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Patent Attorney Asks Examiner “Are you drunk?”


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: May 1, 2013 @ 1:37 pm
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UPDATED May 16, 2013 at 8:56pm

EDITOR’S NOTE: An earlier version of the article below contained inaccuracies. It was erroneously stated that SPE Len Tran had not allowed any applications since 2008. As a supervisor he oversaw the work of Junior Patent Examiners and was the decision maker on hundreds of patents since 2008.

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There is a story circulating the Internet over the last few days about an alleged filing with the USPTO. I initially decided to ignore this for several reasons. First, it is impossible for me to believe that a patent attorney actually filed this with the Patent Office, although I could see it being put together for internal use as a cathartic exercise. Second, alleged filing is dated April 24, 2013, but still does not show in Public PAIR. Third, the Art Unit listed in the heading of the alleged filing is Art Unit 4188, which does not coincide with the Art Unit according to the final rejection (i.e., the final rejection comes from Art Unit 3752). Thus, I have my suspicions about the authenticity, but on Monday CBS News published an article discussing this alleged filing under the title The letter to the Patent Office you have to read. So the matter is now out in the open.

Perhaps this really was filed, who knows. If it was filed we will eventually be able to find a copy of the filing on Public PAIR. In the meantime I’m going to continue to refer to this as an alleged filing. Notwithstanding, here the colorful comments from the Remarks section, which seem to be the only thing that makes up the filing.

Are you drunk? No, seriously… are you drinking scotch and whiskey with a side of crack cocaine while you “examine” patent applications? (Heavy emphasis on the quotes.) Do you just mail merge rejection letters from your home? Is that what taxpayers are getting in exchange for your services? Have you even read the patent application? I’m curious. Because you either haven’t read the patent application or are… (I don’t want to say the “R” word) “Special.”

Numerous examples abound in terms of this particular Examiner not following the law. Clearly, the combination of references would render the final product to be inoperable for its intended use. However, for this Special Needs Examiner, logic just doesn’t cut it. It is manifestly clear that this Examiner has a huge financial incentive to reject patent applications so he gets a nice Christmas bonus at the end of the year. When in doubt, reject right?

Since when did the USPTO become a post World War II jobs program? What’s the point of hiring 2,000 additional examiners when 2,000 rubber stamps would suffice just fine? So, tell me something Corky…what would it take for a patent application to be approved? Do we have to write patent applications in crayon? Does a patent application have to come with some sort of pop-up book? Do you have to be a family member or some big law firm who incentivizes you with some other special deal? What does it take Corky?

Perhaps you might want to take your job seriously and actually give a sh.t! What’s the point in having to deal with you Special Olympics rejects when we should just go straight to Appeals? While you idiots sit around in bathtubs farting and picking your noses, you should know that there are people out here who actually give a sh.t about their careers, their work, and their dreams.

Your job is not a joke, but you are turning it into a regular three ring circus. If you can’t motivate yourself to take your job seriously, then you need to quit and let someone else take over what that actually wants to do the job right.

Despite being offensive, politically incorrect and hardly calculated to lead to a notice of allowance, this colorful and inappropriate reaction will likely strike a nerve with many patent practitioners who wonder why patents are not issued when the really ought to be issued. Frankly, it is impossible for me to believe that the allowance rate is 89% as reported recently in some outlets. In the space where I work the allowance rate is very much lower than that, and the stories of junior examiners not being allowed to issue patents continues. A look at the Art Unit in question here shows anything but a rubber stamp.

Still, rather than write and file a response to an Office Action like this one, there are other solutions.

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Posted in: Gene Quinn, IP News, IPWatchdog.com Articles, Patent Prosecution, Patents, USPTO

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

57 comments
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  1. Gene –

    I believe that the art unit in the 4000’s refers to the training academy. My assumption is that this Examiner, like most others, first operated out of the training academy (for about 8 months?). Then, he moved into a “real” art unit. It looks like this examiner starting operating out of the real art unit around early January.

    This is a new examiner. Perhaps an attorney armed with awareness of this fact would have proceeded differently and gotten a better result in the end?

  2. I am shocked and saddened at the lack of professionalism shown in this official and legal document.

    There is no excuse whatsoever for this.

  3. Certainly it would have been better to conduct a telephone interview with the examiner rather than sending such a belittling letter.

    (On the other hand, sometimes when I am conducting a telephone interview with certain examiners I am wondering to myself if the particular examiner is drunk while on the phone or what. Communication can be a b1tch. )

  4. Gene,

    I can confirm it was really filed. First it was removed from the PAIR file history, then it was put back (I personally saw it in PAIR), then it was removed again. No clue what was going on at the USPTO. The same attorney also filed another interesting response in 13/134,890 (which I think was even worse). Both responses can be found on above the law: http://abovethelaw.com/2013/04/patent-attorney-mad-as-hell-and-not-going-to-take-it-from-the-uspto-anymore/2/

    The attorney stated in an ABA interview: http://www.abajournal.com/mobile/article/are_you_drunk_lawyer_files_angry_remarks_about_special_needs_examiner_after
    that he thought “they should have remained confidential.” I don’t see how a patent attorney would not know that anything you file in a published case would immediately become public.

