America-Israel Patent Law

Cute Idea, But…

Years ago, my friend and (now retired) colleague Ellen Shankman, a trademark attorney, drew my attention to a phenomenon in Israel regarding patent applications: lots of Israelis think that filing a patent application means they’ve won the lottery, when it’s more like buying a lottery ticket.

I thought of the analogy today not with respect to patent applications, but with regard to a meme that’s been making its way among Jews on social media: a photo from the USPTO’s database of trademark applications, showing data for a trademark application, asserting that “The Federal government of the United States issued trademark rights” for a particular phrase, and that therefore the “owner” could prevent others from using the mark. See the photos below.

What’s got these commenters and re-Tweet-ers and other all excited is that the mark is for the phrase “From the river to the sea, Palestine will be free” – the phrase that means the Jews should be kicked out of Israel (alive or dead), the phrase that hordes of brainless US college kids have now adopted and mindlessly repeat. While I share the sharers’ desires and sentiments, their comments display multiple misunderstandings of TM law.

The first and most obvious, of course, is that this is just a TM application filed at the US Patent and Trademark Office (PTO), not a registered mark, and an application gives the applicant no enforceable rights.

Then there’s the issue of use: to register a mark in the USA, you have to show use of the mark in commerce, and this application doesn’t allege a first use.  Rather, it’s what’s called an “intent to use” application, which means that at some point during the examination process, the applicant will have to show that it actually used the mark in commerce. Failure to do that = no registration.

This leads to a more general and more important observation, namely that there’s no guarantee that the application will mature into a registration. The examiner might not allow it; or it might be allowed by then opposed and the PTO’s Trademark Trial and Appeal Board (TTAB) might not allow the registration; and even if TTAB allows it, TTAB might get overturned on appeal to a Federal court. And even should registration occur, if an enforcement action is then brought, the validity or enforceability of the registration can be challenged as an affirmative defense.

Finally, and most importantly, trademark applications list classes of goods and services to which the mark will be applied; gaining registration does not allow the registrant to preclude all uses of the mark in all areas, especially not the spoken word. The application in question says that the mark is to be used in connection with hats and t-shirts. That doesn’t cover placards or signs, and – sorry to be the party-pooper here – it doesn’t cover words shouted by Jew-haters and other idiots.

Bottom line, this is a cute idea, an example of the yiddische kop in action (as evidenced by the correspondence address given, which is for the form [email protected]). I wish the applicant luck in getting the mark registered. But social network denizens, please don’t get ahead of yourselves. It’s just a trademark application, and at the end of the day, even if registered it ain’t gonna do much in the battle against evil.

More Fun With the Israel PTO Patent Electronic Filing System

I could write about the USPTO colossal electronic system screw-up this week…but that will wait for a later blog post. Today we’re going to discuss the ILPTO EFS, particularly its new interface for filing new applications.

As mentioned in a previous post, in September the Israel PTO announced, with much fanfare, that it was changing its interface for filing new patent applications, but that, as far as I could tell, the only significant difference from the old interface was that now it will populate the information for PCT national phase applications with data taken directly from WIPO.

After playing with the system more since then, I’ve found that my initial assessment was correct. And there are some clunky parts to the new interface: you have to log in, then indicate you want to file a new application, but then you’re directed to a page telling you to login again.  Clicking on the appropriate button takes you to the next screen, but if you’re already logged in, why should you have to click the button again?

And once you get to that next screen, it’s not immediately clear where you need to click in order to file a new application. (Turns out it’s בקשה לפטנט in the top middle of the screen.)

I also found what seemed at first to be a bug: you can’t enter national phase before the PCT application has published, because the system doesn’t have data to draw from. It gives an error message: “unable to obtain data from WIPO”. Well, duh. What’s not immediately apparent – but was explained to me subsequently by a colleague – is that there’s a button saying “continue”, which allows you to manually enter the data. That button should say “click here to manually input the data”.

And as I noted in the previous post, the fact that you don’t get an acknowledgement of what was filed is unacceptable. You can see the names of the files that you ostensibly submitted, but there’s no way to verify that what is actually in the ILPTO’s system is what you submitted. Sorry, ILPTO, that doesn’t cut it.

There is one improvement on the way that they announced this week: they’re going to start pulling the application documents from WIPO, instead of requiring applicants to submit the specification, claims, drawings and sequence listings themselves. (Applicants will still have the option of filing their own documents.)  This will save filers some time, but I’m not sure this complies with the ILPTO’s own rules about filing: the ILPTO ostensibly requires filers to submit searchable pdfs, but the pdf files obtained from WIPO are not searchable. (Actually, when they introduced the EFS in late 2015, the fact that they were asking for searchable pdfs but WIPO only provides non-searchable pdfs was a complaint that was raised, and I think this is a “requirement” that’s generally honored in the breach.) On the other hand, this may be the first time a government office anywhere in world voluntarily made things more difficult for itself in an effort to make things easier for the public to which it provides service.

