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By: Mark R. Malek

This past week, the United States Supreme Court issued its decision in the I4I/Microsoft case.  Scott Nyman provided a good summary of the case.  In short, the Supreme Court unanimously held that the clear and convincing standard to invalidate a patent stands.  The real issue in that case, however, is the $250Million check that Microsoft is now going to be forced to write.  I would say “OUCH,” but this is chump change to the software giant.

While I was chatting with Scott Nyman about the case, I noted that the Supreme Court pretty much just affirmed the power of the Patent Examiner. Nothing has really changed.  The Court has left the standard alone and has stuck it to Microsoft.  We then started chatting about whether or not a memo would be sent to Examiners regarding the case and, of course, started coming up with our own versions of such a memo.

The one that we thought is most likely is “Attention Examiners – The Supreme Court has affirmed that the patents you issue are very strong and difficult to invalidate.  Accordingly, please do a good job at allowing quality patents.  Also, please don’t forget that we are trying to decrease the backlog, and Congress has taken money that we generate away from us, so we need you to work harder, faster and for less money!”

Does anyone else find this offensive?  I thought so.  That is exactly what’s going on here.  The PTO management has done a pretty good job at setting up various programs in order to decrease the backlog while simultaneously increasing the quality of patents.  This is not an overnight process and I realize that there are many critics out there, but any patent practitioner would probably agree that things are better today than they were two years ago in the Patent Office, right?  We have more tools (check out some of them here, here, and here), we have new programs (check out some of them here and here), and Director Kappos seems to have a solid understanding of what the PTO needs to succeed.

Now if we can just get Congress out of the way, things can possibly move forward at a more rapid case.  Imagine my surprise this morning when I read the post on Patently-O indicating that the House Appropriations Committee Doesn’t Think the USPTO Should Keep Fees.  The post went on to note that “The House Appropriations Committee strongly opposes the USPTO to keep funds that it makes.  The committee argues allowing the USPTO to keep all their fees would make it financially independent of the budget process and therefore essentially free from congressional oversight.”

Where are the cameras?  Is this a joke?  The reality of the situation is that they are financially independent and are being punished for it.  Hey Director Kappos – I have an idea.  Why not run the PTO like every other inefficient Governmental Entity?  Just hire as many examiners as you want, spend as much as you want, spiral the PTO into debt.  That seems to be the norm.  After you do that, the PTO will look to somewhere else to skim off the top and subsidize you.

Yes, I’m kidding.  I just don’t get it.  Why should I be surprised.  This is the way the government has always run.  It is ok for you to spend more than you make (United States Post Office) because we will just go to those that make money and operate in the black, tax them, and give the money to you so that you can continue to operate in a deficit.  Sounds ugly when I simplify it, doesn’t it?

To the House Appropriations Committee I say “stick it!”  The last thing we need is more government oversight of a group that is doing great.  Bang up job you have been doing so far Congress.  It just kills you that some area of the government is efficient.  For consistency’s sake, you’re trying to screw that one up to.