Publication of patent applications: not so unsexy after all?

One of the most popular contributors to this weblog, curiously, is not a member of the blog team at all: it's Suleman Ali, of boutique practice Holly IP, whose earlier guest posts here, here and here have attracted a disproportional quantity of hits and readers' comments. This Kat would like to say a formal "thank-you" to Suleman, who has on several occasions risen to challenge of writing a piece for us when there was no spare Kat to do it. Anyway, here's Suleman's latest post for us. It's a review of a somewhat unlikely document on a decidedly unsexy subject [except for us IP addicts, notes Merpel]. Read on:
Food for thought?
A veritable cornucopia
The United Kingdom Intellectual Property Office (IPO) has recently published its Discussion Document: the Publication of Patent Applications. The purpose of the document is to ask for feedback on specific ideas the IPO has had for changing the way patent applications are published. This is not, unfortunately, a call for radical ideas on how the publishing of patent publications could be changed, and disappointingly the ideas proposed by the IPO are not very radical. However the Discussion Document does provide food for thought.

The ideas

The IPO proposes two main ideas and they are both based on the proposal to allow publication of a patent application to occur without a search having been performed. The first idea is to cater for applicants who file a patent application in order to disclose the information to the public, rather than for the purpose of obtaining a patent. The IPO want to have a system where in such cases the applications can proceed to publication without the need for the IPO to waste resources in producing a search.

The second idea is to make the system more flexible by allowing the applicant to have the option of requesting publication any time before 18 months without the need for search to have happened. Presently the IPO will only publish an application early if a search has been performed.

There is a third minor idea about the IPO issuing ‘certificates’ to applicants that want to prove to others that their application has been published.

Should the IPO assist applicants who only want publication?

The IPO has observed that in about 25% of cases where an applicant is informed under the ‘Action Before Search’ program that the application has serious issues and is unlikely to be granted, the application is not withdrawn and goes on to be searched and published. This has made the IPO wonder whether the purpose for filing was simply to have the case published, rather than obtaining a patent. The SOLO IP blog has already written on the issue of applicants asking the IPO perform unwanted searches and has made a ‘call to arms’ to address the problem.

Some folk will stop at nothing
to publish their inventions
The IPO says it wants to use its resources efficiently and so does not want to carry out searches where the applicant only wants publication, and does not intend to pursue the case further. In such instances the IPO proposes to publish the application with a footnote saying that the case will not progress further. The IPO notes that publication of the application would offer the applicant ‘the ability to stop others from patenting the same invention later’. However, it could be argued that there is the bigger question: should the IPO offer a specific service that would be detrimental to the position of third parties who want patent protection in that area? Surely the ‘purpose’ of the publication is not to stop others from patenting, and so perhaps the IPO should not be publishing for this purpose.

Should applications be published without search results?

The proposal to allow applicants early publication without a search having been performed means that third parties will be alerted to patent cases without the search results being available yet. That means they will be in the position of knowing that the applicant is trying to obtain patent protection, but they won’t know the IPO’s view of the most relevant prior art. Will that oblige them to carry out their own searches for their own peace of mind and that of their investors? It could also be argued, to the contrary, that knowing about relevant patent applications as soon as possible is preferable to not knowing.

Do published patent applications help the world?

Classically the reason for applications being published is as part of the bargain with the State for it granting a monopoly to the invention. It is assumed that society benefits from knowing about the invention. However, is that still the case? Do patent applications disclose useful scientific information? Apparently studies suggest that in some fields they do. Given that fact, perhaps the IPO is right to consider giving more options to applicants to publish early. That will help in disseminating useful scientific knowledge.

A pioneer, in theory ...
What are the consequences of having more prior art?

Making it easier for applicants to publish earlier and offering this as a distinct service will mean there will be more prior art for subsequent applications to contend with. Does this matter? Well, there have been suggestions that the patent system favours the ‘pioneer’ in a technical area. The broad protection obtained by them can inhibit subsequent development of the technology by other parties. More prior art will mean that those other parties are also going to find it harder to obtain their own patent protection. I would say that, as a ‘policy’ consideration, that is important.