    Anyway, I just can’t help but feel bad for the guy. Perhaps he just had a momentary lapse of judgment, who knows. He just threw his career in the trash. He might have potential as a comedian, though.

  5. A couple comments

    First, to dispel the suspiciousness of this. I am an examiner and was told about this by a colleague an hour before it hit the net and saw it on eDAN (our docket software) myself. It was removed by the director after the controversy started. Several examiners floated the theory that it was a spurned paralegal or assistant, which I considered plausible, but the attorney has actually admitted to writing this himself (while showing a total lack of knowledge about public PAIR I might add). See http://www.abajournal.com/mobile/article/are_you_drunk_lawyer_files_angry_remarks_about_special_needs_examiner_after

    Second, while I find the analysis of examiner Valvis enlightening, it does not really show us if in this particular case the examiner is being unreasonable. I read the previous arguments and the examiner’s non-final and final rejections and found Shroeder’s argument did not hold water. Now, it is not my art, and I have no idea of the combination of references is in fact obvious, but I recognize a red herring when I see one. Examiner has written a rejection stating that it would be obvious to combine element A from the primary reference with element B from the secondary reference. Schroeder wrote a convincing response that combining element *C* from the secondary reference with element A would break the invention. Which is, of course, irrelevant.

  6. Update – I just realized that most the statistics here are for the SPE rather than the examiner. This explains the above statistics. It is no wonder that the SPE has issued no allowances in years – in many art units SPEs don’t issue allowances. The issued patents in 2007 are likely the last ones he issued before being promoted to SPE. SPEs are supervisors that manage the art unit and frequently sign junior examiners rejections. But as managers they are often assigned to art units that differ from their knowledge base, and often tell junior examiners to post allowances to primary examiners within the art unit who are more knowledgeable in the art. In my art unit our SPE flatly refuses to sign allowances unless a primary has cleared the subject matter, which in practice means the primary signs the case.

    And Chris Holt hit it on the head about the art unit. 4100 is the training academy. Examiners are reassigned art unit numbers once they graduate. Clearly this is a new examiner.

  7. Eliza,

    Thank you for sharing what you know about this with the rest of us.

    The internal workings of the USPTO are often a mystery (for example I did not know what eDAN was although I had seen that acronym pop up a couple of times).

    It is unlikely that this is the first time an outside patent practitioner went ballistic over the perceived wrong doings of a USPTO-insider. Examiners are human and attorneys/agents are human and both are prone to going off in tangents due to the tempting pulls of base human nature rather than remaining calm, collected and pursuing rational discourse. Hopefully jangled nerves on both sides will be soothed and the dispute will be resolved in a more polite manner.

  8. Patent leather-

    Wow! Amazing! I could understand writing that as a way to get out the frustration before you sit down to write something serious, although even putting these thoughts to paper makes me wonder. To actually file it is definitely at least a momentary lapse in professional judgment. Even if it were going to be confidential the harm this client, other clients and the attorney are staggering.

    We have all been there, seen rejections that demonstrate that the examiner doesn’t understand the invention, and we know that some SPEs tell junior examiners not to allow cases. It is frustrating indeed. But there is no excuse for filing that response. There are better ways.

    -Gene

  9. Thanks for the confirmation Eliza. It is just hard to believe that this was actually filed. Fact is stranger than fiction.

    As for SPEs not being familiar with the technology in the Art Units that they supervise… that makes me almost want to cry. Does that strike anyone else as ridiculous? How can a supervisor supervise if they don’t know whether the examiners working for them are doing a good job because they dont’ know the technology?

    -Gene

  10. A couple of years ago I found myself dealing with an examiner who issued multiple pbjections illustrating an unacceptably low level of technical understanding and attention to the arguments presented. I therefore attended an interview with the supervisory examiner, and met an individual with an exceptional level of legal and technical understanding who saw and accepted the arguments straight away, and it was a pleasure to meet her. Our difficulties were quickly resolved and a patent issued.

    But I mentioned the problem to Terry Rae in general terms when she visited London as Deputy Director of the USPTO (obviously without identifying that application or the individuals involved) and she drew my attention to a complaints procedure established in the USPTO, which she said in appropriate cases can get an application assigned to a new examiner and can sort out problems. Using that procedure, in appropriate cases, is many times more constructive than saying things that one might like to say but which are best left unsaid. It would be interesting to learn if any readers of this blog have used that procedure.

    And over here, we have codes for this kind of thing. “With the utmost respect, your Honour” said in argument by Counsel does not mean what it says on the tin.

  11. I agree it is rude and unhelpful, but, as a European Patent Attorney, I have often been amazed by the apparent laziness, stupidity and occasional downright dishonesty on the part of some USPTO Examiners. You look at their responses and you just know that the Examiner couldn’t possibly have read what was written, and I confess that, although I would never write such a letter, there are times when I would have loved to! I think that many US representatives write “yours respectfully” through gritted teeth – one famously described one particularly unjustifiably awkward Examiner by saying, “There hasn’t been a marriage in the family for the last 5 generations”!