"We Arise Early and They Arise Early" - A Patent Comparison of Sheba Medical Center and Shifa Hospital

When Jews finish studying a tractate of Talmud, there's a prayer that is traditionally recited, which includes the following declaration:

"For we arise early, and they arise early; we arise for words of Torah, and they arise for words of emptiness. We work, and they work; we work and receive a reward, and they work and do not receive a reward. We run, and they run; we run towards eternal life, and they run to a pit of desolation."

I thought of this as reports have come out over the past day of the IDF entering Shifa hospital in Gaza. This is the biggest (ostensible) hospital in Gaza and the one that Hamas has used as a command center.

One of the biggest hospital complexes in Israel is the Chaim Sheba Medical Center, also known as Tel Hashomer, and they don't only treat but also do a lot of research. Hence a search in WIPO's Patentscope reveals dozens of published PCTs on which Sheba is listed as the applicant.

A comparable search for "Shifa" yields none for the hospital in Gaza.

"But," you might be quick to respond, "'Palestine' isn't a country and therefore can't be part of the PCT!". True. But if you change the country where the patent application was filed, you get the same thing: none for Shifa at the EPO or in the US, dozens for Sheba.

The same is true of the other big medical centers in Israel, such as Ichilov (Sourasky) or Hadassah. I just focused on Sheba because it sounds similar to "Shifa".

18 years since Israel forcibly evicted its citizens from Gaza and gave control to the Arabs, tons of Euromoney to help build infrastructure, and what do they have to show for it? Tunnels and weapons and a lot of dead people.

שֶׁאָנוּ מַשְׁכִּימִים וְהֵם מַשְׁכִּימִים. אָנוּ מַשְׁכִּימִים לְדִבְרֵי תּוֹרָה וְהֵם מַשְׁכִּימִים לִדְבָרִים בְּטֵלִים. אָנוּ עֲמֵלִים וְהֵם עֲמֵלִים. אָנו עֲמֵלִים וּמְקַבְּלִים שָׂכָר וְהֵם עֲמֵלִים וְאֵינָם מְקַבְּלִים שָׂכָר. אָנוּ רָצִים וְהֵם רָצִים. אָנוּ רָצִים לְחַיֵּי הָעוֹלָם הַבָּא, וְהֵם רָצִים לִבְאֵר שַׁחַת.

Is Kamala Harris Working on the USPTO's IT Systems?

As of right now, the USPTO is set to kill EFS and PAIR at 23:59 on November 14 so that we'll be left with only the defective "Patent Center" to file and check our patent documents at the USPTO. Of course, that was supposed to happen last week, but the USPTO blinked at the last minute. Maybe it will do so again. It certainly hasn't consulted with users to make sure that PC does what it's supposed to do.  And it keeps doing more and more asinine things on its way to forcing PC down users' throats. 

For example, starting about two weeks ago, PC started gagging on files being submitted, saying that there's a problem with the naming of the file. Did it tell anyone the exact problem? No, of course, not, because we all have time to guess. Turns out - after much guessing - that whereas hitherto the USPTO systems accepted pdf files in a case-insensitive manner, viz. you could file a pdf document named filename.PDF or filename.pdf, some brilliant IT developer made it so that you can only file with the .pdf part of the name in lowercase letters.

What kind of a cockamamie system does that?!

And to justify this change, the PTO pointed to a hitherto never-enforced "rule", that says that filetype extension have to be in lowercase. Seriously? Are you really such a-holes? The statute said that continuations have to be filed before the parent case issues, but the PTO's practice for years was to allow continuations to be filed on the day the parent case issues, and when the matter came before the Federal Circuit several years ago, it said, "Yeah, we know what the statute says, but we're not going to upset long-held practice." Filing with documents labeled .PDF, in all caps, never bothered you before. Why'd you go out of your way to be jerks? Or was this a screw-up, because you didn't ask people what they do, and now you have to cover your rear ends by pointing to never-enforced, illogical provision of some rule?

This isn't trivial: apparently there's law office management software used by lots of firms that generates documents as filename.PDF.

Maybe part of the issue is something noticed by Pam Brisky, an IP paralegal working at a large company.  She found the following announcement from April 2022 (red added by me):

"Steampunk Awarded $2B BOSS Prime Contract at USPTO

"MCLEAN, Va., April 21, 2022 /PRNewswire/ -- Steampunk, Inc. is excited to announce that it has been awarded a United States Patent and Trademark Office (USPTO) Business Oriented Software Solutions (BOSS) contract. The objective of the BOSS contract is to procure services and expertise, primarily in the form of Agile Teams, that drive effectiveness and deliver on a key USPTO metric of "delivering business value to our customers, frequently, predictably, and with high quality". The BOSS contract will support the USPTO's priority to implement its Agile New Ways of Working (NWOW) to enable an IT stabilization and modernization journey with customer business value at the heart of its decisions and actions.  Steampunk is one of five total awardees, and one of three small business awardees, of the Indefinite Delivery, Indefinite Quantity (IDIQ) contract with a 10-year Period of Performance (POP) and $2 Billion cumulative ceiling.

