PTO Tradeoff DA - Michigan 2024 BEJK

Notes
Would like to give a big thanks to my research group, who navigated a lot of complicated literature and who were very patient as our research ebbed and flowed as we learned more about the topic through our reading. This file contains a lot of different rabbit holes that we went down, some of which we ultimately abandoned. I’ll try and cover it all in the notes but appreciate the patience and hard work of Wallace Arney, Sajad Beg, Oliver Johnston, Matt Peng, Brayden Presley, Jerry Song, Fox Travis, and Ammara Vadiwala who worked on this and the PTO tradeoff DA that we stumbled upon.
This disadvantage is pretty straightforward. It says that the aff increase in patents and/or trademarks will overstretch the PTO, which trades off with other, specific PTO projects. The DA is probably best used as a net benefit to a CP that solves large portions of the affirmative but would avoid PTO enforcement. The main issue with the disadvantage is that it obviates large portions of neg offense. You cannot really read this argument with innovation bad or patents bad, since it broadly runs in the opposite direction.
A future direction for research that would avoid that issue is if you found cards about tradeoffs between patent/trademark cases that would allow you to say both PTO tradeoff (increased patent applications trade off with trademarks) along with patents bad offense. But we did not find any of those articles in our initial sweep.
Neg
1NC---OFF
PTO tradeoff DA
Current efforts by the USPTO in the CCMPP (Climate Change Mitigation Pilot Program) solves warming through innovation---but it’s on the chopping block---resourse trade-offs will terminate it.
Katherine Vidal 23, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, 6/1/2023, “Expansion and Extension of the Climate Change Mitigation Pilot Program,” https://www.regulations.gov/document/PTO-P-2023-0023-0001
Summary
On June 3, 2022, the United States Patent and Trademark Office (USPTO) implemented the Climate Change Mitigation Pilot Program as a component of its ongoing efforts to encourage and incentivize innovation in the climate space and as an example of its commitment to policies tackling climate change. The initial phase of the program—ending June 5, 2023—has sought to positively impact the climate by accelerating the examination of patent applications for products and processes designed to reduce greenhouse gas emissions. Through this notice, the USPTO is expanding the program to include innovations in any economic sector that are designed to make progress toward achieving net-zero greenhouse gas emissions. This includes innovations designed to remove greenhouse gases already present in the atmosphere; reduce and/or prevent additional greenhouse gas emissions; and/or monitor, track, and/or verify greenhouse gas emission reductions. The USPTO is also increasing the filing limitations for petitions under the program and extending the duration of the program. These changes will permit more applications to qualify for the program, thereby allowing more innovations that will aid in achieving national climate goals to be advanced out of turn for examination. As with the existing program, applications accepted into the expanded program will be advanced out of turn (accorded special status) for first action on the merits. The conditions, eligibility requirements, and guidelines of the expanded program will be the same as those established for the existing program, unless modified by this notice. By expanding and extending the program, the USPTO aims to emphasize the urgency of zero- and negative-emissions solutions, and further encourage investment in an equitable, clean energy future.
Dates
Pilot Duration: The Climate Change Mitigation Pilot Program, as expanded by this notice, will run from June 6, 2023, until either June 7, 2027, or the date the USPTO accepts a total of 4,000 grantable petitions (considering both the existing and expanded programs), whichever occurs first. The USPTO may, at its sole discretion, terminate the program depending on factors such as workload and resources needed to administer the program, feedback from the public, and the effectiveness of the program. If the program is terminated, the USPTO will notify the public. The USPTO will continue to indicate on its website the total number of petitions filed and the number of applications accepted into the program.
The plan forces a trade-off.
Michelle Lee 14, USPTO Deputy Director, 6/16/2014, “Speaking Truth to Patents: The Case for a Better Patent System,” https://www.uspto.gov/about-us/news-updates/speaking-truth-patents-case-better-patent-system, of
That may sound familiar to you, and that's because improving patent quality has always been at the core of the PTO's mission. But, for too long, due to uncertain budgetary conditions and limited resources, the PTO has had to make do with less. Despite our best intentions, we've had to accept trade-offs between quality and application backlog and pendency, forcing us to cut programs and shift resources to maximize output without sacrificing quality.
