Saturday, March 17, 2018

New Dog Barking Rules in Parts of Orange County, CA: Part II ( Complaint Procedures)

by Steve Reiss ( 

In a prior post, I started describing the brand-spanking new Orange County barking laws that went into effect in October, 2017.

In this post, using information from OC Animal Care, (OCAC) I will describe the complaint process created by the new laws. 

This complaint process should not exactly make you think the county or city is going to do anything about your neighbor's "incessantly" barking dog.

Indeed, the complaint process places such burdens on the complainant, it will take me two blog posts to drag you through it. 

Complaint Procedure

barking english pointer

 The Barking Dog complaint process generally comprises multiple steps:

1. Who Could Receive a Citation?
2. Initial Complaint
3. Second Complaint
4. Citation Issuance
5. Civil Citation Administrative Hearing
6. Optional: Education or Mediation Appointments

Initial and second complaints? Don't we want to avoid the need for second complaints?


Citations can be issued to any "responsible person". This means more than just the owner.

Under the new law, a "responsible person" is defined as any one of the following:
1. A person who allows a barking dog or animal nuisance violation to exist, whether through willful action, failure to act, or failure to exercise proper control over a barking dog or animal nuisance.

2. A person whose agent, employee, or independent contractor allows a barking dog or animal nuisance violation to exist, whether through willful action, failure to act, or failure to exercise proper control over a barking dog.

3. A person who is the owner of, and a person who is a lessee or sub-lessee with the current right of possession of, real property in or upon which a barking dog or nuisance animal violation occurs. 

4. ...a minor at least 14 years of age may be a Responsible Person subject to the provisions of this subarticle.

Wow, this looks as if it covers all those neglectful landlords, rental agents, dog sitters, kennel owners, and kids with lemonade stands. Maybe this law is pretty good, it will get those lazy landlords and kids to finally stop my neighbor's dog's barking! And I don't have to worry about complaining about the actions of the 14 year old; the minor's parents or legal guardian shall be liable for and held responsible for payment of their minor child's citation fines and/or late penalties. Anyway, I don't want to bankrupt the 14 year old; I just want the county to do something about that barking dog.

Let me grab my paper and pad and write out my complaint. How the heck do I do it?


An outline of the Barking Dog or Animal Nuisance complaint process is listed below.


The complainant must first initiate a complaint in writing, under penalty of perjury, by submitting a completed Barking Dog Complaint Form to Orange County Animal Care ("OCAC"). 
Be advised, OCAC does not provide identifying information of the complainant at the first step in the process.

Once the initial complaint has been processed, an Animal Control Public Education Officer (PEO) will attempt to contact the owner or responsible person to explain the Barking Dog or Animal Nuisance complaint process and to help resolve the situation. 

"Public Education Officer?" - Does not exactly sound like someone with a muzzle and a cage is on their way.
If the owner or responsible person is not available, a courtesy notice with an attached informational packet will be left at the residence. 

The notice will give the owner or responsible person ten (10) days to resolve the situation.

OCAC makes the responsible party feel good though, saying:
The COURTESY NOTICE is NOT a citation and is only meant to advise the responsible person of the complaint and of the ten (10) day period allowed to resolve the issue. 
But, realizing there are complainants reading the website, OCAC throws them a bone, saying:
Many complaints received are resolved after the delivery of the courtesy notice and do not escalate to the issuance of a citation.
However, "many" is not "all", nor "mos"t, nor 10%...Many just means, well, I don't know what it means.

There are no fines associated with the courtesy notice. 


What happens when your neglectful dog owning neighbor isn't scared into shutting up their dog after reading the "courtesy notice" and not having to pay any fines?

If the barking still occurs after the ten (10) day period allowed for the responsible party to correct the issue, a second complaint may be submitted to OCAC by the complainant. 

It is at this point, the complainant is the one inconvenienced: 
OCAC will schedule an affidavit appointment to meet with the complainant.
If OCAC is not contacted within thirty (30) days following the ten (10) day resolution period, the complaint will expire.
In other words, the complainant must keep pushing this forward. Otherwise the "responsible party" has to do nothing.

But, if the complainant is pissed or motivated enough (or, does not have to go to work) to go through the hassle of filing a second complaint within the thirty (30) days, they are given the honor of being "required" to complete an affidavit, signed under penalty of perjury, attesting to the observed violation during the affidavit appointment in order to further their complaint to the issuance of a citation. Who is the person doing wrong?

We are then reminded again by the procedure that OCAC does not investigate or make a determination that a Barking Dog or Animal Nuisance violation has occurred.

Citations are issued after the receipt of a second complaint and are based on the sworn affidavit signed by a complainant. 

Finally! That dog is out of here? Nope!!!


Once a signed affidavit is received by OCAC, a citation may be issued. 

The first three (3) citations issued for a Barking Dog complaint are civil citations. After three (3) successful civil citations within a two (2) year period, the fourth citation issued may be a criminal citation. 

Wait a second...why the heck is that "responsible party" being allowed to be irresponsible, for 2 years? That dog is a yapping machine. Little has changed for the better...

But, at least its a citation. Things are done!

Nope, not even...

Unless the responsible person elects to roll over and pay the fine associated with the citation, the citation will be scheduled for an informal administrative hearing so that a Hearing Officer can make a decision on the outcome of the citation. The complainant is required to attend this administrative hearing. If they do not, the civil citation may be dismissed by the Hearing Officer. The responsible person is also required to attend the administrative hearing if they chose to contest the civil citation.

