The Standard Application Metric (SAM) - some more data - PTO Reform Ideas 04

Here is a restatement and update of data included in PTO Reform Ideas 03, March 07, 2011.
It is in table form, and includes Claims, Figures and Sheets data for the following patent ranges:

3,999,000 to 3,999,999 ( 1000 issued)

   (12/1976)
6,000,000 to 6,019,999 (19938 issued)

   (12/1999 to 02/2000)
6,999,000 to 6,999,999 (  990 issued)
   (02/2006)

Microsoft v i4i - Tables of Contents of ALL the Briefs

To get a quick handle on ALL the briefs in 10-290, Microsoft v. i4i, since the grant of certiorari, from Microsoft's Opening Merits Briefs to Microsoft's Reply Brief, and all the amicus briefs in between, please see my pdf compendium of all the coversheets and tables of contents of all the briefs. I put in bookmarks for each brief's coversheet, but if you don't want to open the whole pdf and just want to see a list of all the briefs, click here for a table of contents to the tables of contents.

For an alphabetical list of all the entities represented in briefs in support of Microsoft, see my 2/11/11 post.

The briefs in support of neither party came from

1. AIPLA
2. The DC Bar Association
3. IBM
4. Federation Internationale,  and
5. the owner of this very blog, Roberta J. Morris, Esq., Ph.D. (pdf, or TOC only.)

For a list (by brief) of all the entities represented in briefs in support of i4i, see i4i's court papers site.

Note: This post is an update of my 2/10/11 post, which only included Microsoft's opening briefs and the briefs in support of 

Patent Fees and Counts and the Standard Application Metric - PTO Reform Ideas 03

Both the fee structure and the examiner count system should be based, not on the unit of the filed application, but instead on a metric that compares the actual application to a standard application.   The comparison would be based on such parameters as numbers of:  specification columns in standard format, figures and reference characters in the figures, independent and total claims, and IDS references and the sum of the individual references' pages (or word counts, figures, etc.). 

This way fees and counts would be appropriately tailored to the complexity of the task of examination.  Today's one size fits all system prevents such tailoring.  (Excess claim and page fees do not address complexity adequately and may not affect the count system at all.)

Patent prosecution professionals know that the more complex the case the more time is needed to do a proper job, and their fees, whether by the hour or by prearrangement, reflect this.  R&D expenditures are also related to the complexity of the technology, as are the pay scales in different fields.  Likewise, revenues from commercialization are often proportional to complexity because the price per unit, the margins and the volume of sales are often higher for more complicated and sophisticated technology.

Why do PTO fees and examiner counts essentially ignore complexity?  Answer:  "Because they always have."  That answer is not good enough any more.

Employing a standard-application metric (SAM) for the count system and fee structure acknowledges the reality that all applications are NOT created equal.  Examiners can be given twice the time to examine an application that is twice as complex.  This means that they will have enough time to understand complex technology, read a lengthy specification, consider voluminous information disclosures, and examine numerous, highly nuanced claims.  The system will also encourage applicants interested in cheaper and faster examination to be more succinct and direct.

Who will devise this metric?  Answer:  The PTO.  Director Kapos, and management, and the examining corps, all know what the measurables of patent applications are and how those measurables affect examination time.   

The public, too, can consider the definition of the standard application.  Publicly available databases and the PTO's $200 DVD of patent statistics are helpful.  For example, the CLAIMS.TXT data on the DVD permits calculation of the median, mid 50%ile and average for three aspects of complexity of issued patents:  numbers of claims, figures and drawing sheets.   Unfortunately, the number of specification columns and IDS references -- useful information for our SAM -- are not as easily found, nor are data for applications as opposed to issued patents.  That information can be compiled without too much difficulty, however.

To begin working toward the SAM solution, I have looked at some numbers.  For simplicity and speed,* I have segregated out two groups of ~1000 patents from the DVD, representing past and current complexity levels:

     For the 1000 patents numbered 3,999,000 to 3,999,999, issued in 1976:

          Claims: median 8, mid50 4 to 12, average 9.2,

          Figures: median 5, mid50 3 to 9, average 6.9, and

          Drawing Sheets: median 2, mid50 1 to 3, average 2.8.

     For the 990 patents numbered 6,999,000 to 6,999,999 (ten patents were withdrawn prior to issuance), issued about thirty years later in 2006:

          Claims:  median 15, mid50 9 to 21, average 19.6,

          Figures:  median 8, mid50 5 to 13, average 13.3, and

          Drawing Sheets:  median 6, mid50 4 to 9, average 9.5.

It is undeniable that serious thought and hard work will be needed to determine

     (1) the parameters to use,

     (2) the standard application values,

     (3) the weights to apply to those parameters, and

     (4) the structure -- linear?  step function with how many steps? -- by which to calculate the fees and counts for actual applications compared to the standard.

Consideration should also be given to how often the definition of the standard application should be adjusted.  It might be when the median actual application goes above 1.5 SAMs, for example.

The PTO can do this.  And should.  And the time to do it -- while Microsoft v. i4i is pending before the Supreme Court, patent reform legislation is before Congress, and public attention is being given to the quality of examination and in particular to the problem of inadequate examination time and resources -- is now.

//

 

* I used batches of 1000 patent numbers rather than a larger or more random sample.  Consecutive patents, all issued on the same date or a week apart, may all have been granted by a small subset of examiners or art units and thus may not necessarily represent the whole.

Microsoft v i4i - List of Amicus Filers

List of Entities Filing Amicus Briefs TO DATE  (in order of docketing, within designations as supporting
petitioner or neither party; briefs by respondent i4i and in support of respondent will be added when filed)

For a combined pdf with all the cover sheets and tables of contents of all the briefs, including the parties' briefs, see http://stanford.edu/~rjmorris/10-290%20combined%20tocs.pdf. For the complete individual briefs, see http://www.i4ilp.com/papers.php

Key (in case you re-sort the list alphatically)
  *MS = supporting Microsoft (per cover of brief; may also say supporting reversal or supporting vacation or nothing, but filing date/contents indicate support of Microsoft)
  *NP = supporting Neither Party (per cover of brief)

SUPPORTING MICROSOFT

Hollaar, Prof. Lee A., Pro Se *MS
Synerx Pharma, LLC *MS
Electronic Frontier Foundation ("EFF") *MS
Public Knowledge (with EFF) *MS
Apache Software Foundation (with EFF) *MS
Public Patent Foundation *MS
Internet Retailers *MS
Security Industry and Financial Markets Association ("Sec Ind")  *MS
The Clearing House Association (with Sec Ind) *MS
EMC Corporation *MS
Apotex, Inc. *MS
CTIA - The Wireless Association *MS
Business Software Alliance *MS
Hercules Open-Source Project *MS
Apple Inc ("Apple") *MS
Intel Corporation (with Apple) *MS
Google Inc. ("Google") *MS
Verizon Communications Inc. (with Google) *MS
Consumer Electronics Association (with Google) *MS
Comcast Corp. (with Google) *MS
Dell Computer Corp. (with Google) *MS
Hewlett-Packard Co. (with Google) *MS
HTC Corp. (with Google) *MS
Intuit Inc. (with Google) *MS
L-3 Communications Corp. (with Google) *MS
LinkedIn Corp. (with Google) *MS
Lockheed Martin Corp. (with Google) *MS
Mastercard Worldwide (with Google) *MS
The New York Times Company (with Google) *MS
Rackspace Hosting Inc (with Google) *MS
Red Hat, Inc. (with Google) *MS
Shutterfly, Inc. (with Google) *MS
Software & Information Industry Association (with Google) *MS
Time Warner Inc. (with Google) *MS
Walmart Stores, Inc. (with Google) *MS
Zynga Inc. (with Google) *MS
SAP America, Inc. ("SAP") *MS
Acushnet Company (with SAP) *MS
Facebook, Inc. (with SAP) *MS
General Motors LLC (with SAP) *MS
Pregis Corporation (with SAP) *MS
Symantec Corporation (with SAP) *MS
Terex Corporation (with SAP) *MS
Yahoo! Inc. (with SAP) *MS
Computer & Communications Industry Association *MS
Teva Pharmaceuticals USA, Inc. *MS
Cisco Systems, Inc. ("Cisco") *MS
eBay Inc. (with Cisco) *MS
Netflix Inc. (with Cisco) *MS
Office Depot, Inc. (with Cisco) *MS
Toyota Motor Corporation (with Cisco) *MS
Trimble Navigation Limited (with Cisco) *MS
37 Law, Business and Economics Professors *MS
Timex Group USA, Inc. ("Timex") *MS
Macdermid, Inc. (with Timex) *MS
Gem Manufacturing, Inc. (with Timex) *MS
Perfect 10 Antenna Company, Inc. (with Timex) *MS
Carson Optical, Inc. (with Timex) *MS

