On September 19, 2016, a pro-se inventor filed an Office Action Response that will go down in the annals of Patent Office history right up there with the Are You Drunk Examiner? response filed several years ago.
The Remarks section of the Office Action Response starts off much as you might expect, but quickly gets confrontational. The inventor did not like being told that his claims would violate the laws of Physics, which lead to a two-page discussion about the ambiguity of the term “laws of Physics.”
Interestingly, the inventor took issue with something that would have been an interesting argument but for him going completely off the rails. Apparently, if the inventor is correct, there is an International Search Authority opinion that the claims cover an industrial application. The inventor wanted to know how and why an Alice rejection could be given if that is the case. The inventor asked the examiner to provide an explanation as to why there was complete and total disagreement with the ISA? An interesting question. The inventor closes with this thought: “Or is it the Examiner did not bother reading said opinion?”
As harsh as asking the Examiner whether they did not read the ISA opinion may seem, that too would be an interesting and unfortunately honest question, had the inventor not ultimately gone completely off the rails. Indeed, at times it can feel like patent examiners are either not paying attention, not reading or just pushing garbage out the door of the Office. But what this inventor did here is NOT the solution. There are avenues to pursue at the Office when a patent examiner is ignoring the rules and law, and there are all kinds of strategies to maneuver applications around, inside the Office, to more friendly examiners in Art Units that actually work for the Patent Granting Authority. Taking matters into your own hands and telling the examiner off as if you are arguing with a NY taxi driver who just side-swiped you as they cut you off, is not a winning strategy!
Whatever one might think of patent examination quality, there is absolutely no call for using foul language to berate examiners in an Office Action Response. It is one thing to point out that it seems clear that an examiner has not read what the applicant has submitted, but it is quite another to call the examiner and the examiner’s supervisor a “f**king a**hole.”
Where things really got off the rails is in the Office Action Remarks under the section heading Grievances. All of the words below are spelled out and can be read in the Remarks to the Office Action Response. I am choosing to use asterisks here, although it won’t take much imagination to figure out what was actually written. The inventor writes:
You and your f**king, a**hole boss cost me thousands of dollars in unnecessary legal costs due to your gross negligence, willful misconduct, failure to obey the law and failure to follow USPTO reviewer’s guidelines, which lead to me having to end any legal support in fighting against you pieces of s**t as well as putting me in a gigantic finance hole that has taken me two and one-half years to dig out from. I am hereby demanding the following be carried out immediately whether you f**king like it or not dip s**ts!
a. You and your f**king, a**hole boss are to recuse yourself from the review of this application immediately.
b. Given the above remarks, which show you and your f**king a**hole boss to be incompetent, incapable, have zero character or integrity, and are fraudsters, you and your f**king s**hole boss are to immediately issue a Notice of Allowance on patent application 13/835,937.
c. You and your f**king a**hole boss are to immediately provide me with those states you qualified for the bar, so I can move to have your law license revoked and any other retribution I deem necessary!
d. A grievance and complaint will be filed with the USPTO Commissioner’s Office demanding you and your f**king a**hole boss be terminated, forfeit any and all pensions and benefits as well as claw back 5 years of your salary.
e. Under no circumstances should you and your f**king a**hole boss contact me, I will considerate it a threat against my person and an act of harassment, which will result in the notification of appropriate authorities.
f. I will not address the remaining claim rejections until you and your f**king a**hole boss are removed from reviewing or having anything to do, in any way, shape or form with this application.
There are patent examiners that can and do inspire this level of venomous hatred. Whatever the wrong perpetrated by the examiner ceases to matter, however, when a response like this is filed. No one who could have helped will lift a finger, and this inventor is finished at the Office. This is not the way to proceed. Maintaining decorum at all costs is absolutely essential. A response like this does nothing to help, period.
Interestingly, the Application cited by the inventor — 13/835,937 — is not the application where this response was filed. This response was filed in Application No. 14/390,168. Application No. 13/835,937 was to the same inventor, but that case was abandoned on April 2, 2015 for failure to timely respond to a Final Rejection.