Vidal Addresses ‘Patent Examiner’ Reddit Issue with USPTO Personnel

“If you, as an individual, come across an issue that you feel presents a personal challenge, please bring the issue to your supervisor, or avail yourself of any of our other appropriate channels for raising such issues.” – USPTO Director, Kathi Vidal

USPTO Offices

As we have reported recently, IPWatchdog broke news last week about a Reddit thread dedicated to purported patent examiners in which one examiner asked their peers for advice on how to approach examination of patents that have purposes they may fundamentally disagree with politically–specifically, a patent geared toward Israeli military technology. At the time the story broke, the U.S. Patent and Trademark Office (USPTO) indicated that it does not, as a general practice, comment on unverified statements by anonymous commenters on Reddit or any other social media platform.”

But now, according to a leaked internal email from USPTO Director Kathi Vidal that was obtained by IPWatchdog, the Office has indicated that it is looking into potential partiality issues raised by the thread. Below is the text of the email in its entirety.

Director’s Message

Reddit post on examiner partiality

Last week, an anonymous person, claiming to be a patent examiner, posted on Reddit seeking advice on examining an application that caused them personal discomfort. This has led to internal and external concerns that there is partiality in the examination process. Though we will not comment in the media on unverified statements by anonymous commenters on social media platforms, we do investigate and take seriously any allegation of partiality or misconduct. We will not stand for any kind of partiality or misconduct in the examining process or otherwise within the agency.

We have many checks and balances in place to ensure that no one person can negatively impact the ability of our customers to receive fair and impartial treatment. We are taking steps to review our processes and internal quality checks to ensure they are fortified, and that appropriate training is provided. As outlined in our mission and embodied within our Strategic Plan, we must take every measure to ensure fair and impartial treatment of each and every application every step of the way. I welcome your input on this and other subjects through the Employee Feedback Portal.

I know that one anonymous and unsubstantiated post is not representative of the views of all the dedicated and hard-working individuals who make up our examiner corps and agency as a whole. I recognize everyone has their own thoughts, experiences, and beliefs. Still, it is our duty to uphold the laws, policies, and values of our agency. If you, as an individual, come across an issue that you feel presents a personal challenge, please bring the issue to your supervisor, or avail yourself of any of our other appropriate channels for raising such issues. Our Ombuds office and Employee Assistance Program (EAP) can also provide confidential support.     

As I often note in speeches and remarks, you all are shining examples of public servants who do your duties with care and integrity. In fact, at the recent induction ceremony of the National Inventors Hall of Fame, honoree Shankar Balasubramanian exclaimed in his acceptance speech, “The patent examiners, the PTO, you are unsung heroes actually. Without the endeavors of all you folk, our inventions wouldn’t go anywhere. You play a critical role in that. Also, you share with us a genuine passion and curiosity, and a desire to make things work.”

Thank you for your incredible work and service to our nation’s innovators and entrepreneurs. You all truly are the unsung heroes, and we are grateful for your passion and dedication.

Best,

Kathi

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13 comments so far. Add my comment.

  • [Avatar for Julie Burke]
    Julie Burke
    May 19, 2024 09:55 am

    MPEP 1701 Office Personnel Not To Express Opinion on Validity, Patentability, Expiration Date, or Enforceability of Patent [R-10.2019]

    Every patent is presumed to be valid. See 35 U.S.C.
    282, first sentence. Public policy demands that every
    employee of the United States Patent and Trademark
    Office (USPTO) refuse to express to any person any
    opinion as to the validity or invalidity of, or the
    patentability or unpatentability of any claim in any
    U.S. patent or the expiration date of any patent,
    except to the extent necessary to carry out:

    (A) an examination of a non-reissue patent
    application where determination of the expiration
    date of a patent is necessary to conduct examination
    of the non-reissue patent application,

    (B) an examination of a reissue application of the patent,

    (C) a supplemental examination proceeding or reexamination proceeding to reexamine the patent,

    (D) an interference or derivation proceeding involving the patent,

    (E) a patent term adjustment or extension under 35 U.S.C. 154 and/or 35 U.S.C. 156 where determination of the expiration date of a patent is necessary to determine the adjustment or extension,

    (F) a notification that a patent has expired for failure to pay maintenance fee,

    (G) a consideration of a request under the regulations (e.g., a petition) wherein determination of patent term is necessary or arises as an ancillary matter, or

    (H) an inter partes or post-grant review of the patent.

