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Political
Contacts Action Page:
Additional NEW Letters below (Seven Sample Letters are provided below the links)
Contact Your Senators (by State) Contact Your Representatives (by State)
Democrats:
Republicans: Contact President Bush: NEW SAMPLE LETTER 7 to Elected Official (re. USPTO rule making authority and AQS): Dear ____________________,I am a patent professional and a member of the National Intellectual Property Researchers Association, NIPRA. I am contacting you again to declare my strong opposition to provisions in the Patent Reform Act of 2007 which would grant to the USPTO "substantive rule making authority" and also the power to require patent applicants to submit "Applicant Quality Submissions" (AQS). At the American Bar Association Section of Intellectual Property Law (ABA-IPL) Spring Conference held April 10-12, 2008 in Arlington, VA, the Honorable Paul Michel, Chief Judge of the Court of Appeals for the Federal Circuit, shared his views on these and other aspects of patent reform and the patent system. Regarding the substantive rule making authority which would be granted to the USPTO by the House version of the Patent Reform Act of 2007 (H.R. 1908), the Chief Judge indicated on Saturday, April 12, 2008 that anyone who wanted the USPTO to be "...the
judge, the jury, and the executioner -- all at once -- ...you should
favor the legislation."
Regarding the Applicant Quality Submissions (AQS) required by 35 USC 123 in the Senate version of the Patent Reform Act of 2007 (S.1145), the Chief Judge also indicated that such provisions would create "...massive
new requirements for applicants... shifting the burden onto the
applicant of what I would have thought was the job of the
Examiner.... That is a sea change."
It was also encouraging to hear Honorable CAFC Circuit Judges Pauline Newman and Richard Linn echoing like sentiments during the conference regarding the anti-patent-system politics of special interests which is driving the current patent reform initiatives, and the now ever-more-pressing need for patent-qualified leadership at the USPTO. Dear Senator, I implore you: let reason and justice rather than special interests and the interests of those who would cripple the patent system prevail. The current Patent Reform Act of 2007, as lobbied and supported by the Coalition for Patent Fairness and the USPTO, has not been crafted to promote the progress of Science and the Useful Arts. Rather, it has been crafted to promote the financial gain of a small segment of big businesses and the relative ease of an agency whose leadership has shown its desire to abdicate from the Constitutionally mandated responsibility of examining patent applications. Thank you for your time and consideration of this matter, and for your service to our country. Sincerely, _____________________________
NEW SAMPLE LETTER 6 to Elected Official (re. USPTO requiring Searches): Dear ____________________,I am a patent professional and a member of the National Intellectual Property Researchers Association, NIPRA. I am contacting you again to declare my strong opposition to proposed 35 USC 123 as it appears in the draft report for the Patent Reform Act of 2007 (S.1145). Section 123 relates to "Applicant Quality Submissions" (AQS). As reported in the Senate, this Section would allow the U.S.P.T.O. Director to require patent applicants to submit 1) a search report, 2) a patentability analysis, and 3) any other information that the Director at his discretion determines to be necessary. An exception in this Section is made for "micro-entities" (five non-wealthy people or less), and failure to comply with the requirements would result in abandonment of the patent application. This Section, as written, would be detrimental to the U.S. Patent System and it would hinder rather than promote the progress of science and the useful arts for at least six (6) reasons: 1) it gives unbridled discretion to the current U.S.P.T.O. Director; 2) conditioning patentability on the submission of an AQS is the complete antithesis of the requirements for patentability set up at every other patent office in the world; 3) it is unfair to small business entities; 4) it could be used to compromise the attorney-client relationship; 5) it would shift the transactional burden-of-proof in the application process; and 6) it fails to address the more pressing needs of the U.S.P.T.O. In this letter, I will address only the first two issues (the remaining four issues having been addressed by me in a previous letter to you). UNBRIDLED DISCRETION: This section gives unbridled discretion to the current U.S.P.T.O. Director (and to any future Directors who might not have professional background and experience in patent law) to impose on applicants any requirements he deems necessary, even those that would unduly burden patent applicants and cripple the patent system. The Director can require "*any* other information that the Director at his discretion determines to be necessary." This license seems almost insane, since there is absolutely no restriction as what a Director could require applicants to submit as a condition for obtaining a patent. This is at best poor rulemaking, and at worst it is the seed of fascism in that it