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Patent Law

: Patently Obvious

Bits and Bytes: Comments on Comments

By Dennis Crouch, Esq.

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Gil Hyatt's attorney contacted me this morning and asked that a few "offending" comments be removed from the post associated with his case. I agreed that they were potentially problematic and removed them. Two discuss LL's role as an examiner of HYATT's cases. Because Hyatt's applications were filed before 1995, those files are likely still secret and thus should not be publicly discussed. I also removed the "sleazeball" comments. As a reminder to commenters - you may appear anonymous, but a well heeled plaintiff could probably track you down unless you take special precautions. I have thus-far successfully resisted providing any identifying information to interested parties. However, I would obey a court order.
For PTO Examiners who Comment Regularly. I enjoy your comments and they helpfully reveal aspects of PTO operations that would otherwise be hidden. You should, however, occasionally re-read MPEP 1701: "Public policy demands that every employee of the United States Patent and Trademark Office (USPTO) refuse to express to any person any opinion as to the validity or invalidity of, or the patentability or unpatentability of any claim in any U.S. patent, except to the extent necessary to carry out (A) an examination of a reissue application of the patent, (B) a reexamination proceeding to reexamine the patent, or (C) an interference involving the patent. "
Counting Comments: There have now been more than 47,000 comments posted on Patently-O. If printed, the pages would be sufficient to re-paper every wall inside the Patent Office.
Fraud not Inequitable Conduct: IPO executive director Herb Wamsley (writing as the IP LANGUAGE CURMUDGEON) argues that the term "Inequitable Conduct" is misleading. The doctrine does not follow a traditional balancing of the equities, but is seated in fraud. Thus, Wamsley "proposes scrapping the term 'inequitable conduct' in favor of 'fraud,' a term that is not very well defined in law either, but which better conveys the idea that patents should be unenforceable only if serious misconduct has been proven. If courts had to find 'fraud' before they could hold a patent unenforceable, perhaps they would apply the doctrine now called inequitable conduct only in cases of very clear intent and materiality" as the law requires. I think that Wamsley's suggestion makes perfect sense.
IPO's annual meeting is Sept 13-15 in Chicago: Link. Over 500 individuals (including yours truly) are already signed-up to attend this patent law powwow. This is probably the largest mixer of in-house patent counsel and patent attorneys in private practice. The only problem is the cost: IPO members pay $950; Non-Members pay $1,450; Inventors and academics pay $500.

Full post as published by Patently Obvious on August 14, 2009 (boomark / email).