    The question of validity or invalidity is otherwise
    exclusively a matter to be determined by a court.

    Likewise, the question of enforceability or
    unenforceability is exclusively a matter to be
    determined by a court.

    Also, MPEP 1701 Office Personnel Not To Testify
    [R-10.2019]

    It is the policy of the United States Patent and
    Trademark Office (USPTO) that its employees,
    including patent examiners, will not appear as
    witnesses or give testimony in legal proceedings,
    except under the conditions specified in 37 CFR Part
    104, Subpart C. The definitions set forth in 37 CFR
    104.1 and the exceptions in 37 CFR 104.21 are
    applicable to this section. Any employee who
    testifies contrary to this policy will be dismissed or
    removed.

    Patent examiners and other USPTO employees
    performing or assisting in the performance of
    quasi-judicial functions, are forbidden to testify as
    experts or to express opinions as to the validity of
    any patent.

    ….

  • [Avatar for Pro Say]
    Pro Say
    May 18, 2024 08:19 pm

    “The USPTO should really stand up more for their own patent examiners work rather then letting the examiner’s work get thrown under the bus without letting them have a say.”

    How right you are Unhappy.

    That one arm of the Patent Office (PTAB) can take away that which was granted by another (Examiner) is just sick. Sick.

    As far as having your Examiner be an expert witness, though I could be mistaken, I seem to recall reading something somewhere many years ago that there’s some Patent Office rule / regulation / law / something where the Patent Office either bars — or can bar — an Examiner from being an expert witness.

    Perhaps Gene, Anon, or someone else can supply a citation.

  • [Avatar for Unhappy Female Inventor]
    Unhappy Female Inventor
    May 18, 2024 06:30 pm

    To Concerned: Has anyone tried using their own patent examiner as an expert witness in their own case against PTAB? They are more expert and smarter in most cases than the judges about the invention. Perhaps have one department within the USPTO help fight another department (PTAB judges) within the USPTO to help US inventors, help stand up for US patents issued, and help defend the quality of the patent examiner’s work in this country.

    Are you saying this might not be allowed? Do you think that the USPTO will actually not let the patent examiner defend their own work? Just wondering if anyone has tried that and if it is allowed. The USPTO should really stand up more for their own patent examiners work rather then letting the examiner’s work get thrown under the bus without letting them have a say.

  • [Avatar for B]
    B
    May 18, 2024 03:04 pm

    But not a word about recourse for APPLICANTS who think they’re affected by biased examiner behavior.

    Vidal is a disaster.

  • [Avatar for Bob Barber]
    Bob Barber
    May 18, 2024 02:22 pm

    What a crock of s–t.
    What recourse do APPLICANTS who are so affected have? Not a word from Kathy with an “i” about that.
    Vidal is a disaster. But she ticks the right boxes, so she must be ok.

  • [Avatar for A. Non]
    A. Non
    May 18, 2024 10:41 am

    Julie Burke:
    Respectfully, the PatentBots website data is not current. I believe they are using 2022 data. Some of the “low-allowance rate examiners” may be SPE, who do not actually examine. The PatentBots data contains many inconsistencies.

    Second, you mention a device to “return nuclear missiles to their country of origin.” A rejection under 112(a) can be made if Applicant is not in possession of the invention. i.e. the technology does not exist.

    Under the Invention Secrecy Act, the USPTO screens applications for national interest in keeping the invention secret. Examiners are not involved in this process. If a nuclear missile related technology (“catch and return”) has been published by USPTO, there could be some inference made about its prospects to function.

