As readers of IPWatchdog.com are probably aware, about three weeks ago I wrote an article questioning whether Patently-O was correct when they ran with a story under the sensational heading “BPAI Shuts Down Concurrences In Favor of Efficiency.”  I was offered the story by an allegedly anonymous Patent Office employee.  I check with my various sources and everyone concluded that it was a non-story and potentially inflammatory for no good reason.  We all know that the Board of Patent Appeals and Interferences (BPAI) is overwhelmed with work, by some reports they are on pace to perhaps see a 300% increase in appeals during fiscal year 2009.  With that kind of increase it is obvious that procedural improvements must be put in place, otherwise the appellate docket would do to those cases on appeal what is happening to many applicants, particularly those who have an invention in class 705.  I decided to contact the Patent Office and try and speak to someone at the BPAI, which I had been told would be acceptable through certain back channels.  After agreeing initially to an interview today, the Office of Public Affairs abruptly informed me that they decided to decline an interview.  Not being a journalist I am not 100% sure how to characterize this.  I don’t think it is that the BPAI “could not be reached,” or was “unavailable to comment.”  I suspect in journalism speak the way to characterize this is as “the PTO declined to comment.”

This raises some interesting issues.  First, in a cordial way I was informed that I am considered to be a journalist by the Office of Public Affairs, and that they would appreciate it if I reached out to them first if I wanted to speak with someone at the Patent Office.  Presumably this pertains only to when I am looking to speak with someone for an official statement, and not with respect to any applications on which I am the inventor or my firm is the attorney of record.  I am sure that is what they meant, it just seemed a bit odd to me.  I explained that I have never considered myself a journalist, just a patent attorney who can type and has an opinion.  I do suppose that I am exhibiting journalistic ethics in the old-time sense, given that I don’t run with every tip I get and I try and check and verify before I write anything.  So I suppose being considered a journalist is a good thing, although with the low state of journalistic ethics, fact checking and indifference to truth that seems to be exhibited by “true journalists” I am not sure I have any interest in being lumped into the “journalist” fold at the moment.  In any event, if I am considered a journalist then I guess I can write about issues and when the PTO declines to speak with me I can legitimately explain that the way any other journalist would.

The other thing that is interesting, and kind of makes you wonder, is if I am right and the Board is not muzzling dissent and is being unfairly castigated, why wouldn’t someone talk to me, particularly given I offered an off the record conversation?  In all fairness, perhaps it is not correct to say the PTO declined to comment, what the PR folks at the PTO did was decline to allow me to speak with the Chief, even off the record, saying that they felt that they “would be doing is replying to an anonymous employee, and that just isn’t appropriate.”  I have no way of knowing whether the Board had any input into this decision, or whether the Office of Public Affairs put the breaks on.  What I can say is that I didn’t have any intention of trying to provoke a response to an anonymous employee.  If I could have actually spoken with the Chief, or anyone else, I would have suggested he consider going on the record with respect to what is being done to handle what appears to be an enormous influx of cases.  But when you agree to speak off the record to start and then see where things lead, I have to wonder what is going on.  If I really were a journalist, or if I really were looking to score a sensational story, would I have offered to speak off the record?   My goal is to simply get high quality and accurate information out, nothing more, nothing less.  If at the end of an off the record conversation the Chief was interested in going on the record or providing some kind of written statement that would be fine.  I personally think the PTO needs to be doing more of this given the perception of the PTO in the innovation community.

So why exactly did the PTO refuse an off the record conversation?  I am still scratching my head.  Lets face it, I would have done nothing and written nothing if I talked to the Chief or anyone else off the record and then they said they were uncomfortable moving forward with presenting information to the public because they thought it might be perceived to be responding to an anonymous employee.  I am a patent attorney and the Patent Office regulates me personally.  The last thing I am interested in doing is betraying trust, or engaging in “gotcha” journalism.  The PTO already destroyed my business once, when new rules of practice were put in place in September 2008 and my then firm was told by OED that it was their position that if any assistance at all was provided to an independent inventor then the attorney providing the assistance had to file the application and represent the inventor.  That killed limited scope representation, and we were not about to do what OED told us not to do, even if that is not at all in the new practice rule based on any honest reading of the rule.

The fact that a PTO rule change killed my business and almost lead to me losing my house, and a lot more, always seemed strange to me.  I am back in the saddle again, so to speak, and heading what appears to be a positive direction, but the new PTO rule was supposed to prevent the unauthorized practice of law, yet the PTO doesn’t feel they have the authority to go after non-attorneys and non-agents.  Truly bizarre if you as me.

Anyway, I know the power of the PTO and how it has affect me personally and directly.  I am not about to offer an off the record conversation and then go back on my word.  That type of behavior is beneath me, immoral, reckless and stupid. Nevertheless, I am now quite curious why the PTO declined a friendly, off the record conversation and an opportunity to set the record straight with respect to how the BPAI is handling a massive influx of appeals.  It makes me wonder whether I was wrong and the there is more to the story than is apparent in the text of the e-mail that went out from Jay Moore, the Vice-Chief of the BPAI.  I suppose we will never know, which is the problem with speculation, and why there is a perception problem in the first place.