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November 27, 2008

Suppression

Hal "The Snoop" Wegner: "The PTO has systematically suppressed access to its internal decisions. Anecdotal evidence suggests that access to petitions decisions would reveal widespread practice violations by Examiners, sometimes upheld by Technology Center Directors as well. [There is a] PTO burial of key information amongst tens of thousands of at best difficult to access petitions decisions, as well as a cover-up of PTO delay in reaching decisions on petitions in patent (as opposed to trademark) matters."

The USPTO has locked up its web site, making it impossible to search. Professor Crouch: "The BPAI opinions are stored on the site http://des.uspto.gov. Unfortunately that site is not crawled by web indexes such as Google or Yahoo. The problem is that the site includes a "robots.txt" file that excludes such activity. See http://des.uspto.gov/robots.txt. Robots are also blocked from crawling the USPTO patent database (http://patft.uspto.gov/robots.txt) and the PAIR site (http://portal.uspto.gov/robots.txt)."

Wegner:

For FY2008 there were over 51,000 decisions on petition including over 1000 decisions on petitions under 37 CFR ยง 1.182 which often include highly unusual situations that are deserving of public scrutiny. Very few of these petitions have been made accessible to the public. The statistical information reported here is buried in the PTO Annual Report at p. 140.

Delayed Decisions on Petitions: Anecdotal evidence suggests that the PTO is often far too slow in answering petitions in patent matters. This evidence is buttressed by the failure of the PTO to publish information about just how many petitions have gone undecided in patent matters, while it has published such information for trademark matters.

The USPTO 2008 Performance and Accountability Report has on its cover: "accountability" and "transparency." People advertise what they are not.

Posted by Patent Hawk at November 27, 2008 11:35 AM | The Patent Office

Comments

robots.txt only blocks if it is respected.
google respects it.
there is nothing to stop some guy from the Ukraine from scraping and indexing the site.

Posted by: internetGuy at November 28, 2008 4:18 AM

Mr. Wegner is absolutely correct. As usual.

The petitions process at the PTO is irreparably broken. Every single aspect of, and individual associated with, it needs to be removed.

This was (is?) a huge problem with the proposed continuation rules. The PTO was going to be deciding thousands of petitions a year to permit, most likely to deny, 3rd and higher continuations, but had no plans to publish the decisions or establish any set of objective criteria that applicants could rely on. A complete and total due process and equal protection violation on the part of the PTO. But the law breaking scoundrels in charge just didn't (don't?) care.

Posted by: JD at November 28, 2008 8:08 AM

JD, it's worse than that. Under the new BPAI appeal rules, you can get sanctioned for merely violating one of the new complex briefing rules. See Rule 41.56(a)(1). Sanctions include having the appeal summarily dumped. There is no direct appeal because it's not a decision on the merits.

How much transparency do you think will attach to such sanctions decisions. Zero. You will get a notice that your Table of Authorities was incomplete and that your appeal has been dismissed. Because this is not a decision on the merits, it is contested by petition. This means what reaches the CAFC (after $1000 in fees) is not the sanction decision per se, but the decision on the petition.

"If a sanction is entered prior
to a final decision of the Board, review
is available by petition and
subsequently in a court to the extent
authorized by Congress." PTO comments on the rules.

These new rules are just as onerous as the continuation rules and they also affect the applicants' substantial rights. Why is nobody's knickers in a twist? Where are the bloggers on this issue -- mute, mute, mute.

Babel Boy

Posted by: Not Glad To See You, It's a Banana at November 28, 2008 9:50 AM

Babel Boy:
You are correct. These rules are just as substantive and have been promulgated in contravention of the Paperwork Reduction Act and other statutes.
See the PRA comments submitted to OMB at
http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=200809-0651-003

Ron

Posted by: Ron Katznelson at November 29, 2008 2:50 AM

Sorry in advance for being blunt, but this is just like the Irish disease I lived through many years ago. Hiding the insanely drunk uncle (not me - ha ha) in the basement or attic. Good way to deal with the problem PTO! Carry that cross dudes!

Posted by: jguay at November 29, 2008 2:11 PM

If the petitions process is broken now, imagine what would have happened if the continuation/claims rules had been enacted in which case filing petitions would have been a regular part of prosecution practice!!!

Posted by: John prosecutor at December 1, 2008 11:07 AM

What the system needs is an independent Office of the Ombudsman under Treasury or OMB, not the PTO, with the power to:

1. hear and decide all petitions, and grant applicants attorney costs in egregious cases.

2. resolve appeal procedural issues -- like examiners who game the system by repeatedly reopening prosecution after appeal briefs.

3. award applicants attorney fees in cases of examiner misconduct or gross malfeasance.

4. hear ethics/competence complaints against both examiners and pratictioners with power to sanction both -- i.e converting OED to OEE, Office of Education and Enrollement.

5. vet all new rules including monitoring compliance with executive orders and OMB directives, and receiving and implementing public comments.

6. initiate legal action against the Director where appropriate -- as in Tafas v Dudas

7. receive and investigate whistle-blower complaints

Just dreaming. . . . if a half-breed, first generation Kenyan can get elected president, anything is possible. Wasn't that the take home lesson from Nov 4?

BB

Posted by: Not Glad To See You, It's a Banana at December 1, 2008 1:44 PM

BB,

The Commerce Department has an Inspector General. That office could be expanded to take on some of the things you mention.

The biggest problem with the petitions process at the PTO is that the petitions are being decided by people with no training in the law. Well, no training beyond what the PTO provides. Which is worhtless.

So what you end up with is a well reasoned petition drafted by an attorney being decided by somebody who can just say, "Nuh-uh" and never be accountable. They know they can simply frustrate applicants until they give up. Or run out of time. Or money.

It's simply disgraceful.

Posted by: JD at December 1, 2008 3:01 PM

Speaking of Examiner misconduct and malfeasance, what legal options are there to address it both within the USPTO framework and in the courts? What kind of damages, if any, can be obtained in the courts?

Thanks for any advice.

Posted by: Applicant at December 3, 2008 11:32 AM

Babel Boy and others:

The new Appeals Rules will apparently NOT be effective tomorrow. The PTO is apparently publishing a notice in tomorrow's Federal Register (the PTO always gives practitioners so much warning... oh, wait, they don't have warning themselves):

http://www.federalregister.gov/OFRUpload/OFRData/2008-29297_PI.pdf

PatentDocs has the story.

Posted by: niRPa at December 9, 2008 9:08 AM