Causes extinction --- It’s non-linear and turns every impact --- Their models are bunk.
Spratt and Dunlop, 19 (David Spratt and Ian Dunlop, Spratt is a Research Director for Breakthrough National Centre for Climate Restoration. Dunlop is a member of the Club of Rome. Formerly an international oil, gas and coal industry executive, chairman of the Australian Coal Association, chief executive of the Australian Institute of Company Directors, and chair of the Australian Greenhouse Office Experts Group on Emissions Trading 1998-2000 05-2019, accessed 6-29-2023, Breakthrough — National Centre for Climate Restoration, " Existential climate-related security risk: A scenario approach", https://arnhemspeil.nl/nap/dok/2019-06-07-bt-paper-on-existential-climate-related-security-risk.pdf)//Babcii
Climate change intersects with pre-existing national security risks to function as a threat multiplier and accelerant to instability, contributing to escalating cycles of humanitarian and socio-political crises, conflict and forced migration.
Climate-change impacts on food and water systems, declining crop yields and rising food prices driven by drought, wildfire and harvest failures have already become catalysts for social breakdown and conflict across the Middle East, the Maghreb and the Sahel, contributing to the European migration crisis.
Understanding and foreseeing such events depends crucially on an appreciation of the real strengths and limitations of climate-science projections, and the application of risk-management frameworks which differ fundamentally from conventional practice.
SCIENTIFIC RETICENCE
Climate scientists may err on the side of “least drama”, whose causes may include adherence to the scientific norms of restraint, objectivity and skepticism, and may underpredict or down-play future climate changes. In 2007, security analysts warned that, in the two previous decades, scientific predictions in the climate-change arena had consistently under-estimated the severity of what actually transpired. 3
This problem persists, notably in the work of the Intergovernmental Panel on Climate Change (IPCC), whose Assessment Reports exhibit a one-sided reliance on general climate models, which incorporate important climate processes, but do not include all of the processes that can contribute to system feedbacks, compound extreme events, and abrupt and/or irreversible changes. 4
Other forms of knowledge are downplayed, including paleoclimatology, expert advice, and semi-empirical models. IPCC reports present detailed, quantified, complex modelling results, but then briefly note more severe, non- linear, system-change possibilities in a descriptive, non-quantified form. Because policymakers and the media are often drawn to headline numbers, this approach results in less attention being given to the most devastating, difficult-to-quantify outcomes.
In one example, the IPCC’s Fifth Assessment Report in 2014 projected a sea-level rise of 0.55-0.82 metre by 2100, but said “levels above the likely range cannot be reliably evaluated”. By way of comparison, the higher of two US Department of Defence scenarios is a two-metre rise by 2100, and the “extreme” scenario developed by a number of US government agencies is 2.5 metres by 2100. 5
Another example is the recent IPCC 1.5°C report, which projected that warming would continue at the current rate of 0.2°C per decade and reach the 1.5°C mark around 2040. However the 1.5°C boundary is likely to be passed in half that time, around 2030, and the 2°C boundary around 2045, due to accelerating anthropogenic emissions, decreased aerosol loading and changing ocean circulation conditions.6
EXISTENTIAL RISK
An existential risk to civilisation is one posing permanent large negative consequences to humanity which may never be undone, either annihilating intelligent life or permanently and drastically curtailing its potential.