"Matt Warren, Steampunk CEO said, "Steampunk is humbled and honored for the opportunity to bring new thinking and innovation to the USPTO BOSS program through our Design Intelligence^® Framework to drive business value and reduce operational risk to the organization.  We look forward to working with the USPTO teams to advance their capabilities and provide efficiencies within the USPTO product lines that support and protect innovators who play an enormous role in the US economy." 

"Steampunk began supporting the USPTO last year as an Intelligent Automation and Innovation Support Services (IAISS) Blanket Purchase Agreement (BPA) awardee. Jay Danielski, the Steampunk Director of Operations for contracts with USPTO said, "We are incredibly excited to continue to support the USPTO IT Modernization journey, building on the DevSecOps and Agile support we currently provide to USPTO. The BOSS award and task order opportunities provide us yet another opportunity to continue to enact positive change and business value." 

"Steampunk is a Change Agent in the Federal contracting industry, bringing new thinking to clients in the Homeland, Federal Civilian, Health, and DoD sectors. Through our Human-Centered delivery framework, we are fundamentally changing the expectations our federal clients have for true shared accountability in solving their toughest mission challenges. As an employee-owned company, we focus on investing in our employees to enable them to do the greatest work of their careers – and rewarding them for outstanding contributions to our growth. If you want to learn more about our story, visit http://www.steampunk.com."

Sounds like Kamala Harris speaking. If anyone understands what those highlighted strings of words mean, please let me know. Must be nice to get $200 million per year for having an "Indefinite Delivery" contract of "Indefinite Quality". It certainly doesn't seem to require producing anything useful.

Hey, Kathi Vidal: how about if your office just does what it's supposed to do, which is to examine patent applications?

 

USPTO: Most Definitely Public Sector. Which Really, Really Sucks.

Early in the current war, a group of hi tech workers in Israel got together and wrote code to help them identify missing people, employing AI to assist. They did it in just a few days, and the state used the results to help figure out who might have been kidnapped.

Similarly, my wife has been involved in obtaining donations and then using the funds to buy equipment for soldiers. To help her save time tracking which donations have been received, in what amounts, from whom, for which unit, where the money was spent, and to keep track of receipts of both income and expenditures, a woman from our synagogue wrote some code. Did a Zoom meeting with my wife to understand the needs, and then wrote the code. Took her less than a day. Took her an hour to do a tweak when my wife realized there was something else she needed. My wife is most appreciative (as am I).

Then there’s the USPTO, which appears set to screw up things as much as possible for everyone, and which has no shame whatsoever about it.

The USPTO currently has multiple systems on the patent side, primarily EFS for submitting documents and PAIR for looking at documents. It’s not an ideal arrangement, but it works, even though the USPTO has been steadily downgrading both systems over the past several years.[1] 

Clearly, what would be better is an integrated system that combines filing and document-inspection functions. WIPO has such a system – ePCT – and it’s wonderful. You file things, you can see them immediately, there’s good tech support during working hours, and most importantly, WIPO asks users how to improve the system.

Rather than adopt ePCT, the USPTO has been working on “Patent Center” for many years now – alpha testing began in 2017. So convinced was the USPTO that Patent Center is the greatest thing since sliced bread that they announced in September that November 7, 2023 would be the last day of operation of PAIR and EFS. 

But Patent Center still isn’t ready for prime time. Over the past several years, the members of the “PatentCenter listserv” maintained by Carl Oppedahl have compiled a long list of both bugs and desired features in Patent Center. Some of those bugs have been there for four years. Does the USPTO listen? No. Does it address the bugs, or add the features? Sometimes, but it doesn’t tell anyone when it does. And sometimes it breaks things further, like this week when they decided you can’t file pdf files that end in .PDF, in uppercase letters. No, now in Patent Center you have to file with a lowercase ending - .pdf.  Even though both EFS and Patent Center have hitherto accepted .PDF endings. Did they announce they’d be doing this? Of course not. Users had to waste time figuring out the problem. You can’t make this up.

This is what happens when the US federal government tries to develop software. It has to issue a bid for proposals, because supposedly this increases competition and lowers costs. But it has the opposite effect: rather than lowering the cost and improving the quality of the work, there are apparently only a few vendors who qualify to bid, so in the end they not only charge a ton, they stink at what they do. And God forbid  

On top of it, the USPTO is, to put it charitably, less than forthright with the public. They don’t acknowledge problems, they don’t fix most things, and when they do fix things they don’t say they’ve been fixed. And as noted above, recently they’ve been breaking things without telling anyone. 

