A lot! Think of the legal system like a CPU. The legislature is a big, slow HDD. The courts are like DRAM, much faster than the legislature but still slower than ... The USPTO. The USPTO run by the Director is like L3 cache in this analogy - very quick and close to the processing. Maybe that makes the examiners L1/L2 cache. The point is, when the L1/L2 cache has a cache miss, it goes to the L3, right? That happen all the time and is pretty quick, it's a tight feedback loop. Reaching out to DRAM is much slower and less frequent, and same goes even more for mass storage. In this analogy, the instructions are the laws and the processing is everything the USPTO does.
The analogy breaks down a little bit from there, because the laws are not perfectly communicated between each layer, it's like someone inserted a fuzzer in the bus at each stage so that getting from the HDD to the CPU is both slow and unreliable. There's only one step of fuzzing between the L3 cache (the director) and the CPU - much clearer, more direct, quicker, etc.
Beyond the somewhat silly analogy, our legal system is set up to grant quite a bit of deference to administrative agencies like the USPTO, referred to as Chevron deference if you want to look it up. The judicial and legislative branches do provide feedback through lawmaking and court rulings, but each stage of the feedback loop is indirect and slow. The courts don't really tell the USPTO what to do (in general), they just decide specific cases presented to them. Then, the USPTO has to figure out how to act in accordance with those rulings, which isn't always clear. So then the Director has to figure out what the courts really meant and then implement some new internal procedures and rules to adhere to those rulings, which is a bit like herding cats. And they have to fill in a lot of gaps too, because again it's not like the courts sit down and figure it all out, they just rule on the narrow issues presented to them.
Let's end with an example. What is eligible to be patented? The legislature last weighed in on this question in 1952 with 35 U.S. Code § 101. The Supreme Court hears a case on this topic like ever 5 years or so on average (roughly). The last big one was Alice in 2014. Then, the lower courts (Fed. Cir.) started to get a trickle of cases about what that Supreme Court ruling really meant over the years, and the Fed. Cir. hears these somewhat frequently, like every couple of months or so. But, the whole time, the USPTO has been trying to follow the ruling of Alice from 2014, and it's been a moving target to some extent based on Fed. Cir. rulings. Go look at the USPTO's 101 training page [1]. This is what the Director and those under her have been doing for the last few years. Scrambling to figure out what the courts are saying and devising training and rules to implement it. There is a lot of leeway and gap-filling in this process! And ultimately, if you want to get a patent issued, what the Director says is what matters. What happens after that is all in the judicial branch, but patents are presumed to be valid and the Director is the one who issues patents. Her job is incredibly important to the functioning of the US patent system, and doing it well is important to all of us. For the most part, Director Lee was respected and admired by the patent bar and she will be missed!
EDIT: just for anyone who reads my conclusion and then goes to the IP Watchdog link and thinks I'm off base, just be aware that that site and it's author are somewhat extremist in their views and don't necessarily represent the majority opinion of all patent practitioners. My opinion is that the PTAB and its implementation has been an overall win for patents and the country at large. As is the crack down on 101. The end result of both is that prosecutors are putting much more effort into writing 'good' patents to navigate these treacherous waters and that can only be a good thing. And I've also seen lots of bad patents killed by the PTAB, which again is only a good thing.
You've already managed to post numerous ideologically inflammatory comments to HN. That amounts to trolling, and we ban accounts that do this. If you don't want to be banned on HN, please post substantive, thoughtful comments only.
Not trolling. These are my opinions and I've posted relevant articles for most of them. If you feel like banning me then at least be clear that Hacker News continues to stifle valid criticism because it dislikes the view it presents.
'Trolling' originally meant to deliberately ruin discussion by provoking others, but it turns out that most discussion-ruining isn't deliberate—it happens as a side-effect of people venting. Since the effects are the same when intended or not, it's reasonable to use the same word.
It's also more practical: we can't observe intent, but we can observe troll effects. And effects are what we care about anyhow. So when someone does things on HN that are known to ruin discussion by provoking others, we call it trolling regardless of how sincere they think they were.
By that standard, your comments have been trolling and you need to stop. I'm sure you can find more substantive ways to express your views if you want to.
Her resume is beyond sterling, I literally don't believe you could find someone more qualified. But sure, she got the job because she's a woman. God people are awful.
I agree, she was an astonishingly qualified candidate at the time of her appointment. It's really unfortunate to see the recent exodus of high-profile intelligent people in the current administration at a time where leadership is needed most.
And something to do with her resignation. Didn't Obama's cabinet have a ridiculous number of PhD's, and Trump's end up replacing some Nobel laureates with Rick Perry?
Steven Chu (Nobel Prize in Physics 1997) was succeeded by Ernest Moniz (Nuclear Physicist, MIT Professor) who was succeeded by Rick Perry (who forgot which agency he was going to abolish if elected [1])
George W. Bush didn't always appoint slouches either. Samuel Bodman was a professor at MIT and then went into industry. Spencer Abrahams, the prior officeholder, was a politico.
Yeah. GWB appointed a horse-trainer with zero experience to be head of FEMA, aka the Federal Emergency Management Agency, which is, not surprisingly, responsible for dealing with, you know, emergencies.