provides an unelected government official with both unbridled discretion and unrestricted power. Dear Senator, I implore you as a citizen of the United States, do not further entertain the mockery of democracy presented in this Section. The current U.S.P.T.O. Director (Jon W. Dudas) has already demonstrated a marked anti-patent and pro-big-business sentiment, as demonstrated for example his ill-conceived final "Claims and Continuations" rule-making which is currently under an injunction issued by the U.S. District Court in Alexandria. Director Dudas has no professional background and experience in patent or trademark law (as is required of the Director pursuant to 35 USC 3), and therefore cannot know what the patent system might need. Moreover, it appears that rather than seeking to foster the progress of Science and the Useful Arts (as mandated by the Constitution), Director Dudas seeks only to cater to the whims and ease of a certain coalition of non-innovative big-businesses (whose business-model relies on name recognition and economies of scale to obtain market share rather than patents). COMPLETE ANTITHESIS: Conditioning patentability at the USPTO on the submission of an AQS is the complete antithesis of the requirements for patentability set up at every other patent office in the world. Specifically, no other patent office in the world even places on the patent applicant a "duty to disclose" information which is relevant to patentability (such as the U.S. has in 37 CFR 1.56). This is because it is assumed the world over that the patent Examiner, not the applicant, has the best access to and knowledge of the world's prior art. The Examiner is the Examiner -- he/she is an expert -- and the applicant defers to the Examiner in questions regarding the state-of-the-art. By making the applicant perform the Examiner's search, you are merely ensuring that U.S. Patent Examiners will no longer be experts in their respective arts. Why is it that European and Japanese Examiners do not need such a prior-art assistance "crutch" from European and Japanese applicants? Why is it that the Japanese Patent Office, which receives more patent applications each year than the USPTO, is not burdened with a billowing backlog, and how is it that the Japanese Examiners can search and understand their art as well as (and often better than) many U.S. Examiners can? It is because in Europe and Japan, it is both expected and assumed that the Examiners (not the applicants) will be experts in the art. (U.S. Examiners are unfortunately, by contrast, often inexperienced; but this has to do with attrition and managerial problems at the USPTO, not with applicant submissions. If Congress would begin to enforce the management provisions of 35 USC 3, the managerial problems at the USPTO could begin to be corrected.) Dear Senator, I implore you - please return the focus to strengthening democracy and to the Constitutional mandate of "[promoting] 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". There is still time to fix the problems that have developed at the top of the USPTO and the consequential problems that have arisen in the patent system. Unfortunately, the focus of this big-business lobbied patent reform (S.1145) is not to fix the patent system, but rather to weaken it. Thank you for your time and consideration of this matter, and for your service to our country. Sincerely, _____________________________
Dear ____________________, I am a patent professional and a member of the National Intellectual Property Researchers Association, NIPRA. I am contacting you again to declare my strong opposition to proposed 35 USC 123 as it appears in the draft report for the Patent Reform Act of 2007 (S.1145).Section 123 as reported would allow the U.S.P.T.O. Director to require patent applicants to submit 1) a search report, 2) a patentability analysis, and 3) any other information that the Director at his discretion determines to be necessary. An exception in this Section is made for "micro-entities" (five non-wealthy people or less), and failure to comply with the requirements would result in abandonment of the patent application. This Section, as written, would be detrimental to the U.S. Patent System and it would hinder rather than promote the progress of science and the useful arts for at least five (5) reasons: 1) it gives too much discretion to the current U.S.P.T.O. Director; 2) it is unfair to small business entities; 3) it could be used to compromise the attorney-client relationship; 4) it would shift the transactional burden-of-proof in the application process; and 5) it fails to address the more pressing needs of the U.S.P.T.O. 1) It gives too much discretion to the current U.S.P.T.O. Director (and to any future Directors who might not have professional background and experience in patent law) to make requirements that unduly burden patent applicants. The current U.S.P.T.O. Director (Jon W. Dudas) has already demonstrated a marked anti-patent (and anti-patent applicant) sentiment, as demonstrated for example his ill-conceived final "Claims and Continuations" rule-making which is currently under an injunction issued by the U.S. District Court in Alexandria. Specifically, Section 123 gives the Director "carte blanche" to promulgate whatever