Last month several representatives of the listserv community met with some PTO people. One of those representatives flew into DC from Texas, another from Colorado. Several days before they had sent the PTO a slide deck of issues to be discussed. So while these folks are in transit, just a few hours before the meeting, the USPTO sends out its own slide deck, having nothing to do with the problems with Patent Center, and then uses those slides at the meeting, essentially lecturing the non-PTO people about the greatness of Patent Center.  A similar thing transpired on Monday of this week, when representatives of the National Association of Patent Practitioners met with people from the PTO: no acknowledgment that Patent Center is FUBAR. Criminy, USPTO, even your own Electronic Business Center people have been telling people that when things don’t work in PC, they should use EFS instead – the same EFS that’s about to get shut down.

This condescending attitude from the incompetent USPTO pervades its approach to IT. We complained about docx filing and said that the PTO should take pdf files as the controlling document, and allow users to file .docx as an adjunct; instead, Director Kathi Vidal says they’ll deign to let us a pdf with our docx files, but this favor that she’s doing us is only temporary.

Amazingly, today on the USPTO’s patent center page, under “known issues and workarounds”, it lists several items that it knows are defective but that it only plans to fix in December or January – AFTER it has killed EFS.

Anyway, last night the PTO blinked, and pushed off the destruction of EFS and PAIR until next week. Apparently they’re now working furiously to fix things in PC. Where were you for the last five years, you jerks?

I don’t know why the USPTO is being so asinine about this. My guess is that the people involved will get bonuses if the program launches by a certain date, regardless of whether it works or not. But I’m super disgusted by the double-standard here: if we practitioners or our clients make false statement to the PTO, we can be fined and even disbarred. But when the PTO people lie to us, as they’ve done repeatedly and consistently for year? No problem.

 

[1] For example, there used be both public PAIR and private PAIR: the former could be used by anyone to look at the documents in any patent applications that had been published, the latter could be used by people with authorization to look at as-yet-unpublished files.  Until about six or seven years ago, private PAIR provided the functionality of public PAIR as well. But then the USPTO decided to completely bifurcate them, so that if you were logged into private PAIR and wanted to look at file wasn’t yours, you had to log out (or open a different browser) and then enter public PAIR. Really, really, stupid.  And then about two years ago they shut down public PAIR, to force users to use Patent Center.

Anyone Remember Polaroid?

Those of us over a certain age remember cameras that used film: you loaded film in the camera, you clicked open the shutter, for a fraction of a second the film was exposed to the image, and then you had to develop the film (or, in the case of most of us, have someone develop it for us) and make prints.  Some of us will also remember Polaroid cameras, which were a big deal because the film was self-developing – you just had to wait a few minutes to see the photograph, and in later versions the film developed in seconds.

In the 1980’s Kodak introduced its own version of instant photography, and eventually lost what was until then the largest patent infringement verdict in US history, something like a 600 million dollar judgment.  Then in the early 2000’s came digital photography, and that killed most of the market for traditional film and decimated the market for Polaroid.

But, like many technologies that lose popularity, instant film photography never completely disappeared, and apparently it has now made comeback, in much the same way that vinyl records have seen a resurgence in recent years. How do I know this? Because when my daughter had a few hours off from her base recently, we picked up some film for a Fuji instant film camera. Cellphones are not allowed the command center where she works, but with the instant film camera she and her buddies take a daily photograph each time they complete a 12-hour shift, white-out any potentially confidential information from the background, then later, away from the command center, take a photo of the redacted instant photo and share that with their friends.

Update from Rehovot, started October 27, finished October 29 2023

Here in Rehovot we went 5 days without any sirens (though we continued to hear many interceptions), then on Wednesday we had one, Thursday we had two, and one Friday and one this evening (update: none on Sunday). The fact that the routine when we hear a siren – and fortunately for us, we’ve been indoors for all of them – is to walk down to the bomb shelter in the basement of our building and wait for the boom of the Iron Dome interception is still surreal.  (Correction: Saturday night our oldest daughter and her family were not quite home when the siren went off; they ran - she pushing the stroller and her husband holding their toddler – into the stairwell of their building). Thursday we heard less plane activity, but in general we’ve heard planes multiple times per day, and Friday night most of Saturday we heard sorties every 15-20 minutes. From the photos released by the IDF, it’s good to know they’re hitting their targets. (And if anyone reading this works for NPR or NYT or BBC or the like: IDF knows how to hit a hospital, and if it wants to hit it, the hospital will be rubble like every other target that the IDF hits.)