The incompetent applicant

So often the most relevant prior art cited against an application is one of the applicant’s previous published patent cases. Often decision-making in research organisations cannot deal with the fact the publication of applications occurs at 18 months, and subsequent patent cases suffer because they have not been filed within 18 months of the earlier case. That is simply what happens in practice and the IPO's offering applicants more options to publish early will make it happen more often. Should the system protect incompetent applicants? I believe it should at least think about them. 
More radical changes

Are there more radical changes that we should consider? The world has learned the lesson that non-publication of patent applications leads to the injustice of submarine patents which ‘emerge’ when the market has grown. So clearly publication before grant is very necessary.

Is mandatory publication at 18 months the most appropriate term? Anecdotally I would say that it is long enough for the applicant to get to the next patentable finding and file the next patent application. However clearly it would be impossible to say what is best for the economy or for technological progress, and I’m sure the answer would be different for different areas of technology. It is also a question that I’m sure the IPO would realise is too complicated to ask, and so publication at 18 months will not be changing soon.
What do you think? The Kats would particularly like to receive comments from those who have experience of more than one national patent system and who can compare and contrast
Publication of patent applications: not so unsexy after all? Publication of patent applications: not so unsexy after all? Reviewed by Jeremy on Thursday, August 14, 2014 Rating: 5


  1. To me, this all seems like much ado about nothing very much. I am not aware of any other national patent system in which publication cannot (or does not) occur until after a search has been conducted. I can see the value in it, at least in that the published application is more likely to be accurately classified, but this does not seem to be something that causes much bother to the patent offices, or legislators, in other countries.

    Even under the PCT, it is not very uncommon for applications to be published without an ISR, and to be republished later when the search is complete. That is, while it is a goal of the system that a search should be complete prior to publication, this is secondary to ensuring that publication occurs at 18 months.

    At least as relevant, however, is the fact that if an applicant has paid a search fee, then they are entitled to a search. An initial opinion of the Patent Office as to the 'value' of conducting a search is beside the point. The strategic reasons for filing of particular applications, and for deciding to abandon them (at any later stage of the process) are many and varied. Sometimes the results of the search will be a factor. Sometimes there will be commercial reasons. Rarely, however, in my experience, is an application filed for the express purpose of allowing it to proceed to publication with the firm intention of not prosecuting it any further.

    It surprises me that the notion of filing applications to create 'prior art effect' persists so strongly, when in practice it is now so rare. The only internationally effective form of prior art is an unrestricted public disclosure, which is now achieved far more quickly and cost-effectively by various means of online publication.

    The one exception I am aware of is that where the US market is of primary interest there may still sometimes be an argument for filing 'defensively'. This is because an unpublished US application (so long as it is ultimately published) has full prior art effect (i.e. for novelty and obviousness) against subsequent applications. Thus, for the US only, an application can have the same effect as a publication for at least 18 months before actually becoming available to the public (longer if a non-publication request is made at filing, and subsequently withdrawn).

    In any event, if the UKIPO wants applicants to formally abandon applications (with or without publication) before a search is conducted, it will have to provide a positive incentive, i.e. a fee refund. I know of virtually no applicant whose default position once they have decided not to pursue an application is anything other than 'do nothing, and wait for the application to die of its own accord.' Taking any positive step costs time, money and/or administrative effort.

    It seems that the UKIPO has absolutely no idea what motivates applicants to behave as they do. And I doubt that they will get meaningful feedback, because many of those motivations are strategic, and depend entirely upon the circumstances of each particular case.

  2. The failure of other bodies (WIPO) to complete a search within 18 months is not justification for these daft ideas of the UKIPO. Upon the day of publication, third parties should have some idea of what the relevant patent office thinks about patentability, even if this is only as far as providing what they believe to be the most relevant prior art.

    The UKIPO is too busy pandering to industries failures and crackpots. If someone only files an application for publication purposes that should not be to the detriment of everyone else. They should pay the search fee and the search should be conducted in good time.

  3. To Mark Summerfield - a fee refund is exactly what the IPO does provide if the application is withdrawn before a search has started. The whole point of the Action Before Search procedure is to alert an applicant (especially an unrepresented applicant) that his application is unlikely to succeed and to offer the opportunity to withdraw before the search begins and the searching cost is incurred.

