Posts Tagged: "supervisory patent examiners"

Somehow a culture of Examiner v. Applicant has evolved. There doesn’t seem to be much in examiner training to pit them against external stakeholders. No evidence there of USPTO-endorsed nefarious agenda! Examiner training directives regarding external stakeholder interaction are in-line with what the stakeholder should reasonably expect. Still, it seems every patent practitioner has a story of examiner absurdity to tell.

The unadvertised feature is that the Pre-Appeal Conference board is assembled by an administrative assistant in the technology center, but the P3 board is assembled by the SPE. This is a critical difference. With the P3 program, the Office is trying to address an internally perceived problem that they believe they have with the Pre-Appeal Conference, which is the technical knowledge of the third member of the board. The third member of the Pre-Appeal Conference is the first available examiner from any technology center and with any type of technical background. This person is essentially selected at random, and often has no technical competence in the area. With the P3 program, the third person is picked by the SPE. This gives the SPE the ability to stack the deck in their favor, intentionally or not.

So an applicant waits years on appeal to get relief from frivolous rejections, achieves a complete and total victory, and their reward is another bogus rejection from the same examiner who has been harassing them for years. It is no wonder many applicants just give up. If this were happening anywhere else in the world we would ridicule the system as fixed or rigged… How ironic, and sad, is it that the PTAB has the authority to invalidate issued patents in post grant proceedings but has no implementing authority with respect to its decisions completely reversing even frivolous examiner rejections. This is yet another reason the PTAB is appropriately characterized a death squad. The only power the PTAB seems to have is to take rights away from property owners (i.e., patent owners).