With the commitments by nations to the 2015 Paris Agreement, the current path of warming is 3°C or more by 2100. But this figure does not include “long-term” carbon-cycle feedbacks, which are materially relevant now and in the near future due to the unprecedented rate at which human activity is perturbing the climate system. Taking these into account, the Paris path would lead to around 5°C of warming by 2100. 7
Scientists warn that warming of 4°C is incompatible with an organised global community, is devastating to the majority of ecosystems, and has a high probability of not being stable. The World Bank says it may be “beyond adaptation”. But an existential threat may also exist for many peoples and regions at a significantly lower level of warming. In 2017, 3°C of warming was categorised as “catastrophic” with a warning that, on a path of unchecked emissions, low-probability, high-impact warming could be catastrophic by 2050. 9
The Emeritus Director of the Potsdam Institute, Prof. Hans Joachim Schellnhuber, warns that “climate change is now reaching the end-game, where very soon humanity must choose between taking unprecedented action, or accepting that it has been left too late and bear the consequences.” He says that if we continue down the present path “there is a very big risk that we will just end our civilisation. The human species will survive somehow but we will destroy almost everything we have built up over the last two thousand years.” 11
Unfortunately, conventional risk and probability analysis becomes useless in these circumstances because it excludes the full implications of outlier events and possibilities lurking at the fringes.12
Prudent risk-management means a tough, objective look at the real risks to which we are exposed, especially at those “fat-tail” events, which may have consequences that are damaging beyond quantification, and threaten the survival of human civilisation.
Global warming projections display a “fat-tailed” distribution with a greater likelihood of warming that is well in excess of the average amount of warming predicted by climate models, and are of a higher probability than would be expected under typical statistical assumptions. More importantly, the risk lies disproportionately in the “fat-tail” outcomes, as illustrated in Figure 1.
Figure 1. Schema of climate-related risk. (a) Event likelihood and (b) Impacts produce (c) Risk. Lower likelihood events at the high end of the probability distribution have the highest risk (Credit: RT Sutton/E Hawkins).
This is a particular concern with potential climate tipping-points — passing critical thresholds which result in step changes in the climate system that will be irreversible on human timescales — such as the polar ice sheets (and hence sea levels), permafrost and other carbon stores, where the impacts of global warming are non-linear and difficult to model with current scientific knowledge.
Recently, attention has been given to a “hothouse Earth” scenario, in which system feedbacks and their mutual interaction could drive the Earth System climate to a point of no return, whereby further warming would become self-sustaining. This “hothouse Earth” planetary threshold could exist at a temperature rise as low as 2°C, possibly even lower.13
Turns Case
T/C---Link Alone---2NC
Link alone turns case---patent delays cause investment uncertainty and deck innovation
Dennis Crouch '12, Law Professor at the University of Missouri School of Law, "Patent Pendency Time Series and Why Care about Prosecution Delays," Patently-O, 9-10-2012, https://patentlyo.com/patent/2012/09/patent-pendency-time-series-and-why-care-about-prosecution-delays.html, Accessed 7-6-2024 by NT-MP
Why should we care about patent pendency?: Reducing patent pendency has been a major goal of the Kappos directorship. However, it is probably useful to pause for a moment to consider whether we should care about pendency and backlog. Certainly we want to know and understand the delay in order to advise our clients on how to order their affairs. But, should we care whether the delay is relatively longer or shorter? In my view, the major harm of long delay is not felt by patent applicants, but rather by parties releasing new products who cannot rely upon parties who cannot rely on
Most of the backlog delay occurs between the time that the patent application is filed and the mailing of the first action on the merits (FAOM). From a patentee’s perspective, that delay can actually be good. It allows the patent applicant to delay payment of certain fees (such as issue fees) and costs (such as attorney fees for prosecution) and provides the applicant with additional time to consider whether or not to pursue rights based upon the additional expected costs of patenting. When taking market developments into account, the delay also provides the applicant with time to adjust claim scope to better capture the market value of the invention. One potential problem with delays in prosecution is a reduction in patent term. However, the Patent Act generously compensates patentees for any term lost due to PTO delays (by adding additional time to the end of the term). Sometimes applicants have good reasons to want quick patent issuance. For those instances, the USPTO allows the applicant to pay a fee in order to skip the backlog queue. The so-called “track one” fee is a hefty $4.8k, but it is an option and my pre-AIA survey found that charge not unreasonable. At least in a somewhat simplified world, this $4.8k limits the per-application loss to applicants caused by the delay. I.e., if an applicant was going to be harmed by more than $4.8k due to the lengthy backlog, then the applicant can simply pay the fee to avoid that harm. This is a simplified world because, inter alia, applicants might not know from the outset that there is any benefit to a more rapid patent issuance.
