June 9, 2008
Broadside criticism of individual examiners doing their daily tasks should be out of bound (sic) and, a fortiori, spineless, anonymous criticism of individual examiners by a practitioner either crosses an ethical or disciplinary line - or such a line should be sharply drawn to deal with such reprehensible conduct.
As a sign of the global ridicule that now exists, one of the latest characterizations of the U.S. examining corps by the leading British IP blog pictures IP examiners as "The Numptys." It's time for Americans to call a halt to "Numptyizing" the examining corps and making our colleagues on the government side an international joke.
Thanks to agency management, USPTO examination has become a international joke. The truth hurts.
But Hal is wrong about calling a halt, because the ridicule is deserved and necessary to drum the clowns running the PTO out, most notably Jon Dudas and Margaret Peterlin.
Gross incompetence, itself reprehensible conduct, deserves reprehension. Numpty up.
Wegner failed to identify "the leading British IP blog." Couldn't find it.
And, please, what are Numptys? TV reception isn't so good here in the cave.
Hat tip of thanks to Hal for the entertainment. But tell the story, man.
Posted by Patent Hawk at June 9, 2008 8:08 PM | The Patent Office
The blog and article in question is here:
Most would agree that this office action is slightly ridiculous and does not reflect very well on the USPTO.
Posted by: hcblom at June 9, 2008 9:47 PM
What's interesting is that a single unique OA with a mere typo is interpreted by the receiver as an OA with a deliberate citation of the subject app as a prior art reference to itself. That the objection's absurdity was the consequence of a silly little typo simply didn't occur to the Applicant, Nokia. Typo's in OA's issued by the EPO are common enough, but nobody then thinks that the Examiner is a numpty. That's because EPO law is simple, unlike the law a USPTO Exr has to follow.
Posted by: MaxDrei at June 9, 2008 10:18 PM
Now that I've read the published blog entries, I still don't know what this is all about, except maybe a typo in an office action. What it wasn't about was a scathing indictment of a patent examiner.
Forget the patent examiners, however Numpty they may be. But, for the record, let me tell you, Numpty just doesn't cover it. ;-)
The real Numptys in this story are whoever writes for Tufty the Cat at IPKat, Greg Aharonian, and Hal Wegner. If this cluster fun is exemplary, these wanna-be opinionators seem to posses all the storytelling skill of a patent examiner with English as a second language and a backlog pile of office actions. Except the patent examiner has an excuse, because English IS a second language, and there's this rush of a pile of office actions.
Here's a clue for you three: blogging is about coherent storytelling. If you can't tell a story, try confining your keyboarding to your paymasters, not the public at large.
Posted by: Patent Hawk at June 9, 2008 10:49 PM
IPKat routinely calls U.S. search and examination "rubbish." They are correct. It is. And it's that way because of the horrible management of the PTO.
This wasn't a simple "typo" as some are concluding. One of the biggest problems at the PTO is the propensity of too many, if not all, examiners to clack away on their keyboards, hit "print" and sign whatever rolls of their HP Laser Jet. No proof reading whatsoever. This problem is compounded by the "review" provided by most, if not all, SPE's which is nothing more than, "Hhm, let's see, everything's rejected, nothing's allowed, where's my pen??!!!"
The reasons these problems exist is because, as Hal Wegner, and others, has correctly noted many, many, times is because the PTO rewards this behavior through the examiner PAP, where quantity is regarded as quality.
I don't see the situation changing any time soon. Not even with the imminent departure of the current management clowns.
Posted by: JD at June 10, 2008 4:45 AM
Much Ado About Numptying?
I'm as guilty as the next blogger for not having fully chased down the facts (due to laziness, and besides I don't get paid for this). However, didn't someone already point out that the citation number to the same application in the rejection was a clear typo because everything that followed in the rejection was clearly pointing to a different reference? A simple telephone call to the examiner would have cleared up the problem.
It appears that somebody was desperately trying to build a mountain out of a numptole hill; IMHO. Much ado about numpting. The embarrassment should lay with the attorney who didn't place the telephone call and not with the examiner.
Posted by: step back at June 10, 2008 5:18 AM
Better than calling them "Humpties."
Ha ha ha, those guys are funny looking! If there were no peanut gallery humor and criticism, I would have lost my cool with this agency long ago. And believe me, I teetered about the edge of the abyss many times.