Schools have partly resumed. Our grandson was in daycare on Thursday during the first siren – it was nap time, so that must have been interesting for the staff getting these toddlers into the reinforced room. The first week of the war, our youngest son’s school went to Zoom right away (private school; the public schools took a week longer), went to partial in-person last week and this past week was in his dorm the whole week. They even held a shabbat at the yeshiva yesterday.

Thanks to Hamas and their buddies Hizballah, over 100,000 Israelis (possibly up to 200,000) have been relocated to hotel rooms that otherwise are largely empty due to the lack of tourist as a result of the war. The state (read: yours truly and every other taxpayer in Israel) is footing the bill. And there are 300,000 reservists who were called up. So while those of us who have not had to move have tried to maintain some sort of routine, there is of course no real routine. My wife, who is normally married to her lab (almost, I think in a pinch I’ll still win out), has not been to the lab in over two weeks. Instead she’s been involved in helping to acquire equipment for our son’s reserve recon unit. She’s not looking to switch jobs, but if she has to polish her cv, she can now add “arms dealer” to the list under “experience”. She says she’s planning to go back to her workplace on Sunday (update Sunday night: she did) but will likely spend more time on coordinating donations and expenditures for military procurements than on lab work (update on Sunday night: she did that too). (Others deal with the logistics of actually purchasing, picking up, and delivering the equipment.)

Apart from recon unit son, our two on-duty daughters, aged 23 and 20, are working 12-hour shifts in command centers. They work their shift, they get off the shift, they eat, they sleep, they get up and start over. And our on-duty son-in-law can’t tell us where he is, but inasmuch as he’s in an artillery unit, he have already been into and out of Gaza once or twice. Both he and our daughter were to have started/resumed university studies last week; clearly that’s being pushed off, though until when is still unknown.

Our oldest daughter was not called up for reserve duty, principally because she was in airborne intelligence, and the technology and software has changed enough to make her outdated. What I didn’t mention was that before she was drafted, she spent a year in a seminary studying Talmud and other things. The place where she studied also had a program for American girls, and when asked about them she would mock their priorities – “I broke a nail! Disaster!”. During that year, after reading part of my college alumni magazine, she said, “This looks like a great place, can I study there?”.  I pointed out that, apart from the cost being way out of proportion with what she’d gain, by the time she started she’d be at least 22, more likely 23 if she became an officer, and those 18-year-old Americans, who would be her classmates, would still have the same maturity level. She got the picture, was drafted, met her husband in officer training, got engaged in the same week the she boith finished her service and was accepted to Hebrew University, from which she graduated with a degree in computer science (she had a baby in a buggy at graduation, and was not the only student for whom that was true), and now works for a little company called Microsoft.

I mention this because I contrast the experience of kids here versus the experience of kids in the USA. Our 18-to-22 year-olds are out right now defending the country. In the USA, as I write on Saturday night in Israel, many of them are getting drunk while cheering football teams. And they think like drunks, insisting on inanities like “sex is assigned at birth” rather than recognizing that there are just two sexes and you can’t change them, or accusing Israel of genocide (sure, I mean there were only a few hundred thousand Arab “Palestinians” in 1948 and there are millions today, that’s definitely genocide), and blaming Israel for the fact that children die when Hamas shoots from behind those children. (Do they know that Hamas doesn’t give a shit about their pronouns?) They don’t even appreciate what a luxury it is to grow up in a country that hasn’t faced an existential threat from outside in over 200 years; instead they think that a country like that is something to be loathed instead of treasured and defended. If I could give them advice, to quote Dean Wormer from Animal House, “Fat, drunk and stupid is no way to go through life”.

I also don’t get Jewish parents in the USA who continue to pay huge sums to send their children to US universities. You don’t need a degree from Harvard or Columbia to get a good job (see above re: our daughter, same is true of her husband and our older son), STEM subjects are the same everywhere, and Israeli universities are both cheaper than their US counterparts and devoid of the anti-Jewish bullshit that appears to now be rampant on US campuses.

"We Welcome Death"

This is an interview with Talal Abu Ghazaleh, who heads a large IP firm with offices in many Arab countries. 

He begins by explaining that Arabs "welcome death", and that they have children in order that they should die as "martyrs". It goes downhill from there.

What he clearly doesn't get is that it's not that Jews fear death. It's that we love life. To the point that we've sacrificed many of our own in an attempt to avoid unnecessarily killing some of these death-lovers.

Although I've met people from this firm at conferences, I've never used it for any work, and after seeing this will be sure not to do so in the future. I urge readers of this blog to do the same.

Another Update From Rehovot

I write this as an update (since my last update) for colleagues and others. A lot has happened since them.

