Earlier today President Barack Obama, perhaps with the best of intentions, demonstrated that he is not all that familiar with the United States Patent and Trademark Office and how they handle patent applications. The short of it is that what President Obama said to tech executives was wrong on the facts, but at least partly correct in spirit. Essentially, President Obama said that the way the Patent Office handles electronically filed patent applications is to print them and scan them. Sadly, that is not true, or is at least extremely misleading. It is certainly true that the Patent Office used to do things that way, but since the new EFS Web system was unveiled on March 16, 2006, electronically filed patent applications are not printed and then scanned. Perhaps the President or his speech writers are readers of IPWatchdog.com and got the wrong impression when I lamented a few months ago that genius federal minds thought printing and scanning created a paperless system, or perhaps the White House has been spying on the PLI Patent Bar Review Course and listening to John White tell stories of the old days when printing and scanning of electronic filings was the rule. Whatever the case, the President was incorrect on the facts, but certainly correct to say that it is embarrassing that the Patent Office computer systems are woefully inadequate and behind the times.
First, what exactly did President Obama say? In prepared remarks at Opening Session of the Forum on Modernizing Government President Obama said:
Believe it or not, in our patent office — now, this is embarrassing — this is an institution responsible for protecting and promoting innovation — our patent office receives more than 80 percent of patent applications electronically, then manually prints them out, scans them, and enters them into an outdated case management system.
Once upon a time this was correct, and in fact was explained as the procedure for handling electronic applications in the Manual of Patent Examining Procedures, better known as the MPEP. Yes, once upon a time the United States Patent Office actually claimed to be paperless, the only problem being that under the previous Electronic File System the Patent Office would print the filing and then scan it back into electronic format. I wish I could tell you this is just a good story or fairy tale, but it was actually the sad truth. The USPTO’s idea of a paperless system was to print electronic filings, scan them and then destroy the printed copy. Obviously paperless filing was not intended to save trees or otherwise be environmentally friendly.
So how did President Obama get this so wrong? I am not sure, but in September of 2009, while on a rant about government ineptitude, after having professed hatred for Vista, I was lamenting the fact that there is no easy or real way to retrieve a forgotten PACER password. All riled up I explained:
No doubt this comes from the same genius federal mind that several years ago thought the Patent Office had a paperless system when they would print EFS filings and then scan them in because the front end system was not compatible with the back end system. And these people want to run health care?
Perhaps this is the genesis, I don’t know.
Perhaps President Obama or his speech writers obtained a copy of the PLI Patent Bar Review materials, or listened to John Whites lecture on a paperless system, believing what the USPTO tests must be the law, right? Well, no. The version of the MPEP that is actually tested by the Patent Office for those sitting for the Patent Bar Exam is MPEP Version 8, Revision 4, which was published in October 2005. At that time printing electronically filed patent applications only to scan them was how the Office, in its infinite wisdom, believed themselves to be paperless. So yes, this “paperless” electronic filing is still what is testable on the Patent Bar, but does not reflect current practice.
In any event, according the the Patent Office website, when users submit information using an EFS-Web fillable form, the information will directly load into the USPTO databases which will increase accuracy and facilitate faster processing. See General Information on EFS Web. The EFS FAQs explain that unlike with paper filings, most new applications submitted electronically can be viewed in Private PAIR within an hour after filing, which is no doubt due to the fact that the information is directly loaded into the USPTO databases. How “embarrassing” for President Obama to say it is “embarrassing” that the USPTO prints and scans, only to find out that they don’t really do that any more.
Well, not so fast. My sources tell me that the Patent Office does print and scan some stuff; specifically they have to print and scan faxes, which is why the Office has in the past considered prohibiting the filing of patent applications via fax, although there is not a current final rule addressing this issue.
Notwithstanding, pretty much everyone agrees that the USPTO computer systems are not what they should be, and that is “embarrassing.” According to Robert Budens, the President of the Patent Office Professional Association, which is an independent union of professional employees formed in 1964 to represent the interests of examiners, classifiers, computer scientists, and other patent professionals who work at the United States Patent and Trademark Office, some within the Patent Office are concerned that the USPTO computer network is “hanging on by bubble gum and bailing wire.” Not exactly a ringing endorsement of the state of IT at the agency responsible for innovation! Furthermore, the current EFS system, while thousands of times better than the old EFS system, is exceptionally difficult to use by any honest, operability standards. Saving a PDF to meet the needs of the Patent Office shouldn’t be so difficult. I only half jokingly say it is faster to print an application, drive across town to the Post Office, send the application via Express Mail and return to the Office. There has to be an easier, more usable system that even patent attorneys who are set in their ways can figure out!
Now, there was one thing that President Obama said that was not only incorrect in reality, but demonstrates he and his speech writers are completely clueless. The President reportedly said that the print and scan approach of the Patent Office “is one of the reasons why the average processing time for a patent is roughly three years.”
First, this can’t be true since the Patent Office does not print and scan applications electronically filed through EFS. Second, this statement demonstrates that the President doesn’t understand that it was the dysfunction of Patent Office circa 2005-2009 that caused an enormous backlog to grow and pendency to explode. How can it be that someone who blames President George Bush 43 for everything, even things that weren’t his fault, doesn’t blame Bush and the Dudas Patent Office for what is demonstrably and provably the fault of the Bush Administration? I almost feel like I have entered the twilight zone. At least the President is talking about patents, which the patent community should applaud, but if he so carelessly gets things wrong in an area I know intimately I have to wonder what else is he getting wrong in areas where I don’t have all the facts?