  • [Avatar for concerned]
    concerned
    May 18, 2024 06:24 am

    Unhappy Female Inventor:

    The PTAB and courts are indiscriminate. Not only are patent examiners not allowed to defend their work, PTAB wrote and told me I met the law as written by Congress, I just did not meet their case law.

    My attorney did not bother to subpoena the 535 Congress members or the elected president who signed the language into law. Everyone from the 1952 enactment of the law is probably dead and just rolling over in their grave.

  • [Avatar for Julie Burke]
    Julie Burke
    May 17, 2024 12:21 pm

    Senator Tillis and Representatives Kiley and Issa, as you know, the US Dept of Defense blacklisted Shenzhen based DJI, the world’s largest drone manufacturer, in October 2022.

    Yet the USPTO continues to examine and issue DJI’s patent applications covering drone technology.

    Many patents applications filed by DJI and by other watchlisted entities are being hastily allowed following a light examination. It is as if the patent examiners know that these types of applications are not subject to any level of quality review.

    In March 2024, I studied the USPTO’s treatment of 22 DJI patent applications in allowed or final rejection status.

    18/22 applications were assigned to examiners with average or above average art unit allowance rates.

    5/22 were assigned to examiners with their art unit’s highest allowance rate.

    None of the DJI’s applications were assigned to examiners with the lowest allowance rates.

    Patent examiners openly complain on reddit about the “horrible docketing system.”

    Why was Snoo_86350 docketed an application filed by an Israeli entity directed to military-related subject matter their art unit typically does not examine? Why did other examiners on reddit suggest just not allowing the application?

    Are these examiners now under scrutiny for saying the quiet part out loud?

    In Dec. 2021, the OIG called for the USPTO address their inconsistent patent decision making. processes. OIG-22-0101-1.

    Even within art units that examine military-related technologies, the USPTO management/leadership has a long standing practice of refusing to address extraordinarily wide ranges of allow/rejection rates.

    According to Patent Bots, in March 2024, art units examining drone technology had seasoned examiners with three years average allowance rates ranging from ~23% to ~92% (AU 2483) or 44% to 95% (AU 3612).

    Congress should take a deep look into how patent application are docketed to art units, how applications are assigned to examiners within a single art, how USPTO leadership permits such wide within-art-unit variations in allowance and rejection rates, and how the USPTO hastily issues lightly examined patent applications for watchlisted entities, such as DJI, even when the claim cover sanctioned technologies.

    https://www.linkedin.com/posts/julie-burke-492264120_how-dji-patent-applications-are-assigned-activity-7170933519479681024-MuWX?utm_source=share&utm_medium=member_desktop

  • [Avatar for Julie Burke]
    Julie Burke
    May 17, 2024 11:43 am

    Senator Tillis and Representatives Kiley and Issa, note USPTo Director Kathi Vidal’s stated that “[w]e will not stand for any kind of partiality or misconduct in the examining process or otherwise in the agency.”

    Note Snoo_86350 had concerns about an application directed to technology with military implications. Note the USPTO claims the SAWS program, the epitome of partiality and misconduct, was retired in 2015. Was it?

    See US SN 15/658,121 filed July 24, 2017 and under examination through 2020. With no priority claim, this application did not overlap with the pre-2015 SAWS program.

    SAWS disproportionately targeted individuals and small entity inventors. The ‘121 application was filed as a micro entity by US pro se inventor Hessing-Roper.

    The title clearly would have raised SAWS red flags: “Apparatus machinery for moveable expanding mechanism to receive nuclear weapons missiles, other weapon, or cut, sever nuclear warheads or disarm them or relocate or send back nuclear weapons to their country of origin.”

    In the two non-final and two final office actions, the ‘121 claims were variously rejected under 35 USC 112 1st and 2nd. With each office action, the serial one sentence prior art rejection was of the format that all pending claims were rejected under 35 USC 102(a)(1) as being anticipated by Streetman et al (US 4,573,396), or by Blankenship (US 6,978,708) or by Reid (US 2003/0010183) with no further explanation. Because new prior art was cited each time, the examiner articulated no need to respond to applicant’s prior arguments.