requirements he sees fit, regardless of whether those requirements might unduly burden patent applicants and the patent application process. For example, in the final "Claims and Continuations" rule-making, the Director has shown (in Rule 265) his desire to require patent applicants to not only perform a patentability search for every claim, but also to perform a technical assessment of the prior art, an analysis of the claims for legal support in the specification, and a patentability determination of how each element and limitation in each and every claim by its wording technically distinguishes over the prior art. In effect, the patent applicant is required by the Rule to do the totality of the work of the patent Examiner. It is apparent that one of the purposes of the workload burden of new Rule 265 is to discourage the applicant from filing applications which would come under its purview (i.e applications with more than 5 independent claims or 25 total claims). Of course, if Section 123 is passed, Rule 265 might apply to every patent application by this time next year without any recourse for patent applicants whatsoever. 2) The Section is unfair to small business entities (companies with 500 or fewer employees). Large corporations are much less affected when the "barriers to entry" for the patent system are raised. The additional financial burden placed on patent applicants by Section 123 could easily add $20,000 or more to the cost of filing each application. These costs perhaps could be borne without much difficulties by large corporations filing few patent applications, but would likely stop many U.S. small businesses from filing patent applications on worthwhile inventions, to the detriment of American technological leadership. (At a minimum, the "exception" which applies to "micro-entities" should apply to all small-entities as well.) 3) The Section could be used to compromise the attorney-client relationship, and require a patent applicant's attorney to make admissions (e.g. in the patentability analysis) against the interest of his client on the record as a condition for obtaining a patent. Thereafter, any good-faith errors so made by the attorney in admissions on the record, or any good-faith actions that were later characterized as errors by opposing counsel in litigation, could open up the door to both patent invalidation and inequitable conduct charges due e.g. to the civil rules regarding the irrevocability of admissions against interest. Effectively, Section 123 will make the attorney do the work of the Examiner, and have him (the applicant's attorney) be the watchdog for the public interest rather than the Examiner. Legal representation of patent applicants cannot be performed effectively if the patent attorney is charged with representing both sides of the balance (his client and the public), because the attorney's interests and duties will necessarily be divided, and a legal wedge will necessarily be placed on certain issues between the attorney and his client. Moreover, if the attorney will now be charged with performing the Examiner's function (as the U.S.P.T.O. has proposed in Rule 265), then what will the function of the Examiner be (other than to receive a paycheck) and how then can such an Examiner ever become an "expert" in the art if the attorney does all his research and analysis for him? 4) The Section would shift the transactional burden-of-proof in the application process as established by 35 U.S.C. 102, 103, 131, and 132 from the Office having to prove unpatentability to the applicant having to prove patentability. This burden-shift is fully unprecedented in U.S. history, and is the exact antithesis of the "quid pro quo" that the patent system was set up to establish in order to promote the progress of science and the useful arts. Specifically, ever since the first patent system was established in 1790, a patent applicant has never had to determine the patentability of his own invention. Rather, the patent applicant has been charged solely with making a full, clear, and concise description of his invention for dissemination to the public and posterity. In exchange for such dissemination, the Patent Office has been charged with determining patentability of what is new and making a government grant to a "claim" (or deed) to this new property that previously had not existed in the public domain. (The concept of patent "claims" is wholly analogous to that of "deeds" that the government gave the first settlers and pioneers on new property during Westward Expansion). It is (and always has been) the government that should determine the final meets and bounds of the "claim" after an applicant stakes out what he thinks his claim should be. And, contrary to what the current administration would have Congress believe, it is the U.S.P.T.O., not small business entities, individual inventors, or private researchers hired by big business, that is (or at least should be) in the best position to survey the "prior art" patent landscape and make the assessment of what is new. And the U.S.P.T.O. patent Examiners should be becoming experts in their respective arts, just like they had always been up until about 1993 when (due to political gamesmanship in the upper ranks of the U.S.P.T.O.) the patent