You mean I need to take more time off to get this dog shut up? Yep, sucka.
More than that dude. Remember, since OCAC does not investigate or make a determination that a Barking Dog violation has occurred, it is the responsibility of both parties to bring evidence or testimony to the administrative hearing. In order to be considered, copies of evidence or digital media must be submitted at the hearing. Yep, you, the complainant, need to figure out how to take that video of your neighbor's barking dog off of your phone and onto a CD-ROM.

If I finally manage to convince the Hearing Officer I am right, does that mean this yapping dog is out of there? Nope, but you knew that already.

If the civil citation is upheld, the responsible person will have 30 days to pay the civil citation fine. The same fine they had no real motivation to pay earlier.

Criminal citations issued after the fourth citation are issued for a violation of OCCO 4-1-48 (misdemeanor violation) and submitted to the OC Superior Court for processing and disposition. You can imagine the importance with which the local prosecutor is going to give this matter.

This article is for informational purposes and does not contain legal advice.

Tuesday, March 13, 2018

On Why Some Leave the Patent Office (Part II)

by Steve Reiss (

As indicating conditions of work and salary outside the Office compared with Office positions, some excerpts from letters returned with the questionnaires sent out are here printed, each quotation being from a different author:
 "I left the former position because the pay was inadequate to support me properly, inconsistent with the dignity and responsibility of the work and unworthy of my training and education."
 "More encouragement to effort; more direct and proportion ate return from service."

"Patent Office salaries are too low and advancement and increase in salary too slow in comparison with the same line of work outside."

"I consider the need for higher salaries in the Patent Office to be imperative. My sole reason for leaving was to secure increased compensation."

"Stenographers in my office without even High School education are now getting more than Assistant Examiners in the Patent Office who are technically trained and college graduates."

"I left the Patent Office because the opportunity to advance in salary was very limited and further the pay was very moderate considering the character of training and the character of work required of patent examiners."

"Having been in the Patent Office almost eight years, I realize its needs keenly. It should have a modern building with additional room, a substantial increase of the examining corps, and higher salaries. If Congress could be made to understand the enormous waste and expense due to the delay in acting upon applications and the granting of invalid patents, I believe that it would be more liberal in its treatment of the Patent Office."

"As to the increase in salaries, a yearly increase in the salary of each Examiner, say for ten years, should be made if his services are satisfactory, or conditional on the passing of examination, so that he would not have to wait on death or resignation for promotion. The object should be to prevent
resignations from the Patent Office by making the salaries more nearly equal to the salaries paid for similar work on the outside. A new man is not of much value and the entrance salary might be retained at its present figure, but should be yearly increased up to the maximum."

"There should be additional examining divisions created and the force of principal examiners and assistants increased. The pay of the examiners and executives in the Patent Office should be increased at least thirty per cent; this is particularly true of the Commissioner and Assistant Commissioners whose functions and responsibilities are in many respects somewhat analogous to those of a Federal judge, and I know of no reason why the Commissioner should not receive at least the same salary as a Federal judge and the Assistant Commissioners should receive nearly as much. As regards my reason for leaving the Department. I left It on account of inadequate compensation, as I can make, in the practice of my profession, many times any amount that I would have ever been paid had I stayed in the Department."

"The writer would say that his only reasons for leaving the Patent Office were the matter of salary and the unsatisfactory working conditions then in force in the Patent Office. As to the first—the writer had reached a point where but one further promotion was at all probable, which promotion would have meant an increase of three-hundred dollars a year. As the writer was assured in leaving the Office of receiving a much greater increase than this immediately, with the substantial certainty of further increases in accordance with his value to the company which made the offer, he did not feel that the Patent Office offered sufficient inducement for him to devote the remainder of his life in such work. The writer does not believe that any business concern having any regard for its reputation among its customers and patrons, would think for a moment that when its production increased greatly from year to year that its original force of operatives should keep up the production, regardless of the quality of work produced, and it would seem that the Patent Office, which is a public servant and the services of which are paid for by the Inventor, should have as much regard for its reputation, so far as the quality of its work is concerned, as any private enterprise, and should increase its force in accordance with its output."

Journal of Patent Office Society, V. II, No. 3, pp, 129-34 (1919).

Sunday, February 25, 2018

The US Patent System is So Bad that...

by Steve Reiss (

Criticism of the US patent system pretty much began from the moment after It was enacted as the Patent Act of 1790.Thomas Jefferson, as the then Secretary of State, was in charge of  head of the “Commissioners for the Promotion of Useful Arts”, which was given the authority to grant or refuse a patent after deciding whether the invention or discovery was “sufficiently useful and important to be granted a patent.”The first group of Commissioners included Thomas Jefferson, Henry Knox, and Edmund Randolph.

Widespread criticism of the examination under the Patent Act of 1790 led to its repeal by Congress and its replacement with the Patent Act of 1793. The Act of 1793 changed the US patent system from an examination system, under the Act of 1790, to a registration system.

