GSK vs. PTO notes

(Note: Looks like once a week postings may be my limit for now.)

In everything I have seen so far, here is the most important sentence:

"Many companies rely upon the stable, reliable protection afforded by the current patent system in determining whether it is cost-effective to abandon their trade secret protection by pursuing a patent." from the PI order, p37; link

This is it. This is what is being missed by most commentators I've seen. As a customer, there are only "must haves", "would likes", and "delighters" - this is the "must have."

It would be delightful to have our patents granted the day they were filed. It would be delightful if a special envoy of polyglots checked every library and every piece of art on earth for every application. I "would like" patents to be granted faster and examiners be able to search deeper and longer.

However, I would sacrifice both of those in a second for stability. Between courts reinterpreting scope and standards, and congress trying to address the needs of the inventive community, the PTO is the one pillar of consistency practitioners have come to necessarily rely on for determining, broadly, how to protect their clients and companies.

Over the last few months I have realized that I do not care what rules the USPTO issues. I care about the values behind the rules.

It seems the community has convinced the Office that faster and better has become more important than predictable. They have become must haves.

I absolutely disagree. They are very, very important, but not must haves.

As a practical matter, just as the PTO predicted, I do not know "how to proceed with patent prosecution and which rules will govern applications during the period of injunction." While the PTO rule-making created a lot of work and some uncertainty in bringing everything into compliance, GSK has now caused more uncertainty and more work (making decision trees and expected outcome/impact analysis for each case). Of course, if the end result of the case is greater predictability and stability - then I will soon forget the hours and frustration.

Three final notes coming out of all this;

1) People are paying attention to the PTO. They have shown the will to implement that which they believe to solve their loudest criticisms (pendency longer than some technologies relevancy and patents being invalidated), and are not backing down from executing on what they believe will work.

2) IT and Pharma are working together in the invention community. In related news cats are lying with dogs.

3) The answer to "How should the patent system improve?" clearly depends on who one asks. People who don't care about budgets say raise fees. People who don't understand that the search is the examination say outsource the search. There is a lot of complexity to answering this question and it is clear that the community is realizing just that.