Thursday, January 21, 2010

When the Examination Process Goes South

To those that haven't heard about it, a practitioner became fed up with an examiner when it was apparent that the examination process was being "gamed" for the benefit of the examiner (and the detriment of the applicant).  Not taking it lying down, the practitioner decided to write Director Kappos the following letter:

Dear Mr. Kappos,

I have been practicing before the USPTO for 12 years now and have seen a lot of ridiculous stuff, but this takes the cake. Note the attached "Notice of Non-Compliant Amendment" and the grounds therefore -- the period at the end of claim 1 was accidentally caught in the underline of the word processing selection when indicating the amended language.

Why did I receive this ridiculous response rather than the examiner merely noting it in a substantive response or making an examiner's amendment to correct it? Because the examiner was apparently unable to prepare a substantive response and wanted to get it off his docket in the required window for his response before incurring PTA and probably a demerit in his performance numbers. (The notice was mailed 3 months and 4 days after our timely filed response.)

What is the impact of such manipulation of the internal system and this type of gamesmanship? Upset customers. My client is upset at the delay and added cost. I am upset at the inanity and the waste of my time -- especially when the examiner has his own typographical error in the continuation sheet of the notice: the sentence ends with two periods. But do I have any recourse regarding the examiner's poor grammar? No. Nor would I want to waste my time doing so. But here I am.

My request: instill some common sense and customer service attributes in the examining corp.
(Blogger note: the letter was subsequently forwarded to Greg Aharonian, who posted it in his news service)

The Examiner became incensed, and decided to be candid with Aharonian about the incident:

I am guilty as charged. I had to move the case under time pressures and didn't have the time because I had other things to work on -- what I did under the rules is completely legit though I would have wasted a count and thrown away money by the system the PTO set up, not me . . . She's not going to get much any more help from me so her *ss is going to be twisting in the wind from now on. I'm also going to email and let her know I'm pissed off about her bringing this up with Kappos.

She just jumped off a cliff in my eyes. You know, if she just called me and talked to me I could explain exactly what I did that - too late for that lady, you are going to wish you did not do that, believe me, you are going to regret it . . .[You] can also forget about an after final interviews --- thats at the discretion of the examiner and my discretion from now on will be -- no interview.

Good luck writing your future appeal briefs lady and your three year wait from the BPAI. You really should have thought long and hard about sending that to Kappos and not contacting me first.
Interestingly, Aharonian received another email from an examiner who thought the Kappos letter concerned him, but it turned out it was a different examiner recalling a different incident.  Apparently, these barbs fly at the USPTO more often than people think.
Outrageous?  You bet.  But this is only scratching the surface - read all the emails in their entirety, and get the "inside" examiner response from the excellent Just N Examiner Blog.

5 Comentários:

Anonymous said...

The PTO should find out who this examiner is and fire the person. I was a primary Examiner and now work in the private sector. If you have such a problem with work flow that you have to pull this kind of stunt on an Applicant, then the problem is with how you manage your docket, not the Applicant. But, the even better issue is the examiner's letter. Maybe the examiner should realize that threatening to sabotage an Applicant is improper. This matter should be brought to the attention of OED. This examiner needs to be removed from service.

Anonymous said...

The examinder didn't tell her anything she probably didn't already know. He just made sure she knew it.

I wonder if this was Noise?

Anonymous said...

why would anyone ever respond to Greg Ahronian? bad idea - he's just a complainer and perpetrator (of unpleasantness)

Anonymous said...

This happens all the time. The Examiner's openly admit this. Its time Kappos steps up and offers guidance to the examining corps that indicates that this is not proper and penalizes the examiners for taking such actions that are not material to the case.

Gena777 said...

This is shameful. Such petty and unprofessional behavior reflects badly upon the patent law office. Of course, things like this seem to happen much more often when an agency is underfunded -- as is the USPTO.

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