Criticism of the Act of 1793, especially by Senator John Ruggles, Chairman of the Senate Patent Committee led to the led to substantial changes in the American patent system under the Patent Act of 1836. Under the 1836 Act, the American patent system was changed back to an examination system and examination was to be conducted by professional patent examiners, rather than the heads of executive department.In his brief discussion of the IP Clause, Madison states that "the utility of this power will scarcely be questioned."Unfortunately, that is still up for debate.However, that the US IP system remains one of the best in the world is strongly proven by those countries that voluntarily chose to copy it.
"The last legislative effort to control manufacture in the American Colonies while . they were still under British sovereignty was that of 1752. This banned the expoitation to America of tools for use in the making of fabrics from linen or -cotton. And cotton was even then important among colonial products. These various curbs on manufacture within the Colonies were of less influence than they would have been had the industries of that era been numerous and significant, but they did, nevertheless, work considerable mischi Some of these parliamentary interdictions were among the grievances recited in a protest by the colonists of Massachusetts in 1777 In 1785-2 years after the treaty of peace between England and the Colonies and 2 years before our Federal Constitution was framed-the British Parliament prohibited by law · the emigration of mechanics and workmen familiar with the manufacture of iron and forbade the exportation not only of engines, machines, or tools useful in the processing of iron, but even the models and plans of such mechanisms and implements. The purpose and, from the viewpoint of British ministries of those times, the justification of all these restrictions and repressions was to further the internal industry and the foreign trade of Great Britain. This intent was not only not . accomplished but was defeated, as history has impressively testified. For, within the recollection of Americans living in 1790, British statesmen realized .and sought to correct  the error of the earlier policy. In 1853 a British mission was sent to the United States to_ study and emulate American methods of manufacturing arms. The genius of Samuel Colt was borrowed, so to say, for the same purpose. A member of that mission, in his account of its work, explained tha tthe (British) "Government resolved to introduce the American patent system."

Saturday, February 17, 2018

New Dog Barking Rules In Parts of Orange County, CA: Part I (Introduction)

by Steve Reiss ( 

Effective, October, 12, 2017, in unincorporated portions of Orange County and 14 of her bigger cities*, new dog barking regulations went into effect and will be enforced by OC Animal Care, which contracts with Orange County to enforce the county's animal laws in areas that chose not to have their own animal control agencies.

The highlights of the new regulations seem pretty straight forward, objective, and tough. It makes you think that maybe Orange County learned from all the complaints to its prior barking nuisance laws. Orange County's prior nuisance barking law was described as:
a tedious, time-consuming process that allows violators so much time and so many chances that it’s virtually unenforceable. Of the 2,000 people who inquired about the barking-dog complaint process, 1,500 filed a first-step complaint, but just 25 were ultimately sent to the district attorney.
The criteria for a Barking Dog violation under the new laws are listed below. Complete definitions can be found in Orange County Codified Ordinance (OCCO) Sec. 4-1-3. 

To be a noise violation, the noise disturbance must satisfy at least ONE of the following:




INCESSANT: Continuing without stopping, or without pause or interruption; unceasing

INTERMITTENT: Occurring in a non-continuous or non-steady fashion. Starting, stopping, and starting again. An occurrence with pauses or interruptions; occasional, sporadic

Barking Dog: a dog that barks, bays, cries, howls or makes any noise for an extended period of time to the disturbance of any person at any time of day or night, 

Does this language really mean that if you have recorded your neighbor's dog barking non-stop - I mean incessantly- for 45 straight minutes, you make a call and the Sheriff and Animal Control will come right over to make your neighbor cause the barking to stop or take your neighbor's dog away?

Image per Creative Commons/wikihow

Not in the least...

Besides the fact that there are no provisions in the new law to take a nuisance dog away, an irresponsible owner has to be really irresponsible and drag the poor complainant through several hoops before having to take responsibility for the incessant barking of the dog.

However, I guess for really, really barking dogs, maybe double-plus-barking (you had to have read 1984 to get that sarcasm), the county can sue the owner to have the dog declared a public nuisance. OCCO Sec. 4-1-48.** (see definition below)

PERSONAL DISCLAIMER: Don't get my mocking tone and sly sarcasm as anything other than contempt for a regulatory scheme. As a dog owner, I believe people are allowed to their dogs without the nagging of the government, so long as owners make sure the dogs are good citizens. And, as an attorney, I believe private property is never to be taken from citizens without due process.

But as a cynic, when I see a regulatory scheme that seems to not actually do what it is supposed to per the report of the Orange County Board of Supervisors ("Barking Dog and Animal Nuisance complaints represent a quality of life issue for the community. By amending these ordinances, OC Animal Care seeks to establish and effective and balanced mechanism for residents to resolve these issues"), or causes more issues for the noise victim rather than the noise maker, some humor is needed.
Where does this cynicism come from?

When you go to the OCAC website, which is actually quite informative, to read about the new Orange County dog barking regulations, the first thing you read, due to its larger and bold font is:
OCAC does not investigate or make a determination that a Barking Dog or Animal Nuisance violation has occurred...
This immediately makes you wonder who does determine there are nuisances and does it even matter.

The OCAC website then says: 
OCAC facilitates the Barking Dog or Animal Nuisance complaint process, acting as an intermediary between the complainant and responsible person...; and issuing a citation if necessary.  

OCAC can provide assistance mediating the circumstances of the issue or other information between both parties and can provide suggestions on how to resolve the issue with the animal in question. 

"Provide suggestions on how to resolve the issue"?  Most of the barking disputes I have read about require a little bit more than "suggestions". They require a re-education of the barking dog's owner in proper dog ownership manners and/or putting the dog in foster, until the owner adopts proper dog ownership manners.

But, let's go into this thinking positively. After all, the new regulations are supposed to make things better! So what does the complaint process say?

You will have to wait for a future post for me to describe the complaint process.

*=Fountain Valley, Fullerton, Huntington Beach, San Juan Capistrano, City of Orange, Tustin, Anaheim, Cypress, Lake Forest, Placentia, Yorba Linda, Brea, and Villa Park.

