Patent examiners in various E-commerce Art Units have been telling patent attorneys and patent agents for many years that their supervisors require them to issue rejections in all cases, even going as far as to tell attorneys that they have been instructed to come up with ridiculous, bogus, frivolous rejections that clearly have no merit. Over the years this has caused some examiners to quit, choosing to leave the Patent Office altogether rather than participate in this charade. Others have requested transfers out to other areas of the Patent Office that do not operate in the same Banana Republic fashion.
The stories of examiners being told to reject at all cost are legion in the software space. The Patent Office fluffs this off as “anecdotal evidence,” but that simply isn’t true. Patent examiners are telling attorneys and agents that they have been instructed to reject, creating frivolous rejections if necessary in order to reject. That is what many patent attorneys and agents have been told. Is it true? The facts support what these examiners have been saying all along, making this far more than some “anecdotal” problem.
The reopening of cases to issue rejections after a complete reversal by the PTAB is perhaps among the most persuasive evidence that TC 3600 has a reject at all costs policy. See The Impotence of the Patent Trial and Appeal Board. The reopening of cases after a complete reversal is just a part of the overall scheme in place in TC 3600. Supervisors not only won’t authorize the issuance of the patent, but they will reopen prosecution even after a successful appeal to make sure a patent does not issue. 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.
Time and time again the Patent Office will say they have looked into this or another matter and there is nothing to these “anecdotal” stories. I’ve been told more than once that what seems to be happening is patent examiners are blaming their supervisors when speaking with attorneys and agents rather than taking responsibility for their own independent decisions. So, according to the Patent Office the problem is the examiners, not the TC Director, not a Supervisory Patent Examiner (SPE), not a Quality Assurance Supervisor (QAS).
I’ve been told that there is no one at the Patent Office on any level requiring, suggesting or even hinting that examiners should reject patent applications, even in the E-commerce Art Units. Those examiners speaking out of turn about recalcitrant supervisors are the problem, not the supervisors. The supervisors in the Art Units and Directors in TC 3600 are exemplary employees and would love to issue patents if only they could. The patent examiners are speaking out of turn and blaming their supervisors without justification for their own actions. Really?
If I were one of the patent examiners in the E-commerce Art Units being forced by supervisors to issue bogus rejections I’d think long and hard about coming forward. The Patent Office seems to be turning a blind eye to the fundamental mistreatment of applicants in TC 3600. To fix this mess two things will need to happen. First, at least one applicant is going to need to file a writ of mandamus in the Eastern District of Virginia in order to bring the power of the federal judiciary to bear to expose what is happening. Whether successful or not, a mandamus will shed much needed light on the practices of the USPTO, and anyone familiar with the Eastern District of Virginia knows they are likely to take an extremely dim view of these types of extraordinary procedural hurdles the frustrate applicant rights and prevent judicial review. Second, one or more whistleblowing patent examiners will need to come forward and explain what is being said behind closed doors.
To put the magnitude of the problem into context, so far in 2016 the overall allowance rate for the E-commerce Art Units in TC 3600 is 11.2%, with Art Unit 3689 having an allowance rate of 1.3%. See Where Patent Applications Go to Die. If these statistics are not eye opening then nothing can ever open your eyes. If these statistics, together with the systematic reopening of prosecution when an examiner has been completely reversed by the PTAB, does not warrant an immediate investigation by the Commerce Department Inspector General then why exactly do we have an Inspector General?
These are Art Units make a practice of issuing frivolous rejections, as evidenced by the number of times examiners are reversed by the PTAB. In an earlier article I listed eleven (11) such situations over the last 10 months by TC Director Greg Vidovich, but that seems to be the tip of the iceberg. Patent examiners are so confident in their ability to harass applicants that they even tell patent attorneys what they are doing! Patent examiners proudly proclaim to applicants and attorneys that it has been years since they have issued a patent, which is clearly true based on the facts. What is an applicant supposed to do? Appeal to the PTAB? That would be great if an appeal to the PTAB mattered, but the TC Director in 3600 will simply get the PTAB decision back and authorize reopening of prosecution.
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). If that realization doesn’t cause patent owners to pick up their pitchforks and march for change I don’t know what ever could.
It is also truly ironic that it is applicants who are 100% successful at the PTAB that are screwed. Having been 100% successful there is nothing for the applicant to appeal to an Article III court. Therefore, the TC Director can toy with the applicant by reopening prosecution, leaving the applicant with no any ability to get to an Article III court to address this systematic and fundamental injustice. The applicant would actually be better off having won a reversal on all the truly frivolous rejections made by the examiner and then losing on one absurdly broad claim. The applicant could then appeal to an Article III court and get outside the Patent Office. I doubt even the most recalcitrant TC Director wouldn’t dare reopen prosecution after an appeal to the Federal Circuit or to the Eastern District of Virginia.
This is not how the system is supposed to work. Patent examiners are supposed to bring into effect the decision of the Board (see 37 CFR 41.50) and only in rare cases is prosecution supposed to be reopened (see 37 CFR 1.198). There is nothing in the rules or law that support the systematic reopening every case only to continue to reject claims at all costs. This renders the PTAB meaningless, at least from the point of view of the applicant.
For follow-up articles on this topic please see: