abuse]). This campaign is basically about who is least unqualified - real encouraging, huh? To understand my skepticism, consider my comments on some comments Hal Wegner of Foley and Lardner recently made: "Professor Arti K. Rai, a leading patent spokesperson for her fellow Harvard classmate Barrack Obama, has argued for a need for change at the Federal Circuit, and particularly for the elevation of trial judges to the bench. She has also argued for the appointment of an Under Secretary knowledgeable about the patent system." Interesting, but why not appoint a patent practitioner to the CAFC? For example, one of the biggest crimes against patent applicants is the CAFC repeatedly ruling that patent specifications must be as long as possible, with endless patent claims to cover every possible infringement. "Don't specify it - can't claim it. Don't claim it - can't assert it." The crime? The CAFC creates this policy while the PTO is trying to create the policy of having patent specifications as short as possible, with as few claims as possible, so they can mismanagement their way out of their mismanaged pendency problem. The two policies together are insane, and cause great uncertainty in the minds of patent applicants as to how to invest their patenting dollars. "President McCain is Pledged to Spend Money on the PTO to Meet its Objectives: A surrogate for Senator McCain pooh poohed the criticism of the PTO leadership by noting that this criticism applied to previous administrations as well." Sure, previous PTO administrations were criticizable (Bruce Lehman being the second worst PTO Director in decades [such a ranking completely ignores the non-entity resume-stuffer Rogan].) But the last six years under legislative aide Dudas - the lies, the hostility, the failed policy initiatives - has severely damaged PTO operational capabilities. Such pooh poohing completely ignores two massive GAO studies documenting multiple automation and labor management problems at the PTO. Anyone who pooh poohs problems with PTO management has a pooh pooh head. Both candidates must pledge, at a minimum, NO MORE LEGISLATIVE AIDES AS PTO DIRECTOR. "Per his surrogates, Senator McCain is committed to spending as much money as needed for the PTO to achieve its goals." McCain's commitment is an insult to inventors and the public, because without a competent and professional management at the PTO, "spending as much money as possible" is a recipe for worsening conditions at the PTO. The PTO is suffering massive engineering management problems, which have to be addressed first before any other reform (most of which depend on the existence of a competent management). Wall Street, which can spend "as much money as possible" is collapsing as we speak. Why? Massive management problems in financial institutions. As have two large government corporations which can and have "spent as much money as possible" - Fannie and Freddie (though they spent too much of their money bribing politicians). Throw tons of money at incompetent PTO management - a sure guarantee of the similar collapse of the PTO. "Federal Circuit Defended: In marked contrast to Professor Rai's criticisms of the Federal Circuit, Edward Reines on behalf of Senator McCain staunchly defended the current composition of the Federal Circuit bench." Again, Edward Reines belongs to that part of the patent bar which holds the public in contempt in the sense that the concerns of the public (either inventors seeking patents, or the public who benefits from patents) are irrelevant. Reines believes in a sort of imperial CAFC, kowtowed to by lawyers, where the CAFC (and the Supreme Court) keep on issuing decisions that drive up the costs of patent prosecution, and that reinforces a stare decisis based on vagueness and contradiction of science and engineering. That's all fine to Reines - doesn't affect him or his clients. Given some of the nonsense science in CAFC oral questions and written decisions in cases like Nuijten, Microsoft/ATT, Bilski, Comiskey - yes, the CAFC needs some tuning of its competence in handling science and engineering issues (such as allowing a few scientists and engineers as clerks). "Chief Judge weighs in at Harvard with his own observations: As part of the previously referenced Harvard appearance last week, the Chief Judge remarked: 'When, I ask, did we ever before see patent policy discussed publicly by presidential campaign advisors?' ..." Well, Judge Michel, both candidates and their supporters keep on endlessly chattering the mantra of "We need new technologies to lead the economy forward", without realizing that a key component in that process is the identification and protection of the best new technologies with patents. One of the worst effects of the low quality of issued patents is that it makes it harder for the investing public to quickly identify new inventions worthy of financial investment. A completely mismanaged patent office thus weakens the nation's economy, and thus the nation's national security. Too bad the CAFC doesn't give that much of damn about incompetent PTO management. ... 'Next, we may see potential Federal Circuit nominees being touted or trashed in the media in advance of any vacancies.'" Well Judge Michel, given some of the problems your colleagues have in understanding the basics of science and engineering, I think you should be less contemptuous about scrutiny being applied to CAFC candidates. Indeed Judge Michel, how often do CAFC judges talk, not to lawyers, but to scientists and engineers? For that matter, how often do the CAFC judges talk to patent applicants and inventors, who are extremely affected by CAFC decisions? I doubt very often, which is irresponsible given the increasing role science and engineering is playing in CAFC decisions (such as anything to do with 35 USC 101 and 103). Any CAFC judge who does not believe that propagating signals are physical and useful needs to be trashed in the media. Shanna Winters; retired chemical executive -- Candidates to be Dudas' Successor: This writer is unaware of any candidates openly seeking the position of Under Secretary other than Shanna Winters. There has so far been no public discussion concerning her suitability for the position, and no comment released from Professor Rai or any other member of the Obama campaign. Hal wrote this paragraph to piss me off :-) Fine, Hal, here is some public discussion on Shanana Winters - she is another professionally unqualified legislative aide whose appointment as PTO Director or Deputy Director will be a violation of the law. For the two biggest problems at the PTO, well documented in lengthy GAO reports - that of examiner management and information systems management - Shanana Winters has no experience or competence whatsoever. Additionally, anyone remember hearing her speak anywhere in the last ten years outside of the Beltway, or read anything non-trivial about patent law written by her? NO NO NO. Is she urging the Congressmen she works for to investigate reports that PTO SPEs are ordering examiners to reject everything? NO NO NO. I can (and will) take the Peterlint complaint and pretty much just swap names to have a complaint in the ready (even better, this time around we don't have to argue about standing because the judge gave it to us under the APA in the Peterlint lawsuit). My colleagues in the lawsuit and I have committed to refiling a lawsuit against any legislative aide so appointed, and this time around I EXPECT more co-defendants and more financial support. My goal is to raise at least $50,000 to fight any such appointments. Inventors, examiners and the public deserve, nay are owed, competent PTO management. A former President of the intellectual property arm of a major Midwestern chemical company, recently retired, has been mentioned as a possible successor on the Republican side. Several other names on both sides have been privately circulated and are worthy of consideration. As long as they are not legislative aides. Myself, I prefer someone with a lot of experience in IT management as the next PTO director, but sadly, anyone with the competence makes ten times what the PTO salary is. The innovation America needs to regrow the country is not going to come out of mismanaged companies begging Congress for loans (the auto industry, much of the financial industry), or big companies who can buy policy (your Microsofts, energy companies, the Gramm family's Enrons and UBSes) to compensate for the lack of much real innovation, etc. It is going to come from the smaller, nimbler, innovative companies and start-ups, who right now are getting screwed big time by the worsening conditions at the Patent Office with longer pendencies and expensive idiotic Office Actions. Right now, neither candidate is saying anything that is good for such people. Too busy telling lies.

A book sounds an alarm: the US lacks technical innovation to sustain economic growth

Anyone following the stock markets lately will easily agree with the need for new business models in the markets, given the financial incompetence and corruption that is currently destroying everything in its path. We need new business models, and now. Just as importantly, such new business models should have the profits of such innovation go to only one group of people - the innovators, and not the parasites and dinosaurs who can buy off Congress, the PTO and the courts to try and prevent business method patents. I hope the CAFC realizes the importance of new business models to help restore the U.S. economy, and that the CAFC realizes the need to fully protect such innovative models with patents, so that the innovators benefit from what the dinosaurs can't do. It is an opportunity for the CAFC to show some financial leadership in a town lacking the such in massive quantities. In parallel, former Cisco CTO Judy Estrin has published a new book titled "Closing the Innovation Gap", reviewed in the New York Times, 9/1/8, page C4. "We have a national innovation deficit." The article summarizes: "Yet she is deeply worried that Silicon Valley - and the United States as a whole - no longer foster the kind of innovation necessary to develop groundbreaking technologies and sustain economic growth." All the more reason we need to eradicate the corruption and incompetence in the PTO, so that the investing marketplace can use higher quality issuing patents as signals as to where the real innovation is. Right now, the PTO is betraying the markets, which sadly seems to be the rule of the day in Washington.

Obama may be worse for patent policy than MacCain

Unfortunately, Senator Obama is addressing the problem of patent reform, but in a negative way. Senator Obama, along with Senators Hatch and Leahy, were the primary sponsors of the Senate version of the Patent Reform Act that just went down to defeat in the Senate. So, if Obama is elected President, he will definitely sign this awful piece of legislation into law. Practitioners whom I know have contacted Senator McCain, and they tell me that he is willing to listen to reason. Exactly what that means, I do not know.

How USPTO will be destroyed by the policies of the next president

Let's face it folks, Jon Dudas has been and is the worse PTO Director in the last twenty years. PTO operations and personal have suffered severe damage under his mismanagement, due to his complete lack of management experience and IP operations experience prior to coming to the PTO. NO MORE FREAKING SELL-THEIR-BODIES LEGISLATIVE AIDES IN THE PTO. The PTO cannot suffer eight more years of such mismanagement. The PTO will become nothing more than a registration system for large corporations building up portfolios. True innovators won't have the financial resources to deal with increasing levels of nonsense coming out of the PTO. Which is sadly ironic since both presidential candidates are touting innovation to save a slowly collapsing economy. But sadly, neither presidential candidate has said anything promising for true reform at the PTO. McCain's choice of Palin means that he will be more than happy allowing Palin to appoint more unqualified Peterlint-like legislative aides to head the PTO, and his suggestions for reform all avoid the most important problem - reform of PTO management. Obama's camp is spewing the same patent reform nonsense (public peer review, litigation reform, blah blah blah). If Obama is elected, he will allow Biden to appoint some Democratic lackey to head the PTO who will work with Leahy to sell the PTO to the Coalition for Patent Reform. And yes, this fall, I will be trying to raise funds to prepare for filing lawsuits over next year's appointments of PTO (Deputy) Director. You can be pretty sure that the AIPLA/ABA/IPO won't find some balls next year to defend against the destruction of the PTO.

How patents fall under the IRS sphere of influence

26 U.S. Code 1235 is the part of the U.S. tax code that deals with the sale or exchange of patents, and the key word here is "patents": 26 USC 1235 - Sale or exchange of patents (a) General - A transfer (other than by gift, inheritance or devise) of property consisting of all substantial rights to a patent, or an undivided interest therein which includes a part of all such rights, by any holder ... ... shall be considered the sale or exchange of a capital asset held for more than 1 year, ... ... regardless of whether or not payments in the consideration of such transfer are - (1) payable periodically over a period generally coterminous with the transferee's use of the patent, or (2) contingent on the productivity, use, or disposition of the property transferred. It stipulates patents, but does not include patent applications, especially those that still have the patent pending status. There have been published accounts, and I am sure private transactions, of people selling the rights to their patent applications. Why? Despite nonsense to the contrary, patent applications can be highly useful capital assets, and not that much less a sure thing than an issued patent (i.e., while many patent applications do not become patents, many issued patents are susceptible to becoming non-patents through invalidation). Inventors, or acquirers, in the business world, can effectively use a portfolio of patent applications. They are as much a capital asset as a portfolio of patents. Indeed, the PTO Web guide to "provisional patent applications" (which are even weaker than "patent applications"), states one clear business use of a provisional patent application as a financial asset: "Enables immediate commercial promotion of the invention with greater security against having the invention stolen;" While provisional applications are a bit wishy-washy, a patent application is a serious investment, especially in terms of claims drafting costs. It is not a hobbyist-business attempt at asset creation, especially since an inventor can spend many tens of thousands of dollars to get through a few Office Actions and still not have a patent. Yet the inventor still may be able to find someone to buy the application as an asset. An inventor should be entitled to the same capital gains treatment for his or her patent application. The phrase "patent applications" isn't the same as the phrase "patents", and thus the IRS could or could not argue that 26 USC 1235 does not apply to the sale or exchange of patent applications. Frankly, I doubt they would care either way. But the law is the law, and the law currently says that the capital gains treatment only applies to "patents". Yet another example of Congress not fully thinking when drafting an IP law. I would say that Congress "obviously" did not think this through, but Congress has yet to tell me what they mean by "obvious" in the patent world (I don't care how many pretend academics you hire, 35 USC 103 is unconstitutionally vague). Does the IRS accept "patent applications" as "patents" in interpreting Section 1235, as a case where Congress intended to use a specific term, patent, in a slightly more general way to also include patent applications? A 2002 IRS Technical Advice Memorandum on Section 1235, where the IRS itself is a bit confused about this issue (see TAM-117258-02 (August 2002), www.irs.gov/pub/irs-wd/0249002.pdf), where it writes: Section 1.1235-2(a) states that the term "patent" means a patent granted under the provisions of Title 35 of the United States Code, or any foreign patent granting rights generally similar to those under a United States patent. .... So far the memo, and this paragraph, is still talking about "patents", with a very reasonable modifer that "foreign patents" are "patents" under 1235. But then the IRS writes: .... It is not necessary that the patent or patent application for the invention be in existence if the requirements of 1235 are otherwise met. Where did "patent application" come from? It is the only time the phrase is used in any definitional sense in the memo, and seems to imply that "patents" in 1235 includes "patent applications". Indeed, IRS Regulation 1.197-2(c)(7) [197 deals with amortizing goodwill and the like], at one point in time, if not still today, describes as assets excluded from Section 197 including both patents and patent applications, again implying some sort of asset equivalence for patents and patent applications. Other instances. The IRS Web page for deducting general R&D expenses (www.irs.gov/businesses/small/industries/article/0,,id=97640,00.html) states: R&D expenditures include the expenditures of obtaining a patent, such as attorney's fees expended in the making and perfecting a patent application. Again, kind of implies equal treatment of patents and applications in the IRS' eyes. Another IRS Web page also seems to suggest that patent applications fall under 1235. The Web page, "Ordinary or Capital Gain or Loss" covers capital gains in general (see www.irs.gov/publications/p544/ch02.html). As one example of when a capital asset transaction is not treated as a capital gain, the page states: Depreciable property transaction. Gain on the sale or exchange of property, including a leasehold or a patent application, that is depreciable property in the hands of the person who receives it ... is ordinary income if the transaction is either directly or indirectly between any of the following pair of entities: .... [basically, selling to an entity you mostly control]. The implication here is that if you sell the patent application to an entity that is pretty much distinct from you (like a licensing company, or a product developer, etc.), any proceeds or royalties you receive are treated as capital gains under Section 1235. Thus it seems, in light of a fair number of IRS writings, that "patent applications" are included under "patents" in Section 1235. If so, are these scattered IRS commentaries enough assurance for an inventor selling a patent application? This is why Congress needs to add language to Section 1235 along the lines of "By 'patent' in this Section, is also meant patent applications.