Santa Ana has had this barking dog regulatory structure since 2007. Santa Ana does not contract out to OC Animal Care; the Santa Ana Police Department handles all calls for service regarding barking dogs.


OCCA Sec. 4-1-48. - Nuisance.
(a) No person shall keep, maintain, or permit, either willfully or through failure to exercise proper control, on any lot, parcel of land or premises under his or her control any animal: 

(1) Which by sound or cry shall disturb the peace and comfort of the inhabitants of the neighborhood, or 

(2) Which affects an entire community or neighborhood, or any considerable number of persons, although the extent of annoyance or damage may differ, or 

(3) Which interferes with any person in the reasonable and comfortable enjoyment of life or property. 

This article is for informational purposes and does not contain legal advice.

Wednesday, February 14, 2018

On Why Some Leave the Patent Office? (Part I)

by Steve Reiss (

As indicating conditions of work and salary outside the Office compared with Office positions, some excerpts from letters returned with the questionnaires sent out are here printed, each quotation being from a different author:

"Working conditions as to office accommodations, etc., far superior in present position. Hours average a little longer now, but 'are entirely at my discretion. More initiative and more responsibility required out of the government service."

"Personally I feel I was entitled to about $1000 more outside the Patent Office than inside, but actually received more than $2000 more outside. Salaries of 1st Assistants in Patent Office should be raised about $1000 in accordance with this comparison."

"Hours of work practically the same as in Patent Office-More variety to present work. Less crowded conditions than in the Patent Office. Less emphasis on quantity as compared with quality of work."

"No chance for advancement in the Patent Office worth considering. Unlimited chance in present position."

"Present work far more enjoyable, far less confining and pay more than double."

"Opportunity for advancement and to make money commensurate with services rendered incomparably greater out of Patent Office than in."

"There is absolutely no incentive for a technically trained man (especially under present conditions) to enter the Patent Office with any intention of making that his life's work" .

"As one engaged in important development work I feel that this matter of maintaining and improving the efficiency and necessarily the personnel of the Patent Office, can not too strongly be brought to the attention of Congress."

"The conditions in that office today are deplorable and to put it mildly, it Is a disgrace to the Government that one of the vital elements in the success and progress of this nation, has been so lamentably neglected."

"Without meaning to be critical, I may state that the present position of Examiner or Assistant Examiner in the Patent Office is practically unbearable. The amount of work on hand is enormous and increasing. The force is inadequate and should be doubled. For the past two years I have worked on office work from 12 to 14 hours a day on an average without being able to keep the work of my division from falling behind. With far less work I am confident of a considerably larger income outside of the office."

"We who have to practice before the Patent Office consider it very important that the Examining Corps be increased in numbers and that they get much higher salaries."

"Outside work requires constructive ability whereas ability to intelligently criticize the work of others is the prime requisite in Patent Examiners' work."

"Greater opportunity at present for the exercise of personal initiative and greater recognition of personal achievement and greater opportunity for advancement."

"In order to retain the kind of examiners you should have in the Examining Corps, the salaries in my judgment should not be less than from $2000 to $4000 per year for Assistant Examiners and $5000 per year for Principal Examiners."

"I have found that the corporations by which I have been employed provide adequate office space and sufficient clerks—a condition not always true in the Patent Office."

"Absolutely no comparison. Due to red tape and lack of incentive in Government service, would not consider position on the examining corps if it paid $15,000 a year."

"Usually no time limit as to cases acted upon, accuracy and thoroughness being preferred to speed, a more satisfactory basis than the Patent Office mandate—'Get off more work'."

"I naturally put in much longer hours now, but the stimulus of direct personal contact with live business issues growing out of patents, as distinguished from abstract technical problems, more than offsets this, making the work more satisfactory in every way."

"Present position requires more initiative and the need for a quick judgment is more likely to arise. In general the qualifications required are the same."

"My reason for resigning was that the present salaries of examiners in the Patent Office are ridiculously low compared with outside remuneration or the salaries for other government positions of similar character."

"Work harder outside. More responsibility."

"Nature of work more responsible and Infinitely more opportunity to exert personal initiative would not return to former duties for $8000 per year."

"My primary reason for leaving the office was that the increased cost of living had so far outstripped the salary increases that I was compelled to lower the standard of living of both my family and myself from day to day. What the office obviously needs are: first, an increase of salary, and 2nd, an increase in force."

"I may say, however, that .1 earned a good deal more money in the practice of my profession the first year after leaving the Patent Office than I received at any time while there and my net income every year since has increased substantially. I do not know any walk of life in which men are so poorly paid for the same degree of learning and skill as are the Patent Office Examiners. Many of them are quite as well educated and quite as able as men in private practice who are making from $25,000 to $50.000 a year. Many of them are quite the equal in character, education and ability of the average men on the Federal Bench, who are underpaid when their salaries are compared with those paid to State judges, particularly in large cities."

"I am pleased to cooperate with you to the limit of my ability, as I believe that there is no more crying need in the technical development of this country than the increase in the pay of the examiners. My reasons for leaving the office were the very obvious ones of obtaining enough money to live on. Under the scale of pay as it existed in 1915, I felt that the compensation of the examiners was so inadequate as to make service in the examining corps permissible only in the light of a schooling, for which heavy tuition is paid in the form of the acceptance of an in adequate salary. As a consequence, it is necessarily, I believe, the endeavor of those who enter to graduate from the course as quickly as possible in order to get out into the world to make a living. This situation can have no other effect upon the Patent Office than to confine its personnel to three classes of individuals; first, inexperienced young men who feel the advantages to be obtained by attending this school; second, incompetent old men who found themselves unable to graduate from the course; and third, a very small minority of conscientious, patriotic men who. for one peculiar reason or another, either of sense of patriotic duty, of intense interest in the work, or of personal association, are willing to remain in the Office in spite of the inadequate salary. It has been a source of great wonder to me that, under the circumstances, the Office was able to maintain as high a standard of personnel as it has. I feel the more free to speak as I do by reason of the fact that I have withdrawn myself from the patent field, and as a consequence I can not be accused of having any bias based upon personal interest."

