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Examiners: ?We?re the ones who put ?no? in innovation?

By Lawrence B. Ebert, Esq.

A rambling story by John Schmid and Ben Poston titled Patent rejections soar as pressure on agency rises includes the text:

?We?re the ones who put ?no? in innovation,? goes a joke that circulates in the agency?s corridors, according to an examiner who requested anonymity because the agency won?t let examiners speak with reporters.
At the same time, because of heavy turnover, the staff of examiners became younger and less experienced.

The article suggests a "culture of fear" at the USPTO is responsible for the current 59% rejection rate:

?If you tell an examiner that you?ll be penalized or lose your bonus if you allow things that shouldn?t be, what?s going to happen? The examiner will reject more,? said Joseph Mallon, a research scientist and patent attorney with the Knobbe Martens law firm in San Diego.

Robert Budens, president of the trade union for the agency?s 6,300 examiners, said ?a culture of fear? has taken hold, a feeling that, ?If I make the wrong step, I could lose my job.?

As a result, critics contend, inventors are routinely discouraged.

And, arguably, the "culture of fear" may owe its origin to the "97% allowance rate" urban legend perpetrated by Quillen and Webster, which 97% assertion generated an opposing force of reject, reject, reject...

The Schmid/Poston story of course mentions the swinging on a swing patent, without giving the context of patent attorney father/son:

When the ?invention? received patent No. 6,368,227 ? later revoked ? it helped unleash a pent-up backlash from serious-minded inventors whose applications were backed up. Harvard professor Josh Lerner, co-author of an acerbic 2004 book called ?Innovation and its Discontents,? was a prominent critic of low-quality patents, which he said encourage more weak applications that clog the system and invite costly litigation ? at the expense of legitimate creativity.

Schmid/Poston seem unaware of the criticisms of Jaffe and Lerner.

***Separately

Here come the 'Twitter, we did it first' lawsuits , including:

And, as Wired points out, Twitter is well aware of this: leaked internal documents say that "We will be sued for patent infringement, repeatedly and often." Earlier this summer, the company hired its first general counsel right out of Google's legal ranks.

Full post as published by IPBiz on August 19, 2009 (boomark / email).