The real problem with the backlog is that the resulting prosecution delays create uncertainty for product developers and marketers – those that actually create new products and sell them on the market. The long pendency allows patent applicants to watch the market and shift patent rights to cover activity that was previously considered legitimately open. During that time, manufacturers simply cannot know whether their products will be covered by patents held by some third party. For many market areas, this greatly increases the risk that products legitimately released into the stream of commerce and placed in the hands of consumers will – some years later – become infringing because of third-party patents that eventually issue. Many of the policy justifications that support old statutory bar of 35 U.S.C. 102(b) would also discourage a system that allows this result.
The link alone turns case----PTO backlogs deck investment, delay applications, and zero innovation.
Cohen ’23 [ Micheal N. Cohen; Cohen IP Law Group; “Cohen IP Law Group Says Trademark Review Delays at the USPTO Make Do-It-Yourself Trademark Applications Risky for Businesses and Startups,” Law Firm Newswire, November 7, 2023, https://lawfirmnewswire.com/2023/11/cohen-ip-law-group-says-trademark-review-delays-at-the-uspto-make-do-it-yourself-trademark-applications-risky-for-businesses-and-startups/, wally]
Orange County, California – Amidst the escalating backlog at the U.S. Patent and Trademark Office (USPTO), Orange County trademark lawyer, Michael N. Cohen of Cohen IP Law Group underscores the necessity of timely and error-free trademark filings. The current backlog at the USPTO has resulted in a trademark examination time of 8.5 months, extending the overall registration period to 14.6 months.
In light of this, Michael N. Cohen, an experienced trademark lawyer and founder of Cohen IP Law Group, is advocating for early submission of trademark applications and warns against Do-It-Yourself (DIY) filings. One minor mistake could potentially derail the application process, or worse, cause outright rejection resulting in further delays.
“Getting your trademark application right the first time is more crucial than ever with the current backlog,” says Cohen. “This is not the time for trial and error. This is why we’re urging inventors, startups, and corporations not to delay their trademark filings and to only file with an experienced trademark lawyer.”
Cohen IP Law Group is renowned for its expertise in the field of Intellectual Property Law. With a team of seasoned trademark lawyers, the firm has helped countless inventors, startups, and corporations navigate the complex world of patents and trademarks. Cohen and his team are committed to offering personalized guidance and invaluable insight to ensure a smooth and successful application process.
Cohen further emphasizes the potential pitfalls of DIY trademark filings. “A single error can make the difference between a successful filing or having your application rejected. The time, money, and resources wasted on unsuccessful applications can be devastating for businesses,” he warns.
Uniqueness
U---Backlogs Low---2NC
The USPTO is fast-tracking applications now through new policy---BUT it’s walking a tight-rope. That’s Vidal.
USPTO is modernizing now---resolves backlogs.
Gratton 22, Jasmine B Gratton is a New York lawyer and Meghan McDermott is a lawyer focused on patent and trademark litigation matters, 08/1/2022, “USPTO Makes Moves to Modernize Trademark Registration Certificates”, https://www.whipgroup.com/blog/uspto-makes-moves-to-modernize-trademark-registration-certificates/
The United States Patent and Trademark Office’s (USPTO) efforts to modernize its practices and increase the efficiency of examination have started to take shape. As of May 24, 2022, the USPTO is now only issuing electronic trademark registration certificates. This change marks a move in the direction of full electronic processing and registration for trademarks in the United States.
The change to electronic trademark registration certificates is intended to give trademark owners easier and quicker access to their trademark certificates upon registration. According to the USPTO, the electronic trademark registration certificates will allow trademarks to be issued 1-2 weeks sooner than the current paper printed registration certificates. The new electronic certificates will be issued by the USPTO with a digital seal to authenticate the registration, and then emailed to trademark owners and attorneys through all emails of record associated with the trademark.
Consistent with past practice, registration certificates will still be uploaded and accessible through the Trademark Status and Document Retrieval System (TSDR). However, this now means that trademark owners and their counsel will be notified of a registration issuance via an email from the USPTO rather than upon the arrival of a hardcopy registration certificate received via mail. 

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