  12. Gene – Most SPEs are from related techs. You have to understand that SPEs are meant to be managers and deal with personnel issues and such. Junior examiners are to ‘report cases’ to primaries who guide them in interpreting claims, responding to arguments, etc. Historically SPEs had relatively little involvement with case reporting, but with most primaries now hoteling some junior examiners are reporting cases to SPEs.

  13. Thanks for the post, Gene, especially the stats from Patent Advisor, which has really spiffed up its graphics/output and apparently also number of cases evaluated since I test drove it awhile ago; I’m impressed.

    Also, I am wondering about some PTO policy I had heard about many years ago, that SPEs could be assigned to any art unit regardless of technology in part because of the supervisory nature of the position but also because examination was supposed to be ‘technology-neutral,’ whatever that means. I guess it meant that allowances and rejections are not supposed to depend on the technology used to make the invention, but in practice as we have seen in other posts here and elsewhere, there is a de facto difference as applied in the PTO because of the differing allowance rates between art units. I sincerely hope the PTO responds in a constructive way to the statistics shown by the different art units (and particularly different examiners within an art unit) to try to ‘even the playing field’ for Applicants, so to speak.

    Finally, it had been suggested to us once to use the complaint process to remove a particularly difficult examiner from a case in which they were being unreasonable; the problem was that it would only work for that one case, and the same examiner had a number of our cases and then even if the complaint process worked to move the case they would still have those other cases as well as a massive grudge–presumably even bigger than the one they already cultivated for reasons unknown to us. So we did not pursue it.

  14. Eliza-

    Thanks for the information. Very interesting. I am starting to get a better picture of things (I think).

    When I hear from junior examiners in certain Art Units that their SPE won’t allow them to issue patents and tells them to come up with what they believe to be bogus rejections. I have also heard examiners talk about knowing the art better than their SPE, which I always fluffed off as bravado. Perhaps it is the absence (i.e., hoteling) of primary examiners in some Art Units that is responsible for outlying behavior.

    I know that the overwhelming number of examiners at the USPTO take their jobs very seriously. While we can use Patent Advisor to notice the outliers the real story over the last 4 or 5 years is that vast majority of the Office seems to be running very well. Unfortunately, it seems that problems exist in certain computer/software areas and from what I’m told in some pharma/biotech areas. They become quite pronounced given the importance those areas of innovation have within our economy.

    Thanks.

    -Gene

  15. If this was really filed, the filer is going to have a Rule 3 problem. However, there is also a huge underlying problem with lawless Examiners, which the Office has not addressed for years. I myself have had a telephone interview with an Examiner who was drunk to the point of complete incoherence (and I would so testify if the PTO ever wishes to investigate this problem). Substance abuse occurs everywhere, so it’s not surprising that there might be alcoholics in the Corps – but drunk on duty is quite another issue, which the PTO should regard with alarm. However, the grapevine tells me that this is not at all unknown.

    The ombudsman and Petitions office should be the normal avenues for addressing such problems. However, the Office of Petitions currently seems more interested in enforcing the letter of the rules rather than fairness as such – and there is no Rule which says an Examiner can’t be incapable. The one time I tried the ombudsman, my complaint got routed back to the SPE who was the problem in the first place.

    Maybe the PTO should ask for comments?

  16. I strongly suspect that the primary examiner and the appeal board members in IN RE BIGIO were sober at the time when they issued they office actions that they did. They are presumed not to have been on halucinogenics when taking the position that you can mix nectar for hummingbirds and the like by adding sugar and water to an old compartmentalised wooden accounting drawer and withdrawing the partition between them to create the mixture.

    One problem is the doctrine of “broadest reasonable interpretation” which readily transforms into “broadest unreasonable interpretation”, the claim being twisted in directions that no reasonable skilled reader would be likely to follow (hence the wooden drawer turned into a nectar mixer).

    Another problem, I think, is the length and complexity of the Manual of Patent Examining Procedure. Fred Bartlit who was chief counsel to the Presidential commission on the Gulf oil spill commented that the safety procedure manual for the Deepwater Horizon was a health and safety expert’s dream, but did not tell the people on the rig what to do in an emergency or what situations might be classed as an emergency. Same with the MPEP – it covers everything but does not effectively convey to the novice examiners what to look for when assessing unobviousness or enablement. If the examiners do not know what they are looking for, then no wonder that prosecution runs into difficulty.

  17. Paul,

    If I remember correctly, the wooden accounting drawer you mention had the added benefit of having holes in the bottom.

    It would be literally impossible to ‘fill’ that contraption. The admonition fromteh KSR case about using common sense does not seem to have taken hold as I think the Justices had desired.

  18. Gene, I have to say I am quite impressed. You take a click-bait title and an event that’s sure to draw traffic, and then end up spending most of the article plugging Patent Advisor. Well played, sir. Well played.

  19. “The admonition from the KSR case about using common sense does not seem to have taken hold as I think the Justices had desired..”

    I sure hope it hasn’t, anon. Almost as weird a thought as the “unforeseeable equivalent” that SCOTUS mentioned in Festo.

  20. STH-

    Are you seriously suggesting that using Patent Advisor to uncover information about the examiner in question, the SPE involved and the Art Unit where this was filed is irrelevant to the story? If that is what you are suggesting I would have to say that you didn’t understand the article.