I believe it is true the US examining corps is not given much international respect. I have seen it often. It is not overt - more like both parties understand the deal. However, it does rise to the surface occasionally. I attended a meeting in which a foreign client's representative was giving a presentation about his country's patent system. He happened to mention how professional and respected the examiners in his country were, "unlike those in the US."
[The former PTO employees present burst out laughing, leading to a confused look on the speaker's face. After we explained, he turned white as a ghost.]
That happened about seven years ago. Lord knows what they are thinking now.
Posted by: johng at June 10, 2008 5:21 AM
That "the attorney should have placed a phone call" approach is bunk. Sorry. No offense intended to those who advocate it.
I tried that approach. Numerous times. Whenever I got an OA with an error that was clear, and fatal, and called the examiner, what I got was, "Well, put it in writing and send it in."
Yeah. I'll do that. And the examiner will sit on my response for 60 days, plus the end of the bi-week, and then right up until noon on the next count Monday. What will get sent out is usually as bad, if not worse, than the OA complained of.
Posted by: JD at June 10, 2008 5:39 AM
Anonymous criticisms of particular examiner's is lame. No doubt about it.
Trust me, I've seen Office Actions from every patent office in the world, and the GB Patent Office isn't above similar criticism.
Posted by: The Mad Prosecutor at June 10, 2008 6:28 AM
In this specific case the attorney should have done his diligence and realized there was a typo. He should have called the examiner to verify the rejection was based on the Ito reference and then proceeded. In general if a new rejection might be forthcoming following an examiner error there is no reason to call.
In any case what an attorney should not do is tip off media and thereby humiliate the examiner to make some larger point about the office.
Posted by: 2600examiner at June 10, 2008 6:46 AM
"In any case what an attorney should not do is tip off media and thereby humiliate the examiner to make some larger point about the office."
How do you know that's what happened? How do you know that it wasn't simply one patent attorney sending a friend an e-mail to the effect of, "Hey, look at this ridiculous Office Action I received" and that e-mail was forwarded and forwarded and forwarded until it just took on a life of its own until it eventually ended up with Greg Aharonian?
As I actually saw such an e-mail before Mr. Aharonian made his post, I would suspect that's what happened.
If you work at the PTO, get used to the possibility that you're gonna be humiliated at some point. From the "Patent of the Week" postings down in the old Crystal City underground to dog toys that resemble sticks (and would be infringed by sticks), the possiblity of humiliation comes with the job.
The applicant responded in like 10 days. What more do you want?
You may want also want to review Rule 2. MPEP 710.06 is dead. It was killed by the siege mentality environment cultivated by Dumbass and Doll.
Let's see how long it takes the examiner to issue a corrected Office Action. My bet is 2+ months. Any takers?
Posted by: GLKRL at June 10, 2008 7:28 AM
"I tried that approach. Numerous times. Whenever I got an OA with an error that was clear, and fatal, and called the examiner, what I got was, "Well, put it in writing and send it in.""
Hopefully you also put in writing the interview with the examiner as the rules require of you. Then the record will show that you did everything you could and it was the PTO that was uncooperative and unhelpful.
I personally have not had such experiences. Instead the examiner typically responds over the phone with: "Yes, you are correct, that is what I meant, the other reference or the other element in Fig. X." I put that in the record and then proceed with a substantive response to the corrected action.
To err is human. Examiners are human. So is we attorneys. [sic :-)]
Posted by: step back at June 10, 2008 10:20 AM
I summarize all of my telephone conversations with the examiners.
I've tried your approach too, step back. For instance, I've received several OA's where the claims are rejected over Jones. Look at all the 1449's and 892's in the file, and no Jones. Call examiner, find out what ref he's talking about, note in my response the conversation that clarified the rejection and proceed on my merry way.
Would never ask the examiner to send another OA. It already takes 2 months for my EFS filed response to makes its way onto the examiner's docket. How much more time can be wasted?
Posted by: JD at June 10, 2008 10:53 AM
"Let's see how long it takes the examiner to issue a corrected Office Action. My bet is 2+ months. Any takers?"
The real question is whether they make it a final rejection :)
Posted by: Examiner Y at June 10, 2008 6:16 PM