    It would be interesting to get statistics on how often the applicant chooses to proceed having been send an ABS letter - that may give a truer picture of how many applicants "just want to publish" - although of course the applicant may well disagree with the Examiner's opinion that the application contains no patentable matter and choose to proceed on that basis. It would also be interesting to know how many applications end up as granted patents some time following an ABS letter.

  4. Another observation... a searched publication is not only better for third parties who might be worried about infringement, but it is inherently more valuable as a published document because it includes cross-references to previous relevant prior art, making it more searchable and more useful as a tool for finding other documents.

  5. I have been careless - the statistics I wanted were right there in the article. 25% proceed after ABS. The point is, a fee refund has been offered at that point and turned down.

  6. For those applicants who file only for the sake of a publication, why not provide a forum with a dedicated page for each application?

    Each application would then immediately be open for public scrutiny, commenting, and public citing of prior art. Comments would be rated by the readers and the most relevant prior art might eventually emerge.

    That way, inventors wanting to build upon the disclosure would have a better idea where to start from.


  7. I think that some are missing the UKIPOs main motivation here.

    My reading of this is that the UKIPO have identified that 25% of their searches are a bit of a waste of time. Given that the real costs to them (and the poor tax payer) is far far greater than £130, they are just looking for a way to stop wasting time and money.

    Let's face it, the UKIPO search is essentially the best value search available anywhere. Given the minimal down sides, I can't see any great issue with the UKIPO taking steps to preserve that.

  8. Could publication be used for freedom-to-operate purposed for SME not having knowledge or resources to engage in costly patent application or counterclaims for revocation in courts. I guess a patent office publication is more likely to be taken into consideration ex officio during grant than online publication.

  9. I've seen suggestions occasionally of having different patent terms in different technology areas to give the optimal result for the economy, but I've never seen a discussion of whether the 18 months for publication needs changing. 18 months seems a long time in an age when many people are instantly disclosing to the world their thoughts and feelings on social media.

  10. >>I guess a patent office publication is more likely to be taken into consideration ex officio during grant than online publication.

    Absolutely it is. What's more, patent office publication is more likely to be saved in an easily searchable public database for decades to come. Online publication may not last the 20 year duration of a granted patent, and it is harder to prove the publication date.

    I do agree with Mark Summerfield's comment though that the idea of filing to "create prior art effect" is for more widely bandied about online than it is actually used in practice... although of course it may be that those who wish to publish defensively are not using attorneys (arguably, why would they?).

  11. Anonymous of 9:43 what you say is correct, but there are larger issues of what policies the UKIPO should adopt. There is always the law of unintended consequences. If the UKIPO have a box on the filing form asking whether the application should be published ASAP some applicants will tick it. That will negatively impact:
    - themselves for their later filings, and
    - others who are close behind in developing the technology.

    I think that is too high a price to pay for the amount the UKIPO will save. The default should remain at 18 months, and the UKIPO should be wary of tinkering with it

  12. I'm a bit surprised that nobody has yet mentioned the interaction between filing activity in China and the new US patent statute, the AIA, under which every PCT filing is available as the basis of both novelty and obviousness attacks, as of its priority date in China, and irrespective whether it enters the national phase at the USPTO. Having an 18 month breathing space, between your filing date and the date the world first learns of your Invention: that must be attractive, surely.

    Small wonder then, that so many PCT's are filed in China, and so few of them taken on into the national phase. All those WO docs are surely a good defence laid down by Chinese industry, against patent litigation in the USA, what?

  13. Max, do you have a source for that claim?

    My reading of 35 USC 102(d)(2), in conjunction with 365(c) is that there must be a "national application" which claims "the benefit of the filing date of a prior international application designating the United States". That is, there is no prior art effect unless the PCT application actually enters the national phase in the US.

    If so, then this is as it always was, except that pre-AIA the PCT application also had to be in English.

    I am happy to be corrected if I have this wrong.

    As far as I am aware, inflated Chinese filings are the result of government incentives that make filing low-quality PCT applications a money-making proposition.

  14. Mark, I agree with you about filings in China. As to the AIA, what I wrote was only what I had gathered from blogs as the AIA went through Congress, so I dare say it was wrong. What you write makes good sense and strikes me as surely right. Perhaps another reader will confirm what you write. It will be no surprise for me. Thanks for putting me straight.