    What this attorney did was wholly inappropriate, but everyone who practices has had moments where they have wondered whether the examiner ever read anything filed and whether they were just manipulating the system. This examiner, although new, hasn’t allowed a case yet. The SPE hasn’t allowed a case in 6 years, and the Art Unit involved wins on appeal 17% of the time. This doesn’t justify what the attorney filed, but it certainly informs the story. With statistics like this the USPTO should look into the Art Unit and at least see what, if anything, out of the ordinary is going on.

    -Gene

  21. As with all professions, the people practicing have a wide range of competency. Some are more skilled in the work performed, some not so able. All examiners are not created equal and the same conclusion applies to patent attorneys. After reviewing some of the cases filed by the attorney who initiated this discussion, I can see why his website offers cut-rate prices. The claims in his cases are not well-drafted and lacking in scope. He doesn’t appear to file infromation disclosure statements so one can only assume he doesn’t do prior art searches for his clients. Although there is plenty of room for complaint with the prosecution in some cases at the Patent Office, this attorney is not someone who should be doing the complaining.

  22. Gene:

    Your statement that “The SPE hasn’t allowed a case in 6 years,” is clearly in error. A simple search on Google Patents would show that he has issue hundreds of patents over the past 5 years. It appears that the product you a selling is defective. Now that you now that your product is clear deffective how can you continue to sell it in good faith?

  23. I did not read the case file on purpose, because it is beside the point. Nobody has the right to write something like this to anyone. That the attorney thought it would be kept private only shows the incompetence of the attorney, and also the hypocrisy. He is only concerned about it being made public, he does not seem to comprehend that you simply have no right to talk to anybody like that. By the way, the comments are public. Suggesting this kind of behavior by the examiner is slander. Not to mention that an attorney who cannot comprehend that somebody in good faith might disagree with an argument has no business practicing law and displays an extraordinary lack of insight into his own abilities. You don’t like an examiner’s action? You file a pre-appeal conference request, you file an appeal brief. If the examiner’s decisions are arbitrary or against the law you file a complaint. What you don’t do is accuse them of malfeasance and insult them because you have no skill to make your points. And by the way Gene, analyzing the performance of the art unit and of an examiner who is obviously quite new is an obvious ad hominem attack, and not worthy of you. I find it relevant that you would do that instead of looking at the case in question and analyzing what the examiner had done that provoked the attorney into doing this. Not to mention that you compound the harassment by this attorney by putting the spotlight on the examiner and vaguely suggesting the attorney might have a point, based on statistics that, as other comments have pointed out, are at best incomplete. Shame on you.

  24. Anonymous-

    Shame on me? Shame on you for your comment! Are you too cowardly to put your name to your comment?

    My guess is you are an examiner because you say: “You don’t like an examiner’s action? You file a pre-appeal conference request, you file an appeal brief.”

    That is the typical recalcitrant examiner statement. When I don’t do a good job just appeal. If your points are good we will pull the case back into prosecution so we don’t get embarrassed by a Board decision. But what this “just file an appeal brief” ignores is that that costs money… a lot of money… and time. Examiners should try and do a better job without requiring the applicant to spend needless money appealing.

    As for statistics, did you or anyone complaining about incomplete statistics every complain when PatentlyO or numerous academics did sampling studies? You can claim Patent Advisor is incomplete if you want, but it is FAR more complete than any information the public has ever had previously.

    As I understand it the Patent Advisor database comes from the publicly available scrapped information from the USPTO. Scrapping continues, the database continues to grow and become more complete. If you don’t want to rely on the database fine, but to opine that it is useless is ridiculous. Some information is better than no information and attorneys providing high level prosecution services have ALWAYS advised clients and made decisions based on their experiences and knowledge of examiners and Art Units. Now we just have a lot more information thanks to Patent Advisor. If you want to continue filing RCEs when dealing with examiners and Art Units that have low allowance rates unless the case is appealed then file RCE after RCE. If you prefer to notice patterns there is a better way.

    -Gene

  25. Gene – I have enjoyed your responses to my comments and feel you are fair-minded, but your comment to STH shows me you still do not fully understand how to evaluate SPE statistics. As I said before, there is nothing unusual about the sudden change in the SPEs statistics in 2008, which surely correlates with his promotion to SPE, nor does it tell us anything about the allowance rate of the art unit. My own SPE never signs allowances either but our art unit has a higher than average allowance rate. The first thing you must understand is that SPEs do not examine patents. At all. None of the patents he signed after promotion were his own work but that of juniors. In most art units, juniors post non-final rejections to the SPE, and allowances to a primary. The way final rejections and abandonments are handled varies more between art units. So what you are seeing is the normal pattern of a SPE signing only rejections. Now the appeal statistics I’ll give you are damning, but the SPE stats are being misconstrued here.