Things here in Rehovot specifically have been relatively quiet over the past week and a half – a few sirens, and there was a missile that landed in Rehovot last Friday afternoon (October 13), but again, for the most part the Iron Dome system has done its job – so well, in fact, that we often hear booms overhead without first hearing sirens because the interception happens over Rehovot but the missile was aimed north of here (Nes Tziona, Rishon Letzion, Tel Aviv) and so only those people in the vicinity of its calculated landing trajectory are warned to take cover.

There have been other areas that Hamas has targeted with rocket attacks, and the area close to Gaza remains dangerous for travel, but in general, after the initial attacks on October 7, things in Israel have been relatively quiet. (There was, of course, also the Big Lie, viz. an Islamic Jihad rocket that landed in the parking lot of a hospital in Gaza, which Hamas wasted no time in saying was (a) fired by Israel and (b) killed 500 people, a canard that those wonderful bastions of truth like the NYT picked up unhesitatingly.)

The big effort has been in mobilization – not just calling up hundreds of thousands of reserve soldiers, but the intense effort by the people here who were not called up to help acquire missing equipment for soldiers, and to provide basic necessities to the people who survived the attacks whose homes and communities were quite literally destroyed. To give one illustration:

What was the Whatapp group from my son’s unit when he was inducted in 2015 has been revived and expanded to include wives, girlfriends and siblings. When he was in training, there was one day that we were told at around 3 PM that there would be a dinner with our sons at a particular location at 7 PM. On those four hours’ notice – including travel time - there were parents who showed up with grills and meat and rolls for the unit; one family even brought what looked like a 50-gallon pot of soup. But that’s nothing compared to the effort to make sure our sons, now reservists, have everything they need. My wife has been coordinating the collection and disbursement of funds to buy equipment and other things; other parents and siblings have been dealing with the logistics of getting things to the unit, which has since relocated from Kibbutz Beeri along the Gaza border to the north and has been engaging in training exercises.

(The fact that the citizenry needs to step in to help equip the army is in some ways embarrassing, but in many ways, Israel is a country that has survived despite itself.)

There are also amazing stories of what people here have done for each other. And among the pain of losing all those people, there are heartwarming stories: I’ve seen at least a half dozen videos of weddings of couples for whom the guy getting called up was the catalyst to tie the knot, with the ceremony and celebration being held on a base or in the field. There was the fellow who answered the call-up on October 7, and a few days later watched his son’s brit milah via Zoom.

Then, of course, there were the visits from the Americans: first an aircraft carrier group, which is parked nearby; then the Secretary of State, then the Secretary of Defense, and then POTUS himself. I know that there are people in both the USA and Israel who were touched by some of the things Biden said, but I myself am circumspect, because talk is cheap, and his actions as well as his words, taken as a whole, have been inconsistent and even self-contradictory. Time will tell if the Americans are actually helping Israel or hindering it. Seeing as how Israel has had four major operations against Hamas over the years – Cast Lead in 2008-2009, Pillar of Fire in in 2012, Tzuk Eitan in 2014 and Guardian of the Walls in 2021 – the present war will not be a success unless at the end of it every last Hamas member and supporter is gone. My hope is that the US will allow Israel to do that, and will also help blow up Hizballah along the border with Lebanon. But again, it’s hard to read the tea leaves here.

One thing that’s not hard to read: telling Israel to restrain itself (said in Biden’s speech last night) – how condescending, and stupid, can you get? Israel has been restraining itself. The death toll is now up to over 1600, and I think fewer than half the bodies have been identified (and quite a few people are still unaccounted for.) We’ve been burying our kids, our parents, our siblings and our relatives for the past two weeks, and it’s not done yet. If two weeks ago Mexico did to the US what Hamas did to the Gaza border communities, Mexico would now be one huge tortilla. Instead, Israel has been, yet again, engaging in pinpoint strikes against selected targets, with the only difference from past campaigns being that Israel no longer warns the occupants of buildings that house Hamas operatives or arms that the building is about to get blown up. If we send in infantry – which is what “restraint” will entail – we’re going to have many more casualties. Why should we have to suffer that?

I don’t think people in the USA have an appreciation for how close this war is to home, in both the literal and figurative sense. Without traffic, I can normally drive from Rehovot to the Gaza border in about an hour, and a lot of that is on non-divided, two-way roads. To get to the border with Lebanon without traffic is maybe a three to three-and-a-half hour drive, again with part of the way being two-way roads.  It’s not a big country, the enemy is right here. Unlike the USA, which hasn’t faced an existential threat in over 200 years, we’re not sending our kids to another continent to fight. We’re fighting, in many cases quite literally from our homes, for our homes and our families.

And it also means that our soldiers are in many cases nearby. Our youngest daughter is serving on a base that’s only about 20 minutes from where we live, so tomorrow night she’ll have a brief break in which we’ll get to see her for the first time in two weeks. Our son-in-law, who won’t tell us his location, got a few hours off yesterday, but instead of driving home, he drove to our daughter’s – his wife’s – base to see her for the first time in nearly two weeks.