system started falling apart. http://www.nipra.org/politics.html 5) The Section fails to address the more pressing needs of the U.S.P.T.O., namely providing the agency with competent and experienced (i.e. in patent law) upper management. Virtually all the problems with the patent system can be traced back to imprudent political appointments which have plagued the U.S.P.T.O. since President Clinton appointed Commissioner Lehman to head the agency solely for non-patent (political) reasons. I beg you, dear Senator, if our government will start to enforce 35 U.S.C. 3 (qualifications of the Director and Deputy Director), then many of the problems with the U.S. Patent System can and will begin to be corrected. Thank you for your time and consideration of this matter, and for your service to our country. Sincerely, _____________________________
Dear ____________________, I am a patent professional and I am writing you again to express my strong opposition to any Patent Reform Act that would give substantive rulemaking authority (or would include a fake "clarification" which indicates such authority has already been granted by Public Law 106-113) to the USPTO. Such a provision has found its way into the House Bill (H.R. 1908) at "SEC. 14. REGULATORY AUTHORITY", and threatens (under the current administration) to destroy the American patent system and American competitiveness in the world market-place. As you know, the USPTO is currently being directed by two political appointees with no professional background and experience in patent or trademark law, contrary to the express requirements of 35 USC 3. Director Jon W. Dudas has continually shown a disdain for patents and patent applicants (while at the same time catering to the big business lobby that no longer need patent protection to secure their market position), and also a desire to have the USPTO "abdicate" from its Constitutionally-mandated function of examining patent applications. Moreover, and more importantly, the USPTO is already showing that it desires to use regulatory authority to contravene statute and to unnecessarily corral patent applicants into Catch-22 filing predicaments. Please see the two videos of Solicitor Whealan flagrantly flaunting the law and sarcastically taunting patent applicants which have been posted at the Kelley Drye law firm web site: http://www.kelleydrye.com/news/press/0170 (UPDATE: Kelley Drye press page and video links
apparently no longer active; see transcripts provided below and/or
the realserver.law.duke link which follows, or the NIPRA caches of the
Whealan videos here and here.) Direct links to the videos on the above page are as follows: Whealan Making Policy Transcript: "...what we've realized is we're an agency and we write rules and we can ummm actually change policy a lot quicker by making some new rules uh that might change the patent system, and that's what I'm going to talk about. Brian did a nice job of referring to some of the patent legislation up on the Hill that is stalled, and ummm we don't have that problem. We write rules, and they issue, and maybe they get overturned, but we can actually uh uh try to move forward, and I think it would be irresponsible not to do that." ESD Inequitable Conduct Whealan Transcript: "If you want all your claims examined up front, you can have it done, but it's going to cost you, you're going to have to do some work, which in the current law of inequitable conduct, nobody's going to want to do." The entire video presentation by Solicitor Whealan is here (introduction starting at approximately 47:50): http://realserver.law.duke.edu/ramgen/spring06/students/02172006a.rm Senator, this is a breach of justice which the non-elected partisan leaders at the USPTO are attempting to force on the American people at the behest of lobbyists. For the love of country, and for the domestic innovation which has been one of the driving forces in making America great, I humbly ask you to stop this madness! Sincerely, _____________________________
Dear ____________________, I am a patent professional, and I am contacting you again to declare my opposition to key provisions in the Patent Reform Act of 2007 (S.1145 and H.1908). Specifically, I am strongly opposed to the new 35 USC 3(a)(5) and to the new 35 USC 123. The Senate Bill, in "Sec. 11 Regulatory Authority", would amend 35 USC 3 to provide the USPTO Director with substantive rule making authority to promulgate any rules he deems "necessary" to the operation of the Office. I believe that conveying such authority onto the Director is unwise and dangerous, and would allow the Director to circumvent the safeguards of congressional legislation and the APA while catering to the whims of political lobbying forces, as we see happening even today. Before coming to the USPTO, Director Dudas had no patent experience. Since coming to the USPTO, Director Dudas has shown marked anti-patent and pro-big-business sentiments. He is a politician, not a patent attorney, and so he is motivated much more by lobbying forces than by an innate desire to "promote the progress of science and the useful arts." To grant such a man substantive regulatory authority would merely mean strengthening large corporations who donate monetarily to a party's political causes at the