  26. Hello Everyone –

    The Comment above from Eliza hits the nail on the head regardign SPE’s versus primaries. It may have been a little misleading to say the SPE Len Tran has not issued a case in six years. It is true that a Google patent search will show lots of cases issued where Examiner Tran was the supervisor. But we assign serial numbers to examiners based upon who is ultimately handling the application and not who the Supervisor happens to be. It is likely that SPE Len Tran has only acted as supervisor in recent years….and not as the ultimate examiner handling cases….whereas earlier in his career he issued many cases as the ultimate examiner in charge. It is not going to be uncommon in our system for SPE examiners to show lots of activity early in their careers…and then little activity later…after they have moved into a supervisory capacity.

    We have pondered the idea of creating SPE pages that will show stats for MANAGED applications for the examiners operating under the SPE. Should we do that? But right now, we assign applications to examiners based on which examiner is actually handling the application.

    Our analysis is based on an extremely complete set of applications known to have been published in the ~2002 to the current time.

    Having access to this kind of insight is new for all of us….including practitioners, applicants, and the patent office. We can ease into it….but so long as we focus on facts, everyone will benefit from the transparency. We strive to provide facts and believe we are doing a good at it. If something seems “way off,” there is probably a good explanation for it. You are always welcome to contact me with questions or concerns. My email is chris@patentcore.com.

    – Chris

  27. Hello again –

    Just to clarify further….we do not assign applications to examiners based on who is listed as primary. We do it based on who is listed as handling the application. Thus, though you will find patents in google patents that list Len Tran as primary, we will instead index the case based on who is listed as the actual examiner handling the application. Again, we can generate primary statistics and make them accessible separately through our system…..if there is a demand for that. Is there a demand for that? Here is an application that shows up in Google patents with Len Tran listed as the primary….note that the examiner listed in PAIR is not Len Tran but instead the examiner handling the application:

    http://screencast.com/t/q0rbmEh8OnhZ

    Right now, we index based on who is listed as handling the application.

    – Chris

  28. I guess the question then becomes how many cases was the examiner assigned to as the responsible party while a primary and how many of those cases did the examiner allow while a primary responsible for the case?

    Via iPhone

  29. For full disclosure, I’m an examiner. For more, fuller, disclosure – what follows are personal views and do not reflect the views of any entity other than this lone examiner.

    First of all, the paper is not “hidden.” It was removed from the public file, as it did not conform with 37 CFR 1.3:

    1.3 Business to be conducted with decorum and courtesy.
    Applicants and their attorneys or agents are required to conduct their business with the United States Patent and Trademark Office with decorum and courtesy. Papers presented in violation of this requirement will be submitted to the Director and will not be entered. A notice of the non-entry of the paper will be provided. Complaints against examiners and other employees must be made in correspondence separate from other papers.

    Therefore, though it was submitted on the record, it is being removed from the public file. It is still available through the tools that examienrs have to access all parts of the file. For example, if a file requires the support of either copyrighted (or trade secret) material, those become part of the file, but are not disclosed to the public. This is just like that, except for the reasons of non-entry to the public file are due to that rule above.

    Next, to echo what was said above about the examiner’s statistics:

    1) SPEs often do not sign allowances, and SPE’s statistics should not be held against the SPE or the art unit. In fact, if you look at it, the SPE previously was in art units 1722 and 1725, and is now supervising 3752. That means the SPE has a background in chemistry and is supervising a group of examiners that examine fluid sprinkling/mechanical engineering.
    2) The examiner is very, very new, as was stated by others.
    3) Examiners are not here to fight with you. Everyone loves allowances.
    4) Any applications docketed to a SPE mean that the SPE is in the process of docketing them to examiners.
    5) “Examiner Statistics” is a phrase that really doesn’t mean anything until the examiner is a primary and can therefore sign his or her own actions. Until then, examiners are reporting to someone else – or many different someone elses for many different cases. Examiner statistics should also probably be judged with respect to other examiners in the same art unit, because there’s probably a much different allowance rate on cell phone designs than there is on lawn sprinklers.
    5) Just because the examiner has 66 applications docketed does not mean the examiner has acted on many of them. A more useful statistic would be “Final Rejections” versus “Allowances” in order to see the “percentage” of cases this examiner has allowed, or even Allowances per disposal (a disposal is an RCE, Abandonment, or Allowance).

    For example, I have many cases on my docket that I have not acted upon. For those cases that I have acted upon, I have 58% allowances and 42% final rejections. (My art unit has about a 60% allowance rate… Oh no! I guess that makes me a very bad examiner since I reject more!)

    If you add in all the cases that I haven’t acted upon or have done only a first rejection and am waiting for responses for, my statistics then become 15% allowances and 85% “not allowed.” That’s not a problem with my work, that’s a problem with the statistical system you’re using.

    There are plenty of valid complaints and criticisms to throw at the USPTO. However, looking at an examiner’s docket and including many applications that he hasn’t even looked at yet is definitely not one of them.

    There are ways to help reform the system or suggest improvements. Saying the answer is “yes” to “Would the applicant and patent attorney be justified in being upset with the examiner on this particular application?” doesn’t help anything. If you want to complain about the office, that’s completely fine. But don’t throw up crap statistics and say that you can see why the attorney was frustrated. We all agree that the attorney was out of line. But if your thesis is “practicing in front of art unit [insert number here, 3752 in this case] makes you wonder if the examiners are lighting up crack pipes and swilling scotch”, you need to rethink what you’re trying to prove.