That wouldn't be so surprising (since the Environment Dept. head wanted to abolish it too, and Betsy Voss I'm sure wants to abolish the Education Dept). The surprising thing is that he believed that the Dept of Energy was to do with regulating the "Energy" aka Oil and Gas industries.
It's not necessarily about her being a woman, as much as a Google employee. Obama hired dozens of Google employees to prominent executive branch positions during his term.
Despite IPWatchdog's hugely pro-patent bias, there's at least one thing I can agree with them on: "...the Patent Office has become more arms dealer than honest broker."
It might be true that it's likely that directors of USPTO are "pro-patent", but OP's point was that the USPTO ought to be less "pro-patent".
Put another way, some government offices are charged with making more of an intrinsically good thing. "Justice", "Education". I expect the leaders of those departments to be pro-justice/education/whatever, just as I expect everyone else to be in favor of these intrinsic goods, insofar as we can agree on their goodness.
OTOH patents are not an intrinsically good thing. There is such a thing as too many patents, or patents issued too freely, or whatever.
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
I think you've misunderstood. Do you think the federal government is actually competent to decide which inventions will actually promote the progress of science and the useful arts?
The issuing of patents is contingent on Congress's belief that doing so promotes science and the useful arts. If hypothetically Congress did not believe that any longer, they would be free to stop the activities of the patents and copyrights offices.
They were most likely waiting for the Commerce Secretary to pick and vet a replacement.
Lee's demise was a long time coming. Many small businesses and independent inventors absolutely couldn't stand how the USPTO had pretty much turned against them and become a monster.
As a small business owner inventor, and patent owner I think what the parent is talking about is the PTAB and the Inter Partes Review (IPR) process that is very expensive for a patent owner to defend against and. Lee is seen as someone who could place more limits on IPR's but has not. This directly benefits large companies at the expense of small patent holders.
For example, say you as a small time inventor have a valid patent on some great new widget. Big company X starts selling the widget you invented, you approach them and ask if they would license your patent, Big company X can afford to keep filing IPR's against your patent and it will cost you ~$200,000 each time. Big company X can milk you dry and draw things out for years so it becomes much more difficult as a small business to defend and license your patent. Lee seems to have really helped large tech companies at the expense of small inventors.
You are wrong. IPRs are much quicker and less expensive that district court litigation, which is what it replaces. If you're afraid of Big. Co.'s deep pockets, they're much scarier in district court! The PTAB is designed to be more efficient, quicker, and cheaper than district court, and it is by a long shot. And no, they can't file serial IPRs for the most part, there is strong estoppel that comes with an IPR proceeding to prevent just that very thing from happening. So if your patent is valid, then in less than a year and about $200k you can have that sucker gold plated and anointed by the PTAB and then enforce it to your hearts delight! Much better than several million $ and at least 2-3 years for a district court if you ask me. And if your patent is garbage, well you'll find that out quicker too and free up resources to go do something else.
and one in particular that explains how Lee's management of USPTO policy has hurt small business patent owners...
"The AIA also allows the Director discretion to stop harassment of patent owners, but Lee has never once used that power despite the fact that at least several patent owners have had seven or eight inter partes review challenges filed against the same patent. The PTAB itself has finally started to consider harassment as grounds to refuse to institute. So bad and lopsided are the PTAB proceedings, that the Federal Circuit has found PTAB decisions to be arbitrary and capricious, and with respect to covered business method (CBM) challenges, the Federal Circuit has slammed the PTAB for creating its own definition and standard while ignoring the statute and regulations. So if Lee was referring to the PTAB and post grant challenges the most honest assessment is that the Office has utterly and completely failed patent owners and the patent system."
The pop mechanics article is clearly written by a non-lawyer and retells the story of a guy who got a patent invalidated at the ptab. How does that support the conclusion that the ptab is bad for small businesses? That's like saying county court is bad for drivers because I got a speeding ticket. First you have to establish that the court/ptab got it wrong, and then prove that they get it disproportionately wrong for a certain category of people - small business. I just don't see that proved up in the article. And Gene Quinn is rabidly anti-ptab so I can't really rely on him to be impartial.
Edit: and the guy complains about spending $100k in defense... lol, that number would have been 10-30x higher for a district court proceeding to get to the same conclusion. And it would have taken years.
Interesting to read the argument of the side we don't usually hear from around here.
I guess we can hope that an entrepreneur starting a technology company would be equally concerned with both possibilities: getting sued unfairly vs. being unable to protect their own inventions. Around Silicon Valley, I think the former has been the greater concern, but I guess the pendulum is now swinging the other way.
Of course, ideally we would minimize the likelihood of both of those problems. But that seems to be very difficult.
I'm vaguely wondering if this is happening now because the tech industry publicly opposed Trump on the Paris Agreement. It's pretty well known that he makes decisions based on loyalty and payback.
They probably won't even nominate a replacement for six months at the rate we're going, so expect the status quo for a long while.
I highly doubt that. The patent office has it's own problems as reported to HN.[1] I think the real 'fork in the road' is politics behind the scenes. I haven't read anything about the "MAGA" philosphy on American Innovation but I have heard of cuts to government funded programs like the EPA. So it's either going to get better because someone realized that innovation is they key to success(hopefully..please god...just something) or worse because it's viewed as another bureaucracy and thus cut to save money.
