From the second decision denying petition for revival.

With the original petition, Petitioner asserted that he did not believe that any action needed to be taken after receiving the advisory action which was mailed in response to an after-final amendment, due to a telephone conversation he had with the Examiner. Petitioner asserted that he was informed over the phone that a new office action would be forthcoming - and thus he "took no further action in the case," relying on this oral understanding.

A second petition had been made because examiner Corrielus issued an interview summary after the first revival denial that supported Jenski's position: the examiner did say he would issue a new office action. Charles Pearson, Director of the Office of Petitions, crafted a most ungenerous interpretation of 37 CFR §1.2.

The decision on the original decision dismissed Petitioner's request to withdraw the holding of abandonment, on the grounds that Petitioner's reliance on an oral promise is expressly prohibited by 37 C.F.R. §1.2. With the introduction of this oral understanding into the record via the interview summary, nothing has changed. This information was not placed into the record until more than six months after Petitioner's reliance. At the time of Petitioner's reliance, the understanding was a mere oral promise. This section of the C.F.R. expressly prohibits Petitioner's reliance on the oral understanding, and withdrawal of the holding of the abandonment based on an action which is in contravention to a regulation would be improper.

Director Pearson unmoved; application expired.

37 CFR §1.2 requires that all business with the patent office "should be transacted in writing. No attention will be paid to any alleged oral promise, stipulation, or understanding in relation to which there is disagreement or doubt."

But there was no "disagreement or doubt." Further, MPEP 713.04 intimates that the written record is not the whole story if incomplete, as it was in this instance.

The action of the U.S. Patent and Trademark Office cannot be based exclusively on the written record in the Office if that record is itself incomplete through the failure to record the substance of interviews.

It is the responsibility of the applicant or the attorney or agent to make the substance of an interview of record in the application file, except where the interview was initiated by the examiner and the examiner indicated on the "Examiner Initiated Interview Summary" form (PTOL-413B) that the examiner will provide a written summary. It is the examiner's responsibility to see that such a record is made and to correct material inaccuracies which bear directly on the question of patentability.

So, let there be no doubt that the patent office will screw you out of your patent if the rules can be twisted against you. That said, prosecutor Jenski should have known better than to sit on his thumbs.

Hat tip to Hal Wegner.