    “Frankly, it is impossible for me to believe that the allowance rate is 89% as reported recently in some outlets.” is about as bad an anecdotal statement as one gets. It’s like me saying “Frankly, I’m surprised that IP Watch Dog is so popular as a patent law blog, given the various errors in logic and basic statistics in this post.”

    This is shoddy work from an outlet that (even when it disparages the USPTO), usually has some good, substantive points. This post, however, seems like “click bait” dealing with a current event, and using that to bash the USPTO. I’m disappointed that it feels like I’m reading what looks like an advertisement to sell people a product that provides misleading statistics, at best.

  30. Gene,

    Firstly, a quick EAST search shows that Len Tran is listed as the “primary examiner” (i.e., signed off on the allowance) for about 440 patents since middling 2008. So, it is clear that the SPE is willing to allow at least some cases. No telling what the percentage of allowances is without finding out the hrs/bd. how many examiners report to him & many other factors. But at least he isn’t one of those that won”t sign any allowances.
    It would be nice if you updated your story so that the SPE isn’t being unfairly blamed for this attorney’s filing. Probably a lot of people will not wade thru all of the remarks to get all of the facts.

    Secondly, as to the issue Eliza brought up, it is true that in some areas the SPEs do not know the art & rely upon primaries to help with allowances. It is unfortunate that some SPEs are put in arts they have no real working knowledge about, but that is nothing new. It has been going on for a lot longer than I have been int he office. Good SPEs, when put in that situation, will initially rely upon the more experienced primaries but will also attempt to learn the art so that they can do the dull SPE job (which includes training) and not just part of it. Others, well we know about them as well…
    And, of course, there are some SPEs that just won’t sign allowances. I had one of those years ago (thankfully I was a primary at the time). He would sign rejections but would dump allowances on primaries to sign (usually at the last minute on “count Monday”). Not because he didn’t know the art (he came from the art he was a SPE in) but because he didn’t want to get blamed if there was a “bad” allowance & was always trying to get junior examiners to reject claims instead of allowing them. Those are the types that cause real problems. The office has gotten rid of some of them, but not all, unfortunately.

    Lastly, the letter in the 2nd case might be even worse than the letter you cite, above. It is interesting that both applications had the same attorney & same inventor, but different examiners, signed by different people and from different art units. It appears that the only common denominators are the attorney & applicant.

    MVS

  31. The case becomes even more sad – the attorney continues to lash out in improper fashion.

    I am embarrassed for him and his lack of decorum.

  32. John Public and MVS-

    Yes, it appears that the examiner in question did sign off on a number of patents while a primary examiner after 2007. The problem, however, seems to be with the way that the USPTO reports this information. If you look at PAIR data it seems that on those cases where the primary signed off to issue the primary is not mentioned as the examiner of record. Thus, it would seem that the information published on the face of patents is different from and even inconsistent with the information contained in PAIR, which is where Patent Advisor and many other get the raw data from since Google started scrapping data from the USPTO (with permission).

    It seems as if the examiner, while a primary during those years, was not assigned any applications of his own. In other words he was not doing any examining, just reviewing the work of junior examiners and signing off to issue when appropriate… or at least based on what I have uncovered so far that is what it seems like. I didn’t realize there were any primary examiners who didn’t have a docket of their own and were only responsible to supervise. But based on PAIR data it seems that this examiner was not the examiner of record on any cases in many of those years, and the years where cases are pending are likely just in his queue until assigned to junior examiners.

    I will follow up on this and hopefully have more concrete information by early to mid week.

    -Gene

  33. The plot thickens. See his blog: http://angelsharkwebsites.com/la-web-designer-blog-multimedia/2013/05/patentlyo-response-to-dennis-crouch-andrew-schroeder/

    I had hoped he would apologize with something like, “yes, those letters showed a lack of judgment, I regret sending them and apologize to anyone I offended…” and try to get on with his practice. I think his rants on his blog really take this to a whole new level. I wonder what Dennis Crouch thinks of his likeness being used?

  34. Gene – again, the difference is between a primary and a SPE. He was assigned no cases of his own because he is a SPE, and to reiterate the point I have made already, SPEs do not examine cases, they supervise. No SPE is ever assigned their own cases. SPEs are assigned cases when they are first assigned to the art unit so the SPE can docket them to the appropriate examiners, which is why you see any cases listed for the SPE at all.

    Patent Leather – thanks for sharing. That site is even more offensive than the letter IMHO.

  35. I think the likeness is transformative and part of commentary and either way easily falls to Fair Use.

    That being said, I think Andrew is at a point where the less attention paid to his shamefulness the better.

  36. Eliza-

    You are mistaken. The examiner in question was a PRIMARY for the bulk of the time during which he had no cases of his own assigned to him. Do a Google search and you will find hundreds of patents issued during this time frame on which he is listed as a primary. So he must have been a primary examiner with no cases assigned to him for which he was responsible. He must have only been reviewing the work of junior examiners.

    So you are mistaken to say that he was a SPE during the time frame identified. During much of the time he was a Primary, not a SPE. Thus, the question is how many Primary Examiners are not assigned cases and are only responsible for training/reviewing junior examiners?