It's this proximity, coupled with Hamas’ barbarity and depravity, that gives Israel its drive right now, and it’s something I don’t think Biden gets. Because what I said above about eradicating Hamas is the overwhelming sentiment here. We cannot afford to compromise, as we’ve done repeatedly for the past 16 years. Settling for less than total victory is what led to the massacres of two weeks ago. I don’t think the USA has had this kind of drive – understanding that it’s facing down evil – since WWII, when Biden was in diapers.

Like School in the Summertime

I first heard that line in a Fat Albert episode, from the mouth of Russell: "Rudy, you like school in the summertime. No class!"

I thought of it when earlier today I received the email below from a firm in China with which I have never done any business.

Dear Daniel,

I hope this message finds you and your loved ones safe and well. We have been closely following the situation in Israel and wanted to reach out to express our deep concern and support during these challenging times.

We understand that the current circumstances in Israel can have a significant impact on both personal life and work. If you or your team encounter any difficulties or require any assistance, whether it's related to work or any other matters, please do not hesitate to reach out to us. We are here to offer our help and support in any way we can.

Your health and safety are paramount, and we hope that you and your loved ones keep safe and sound during this challenging period. Please take care, and know that we are here for you.

Best regards,

XXX YYYY

Managing Partner, Patent Attorney

Don't misunderstand: I appreciate the emails of concern and support that I have received from friends and colleagues. Even heard from someone who I haven't seen or been in touch with since high school. But getting this, now, from someone I don't recall meeting and with whom I don't have a relationship?

Will post an update about Israel in the next day or two.

How Is The Patent Grant Date Calculated In Israel (i.e. When is the First Maintenance Fee Due)?

In Israel, after the ILPTO allows an application, the applicant pays a fee, and then notice that the application is allowed - the so-called "acceptance of the application" - is published in the Patents Journal.  This now normally occurs on the 1st of the month on the Gregorian calendar, although if the 1st falls on a day when the ILPTO is closed, then the publication occurs on the next day on which the office is open.  Opponents then have three months - non-extendible - to file a notice of opposition.  But by statute, if THAT deadline falls on a day when the ILPTO is closed, that deadline gets pushed off.  Once the opposition deadline passes without an opposition being filed, the patent automatically grants, although the ILPTO sometimes takes a few days to issue the patent certificate. 

The grant date is important, because maintenance (renewal) fees the deadlines for which occurred during the pendency of the application must be paid within three months of grant - minimally, the fee for years 0-6 of the patent, and sometimes for years 7-10 or even for later years.

This year, patent applications for which the "acceptance of the application" was published on July 1 ostensibly became patents on October 2, assuming no opposition was filed by the end of the October 1 deadline. But the ILPTO was closed on October 1 as part of the intermediate days of the Succot festival, and stayed closed until October 8.  So the deadline to file oppositions should have been yesterday, October 8, with unopposed application issuing at patents on October 9, and the maintenance fee deadline

Imagine my surprise, then, when this morning I received patent certificates for several patents that listed the issue date as October 2, 2023 - a date on which the Office was closed.

I don't imagine this shortchanging of my clients a week to pay their maintenance fees will be an issue, as we usually report patent grants immediately, and 12 weeks to pay should be sufficient. But it would be nice if the ILPTO got its dates right.

Follow up: I emailed the head examiner at the ILPTO, Simona Aharonovitch, about this problem.  Turns out that I alerted them to it last year, and they mostly fixed it, but there's still a glitch: the patent certificates got prepared automatically on October 2, but they weren't mailed until October 9. In fact, potential opponents had the ability to file oppositions through October 8.

What blows my mind is that according to Ms. Aharonovitch, I'm the only one who has ever called this mistake to the PTO's attention.  Evidently the big offices are asleep at the wheel.

Update from Rehovot

I just sent this by email to a few colleagues.

This is a brief note to colleagues who have written (and to some who haven’t). Thank you for your concern. Here in Rehovot things have been largely uneventful: many sirens Saturday morning starting at around 6:30, a few Saturday night, and one last night at around 23:30, but (a) we have between 45 and 60 seconds to get to safety, which in our building is time enough) and (b) Iron Dome did what it was designed to do. Although on Saturday night while on an unsuccessful mission to get diapers for the grandkids, I passed a burned out car on the street we lived on from 1993 to 2000, about 3/4 of a mile from where we live now, so apparently something fell.

