Thank You David Kappos! USPTO Extends Comments

Last week I wrote an article titled Inauspicious Start to Greater USPTO Transparency, in which I wrote about how disappointed I was that some things never seem to change at the Patent Office.  I was referring to the fact that a Federal Register Notice had been published on September 17, 2009, and gave until September 28, 2009, to provide comments on the interim Bilski guidelines that the Patent Office wanted in place.  I also wrote about how disingenuous it seemed to be not only because of an 11 day comment period, but because the Patent Office by their own admission was already training patent examiners on the guidelines prior to receiving any comments.  This smacked of the same type of nonsense that happened all the time during the Dudas days, where many hundreds of comments were received and summarily ignored.  It also smacked of CYA requesting comments, which also happened during the Dudas days.  I was disappointed because there was so much hope for a Kappos Administration.  I am extraordinarily happy to report that the United States Patent and Trademark Office has decided to extent the comment period.  I guess things really are changing at the Patent Office, and that is a very good thing and definitely something for all those in the innovation space to be happy about.

One of my long time readers, who goes by the name “Scrappy” when he posts comments, pointed out this announcement on the USPTO website, which is if you look at the URL – http://www.uspto.gov/main/homepagenews/2009sep29.htm – indicates that it was posted today:

The USPTO has prepared interim examination instructions for evaluating patent subject matter eligibility under 35 U.S.C. 101 (Interim Patent Subject Matter Eligibility Examination Instructions) pending a decision by the U.S. Supreme Court in Bilski v. Kappos, and invited the public to submit written comments on the Interim Patent Subject Matter Eligibility Examination Instructions on or before September 28, 2009. See Request for Comments on Interim Examination Instructions for Evaluating Patent Subject Matter Eligibility, 74 FR 47780 (September 17, 2009) [PDF].

The USPTO is extending the comment period to ensure that members of the public have sufficient opportunity to submit comments on the Interim Patent Subject Matter Eligibility Examination Instructions. A notice extending the comment period will be published in the Federal Register, and it will provide a new comment deadline of 30 days from the publication date of the notice in the Federal Register. The USPTO will revise the instructions as appropriate based on comments received. Comments that have already been received are under consideration.

I am exceptionally grateful to my PLI Patent Bar Review mate, John White, who counseled me to tone down my first reaction, which could best be described as apoplectic.  My initial reaction was akin to how those who defended Pete Rose must have felt when it came out that he really did gamble on baseball.  As one of the most vocal critics of the Patent Office for the last several years I wondered if I had drank the Kool-Aid, and it sure felt like I had.  But as I worked through what I wanted to write I joked with John that I had gone through at least 5 different stages of grief, all in the span of about 45 minutes, specifically feeling anger, resentment, disbelief, resignation and then despair.

I ended by saying:

I could have 30 seconds of time with senior management at the USPTO I would convey this — I realize you did not create the problems of the past, but there were many well documented problems nonetheless. Turning the page and starting fresh is a wonderful concept, but when new actions start to look like old patterns it is only human to raise questions and wonder. Posting something in the Federal Register weeks after it was announced in a Press Release suggests CYA mode. Perception becomes reality, and I think the totality of the circumstances can easily be interpreted as the Patent Office not wanting comments, but wanting to make it look like input is desired. If this is not the case, then extend the comment period and in the future consider putting announcement relating to substantive issues on the USPTO homepage.

Well, this is exactly what happened in the end.  I was not the first one to write about the short comment period, and in fact Peter Zura’s 271 Patent Blog is where I first learned of the issue.  I did come out pretty hard against the USPTO, and if that had anything to do with this announcement I am happy to have played a role.   Regardless of how or why this happened, three cheers for David Kappos and his band of advisers who seem committed to not making the same mistakes of the past.