    -Gene

  37. In my many years of examining, I have never been aware of a primary not having a docket and only training junior examiners. Issued patents list SPEs as primary examiners. That may be where the confusion lies.

  38. Gene – when a SPE signs a case for a junior he is listed as the primary. While they are not typically called primaries, SPEs are in fact primaries in that they have signatory authority (they were all regular primaries once too). The way it’s listed on the patent is that the signer with signatory authority is listed as the primary, whether they are a SPE or a ‘regular’ primary.

  39. Gene

    Eliza and Old Examiner are correct. You need to back pedal here…..or perhaps you could take advice from Mr Schroeder and double down with a ranting attention getting website. :)

  40. Oh my gosh this has become a nightmare.

    Not trying to be dense here. Every time I think I have my arms wrapped around this another layer of the onion is peeled.

    I think I have it all now. Thanks everyone, particularly Eliza who has dealt the longest with trying to get through to me. Look for something by the end of the week that hopefully puts this whole matter to rest.

    Cheers.

    -Gene

  41. Gene,

    I think they left the word “gullible” out of all the dictionaries. OMG.

    Honestly? An SPE is not supposed to know the tech and the law?
    But when you have a pre-Appeal Conference who sits at the table?
    Hint: the examiner, the SPE and the TQAS guy.
    (Don’t ask me what a TQAS guy does. Probably pushes harder down in the rubber stamp.)

    When you have an Examiner’s Answer during Appeal that raises a new ground of rejection, who is supposed to sign off on it?
    Hint: The SPE (the person who supposedly doesn’t know the tech? Really?)

    Again: They left the word “gullible” out of all the dictionaries. Check it out. ;-)

  42. I meant to say “on” the stamp.

    See the following comment from that “other” web site:
    http://www.patentlyo.com/patent/2010/11/how-effective-are-pre-appeal-brief-conferences.html#comment-6a00d8341c588553ef0147e037cf7e970b

  43. step back,

    Look at the very first comment on the link you provided.

    I trust Dave Boundy and Ron K far more than any unsubstantiated data from the Office of Spin and Propaganda (do you remember the super high “Quality” marks the Office gave itself under the Dudas regime?).

  44. Anon,

    That is valid (but off topic here) point.
    Yes, many pre-appeal conferences appear to be shams.

    The issue here though is: Are SPEs supposed to be knowledgeable in their tech art area?

    If you were to believe some of the comments posted above, they seem to imply that SPEs are just pure “management” people, have no tech-related obligations and it is the Primary Examiners who are the ones that are supposed to be overseeing the Junior Examiners. However, when you get an Office action the last page tells you to directly contact the SPE if you are having a problem with the examiner in charge of the case. There is no mention about a Primary being the one in charge. The buck is supposed to stop at the SPE’s desk, not the Primary’s. The SPE is required to know his/her art area.

  45. Some SPEs do in fact know their art areas; however, as the Office has rapidly expanded over the last few years, many of the SPEs that have been selected are placed in Art Units in which they have little or no experience with the art. It doesn’t mean that they cannot train examiners, but they have to rely on experienced primaries for assistance. It has always been the case that SPEs elicited the help of primaries, but, in the distant past, most of the SPEs were usually promoted from the Art Units in which they examined and had a working knowledge of the art. Further, even if the Office action states that you should contact the SPE, such contact is usually only undertaken if there is some problem that cannot be resolved by the junior examiner and the primary who signed the action and in most cases not related to the propriety of the rejections.

  46. “Some” and “many” are well worn hedge words.
    Does “Some” mean 95% or 5% ?
    Does “many” mean 95% or 5% ?

    Thanks for your insights by the way.

    Also, if the SPE does not understand the tech, how can he/she legitimately sit on the pre-Appeal panel? Or is pre-Appeal a complete waste of time?

  47. I can’t define the terms, but there are both types.

    As to pre-Appeal conferences, when I was at Quality Review many years ago, I was more than capable of reviewing case files and making a determination as to the propriety of the allowances of art I was not familiar with. Once again, it depends upon the capabilities of the the particular SPE. I have participated as a 3rd party in a number of pre-Appeal conferences in my art area, and at least those have not been a waste of time. In quite a few (Is that better than “some’ or many”?) I have had the rejections withdrawn and the case allowed or supplied art for a new ground of rejection.

  48. I was more than capable of reviewing case files and making a determination as to the propriety of the allowances of art I was not familiar with

    Old Examiner, I think that your comment says something that you do not mean to say (and fits right in with what step back is saying).

    There is a serious disconnect between what those in the Office believe to be proper examination and what the patent bar believes to be proper examination.

    I have seen this thought on other forums and firmly believe it: The mountain of backlog at the Office, whether it appears as those applications awaiting first action, those applications awaiting further action, those applications in the RCE pool or those applications in the Appeals pool – ALL of those applications – will not go away when a poor examination is done – at any level. Counsel will simply discuss this with the client and explain whether the rejection has merit or not. Those without merit (and assuming the client has the money to keep fighting) will continue to be fought for.

    The central problem remains a quality examination. Until the Office figures this out, they are wasting their time with ANY type of management system of SPE/Primary/Review Board/Second Set of Eyes or whatever.