    Applicant filed nine Appeal Briefs before any Examiner’s Answer was written. The PTAB affirmed the 112(b) and 112(a) written description rejection, but reversed the 102 rejection for not stating a specific basis for rejecting any claim.

    Applicants’ requests for rehearing have been denied and the application is now involved in court proceedings.

    The ‘121 application is drawn to subject matter which raises national security concerns, a topic once flagged under SAWS.

    Whether or not the ‘121 application contains patentable subject matter, Inventor Hessing-Roper paid for and deserved a fair examination on the merits, not serially changing one sentence prior art rejections that even the PTAB could not uphold.

    Non SAWS-flagged applications are generally not examined this way.

    Applications filed by some Chinese entities are not examined this way either, even ones that raise clear national security concerns.

    In fact, the ‘121 application was rejected by the same examiner who allowed US Patent No. 11,732,999, directed to an Erection Device and Method for Marine Hot Launch of Rocket, to Ludong University, Yantai China following a speedy 28 day exam.

    This is one in a long series of essentially rubber stamped US patent applications being lightly examined and awarded to Chinese entities, including watchlisted Chinese entities for technology that raises clear national security concerns.

    Yet the USPTO does not does not stand for any kind of partiality or misconduct in the examine process?

    https://www.linkedin.com/posts/julie-burke-492264120_erection-device-and-method-for-marine-hot-activity-7190099432028229632-vW7u?utm_source=share&utm_medium=member_desktop

  • [Avatar for Unhappy Female Inventor]
    Unhappy Female Inventor
    May 17, 2024 11:27 am

    If “The patent examiners, the PTO, you are unsung heroes actually. Without the endeavors of all you folk, our inventions wouldn’t go anywhere. You play a critical role in that.”

    Then why not let them be able to defend their work at PTAB and IPR hearings? Why let a bunch of PTAB judges who are not as familiar with their work as they are, cancel their hard work and make they look like their work was not done right?They are unsung alright.

  • [Avatar for Julie Burke]
    Julie Burke
    May 16, 2024 08:24 pm

    Re: “We have many checks and balances in place to ensure that no one person can negatively impact the ability of our customers to receive fair and impartial treatment.”

    Nope, at America’s Innovation Agency, as the Life Raft Chronicles expose, whole groups of loyal USPTO insiders can and have worked together as a team to ensure that (i) this former employee and (ii) all those SAWS flagged applicants did not receive fair and impartial treatment. The Lifeboat Game and SAWS were both epitome of partiality and misconduct.

    Fortify those internal quality checks, Director Vidal. Be sure to assign these clean up tasks to QAS who have been trained in critical thinking exercises to choose winners and losers based on demographics. Be sure to include SPEs, QAS, Group Directors and upper level management who designed, implemented, participated in, tried to cover up or merely sat around quietly complicit with the SAWS program.

    As a Quality Assurance Specialist, I came across an issue that presented a personal challenge. I brought it to a series of managers, including my Assistant Deputy Commissioner. Here’s another look at how the USPTO handled it.

    https://www.linkedin.com/posts/julie-burke-492264120_table-of-useful-signs-of-workplace-bullying-activity-7136537678203785216-iK_Z?utm_source=share&utm_medium=member_desktop

  • [Avatar for Pro Say]
    Pro Say
    May 16, 2024 06:33 pm

    “As I often note in speeches and remarks, you all are shining examples of public servants who do your duties with care and integrity.” *

    * In fact, I love you all so much that I’m trying to illegally and unconstitutionally further materially, seriously burden you with having to battle continuation applicants who will fight you tooth and nail to not have to file terminal disclaimers under my 5/24/24 NPRM. Hugs and Kisses, Kathi.

  • [Avatar for Anonymous]
    Anonymous
    May 16, 2024 05:50 pm

    I can imagine the postscript Vidal wrote and deleted:
    “P.S. If you still remain partial to a particular application or applicant, reject under 35 USC 101. That way, we can all hide behind “law” that no one can define and that no one will endeavor to fix. The public will be none the wiser, and we’ll continue to convince ourselves we’re doing a good job for innovators.”

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