    Incidentally, do you know, does any other country (apart from the USA) allow obviousness attacks to be founded on not-yet-published (Article 54(3) EPC) prior filings?

  15. It is an interesting artifact of policy that I can chuckle at the exchanges here, but I am limited as to explaining why I would so chuckle.

    Suffice it to say that often particular posters will post with a conviction not earned. Recanting when "politely" brought to bear, but resisting with full vigor lest "offense" be taken as to how, or even merely whom supplies a countervailing view.

    The explosion in Chinese filings is an interesting fact. I tend to doubt though the "feared" impact in the US arena, as I think that mere publication in a patent publication - without more - may not be enough to establish the veracity of what is being published.

    If in fact nonsense and pure science fiction is chosen to be submitted to patent offices for publication, then would such science fiction preclude on the basis of obviousness? I think not.

  16. On prior art effect of PCT applications under AIA, it is my understanding that there is no need for US national phase entry for them to have full prior art effect.

    s.102 states that an application for patent published or deemed published under section 122(b)is available art.

    s.374 makes publication of a PCT application equivalent to publication of a US application.

    There appears to be no requirement that the PCT enter the US national phase.

    See MPEP 2154.01(a)

    "The WIPO publication of a PCT international application that designates the United States is an application for patent deemed published under 35 U.S.C. 122(b) for purposes of AIA 35 U.S.C. 102(a)(2) under 35 U.S.C. 374. Thus, under the AIA, WIPO publications of PCT applications that designate the United States are treated as U.S. patent application publications for prior art purposes, regardless of the international filing date, whether they are published in English, or whether the PCT international application enters the national stage in the United States. Accordingly, a U.S. patent, a U.S. patent application publication, or a WIPO published application that names another inventor and was effectively filed before the effective filing date of the claimed invention, is prior art under AIA 35 U.S.C. 102(a)(2)".

  17. Thanks Meldrew. So it does now appear that all those WO publications emerging from filings in China are available as obviousness attacks on any filings at the USPTO that have a filing date later than the filing in China.

    You could therefore say that the AIA is "Winner Take All variant of the Rest of the World's First to File". But then, Winner Takes it All, Loser Gets nothing, is the exceptional American Way, isn't it?

    People always did say that the AIA was written to further the interests of Big Corp. I put it to you that the AIA is a deliberate move to hinder divided ownership within patent thickets. Each Global Player shall have, in Tech, its own Area of Activity, undisturbed by rogue infiltrators.

  18. A clue to the reason for the IPO's proposal can be found in the IPO's Steering Board Minutes, which are generally considerably more factual that the anodyne spin that seems to be the norm these days in the Corporate Plan and IPO's annual report to Parliament.

    The IPO continues to suffer from a severe Patent Examiner shortage, having failed to recruit as many examiners as it called for during the last trawl. Having made 15 examiners redundant a few years ago to balance the books over a 5 year accounting period, followed by loss of several more to Patent Agency, it now plans to recruit some 50 examiners over the next few years. Extensive use had been made of overtime to keep things going, but overtime is not compulsory and fewer people are willing to work it in summer. A pilot scheme has been instituted with Treasury approval to improve pay, no details publicly available yet it would seem. Permission is being sought from the Treasury to actually offer improved pay rates to attract suitable staff (a couple of years ago they had similar problems getting IT staff due to offering considerably below the going market rate). Saving money does not seem to be the main reason as Search and Examination both operate at a loss: it is renewal fee income that keeps the IPO solvent.

    From the Steering Board Minutes of 30 Jan 2014

    5.26 ....... The non IT related part of this work included – the recruitment of more patent examiners, the management of patent demand differently and a pilot was being set up to look at whether the non technical elements of the examiner role could be done by others.

    5.27 The NEDs welcomed the proposed step change in patent examiner recruitment (50 each year for 3 years) but also questioned the feasibility of it given that the IPO had not been able to recruit as many as it had needed in the previous recruitment (17 and not 20). The IPO clarified that an improved pay offer would help, the recruitment process (following a procurement process) would be run differently. In terms of numbers, 50 was the number that the IPO would accommodate in terms of management and training. There would be a longer period of classroom training. Consideration was being given to how this number would be accommodated – and it was noted that it would become more of a problem in the second and third years.