So confident was I (and our youngest son) in the unlikelihood of something actually falling on Saturday morning that during a lull we went to the synagogue. As this shabbat coincided with the festival of Shmini Atzeret, on which it has become traditional to complete the annual cycle of the reading of the Torah, normally there would have been a lot of singing and dancing, but obviously things were subdued because of the missiles (which continued every few minutes until around 9 AM), and attendance was sparse. When I returned home I found that one daughter had been called up for reserve duty. This wasn’t wholly surprising, as her job until 14 months ago had been to help coordinate activities in northern Gaza, and she had done reserve duty a few times, and so while we normally we leave our phones off on Shabbat, as soon as the sirens sounded she turned her phone on knowing she might get a call. Her husband was not going to leave her, so, again doing something we would normally not do on shabbat, he drove her south. He himself would be called up for reserve duty later in the day.  (Her keychain is sitting in our living room, and their clothes are still in the guest room.)

It was only later that we learned that there had been a massive incursion along the border, and that the missiles were just a cover for that.

Since our daughter was called up, my wife turned on her phone – again doing something she would never otherwise do – in case that daughter called us. By-the-by, the phone received several calls from the same unknown number, and eventually I told my wife to answer it – pikuach nefesh dokheh shabbat, saving a life takes precedence over Shabbat, and clearly someone was trying to get through to this number. It was the commander of another daughter who is currently in compulsory service but who was off for the weekend. My wife explained that the reason he was unable to reach her was because she was away with her phone off. (Her job in any event is less critical for what’s currently happening.)

Before lunch I went to visit our oldest daughter and her family, who live nearby. She moved into this place in July, in part because, unlike her old place, it has a mama”d, a reinforced room (required in all new buildings in Israel since the Gulf War in 1991) to protect against missile strikes, so she made that her kids’ room. It’s preferable to having to run downstairs to a bomb shelter, as is the case our 1989 building, or outside to the bomb shelter, as was the case in the building in which she used to live.

Our older son, who has been out of compulsory service for over five years but served in an elite recon unit and likewise does reserve duty, was also called up on Saturday.  He’s the one we’re most concerned about, as his unit is doing sweeps of the one of the border enclaves that was overrun by terrorists, making sure there are no stragglers. Thus in addition to being exposed to gunfire, he’s also exposed to rockets, which take only a few seconds to get from Gaza to where he is.

At this point, a good part of the reserve units have been called up. My wife’s nephew got called up yesterday, as did many of our friends’ kids. Schools were closed yesterday and today (our youngest was supposed to be on a two-day field trip today and tomorrow but now is doing Zoom classes), cultural events have obviously been cancelled, there’s very little traffic on our street. On Saturday there was some concern that terrorists might have tried to infiltrate Tel Aviv, so there were roadblocks set up all over, but I don’t know what the current situation is as far as that goes. Yesterday morning I was able to get the sought-after diapers as shopping centers in Rehovot were open, but it’s obvious things are not running as they normally would.

In our line of work, the Patent Office sent out a notice yesterday that it would be closed to the public until further notice but would do what it could to extend deadlines or revive abandonments that result from applicants and patent and trademark practitioners being unable to meet deadlines due to the war.

(As I’m writing this, my wife has just told me that our son is in a battle right now – she knows this b/c one of the parents from his unit revived the parents’ Whatsapp group – and that they killed the terrorists. One our boys was shot in the hand, but nothing worse. Baruch Hashem and Hodu lashem ki tov, but of course if someone was killed they wouldn’t be allowed to tell us anyway – the army has a unit to notify family of deaths.)

My wife is a researcher at the Weizmann Institute. One of her students lives in one of the Gaza border communities. No one in the lab was able to reach her throughout Saturday or Sunday morning. Yesterday afternoon, she called the lab when someone happened to be there. She spent the previous day in the mama”d in her family’s home with her sister and sister’s newborn, without food. Her father stayed outside and single-handedly fought off terrorists. Many of her neighbors were taken captive.

I have read the names of the dead, at least those names that have been released, and I’ve cried – so many young kids who hadn’t even started life, or young fathers with young kids. I have not known any of them personally, but there’s at least one killed, Staff Seargent Naveh Lax, for which there’s only one degree of separation – his grandparents are members of our synagogue. The names of those murdered for sport by the Moslems are not being released so much by the official news channels as through social media.

I have not watched the clips of the terrorists with captives – I can’t bring myself to do so, because I know who these guys are, I have known for years, so watching the videos would be watching barbarism for the heck of it. I am confident that we will prevail, because, for the umpteenth time, Jews love life (what do we say when we make a toast? L’khaim, to life) and Hamas loves death (who makes a video of himself torturing or killing someone?!).  There have been efforts all over the country to donate things to soldiers to help the war effort.

I hope that THIS time, Israel’s political and military leaders understand that the war with Hamas won’t end until Israel does to Gaza what the US did to Dresden or Hiroshima. Complete and total victory, even if it means killing every last living thing in Gaza – עד בלתי השאיר לו שריד (Num 21:35, Deut. 3:3).  There is no compromise with evil.