    Do it right and do it right the first time. If you don’t have time to do it right the first time, when will you find the time to do it right? The Office must keep this in mind: an applicant deserves a patent unless they do not meet the statutory requirements. When emotions such as “deserving” enter the picture, and the statutory requirements are twisted like a nose of wax, the system bogs down. Dudas and that era’s attempted manipulation of the system for the Office to reject their way out of the patent evaluation workload should be recognized and accepted, IF ONLY so that a better examination process can be developed.

  49. I am well aware of the quality, or lack thereof, of examination of applications:
    http://www.ipwatchdog.com/2009/04/17/an-old-patent-examiner-explains-poor-patent-quality/id=2651/

  50. First, one could rationalize putting younger examiners into SPE spots simply for the reason of not pulling experienced examiners out of examining and making them sign time sheets and attend useless meetings. Second, putting examiners in as SPEs in art unts where they are in charge of classes (a typical mechanical art unit may have 4 or 5 different classes) is not new. There simply is no way to have a SPE in charge of each class or in charge of each art unit where that person has extensive knowledge in that class. The PTO is just not that deep in examiners. Third, patent attorneys are mostly generalist, I would imagine that most don’t file cases in the same class over and over, yet no one is questioning their ability to work and make decisions in different fields (ok.. well some of us do :). They seem to do ok being the jack of all classes. Why would it be different for SPEs. Fourth, my own personal reason why the office likes young SPEs (besides the above) is that they don’t talk back to the directors, they do what they are told to do.

  51. I find none of your provided reasons compelling.

    While the first point appears to have some surface merit, what it comes down to is poor transition management resulting in poor oversight management.

    This and the second point can be characterized as “changes for agency ease.” This is completely the wrong mindset to have, especially dangerous for beaurocratic agencies.

    Your point three is also a misnomer as you cannot compare the preparation apparatus with the state approval apparatus – they are (and are meant to be) different animals.

    However, my largest concern has to do with your last point. To me, this is probably the most dangerous thing you have said. It truly scares me that you actually look to this as a good thing.

  52. Don’t put words in my mouth. I never said any of this was good. It is not. It is just reality except for the last part which is my owe perceived reality.

  53. That last point also frightens me. You don’t want SPEs who are afraid to challenge directors. Years ago during a stint as an acting SPE for an extended preiod of time, I challenged the director during a signatory review panel. The other SPEs weren’t scared to side with me, and the junior examiner was granted her primary position. The director didn’t appreciate it and did not permit me to attend any additonal panels which was within his discretion. At least back then, the SPEs were willing to speak up and not just be lemmings.

  54. GENE ?

    GENE ?

    You there?

    I think it’s time to re-post this comment stream as belonging to a different topic.

    Briefly:

    What is a “Primary” examiner and what are his/her responsibilities, duties and obligations (under law and also according to USPTO internal procedures?)

    SPE? –ditto
    QAS? –ditto
    Group Director? –ditto
    Commissioner of Patents (assistant Director?) –ditto
    PTAB ALJs? –ditto

    I’d be curious to hear from Old Examiner and others on all that :-)

  55. I reject both the notion that I am putting words into your mouth, and the view that your words ‘are reality.’

    However, I do recognize that we may be speaking past each other (each aiming at a different topic), but even so, I find your last point to be still most especially dangerous.

  56. With respect to the duties of a primary examiner, the main responsibility is to examine applications for their compliance with 101,112,102,103 along with all the ancillary issues associated therewith to determine the propriety regarding the issuance of a patent. SPEs trained the junior examiners, classified cases, rated examiners, attended signatory review panels, etc. What the other people do to fill their day is beyond my pay grade.

    When I started in the Office, there were very few junior examiners. My art unit had 8 primaries, 2 grade 12 examiners, and 2 new examiners. My SPE gave us cases in the art he had examined during his career and found out rather quickly our capabilities before giving us cases in art that he was less familiar with; however, he still reviewed and signed our work. He also had time to perform his other duties. The primaries did very little classifying cases and reviewing cases of the juniors but always assisted in helping find relevant art. The Office was actually shrinking in size in those days.

    Over the last twenty 20 years, the Office has such rapid expansion, everything has changed. I believe over 90% of the examiners have less than 10 years experience. Many SPEs don’t have the time to train all their junior examiners (12 in my art unit alone) or the expertise to classify in the art areas they manage. Thus, primaries spend a good deal of their time performing those functions.

    I also know back in the day, many of the examiners and SPEs who chose the Office as their careers had law degrees. My SPE and 5 of the primaries I started with had such credentials. I do and and at least 2 of my juniors currently do. However, there weren’t as many jobs within the Office above examining back in the day so even with a law degree, you still examined. Currently, with the glut of SPE, QAS, Petition, Board jobs, etc., you don’t see as many examiners with such credentials which I believe expands your thought processes when examining.

  57. I think that Old Examiner, step back and I are converging (with an assignment that Gene should put into motion with his excellent contacts): What is the management structure that produces the (less than stellar and often maligned) examination process?

    I would love to know what the ‘official’ baseline is. I would even offer my past experiences in process management towards a solution (if I understand the foundation).