"I remained in the Patent Office three years in which length of time I considered that I had obtained about all the Office could teach me and therefore, upon receiving a good offer I left the Patent Office and have continuously advanced since that time to the present head of this firm. My opinion is, and always has been, that the Patent Office force is entirely too small in numbers and has entirely inadequate salaries. For this reason it has always been well known to me, as well as to any patent attorneys practicing in the Courts, that the searches made by the Patent Office can not be complete because the examiners cannot devote the proper amount of time to each individual case on account of the smallness of the force. For this reason there is hardly a patent comes into Court as to which new prior art is not adduced in the search made by defendant's attorneys. This is, in my opinion, due solely to the small amount of time which can be put on each case and in no way to the ability of the examining force, whose standard has always been high. I think manufacturers are realizing more and more fully the needs and requirements of the Patent Office, and its great value, which would and should be greatly increased by enlarging the force and increasing the salaries."

"On leaving the Patent Office I became associated with my father and cousin who were then engaged in patent practice, and in about a year I became a member of the firm, so that there were no such definite salary arrangements as make it possible to give comparative figures. I always received several times as much as I had been getting at the Patent Office and without looking up the matter definitely, I should say that after the first year I was receiving over $5000 a year."

"About my own case, I may say that I regretted sincerely leaving Washington and the Patent Office, due to the associations I have formed, but I realized that it would take me a very long time indeed to get the enticing salary that was offered me here. Had I been reasonably certain of getting an increase every year, say of $200, I doubt very much whether I should have left when I did. I think the only way an efficient force can be retained is to provide increases every year for the efficient ones up to a limit, irrespective of the number of vacancies in the Office."

Journal of Patent Office Society, V. II, No. 3, pp, 129-34 (1919).

Sunday, February 11, 2018

On the Making of a Good Patent Examiner...

by Steve Reiss (

In 1836, Senator Ruggles, then-Chairman of Senate Committee on Patents, critic of early patent law, proponent of the Patent Act of 1836, "Father of the Patent Office" and recipient of USP 1 (1836):
lt is his business to make himself fully acquainted with the principles of the invention for which a patent is sought, and to make a thorough investigation of all that has been before known or invented, either in Europe or America, on the particular subject presented for his examination!
He must ascertain how far the invention interferes in any of its parts with previous inventions or things previously in use. He must point out and describe the extent of such collision and interference, that the applicant may have the benefit of the information in so shaping or restricting his claim of originality as not to trespass upon the rights of others ..•. An efficient and just discharge of the duties, it is obvious, requires extensive scientific attainments, and a general knowledge of the arts, manufactures, and the mechanism used in every branch of business in which improvements are sought to be patented, and of the principles embraced in the ten thousand inventions patented in the United States, and of the thirty thousand patented in Europe. He must moreover a familiar knowledge of the statute and common law on the subject, and the judicial decisions both in England and our own country, in patent cases.

Examiners Working - From 1869 issue of Harper's Digest

In 1871, then-Commissioner Leggett, reprinted in James Shepard, The United States Patent System, in The New England Magazine, (April 1891) p. 147-48, said of the examiner:
Some examiners are very quick to detect resemblances, and will reject almost every-thing. Others are equally quick at finding differences, and will grant patents on mere shades of variation. Hence, a picket-fence is re­jected on reference to a comb; surgical in­struments for injecting spray into the throat or nasal organs, on reference to a fireman's hose; a rubber packing for fruit-jars, on reference to a pump; a device for lacing ladies' shoes without the use of holes or eyelets, on reference to an old mode of cording bed-steads; an ore-crusher, on reference to a nut-cracker. In each of these cases there will be found a remote resemblance between the device in the application and the reference. In some of them, however, the ex­aminers have displayed more inventive genius in finding the references than the applicants would dare claim for their devices.

Saturday, February 10, 2018

Perfect Harmony Among Examiners, Inventors, and Patent Attorney

by Steve Reiss (

The early Journal of the Patent Office Society, now the Journal of the Patent and Trademark Office Society was far more focused on the Patent Office than it currently seems.

I love digging through its early editions and re-introducing them (see here, here, etc.) to the current patent community because they often address issues just as important now from when they were originally written; sometimes around 100 years ago.

An early article still relevant today is "The Relation Of The Examiner to the Inventor and his Attorney", the text of a speech given by F. W. H. Clay, Assistant Commissioner [more on Clay in a later post], and delivered to the fourth assistant examiners (the least senior examiners) in 1918 or so. The speech is very long, and those interested in reading it in the entirety can find it in full here.

The title of the blog post is based on Clay's belief that "The examiner, the inventor, and his attorney should all be in perfect harmony and sympathy, because they are all seeking the same object."
I excerpt the speech below, highlighting some of the points the speaker thought extremely important (emphasis mine):

Let me first call your attention, gentlemen, to the fact that in your duties in this office you are in a very peculiar position, a very unusual position, which makes it highly important that you have a correct conception of your proper mental attitude toward your work. In a word, you are in the anomalous position of being both the judge and the attorney for one of the parties in a controversy. 