    8.3 With regard to staff numbers the NEDs welcomed the information provided on the financial dashboard which indicated that the staff numbers were 53 (FTE) below budget. Was the IPO planning to recruit this number in addition to the 62 proposed in the Corporate Plan? It was clarified that the 53 below budget represented churn for turnover – as the IPO had not been able to recruit as many patent examiners or IT staff as originally planned.

    Minutes 01 Dec 2011

    9.2 .... With regard to the proposal to downgrade the backlog target to an internal target it was noted that the aim was to focus IPO resources effectively at a time when resources would be squeezed. It was acknowledged that users did not clamour for a target below 42 months. This issue also related to the recruitment of patent examiners, not the number of examiners currently being recruited but the bigger question about the timing of the next recruitment. (The IPO had lost five patent examiners to the patent profession over the last five months which was a concern).

    20 Oct 2009

    19. ...... Given the release of 15 Patent Examiners under the recent VER/VES and another natural loss, Mr Dennehey did not believe that there was any immediate concern over the relatively minor declines observed. The current situation was described as manageable, especially given the increasing efficiency and productivity of the most recently recruited Examiners.

  19. Meldrew, thanks for the MPEP reference. That's the kind of thing I was looking for.

    I am not sure, however, that this says what you suggest it says. Both 102(a)(2) itself, and the MPEP entry, include the words '...and was effectively filed...'. My point is that I interpret the statute as requiring national phase entry in the US before the PCT application can be regarded as a (US) application that has been effectively filed, or as having an effective filing date.

    The MPEP passage goes on to say that 'This differs from the treatment of a WIPO published application under pre-AIA 35 U.S.C. 102(e), where a WIPO published application is treated as a U.S. patent application publication only if the PCT application was filed on or after November 29, 2000, designated the United States, and is published under PCT Article 21(2) in the English language.'

    I note that this does not identify a lack of requirement for the application actually to enter the national phase in the US as a difference in treatment as compared with the former provision. Both 102(e) (pre-AIA) and 102(a)(2) require that there be a 'patent' or an 'application for patent', which of course means a US patent, or a US application. At least pre-AIA, an 'application' includes an application made under 35 USC 371(c), but designation without national filing is insufficient.

    In response to Max's query, I am not aware of any other country in which an unpublished prior application has prior art effect for obviousness purposes.

    Additionally, the norm is that a PCT application must actually enter the national phase in order to have any prior art effect. Australia is an exception to this 'rule', in that mere designation in a PCT application has always been sufficient to give the contents prior art effect for novelty purposes. I once had a client in this position, i.e. there was a novelty-destroying unpublished prior PCT application that proceeded no further in any country. The client had applications in Australia, New Zealand, Japan, China, Europe the US and Canada. Only in Australia was the whole contents of the PCT application considered prior art.

    If it turns out that the US has, in fact, changed in this regard, that is a most interesting development.

  20. Thanks Mark. Very interesting, that AU is a precedent, for taking a WO as prior art, irrespective whether it enters the national phase. Perhaps this gave the AIA drafters an idea. Do you know what drove AU to write their statute like this? Which lobby suggested it?

    It is also helpful to read you, that you know of no other country except the USA that allows obviousness attacks on this category of unpublished prior art.

    Perhaps an American reader can set us all straight?

    I have to say though, that if your "effectively filed" point is right, that will be, at least for me.....

    "a most interesting development"

  21. Does not the notion that "Saving money does not seem to be the main reason as Search and Examination both operate at a loss: it is renewal fee income that keeps the IPO solvent." feed the complaint that patent offices only grant patents (and grant patents of dubious worth) in order to "make money" (or at least to pay the bills)?

  22. @ Mark: effectively filed seems to be defined in 35 USC 100 (i) as being either the actual filing date or the priority date. So as cited by Meldrew, MPEP 2154.01(a) states: "Thus, under the AIA, WIPO publications of PCT applications that designate the United States are treated as U.S. patent application publications for prior art purposes, regardless of [] whether the PCT international application enters the national stage in the United States." But still, any confirmation from a US patent attorney would be welcome.

  23. @PJ: section 100 defines '..."effective filing date" for a claimed invention in a patent or application for patent...'. There is thus, as elsewhere in the Act, a requirement that there be a 'patent or application for patent' before the term can have any effect.