expense of protecting the rights of individual inventors, start-ups, small businesses, and universities who represent and enrich America at-large. Please let me remind you that the Googles, Intels, IBMs, and Boeings of today were all at one time the "start-ups" of yesterday, sometimes blossoming in a garage with an idea that satisfied a market need. Each of these "giants" availed themselves of patent and trade protections which were made available to them by the government. As a consequence, each was able to succeed to the benefit of America against the established industrial powerhouses of their day. By stifling start-ups today, you would merely ensure that America will have no more new Googles and IBMs in the future. That can't be good for the country, and such a policy (as advanced, for example, by the Coalition for Patent Fairness, which is led in part by the Canadian conglomerate Research in Motion) seems very short-sighted to me. I have worked for major U.S. corporations against so-called patent "trolls". In no case has a troll *ever* changed a market strategy or dealt a fatal blow to a developing technology. In the few times that we could not invalidate or design around the troll's patent (the USPTO's quality is often horrible; the invalidity rates of asserted patents can be as high as 75% in some fields), there was simply a monetary transfer from the corporation to the troll - for a large company this is merely one of the "costs of doing business" in an imperfect world, and it is a relatively rare problem. These monetary transfers, affecting perhaps 2% to 5% of companies in America today, cannot warrant the evisceration of patent protection for 98% of the (non-trolling) innovating and patenting companies in America. The House Bill, H.1908, in "Sec. 12 Additional Information", would by 35 USC 123 permit the Director, who is not an expert in patent law and (as stated previously) has displayed marked anti-patent and pro-big-business sentiments, to require patent applicants to "submit a search report and other information and analysis relevant to patentability". The amount of detail that the Director is proposing by regulation (new 37 CFR 1.265) should be required for such a "search report and other information and analysis" is staggering! It basically makes the patent applicants (who may have no broad patent expertise in their respective fields) do the Examiner's work, and requires the applicants' representatives to take positions and make admissions that are against the interests of his/her applicant. This "transfer" of examination responsibility from the USPTO to the applicant runs diametrally opposite to the very reason that we have Patent Examiners in the first place. Patent Examiners are charged with becoming experts in a single technology and examining the claims of all patent applicants who may have no knowledge of what is happening in their industry a half a world away. The Patent Examiner, who is sworn to secrecy and should know what *every* company in the world is doing publicly (and sometimes even secretly), is the one who is charged with being the "gate keeper" to make sure only valid patents issue. A patent applicant simply cannot become aware of what every other company in the world is doing (some of which is *only* known by Patent Examiners), without incurring an extraordinary expense (thus making such an endeavor prohibitive for most individual inventors, small companies, start-ups, and even universities). Moreover, there is no government need which is critical enough to justify by legislation allowing the USPTO to place a wedge a patent applicant and his/her representative, which 35 USC 123 would precisely permit a regulation like 37 CFR 1.265 to do. Thank you for your time, and for your representation of the interests of all Americans in the U.S. Government. Sincerely, _____________________________
Dear ____________________, As a member of the National Intellectual Property Researchers Association (NIPRA) I understand the large burden that the search, claim analysis, and information which could be required by section 123 as a pre-condition to patentability will place on small and medium sized businesses. I perform aspects of this work often, usually in the context of anticipated litigation. It is a huge and costly undertaking for a patent applicant to perform before he even knows whether he will obtain any patent protection. As a patent professional/attorney, I oppose section 123 because the required claim analysis will force attorneys to make interpretations, state arguments, and take positions which are adverse to their clients' interests. Our adversarial legal system cannot produce justice when attorneys are forced to stand against their clients. The "admissions against interests" that are required by section 123 will put wedges between attorneys and their clients, and should mistakes be made in the course of such admissions they will be irrevokable, and may lead to malpractice suits against the attorneys and loss of representation for the clients. As an American, I am appalled that in view of the bad patents which the USPTO has issued in the last 15 years, Congress would now consider fashioning (at the behest of the USPTO) a stick to beat the patent applicants with, as if the fault in