SUPPORTING NEITHER PARTY
American Intellectual Property Association *NP
Association of the District of Columbia Patent, Trademark and Copyright Section *NP
International Business Machines Corporation *NP
Federation Internationale Des Conseils en Propriete Industrielle *NP
Morris, Roberta J. Pro Se *NP

Microsoft v. i4i - Quick Guide to all the Briefs - Everyone's Table of Contents

If, like me, you would like a quick guide to the basic ideas of all the briefs in Microsoft v. i4i (Docket No. 10-290) filed since the petition for certiorari was granted, you may find helpful my composite pdf of each cover page and Table of Contents (TOCs).  The pdf is bookmarked for each filer.  The table of contents to that combined TOCs file is also listed below.

If anything intrigues you in the combined TOCs (for example, my Thought Experiment on the reversal rate for invalidity, see my brief, actual/pdf page 24/36), you can find the complete pdfs of all the briefs on i4i's court papers page.

If you only have time to read one brief in full, I certainly recommend mine (pdf).   That it has some different and refreshing ideas should be apparent from its Table of Contents (separately available at docx = brief pdf pages 2-3).


The combined TOC file will grow to include covers and TOCs from i4i's Opposition brief, the amicus briefs in support of i4i, and Microsoft's Reply, as they become available.

Happy reading.

PS Please let me know of any errors or omissions in the combined TOCs.

Cover Pages and Tables of Contents of
All Briefs Filed in Microsoft v. i4i

United States Supreme Court

10-290

Oral Argument Set for 4/18/2011

Note:  The individual brief cover/Tocs are bookmarked in the combined pdf file.
Within each amicus category, briefs are listed in order of docketing. 

      1     Merits Brief of Petitioner Microsoft

                  Amicus Briefs in Support of Petitioner

      4              Prof. Lee Hollaar

      7              Synerx

      9              EFF+2

    12              Pub.Pat.Fdn

    14              Internet Retailers

    17              SecInd&FinMkts+1

    21              EMC

    24              Apotex

    27              CTIA

    29              Bus.Software

    31              Hercules Open-Source

    33              Apple+Intel

    36              Google+19

    39              SAP+7

    42              Computer&CommIndAss’n

    45              Teva

    48              Cisco+5

    51              37 Profs

    54              Timex+4

                Amicus Briefs in Support of Neither Party

    58              AIPLA

    61              DC Bar

    63              IBM

    66              Fed.Internationale

    69              Roberta J Morris

  

rjm 2/10/2011 rev 0

Great Quotes 01 - Dicta in the Federal Circuit

Judge Lourie's comment about the binding nature of Supreme Court dicta in Ariad v. Eli Lilly (Fed. Cir. 3/22/2010)(in banc):

"As a subordinate federal court, we may not so easily dismiss such [Supreme Court] statements as dicta but are bound to follow them." (at *29)

may be contrasted with the concerns of Senior Judge Nichols in a concurrence in a 1984 Federal Circuit decision, admittedly about Federal Circuit dicta, but relevant nevertheless:

"In future cases parts of this opinion will be cited, and the response will be made that the words referred to are dicta. Future judges of this court may be struck by our wisdom and wish to follow our words, or they may perceive they are confronted with a problem we did not foresee, and find our words an embarrassment. In the latter event, it cannot now be predicted whether they will profess themselves bound by our statements, or reject them as nonbinding dicta. The future utility or subsequent career of a dictum is wholly unpredictable, and that is why judges over centuries have avoided dicta, or at least said they were doing so. When a judicial exposition relates to a concrete issue to be decided, the record facts add meaning to the words, and safeguards exist against their being read out of context. With a dictum this is not so, and it may well end up having an effect the judicial author never intended."

Railroad Dynamics, Inc. v. A. Stucki Co., 727 F.2d 1506, 1523-24 (Fed. Cir. 1984) (MARKEY, Friedman, Nichols) (Nichols, J. concurring).

The Start of Several Series

I plan to post a number of pieces that share a general subject.  I've described my intentions in the companion blog myunpublishedworks2.  Please stay tuned!

Thanks.

RJM

April 6, 2010