What I wish most to impress upon you, is that the seeming inconsistent attitude of the examiner is one of seeming only, and that when looked at from the right point of view the interests of the inventor, his attorney, and the examiner are, or should be, substantially one and the same.

Let me try to explain why this is so, and how it results from the nature of the property in inventions. The point will appear from a careful consideration of the reason for the patent law.
To come then, to the nature of the inventor's right. In the first place it is important for you to understand 'clearly that the inventor does not come to the government seeking favors. I do not hesitate to say that the inventors as a class are by all odds the most important class of people, and by all odds the best benefactors of the race.

Inventors being benefactors of the race, and coming, when they seek a patent, with something to offer the public and not something to ask, it is next important for you to keep ever in mind the nature of the thing the inventor seeks.


This brings me to the main point I wish to make, namely, that however it may be with the business man, it is of supreme importance to the inventor and to the public that patents be both applied for and granted promptly. Coming directly home to you, this means that one of your primary duties is to see that when applications are filed in this office they proceed without delay to patent. It is quite possible that promptness in the work of this office is as important as thoroughness. In other words, if you have to choose between making a less thorough examination and a general and material delay in getting the applications through, it is probably more to the public interest that the prosecution be prompt. At least I am justified in saying that if your examination is not sufficiently thorough, this is directly the fault of Congress, and is so provided in spite of the attention of Congress having been repeatedly called to the shortness of force and the necessity of an examination that is not sufficiently thorough. *** I think myself, (and believe it wise to say so) that the inventor at the present moment is not getting the examination he actually pays for. I base this statement on the single fact that the Patent Office is a money-making institution, at the expense of the inventor. The inventor pays a certain number of dollars for an examination of his invention. He does not get that number of dollars' worth of examination. On this point there can be no dispute, nor can there be any dispute that it is-because this office is undermanned.

Accepting this condition, however, as we must, it is our duty to keep the work up to date and to constantly press for prompt prosecution and issue of patents.***

If you have agreed with me about the point of view you should take toward the patent law and the Patent Office, you will see that the general impression that the attorneys are arrayed on one side and examiners on the other of a never-ending series of controversies, is entirely erroneous, and that it is due to a wrong impression of what we are all trying to do. We are in fact all attorneys for a public benefactor.

The examiner, the inventor, and his attorney should all be in perfect harmony and sympathy, because they are all seeking the same object. It is not as if you were the attorney for the public, sitting down to draw up a contract between the public and the inventor by which each party must jealously guard lest his client give more than he receives*** It is to the mutual interest of all three that the measurement [of invention] be correct *** The attorney ought not to resist the criticism of his specification or claims; for a criticism cannot possibly do harm and almost invariably does good. On the other hand, the examiner ought not to resent criticism of his reasoning or his point of view, for the attorney by challenging the examiner's action will probably show in just what respect the examiner's contention is weak and needs to be strengthened in order to properly fix the patent in its proper place in the art.


Now in all this, it happens that the examiner as attorney for the public insisting on the claim exactly measuring the extent of the step up—the improvement—is doing exactly the same thing as the attorney for the inventor is doing, marking out the limits of the forbidden field covered by the patent. In setting the fence around the invention it is as much the interest of one as of the other to put it in the right place. The inventor comes in to the attorney full of enthusiasm and discloses to him an invention which he says is all new and very important. The attorney says, "Let us be sure just how new; let us make a preliminary examination." ***. Being aware that his search was uncertain, and with the object of bringing out a better search from the examiner, having regard to the invention in both its broad and narrow aspects, he writes usually some very broad claims and then some more specific ones. In view of the light he has at the time he writes his specification it is altogether likely that he will have too many claims, and that he will have some claims that are too broad. If he is a good attorney he will have done this deliberately, in order to get the advantage of the examiner's point of view.

The examiner should reply in full consciousness of the mental attitude of the attorney and as near as possible in a sympathetic spirit. If he says claim 1 is too broad, he should show as fully as he can how much of the variety of previous devices his claim would cover; and among these references he should always attempt to have the one he considers his best reliance for rejecting the narrowest claim he will reject. If it occurs to him how it may be done, he should suggest what appear to him the principal novel points of the invention. But in the next action by the attorney he may expect to find a different view as to what is the most important point of the invention and he should not be irritated at being told that his own point of view is wrong. ***  The attorney for the inventor also is liable to have a still third point of view, being more familiar with the business aspect of the invention. The great thing is to get a mutual accommodation of the three points of view, and in order to do this it is necessary to constantly strive to maintain a sympathetic attitude. ***

Most of the controversies arise between the attorney and the examiner over the pertinence of references, and this is due to the variant directions of approach above mentioned. The examiner ought to be willing to listen to every contention the inventor's attorney may make, if for no other reason than to test the correctness of his own judgment. Another thing the examiner should guard against is confusion in the use of the terms in an argument. *** The examiner can be very helpful by explaining the ambiguity and indefiniteness of terms used by the inventor, and it is his duty always to be a helper.