wrongly issued patents somehow lies with American inventors! Sir/madam, please hear me carefully, American inventors are the people who have made this country great! They are the ones who have pushed the envelope in advancing science and the useful arts. They are the most valuable natural resource in the world, and they bring their patent applications to the USPTO to have the government examine them and issue valid patents (pursuant to the Article I Section 8 of the Constitution). Under the Constitution, the government and the citizenry have a shared responsibility to promote the progress of science and the useful arts. The inventor invents and the Patent Office determines patentability! This is the way it has always been and this is the way it should be. The problem with the the patent system today does not lie with the inventors - they are still inventing! They are keeping up their end of the shared responsibility. The problem lies singularly and solely with the USPTO which, due to mismanagement and weak foresight since 1993, has become less and less capable of performing proper examination and patentability determination and of performing its Constitutionally mandated (and publicly funded) function. When will this madness stop? When will our elected officials understand that the current distress in the U.S. Patent system is not being caused by misbehaving patent applicants or attorneys who are "abusing" the patent system as the USPTO likes to portray, but rather by the unqualified and floundering leadership of the USPTO which is by its very presence causing the agency to become less and less capable of fulfilling its Constitutional mandate with each passing day? Please note that this and other sections of the Patent Reform Act were written for and are supported only by the software industry (under the rubric of "fairness") and some of its users (e.g. Silicon Valley and the banking industry). These sections will harm other industries that rely more on IP protection than the software industry. (As you know, many large software firms keep no secret about their desire to destroy software patents, and to be free to copy all software IP, and they therefore "like" the Reform Act.) We most certainly do need legislated "patent reform" to fix the problems that have developed with the U.S. Patent System. But Congress must fashion and approve a bill that is fair to all Americans and all American industries, not just catering to one. And the bill must address the mismanagement at the USPTO which is the underlying cause of the entire mess we face today. And Congress must ensure that in the future, only statutorily qualified (under 35 USC 3) leaders are appointed and confirmed for the United States Patent and Trademark Office. Sincerely,
Dear ______________________, Patent searching is a very specialized art, and the Patent Examiners themselves are usually the most qualified individuals in their fields to perform these searches (because they have better tools, better training, better technological specialization, and higher level of required scientific/technical education). They are and should be the experts! Unfortunately the amount of prior art that needs to be searched has doubled since 1976 (and the complexity in many instances has skyrocketed), yet Examiners receive the same few hours to search an invention that they used to get in 1976. And the state of the automated tools at the USPTO has not advanced in any significant way since the APS/CSIR system was introduced in the late 1980s. (In fact, at the turn of the century, the Examiners were forced to use the WEST system which was much less capable than APS/CSIR and was called by the Washington Post, "The computer system from hell.") We also wish to express our opposition to the "final" claims and continuations Rules which were published by the USPTO on August 21, 2007 in the Federal Register. In these Rules, the Director has usurped authority that is not expressly granted in the laws to try to control both the search and the search analysis by the patent applicant. (Under the Rules, the applicant is required to perform a "self-examination" of his own claims if he has more than 5 independent claims or 25 total claims in his application. Of course, historically, more than 30% of the important patent discoveries would fall into this "over 5/25" category.) We are all in favor of thorough searches, but the USPTO itself is in the best position to start performing such thorough searches. Unfortunately, the USPTO management continues to show its desire to abdicate from its constitutional responsibility by not performing thorough searches of the prior art itself, while simultaneoulsy mandating the same from patent applicants. This is the quintessence of administrative conduct that is hypocritical, arbitrary, and capricious. And it would appear that the Office is well on its way to adopting this "Do as I say, not as I do" policy. The USPTO can perform thorough searches and the Examiners are ready, willing, and able, but the USPTO management (with its demonstrated "We can't do this!" attitude) refuses. We believe much of the problem with the Patent System stems from this mismanagement. Sincerely, _____________________________
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