[Ads-l] incredulous -> "incredible utility" still in use at USPTO

[Guy Letourneau Owner]

I studied for and passed the US Patent Bar exam last year, and the phrase "incredible utility" is still used as a rejection examiners.
Far from meaning 'amazingly useful,' the phrase means the examiner doesn't believe that the invention will work to provide the benefits (the utility of the invention) described in the specification.

"Incredible utility" is rarely posited as a rejection, because of the historical record within the patent office of cases in which an inventor had indeed broken through a prevailing paradigm to the chagrin of an incredulous examiner and the examiner is later proven wrong through effective challenges to his rejections. These reversals then stand as highly visible examples within the examining corps because the patent office can be held liable in higher courts** for delaying the timely issue of an inventor's due rights to protection against his competitors.
Examiners therefore issue rejections of 'incredible utility' only when their incredulity is quite substantial.

One example is 'Rogaine' - the examiner had a large historical precedent of scammy, ineffective products (predating effective regulation of such claims by FDA) and here comes another guy claiming that putting *his* unique goop on you head will stimulate hair growth. The requests by the office for additional tests and other convincing evidence delayed the patent for over a year.

Previous cases of incredulity came during the invention of fixed-wing aircraft. Inventors such as Glenn Curtiss and the Wright brothers had to overcome a huge volume of issued patents for ornithopters, and examiners were reluctant to believe that heavier than air vehicles could fly *without* flapping their wings. Decades later, incredulity had swing the other way, and some examiners rejected patents on flapping-wing flying toys (think of all the stock film footage out there of flapping-wing inventions destroying themselves on the runway.)

But the toys worked, and the incredulous examiners got slapped again. 

- GLL

** Aggrieved inventors can sue the USPTO or appeal their actions in the Eastern District Court of Virginia
and the Court of Appeals for the Federal Circuit. And of course, the Supremes can pick up cases above that.

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"Dr. Mahnensmith's allegations against the individual plaintiffs I =
represent are baseless and incredulous."

So it's the allegations that are incredulous, not her (or our) =
assessment of them.  Perhaps this shift results in part from the =
amelioration over the decades of "incredible", which now signifies what =
is literally not credible less often than it does what is unbelievably =
great. =20

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