On May 1, 2013, we published an article titled Patent Attorney Asks Examiner “Are You Drunk?” The article was about an unfortunate and horribly inappropriate filing made by an attorney.
After providing the filing I explained that there are better ways to approach the situation, but I also looked into some publicly available statistics to see whether there was any explainable frustration that may have been experienced by this attorney. That part of the article looking at the statistics painted an inaccurate and unfair picture. I write today to set the record straight.
The examiner who was sent this inappropriate filing is a junior examiner — Examiner Valvis — who has been with the Patent Office only 8 months. In the article I suggested that there was reason for frustration. What I inartfully was trying to say was that at first glance there seemed to be a reason to be frustrated because in the database consulted there was no evidence of any patents being issued in 66 applications worked on. I then said: “But with only 66 applications total that might not be surprising.” It isn’t surprising because new examiners begin work on new cases and most cases are not allowed on a first office action. So someone who has only 66 applications was clearly a junior person and the pool simply too small to draw any conclusions one way or another.
Because the pool of cases was too small to draw any conclusions we could and should look to the Supervisory Patent Examiner who was supervising Valvis. That SPE was Len Tran, who is a supervisor in Art Unit 3752.
Upon looking at the database I was accessing the information provided showed that Len Tran has not issued a patent since 2008. A shocking revelation. The problem, however, is that this was not actually a complete and accurate picture of Len Tran’s record. Indeed, it was incorrect to a point where what was said should probably be considered completely false.
This error occurs in part because of the way that the Patent Office releases information in PAIR, and in part because of how the database was processing that information.
Upon investigation what should have been obvious initially became crystal clear. Namely:
- Junior Patent Examiners are assigned primary responsibility for the cases they work on.
- SPEs work with Junior Patent Examiners and have other administrative responsibilities with the Art Units where they are assigned.
- SPEs are listed on the patents issued where Junior Patent Examiners are the examiner having primary responsibility.
- Junior Patent Examiners do not have authority to issue patents.
- The SPE named on the case along with the Junior Patent Examiner is the one who has the decision-making authority.
- PAIR does not list SPEs as being assigned to a case.
- The database I was consulting used PAIR data, so the actual decision-maker (i.e., the SPE) was not being captured in database statistics.
For the majority of the history of the USPTO patent statistics were not really feasible to obtain except for those released by the USPTO. Over the past several years, however, with the permission of the USPTO Google has been crawling USPTO servers and scrapping data in bulk and providing that raw data to the USPTO as well as to the public. Google has been stripping the text from image files and turning it into usable text files. This has allowed a variety of services access to information never before feasibly obtained, which has led to commercial databases and search tools.
Patent-related data is complex. Unfortunately, as this episode shows the number of applications reviewed by SPEs cannot be easily determined from public PAIR roll-ups, which simply capture the examiner to whom the case is assigned. Determining the number SPE reviews would require review of individual cases.
Whatever the reason there is no excuse. I wrote something incorrect about SPE Len Tran and for that I apologize to him and to the USPTO and to readers who were lead astray. The fact is that if you do a simple Google patent search you will see that since the time he became a SPE in 2008 he has signed many hundreds of patents. SPE Len Tran is not an examiner or SPE that refuses to issue patents. To the contrary, he has issued many patents for a variety of different technologies and seems to be an example of a good supervisor.