My biggest concern about Judge Moore, as I said previously, is her opposition to continuation applications as a class. Her ability to separate this opinion on whether continuations should be available from the fact that they are, currently, a perfectly legal option is of critical importance. We currently have no reason to doubt that she will do this adequately.

We’ll need to watch particularly closely if we move to a regulatory and/or statutory structure that grants discretion as to whether a continuation filing should be allowed or should have been allowed to be made, such as that established by the USPTO proposed rule. An appropriate issue arising under such a framework might make her opinion on continuations highly relevant.
Thanks again for the comment…and for kicking off the discussion.

You also raise a fair point about the fact that Judge Moore has expressed a number of strong views about what she thinks the patent law will be, and it will be quite interesting (and probably important) to see whether her views affect her ability to apply the law as it is.

Again, I apologize for the initial comment. I started with a flawed premise, and all of the ensuing nastiness flowed from that.

I am glad to see that we are mostly in agreement. Patent litigators who are not technically sophisticated have no business running [or even near] patent litigation. Having a degree in rhetoric (this is not me, BTW), however, is not a disqualification for becoming technically sophisticated no more than a technical degree is a guarantee of such sophistication Having a “Reg #” is not a requirement for being technically sophisticated, as I am sure you will agree. Indeed, I have seen very qualified EEs (who were registered patent attorneys and litigators) struggle when they were in a case outside of their technology.

I would heartily agree that someone who is not technical who had not successfully worked on a number of electronically-based patent cases would have no business “running” a multi-million dollar electronic patent case. However, a good litigator who has been around these cases for a number of years who has the sense to surround himself with technically trained patent attorneys can do an excellent job for his clients. I would put this guy — one of my old partners and an economics major — who tagged Intel for $1 billion — right up there.

http://www.mwe.com/index.cfm/fuseaction/bios.detail/object_id/be4f6003-cda0-400b-9bf1-30fa4f425591.cfm

I don’t know you from Adam.

Your response, although predictable, was quite entertaining, however, and worthy of a quick rejoinder. . .

“I have my speciality, litigation, and there is nothing special about patent litigation or more complicated than any other kind of litigation.”

Of course you are right. The thousands of malpractice attorneys in the country could no doubt step right into a patent litigation and not miss a step.

“. . . but I reject (and resent) the implication that I am committing “malpractice.”"

First, there was no implication - there is only your inference. I made clear that I thought a Non-Reg holding himself out was prima facie malpractice, but that the presupmtion could be rebutted.

Truth be told, it’s all about experience. If you’ve done nothing but patents for 20 years, then I would guess you are very qualified.

If you have litigated Torts, Corporate, Malpractice, and so on for 20 years, with a few patent cases scattered in, then I’d want to ask you a few questions before concluding you’re qualified.

As for “it’s the same as any other type of litigation”, all I can say is that the numbers don’t support your contention.

I’ll further add that most litigators I have met who aren’t Reg Numbers are about as technically sophisticated as mice.

But, according to your claim (wink), a guy who has a degree in Rhetoric and no experience in electronics is qualified to run a 1 million dollar a month litigation involving semiconductor circuitry.

Sure.

I have my speciality, litigation, and there is nothing special about patent litigation or more complicated than any other kind of litigation. I do get the assistance of registered patent attorneys, but I reject (and resent) the implication that I am committing “malpractice.” Notably, Mr. “Gideon” has chosen to remain anonymous so that the rest of us cannot examine his credentials.

Although, Gideon, we do seem to be in agreement on one thing — I am very much in favor of strengthening patent rights — despite the fact that I mostly represent defendants.

Bing!

I won’t make any conclusions, because shrill people tend also to be people who scream “libel” when you point out their weaknesses, but here is what I found . . .

among the folks who litigate patents, there are a few reg #s and a few not. The nots have undergrad degrees like “English”, “Law”, and one that made me fall off my seat - “rhetoric”!! That will be useful when reading the SC decision eviserating the MTC standard that is due out this term!

I also notice that one of the Reg Numbers is named “Gibbs” - a named partner - and he is the third guy on the professionals list, right after the other named partners, Wang and Hartmann. Gibbs is the only named partner listed as an intellectual property guy.

So this guy Gibbs, who was minted a Patent Attorney with a Reg Number in 1998, is in charge of patent litigation at the firm, if we can assume that all non-name-professionals doing patent work answer to him, regardless of 20 years non Reg number experience.

!

Having a Reg Number, by itself, does not mean much.

Having a Reg Numebr and using it to prosecute patents, on the other hand, means very much, with respect to later litigation.

To wit, if you have no prosecution experience whatsoever, then, IMO, it is prima facie malpractice to represent a client in a patent infringement suit. IMO this can be overcome by a showing that the intricacies of patent prosecution are understood.

I have yet to meet a non-Reg attorney who has qualified.

At lower tier firms and firms desperate for business - any business - non Reg # attornies run patent cases and use Reg #s to run down technical details. But at the larger firms, patent litigations are run by patent attorneys, not attorneys who happen to do patent litigation.

The shrill comment quoted above is, virtually no doubt, that of a non - Reg # attorney who has an inferiority complex about not having a Reg. #.

I remember at one of the large firms when the woman next door to me started beefing that Reg #s shouldn’t get paid more. Why? She asked.

I told her because tomorrow I could do your job and be up to speed in a month. You, on the other hand, couldn’t do my job if we gave you a year to get up to speed.

Simple really.

I also remember attending a CLE class in DC for patent law. This guy gets up and starts with “now you don’t have to be technically savvy or a patent lawyer to litigate a patent case.”

Wow. I wouldn’t hang my ass out that far if a dozen firemen were waiting with a catch thingy for me.

As a point of reference, I worked on a case - run by a patent attorney - with a non Reg guy who I will describe as the best attorney with whom I have ever had the privilege to work. After 4 months on a case with me, he was still asking me questions on basic priority matters.

Finally, with regard to the new judge, she appears to be perfectly suited to further restrict patent rights in the U.S. - any person who makes such sweeping statements about continuations is, IMO, uninformed.

Matt — you may be interested to know that Moore gave us your page as the source for the recently-updated and redlined version of H.R. 2795 last fall that we discussed in Patent Law I.

Despite your belated explanations, the term “activist” when applied to judges has long been used as a negative code word by the right wing to attack judges they do not like for political reasons — this was certainly how I read your post — not “activist” as meaning “appears in court a lot.” Indeed, I can’t imagine what an “activist” Federal Circuit judge would be — pro patent? pro infringer? anti-obviousness?

On the concerns of your anonymous poster about her qualifications vis-a-vis being an academic, I think I agree with him. I have only read her “Worthless Patents” and “Valuable Patents” articles, which were far too “economic” for my taste and mostly unconvincing.

I do completely disagree with your swipe at her not being a registered patent attorney — a “qualification” which is vertually useless to being a patent litigator and completely useless to being a judge.

What I am much more concerned about is her lack of judicial experience. I think we would have all been better served by capping Ron Whyte’s esteemed career in N.D. Cal. by putting him on the Federal Circuit.