Posts Tagged: "examiner"

To fix the current incarnation of the U.S. patent system and reinvigorate the American economy, Judge Michel called upon the House IP subcommittee to adopt seven specific action items. Five of the action items relate to improvements to patent law for the strengthening of patent rights while optimizing PTAB procedures already in place, while two other action items focus on the administration of the USPTO.

As the old saying goes: Ignorance of the law is no excuse. So there seems to be no good reason that the Examining corps’ inability to apply the law to the facts in ex parte appeals should be costing applicants this much money yearly. We should not have 2X higher reversal rates for novelty and obviousness than statutory subject matter. However, until something changes about how the USPTO decides to take cases to the board, it is apparent that patent applicants will continue to have to be patient and pay.

“We began noticing that key appointments in the Trump Administration were going to Republicans who were very anti-patent,” Caputo noted. These appointments include Vishal Amin, who Trump selected to serve as Intellectual Property Enforcement Coordinator (IPEC) within the office of the President. Amin had an important role in drafting the America Invents Act of 2011, especially those provisions regarding the PTAB which was just targeted by US Inventor’s protest. Caputo also raised concerns over the potential patent views of Joseph Matal, who is currently the acting Director of the USPTO. Many inventors believe Matal is lobbying to remain the Director and not just serve in the interim after Michelle Lee’s resignation.

Despite going on with the protest after the USPTO denied a use permit application for the event, a source from the event reports that all planned aspects of the protest, including the burning of patents in clear view of the USPTO, occurred without anyone going to jail… Inventors went to the front steps of the USPTO and lit their patents on fire. According to Landreneau, a total of six patents were burnt in this manner.

Prepared statements released in advance of the hearing talked tough, but that was pretty much it. Insofar as getting to the root of the problems identified in the IG report the hearing turned out to be a big, fat nothing burger. I guess when the fraud is only 2% of the hours worked that is seen as a moral victory and a sign of good government. Perhaps 2% fraud in government is the best we can expect, but if you dig even one fraction of a level deeper within the IG report you will notice that almost 45% of those hours characterized as fraudulent were claimed by fewer than 5% of patent examiners. How is it possible that less than 5% of patent examiners accounted for nearly half of the fraudulent hours identified by the Inspector General? If there are valid reasons that the many hard working, conscientious examiners might be working and not logged in then why are so many of these questionable hours disproportionately being claimed by only a small number of patent examiners?

“My team and I do not tolerate time and attendance abuse,” Lee told the subcommittee. While she did note that the USPTO had taken disciplinary actions against examiners that have abused time and attendance reports, such actions ranging from counseling to expulsion and repayment for hours not worked, she added that there was evidence that instances of time and attendance abuse were not widespread. She cited a report on the USPTO’s telework program issued by the National Academy of Public Administration (NAPA) in July 2015. The report found that “It would appear to be unlikely that [time and attendance] abuse is widespread or unique to teleworkers, and it does not appear to reflect the actions of the workforce as a whole.” Additionally, the report indicated that the agency’s telework program saved the agency $7 million each year on average by allowing examiners to continue working in spite of government shutdowns caused by weather or other reasons.

Due to a bizarre jurisdictional “feature,” the Board does not actually get jurisdiction over a case until either a Reply Brief has been filed or the time to file a Reply Brief has run. See 37 CFR 41.35(a). What this means is the patent examiner, in order to frustrate the applicant’s ability to have the Board hear a case, can simply refuse to file an Examiner’s Answer and instead reopen prosecution. This happens all too frequently in some Art Units.

Delay, frustrate, harass and ignore patent applicants. Issue frivolous rejections if necessary, but reject at all costs. If the Board issues a complete reversal just reopen prosecution. Eventually the patent applicant will get the idea and abandon the application. TC 3600 seems to be fighting a very successful and coordinated war of attrition against applicants.

The end goal of any patent application is to obtain a patent, which is true whether an applicant find themselves assigned to a patent examiner in an Art Unit that issues over 95% of applications received, or whether they find themselves assigned to a patent examiner in an Art Unit that issues less than 5% of applications received. Unless and until the Patent Office can address obstinate patent examiners and patent examiners who continually fail to meet quality expectations how can the Office truly address the problem? Frankly, talking about improving patent quality seems to be much ado about nothing, or perhaps akin to rearranging deck chairs on a sinking ship.