Slashdot walks through science and technology like an elephant through a china shop

One of the most ignorant forums for the discussing science, engineering and IP law has to be the Slashdot blog. Open source lawyers, who still omit to teach their minions about any of the subtleties of IP law, starting with copyright law (GPL - paragraph 102b = 0) - forget about any of these con-artist copyright lawyers trying to explain patent law. Let's take the beginning of a blog in last week's Slashdot: "An anonymous [idiot] writes: the Patent and Trademark Office has now made it clear that its newly developed position on patentable subject matter will invalidate many and perhaps most software patents, including pioneering patent claims to such innovators as Google. In a series of cases, including In re Nuijten, In re Comiskey, and In re Bilski, the Patent and Trademark Office has argued in favor of imposing new restrictions on the scope of patentable subject matter [under 101]. blah blah blah ....." The post was made by someone who completely misunderstood Prof. Duffy's recent paper on Bilski, with some of Prof. Duffy's hyperbole being taken too seriously - whatever the CAFC decides in Bilski, it won't affect most of Google's patents from a 101 point of view. This paragraph has multiple problems. First, the PTO has no clear position on anything involving 101 - how can it, when no one in the PTO policy office understands anything about science or engineering? Clarity? Despite the boolshirt in Ex parte Bilski, the current PTO precedence opinion is Ex parte Lundgren, which eliminated the technology test for patent claims. If any examiners asserts Bilski against you, ask his SPE to fire him citing Lundgren. If his SPE told him to assert Bilski, ask the Group Director to fire the SPE, and upwards until the next president's new PTO Director asks all of these people to "retire". PTO management is willing to lie about the science and the law to cover up their complete incompetence to manage software patent examination. From what I hear though, the PTO is pretty much tabling most software patent office actions and board appeals until Bilski is decided. The PTO newly develops a position on software patents each and every time its latest management fix to software patent examination fails. Anyone know which is greater - the number of such PTO policy positions, or the number of Ecuadorian constitutions? Or is it Bolivian? Secondly, even in their twisted logic, the PTO really isn't arguing that most software patents should be invalidated, because in the end it is not their decision. Take Nuijten - despite the illogical sense of the PTO's arguments, the CAFC upheld that all forms of signals fixed on a medium are patentable (which most people forget is a reaffirmation of Beauregard claims). And it is unlikely that what the CAFC excluded - signals propagating in the air - would survive any serious science scrutiny. Not that it matters, because as the CAFC pointed out, all forms of signals you need to claim to economically protect a new signal invention are claimable with properly written claims. And that's going to be the CAFC's decision in Bilksi - all forms of software are patentable as long as you use proper claim language to get a bit of machine into the claims (however the CAFC defines 'machine' in Bilski), which most patent lawyers will know how to then draft proper claims for whatever Bilski invented). And part of the reason that CAFC will rule so is that the PTO's written and oral arguments rely on nonsense science and law (so bad the CAFC repeatedly interrupted the non-answers of the PTO lawyer). "End of software patents?" Nice Slashdot fantasy, but the reality outside their IP-utopia is that all of the science and engineering since 1994 fully supports the CAFC's reasoning in Alappat and Lowry. Where Lowry and Alappat are consistent with Benson/Diehr, even better, and where they are inconsistent - it is time the patent bar loudly pointed out to the Supreme Court what Donald Chisum wrote 20 years ago - some of the inconsistent logic in Benson is "monstrously bad" logic. Not surprising PTO management loves embracing such badness.