On the other hand, there is one point of continual quarrel between attorneys and examiners, upon which I think the examiner should stand firm and with respect to which I think his standing firm will be of the greatest aid to the inventor. This is the matter of definiteness of claim. It is perfectly natural, and is almost the universal custom, that an attorney will undertake to write a set of claims so as to anticipate now-unthoughtof variations of the applicant's invention. *** He will not be so much concerned with making a clear definition of the invention as in anticipating future infringements. *** Widespread as this custom is I am satisfied that it is both unlawful and unwise from the standpoint of the patentees' interests. If the statute says one thing more emphatically than any other it is that the inventor shall definitely point out what his invention is. ***  If this is kept in view by the examiner and the attorney it will inevitably result that the claims are definite and that they are few in number.  ***
It is the function of the Patent Office to simply measure the degree of novelty the inventor has found. The public will measure the value of that degree of novelty. *** The examiner ought to exert every effort to get through with the matter of prosecuting an application. To this end the most important thing is that the examiner's first action should be thorough, not arguing the case but deciding it, and giving briefly the best reasons. His next best action is to insist that the inventor's attorney shall make a real response to the office action and avoid dilatory tactics. I think you ought to be reminded, and I think you ought to be constantly reminded, that you have the right under the law to express your opinion as a judgment, and often to base it on broad grounds. *** You may easily write your letters so that the attorney will see that the criticisms are for the benefit of the applicant, and having done this once there ought not to be further argument about it, although you should be perfectly willing to withdraw a criticism when shown that it is unjust.

Of course all I have said is based on the supposition that the attorney is honestly striving to protect the interests of the inventor. When it comes to the attorney who is not honest, what I have said about sympathy will plainly suggest to you that there ought not to be any sympathy between you and him ***. You can-do no greater favor to the great mass of inventors and to the majority of the attorneys who are well meaning than to call the Commissioner's attention to every instance you find of a breach of professional ethics. I think the time cannot be long delayed when the ranks of the patent profession will have to be purified in order to prevent serious injury to the public interests as well as to the inventors as a class.

Sunday, February 4, 2018

New Order From The Commissioner Of Patents.

by Steve Reiss (
I have noticed, for more than two years past, that a few of the Examiners are generally from one to two months behind with the work in  their rooms. The fact that they so uniformly have about the same number of cases on hand is evidence to me that, with proper effort, they might keep their work closely up to date.
The answering of  letters and the making of excuses, in consequence of being so far behind, are causes of great loss of  time.  I shall expect the work of the Office to be promptly up  to  date by the tenth day of Novem­ber. If, to do this, it becomes necessary for Examiners to de­mand of their subordinates more than six hours labor per day, they will do so; but  the work must be brought up to that date, and thereafter kept up. (Signed).
Commissioner of Patents

Washington, D. C., October 3. 1873

(reprinted in Scientific American, November 1, 1873, p. 272.).

(see more below)

Mortimer Leggett (Commissioner of Patents: 1871- November 1874)
According to the USPTO and reports contemporaneous with his commissionership, Commissioner Leggett's:
"decisions show a quick perception of the equities and a desire to use as much dispatch in the case as was possible. He was of a practical turn of mind and, while trained in the law, apparently had not much taste for a prolonged legal discussion. He was liberal in his views of patentability but very decided in his opinions. In general, he effectively continued the work and policies of his notable predecessor, Mr. Fisher, and this period marked a distinct advance in the work and standards of the Patent Office."

Sunday, January 28, 2018

The Journal of the Patent Office Society on Patent Prosecutors (1918)

by Steve Reiss (


The builder for the patentee is the solicitor of patents. Upon the intelligence and care with which the solicitor draws his description and claims depends the stability and effectiveness of the patent. In an oft-quoted sentence no less an authority than the United States Supreme Court has recognized the high quality of skill required in the drafting of patent claims. [See e.g. Topliff v. Topliff, 145 U.S. 156, 171 (1892)].The ideal patent solicitor should be artisan, engineer, scientist, lawyer, philosopher and prophet — nothing less. And yet, even officers of the executive departments have fallen into the error of classifying patent solicitors with claim agents, and with surprising frequency the inventor and investor choose to pinch on the foundation and spend in salvage.
EDITORIAL,  1 Journal of the Patent Office Society 50, 50-51 (1918) (emphasis added; how poetic).

Sunday, January 21, 2018

More on George Washington, His Inventive Genius, and our First President's Bathroom Habits? (1891)

by Steve Reiss (

I have previously described how Dr. J. M. Toner, M.D. in his speech at Mount Vernon at the Centennial of the Patent Act of 1790, wrongly states to over 600 persons well-versed in our patent history that George Washington might have been the one who "introduced the proposition regarding Patents and Copyrights" to the Constitutional Convention of 1787. As previously mentioned in the earlier post on Toner's speech, Toner was no hack. Indeed, he was introduced to the audience by J.Elfreth Watkins, Curator, U.S. National Museum as follows:
It seems eminently proper that upon this important anniversary, you should be addressed by one, a large portion of whose long life has been devoted to preserving the history of the Father of our Country. As a son of Virginia, standing upon this historic ground,it is indeed an honor to be permitted to introduce the orator of the day, Dr. Toner, of Washington.
Proceedings, p. 30.
Image result for mount vernon
Mount Vernon

Though Toner misstates Washington's role at the 1787 Philadelphia Convention relative to the introduction or suggestion of the Patent Clause, Toner correctly associates Washington to the Patent Act of 1790. Proceedings, at p. 318.  It is well known that Washington pushed the First Congress to quickly enact a patent act. On January 8, 1790, President Washington delivered his first State of the Union speech to Congress. Washington told Congress:
The advancement of agriculture, commerce, and manufactures by all proper means will not, I trust, need recommendation; but I can not forbear intimating to you the expediency of giving effectual encouragement as well to the introduction of new and useful inventions from abroad as to the exertions of skill and genius in producing them at home...
See Gene Quinn, Celebrating Presidents Who Advocated for the U.S. Patent System.