    This is where the US implementation of the PCT differs significantly from Australia (which also goes to Max's question about whether somebody 'lobbied' for PCT applications to have prior art effect).

    In Australia, all PCT applications designating Australia are deemed to be Australian patent applications for the purposes of the Patents Act 1990. Except as specifically provided, the Act applies to such applications exactly as if they had actually been filed in Australia. The prior art effect of a PCT application is an artifact of this implementation choice, rather than a primary objective. If a PCT applicant does not make a request for the application to proceed, and pay the relevant fees, by the 31-month deadline, the application is treated as having lapsed.

    There was a time that every PCT application designating Australia was given an Australian application number, and entered into the Patent Office records as of its international filing date. But once the PCT was changed so that all states were automatically designated in every application, this started to become unwieldy, and the practice was stopped in the early 2000's. Now PCT applications go by their PCT filing numbers until the national phase entry fees are paid.

    In the US, a 'national stage' application must be filed by meeting the requirements of 35 USC 371(c), including the filing of an oath or declaration. My understanding is that unless these requirements are met, there is no 'application', and thus no prior art effect. I do not believe that anything has really changed under the AIA. The former 35 USC 102(e) did not expressly provide that an application had to enter the national phase in the US in order to have prior art effect, either.

  24. As to the prior art effect of a PCT application in the USA: the words "effective filed" are part of the string "and was effectively filed before the effective filing date of the claimed invention", and thus only indicate that the priority date of the relevant part of the PCT application should be before the priority date of the claimed invention.

    As to whether a PCT application is a US application, see Article 11 PCT: "(3) Subject to Article 64(4), any international application fulfilling the requirements listed in items (i) to (iii) of paragraph (1) and accorded an international filing date shall have the effect of a regular national application in each designated State as of the international filing date, which date shall be considered to be the actual filing date in each designated State." Article 64(4) PCT allows the US to apply the Hilmer doctrine, now abolished because of the WTO-TRIPs Agreement.

    Finally, note that Section 102(a) says: "(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), ...". Here, the "deemed published" has been defined in Section 374: "The publication under the treaty defined in section 351(a), of an international application designating the United States shall be deemed a publication under section 122(b), except as provided in section 154(d)." Section 154 provides that provisional protection starts from the PCT publication date, except where that publication is not in English: then the provisional protection only starts from the date of receipt of an English translation by the USPTO.

    From the above it follows that indeed, under AIA, a PCT application is prior art under US law, irrespective of its language of publication and irrespective of whether the PCT application enters the US national phase.

  25. Thank you for those last two contributions. The AIA terminology "eefectively filed" reminds me of something in the Paris Convention about what is necessary to establish a priority date. Could it be that the AIA is deliberately harking back to that, when it uses the same terminology?

  26. I was interested to read the following on your blog:

    “The IPO proposes two main ideas and they are both based on the proposal to allow publication of a patent application to occur without a search having been performed. The first idea is to cater for applicants who file a patent application in order to disclose the information to the public, rather than for the purpose of obtaining a patent. The IPO want to have a system where in such cases the applications can proceed to publication without the need for the IPO to waste resources in producing a search.”

    Is this not what the “Research Disclosure” system has been providing for decades?

  27. Mark,

    I think that you assume the conclusion you want to reach by over-reading what an application is.

    35 USC 371(c) may be discussing national stage applications, but national stage applications are not the only type of patent applications. Your conclusion begs the question of why are you only trying to include national stage applications as those applications that are given prior art effect? There may be an absence of a national stage application, but that does not mean that there is an absence of a patent application.

    In your post at 04:06, I also think that you are letting the actions of Australia affect your thinking. Just because an administrative action was changed (to deal with an unwieldy practice), does not change the underlying gist of the law, does it?. That would be a substantive law change. In the US, the PTO does not have such substantive law writing capability, so a mirror action by the USPTO to effect a change of processing would not have the effect you seem to propose.

    Anon @ 12:23,

    I do not think that you are correctly summarizing the Hilmer Doctrine, nor correctly reflecting the viability of that doctrine under international treaties. The Hilmer Doctrine was very much alive and well after the treaty you mention and only recently became moot under the changes of the AIA.


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