Dr. Toner's speech so wants to find ways to attach Washington to the American patent and invention traditions. Sometimes Toner's statements are strong and based on fact. At other times, he seems to be reaching or speculating for facts that just are not there.

For example, Toner says:

If it cannot be claimed that Washington originated the idea of recognizing property in inventions, he was, without doubt, the chief exponent of the views and sentiments which brought together the convention of delegates from the several States to consider their future well-being and to form a more perfect Union.
Proceedings, p. 313. These are some very lofty words in support of Washington's character. However, Toner seems to be saying that even if Washington had nothing to do with recognizing property in inventions, Washington was of the view that the Convention should consider how to form a more perfect Union. I have no doubt that the latter is 100% true. But the latter has logically little to do with the former. To me, these two ideas have little logical connection.

Toner also says:

Here, at Mount Vernon, the duty has been assigned to me, near the close of this brilliant and, I trust, profitable Patent Centennial, to speak to you of the great Washington as an inventor and promoter of improvements in the arts.
Proceedings, p. 317. Toner cites many anecdotes supporting his statement of "Washington as an inventor." As this is not an aspect of Washington's character that is widely known, summarizing Toner's bases for this conclusion is useful:

According to Toner, Washington's Journal said:

Wednesday, Mar. 26, 1760 • * * * Spent the greater part of the day in making a new plow of my own invention.'
Thursday, Mar. 27, 1760. * * * Set my plow to work and found she answered very well in the lower pasture...Saturday, April 5. * *  Made another plow, the same as my former. except that it has two eyes ...
Proceedings, p.  332-3.
His ever watchful attention to the matter of labor-saving machinery in the interest of the poorly-paid and over-worked farmer is apparent throughout the life and writings of Wash­ington. He made it a duty to read the standard works and annual publications on agriculture to obtain useful hints which might be of service on the Mount Vernon plantations.
Proceedings, p. 334.
... James Rumsey was, in 1786, experimenting at Shepherdstown on the Potomac with a boat to be propelled against a stream by machinery. Wash­ington was invited to witness the performance of his boat, so widely was it understood that be was an influential promoter of new inventions.
Proceedings, p. 346.

Here, Toner mixes fact with strong speculation (emphasis added):
Washington possessed, to an eminent degree, those special qualities which are characteristic of the most astute inventors, and had not his time been so fully taken up in the important affairs of his country, he would, in all probability, have given much attention to improvements in agriculture and the machinery and implements used in the domestic arts, which are so essential to the comforts of civilized life. Washington had made for him the first pump used in the town of Alex­andria, and another at Mount Vernon, at a time when but few had been put in competition with '' the old oaken bucket,'' the rope and windlass, or the balance lift, so common in wells throughout the South in early days. He had the genius to see things as they were and to appreciate their true relation.
Proceedings, p. 348-9.

In a letter to General [Benjamin] Lincoln, dated Mount Vernon, 6th Feb., 1786, General Washington uses the following language in relation to a supposed important discovery [SR- though not attributed to Washington]: "The discovery of extracting fresh water from salt, by a simple process and without the aid of fire, will be of amazing importance to the sons of Neptune, if it is not vitiated or ren­dered nauseous by the operation, and can be made to answer all the valuable purposes of other fresh water at sea. Every maritime power in the world in this case ought, in my opinion, to offer some acknowledgment to the inventor."

Proceedings, p. 357-8.

Tradition credits Washington with having invented and patented a plow. I have not, how ever, found any testimony to sustain the claim.

But I do find the following entry in one of the "Store Books of issue" at Mount Vernon under date of Sept. 1787. ''A packing box for a plow model one hundred and fifty nails used in making box." Query: Was the model here referred to one of Washington's own invention and being shipped to a manufacturer or to officials granting patents? 

Proceedings, p. 370, n. 46.

To President Washington we are indebted for the graceful and convenient device of the dinner wine coaster.
Proceedings, p. 374.

In his Diary January 22d, 1790, will be found the following entry: '' Called in my ride on the Baron de Poelnitz to see the operation of his (Winlow's) thrashing machine. 
Proceedings, p. 377. That Washington lived in a different time with different customs, it is interesting that Toner comments that further to Winlow's thrashing machine, Washington wrote in his journal:
Women and boys of 12 and 14 years of age are fully adequate to the management of the mill or thrashing machine." 
 Proceedings, p. 377.

I think enough evidence has been adduced to make it apparent that the mind of Washington was preeminently efficient in devising expedients and all the essential machinery to accomplish in the shortest time and in the best manner.

Proceedings, p. 378.

And Toner then says:

While it may not be claimed that George Washington is descended from a line of inventors, sages or heroes, ... The instances in which Washington gave encouragement to new inventions are numerous, and the fact is beyond question that he invariably provided the best machinery for his mills and farms, and everything considered, for all the industries under his control, as is testified in many letters.
Proceedings, p. 317.

And this brings us to one final statement from Toner's speech. It may be 100% correct, but it is a ridiculous, throw-away paragraph of what today we would call TMI - or "Too Much Information." This paragraph has nothing to do with patents, invention, Washington's character, or good taste; even if we are speaking of a different era. I wonder what the 600 distinguished members of the audience thought when they heard Toner say (emphasis added):

The regular hour for dining at Mount Vernon was three although the working-people dined at twelve o’clock. It was the General’s habit to make a toilet immediately before sitting down to table, whether he had been out riding or had remained in or about the house, was alone or had company. The opportunity was also afforded to all guests to refresh themselves before going into the dining-room.
Proceedings, p. 340. 

I say, "Huh?"