The Latest Attempt to Expose SAWS Highlights Structural Flaws at the USPTO

Whether or not the United States Patent and Trademark Office (USPTO) wants to admit it, over most of the last generation there has been a secret examination docket. Not surprisingly, such a secret examination docket is strictly prohibited by federal law. A newly filed joint status report in Morinville v. USPTO brings this issue to the fore and underscores the lack of transparency and accountability of secret internal patent review programs at the USPTO. Procedurally, the latest filing seeks to expose the USPTO shadow docket through a new round of discovery, which is currently being considered by the United States District Court for the District of Columbia.

Where It All Started

Perhaps the most often discussed secret review program of the last 30 years was the USPTO’s Sensitive Application Warning System (SAWS), which was an internal, non-public program that operated from 1994–2015. SAWS flagged certain patent applications deemed “sensitive” for elevated management oversight and additional layers of review before allowance, ostensibly as a quality-control mechanism to ensure that controversial, high-impact, or otherwise noteworthy inventions were not issued without scrutiny. In practice, however, SAWS was a secretive system with applicants not informed they had been assigned to this pit of despair from which patents would never issue.

This de facto suppression of applications caught in the SAWS snare occurred without transparency or due process and violated federal law. Specifically, 35 U.S.C. § 132 requires the USPTO to provide applicants with notice of rejections and the reasons therefor—something that, as a matter of administrative law and practice, must be memorialized in the written record. This statutory baseline is operationalized through 37 C.F.R. § 1.2, which requires business with the Office to be in writing, and specifically requires action of the USPTO to “be based exclusively on the written record in the Office.” And 35 U.S.C. 122 and 37 C.F.R. § 1.211 require the publication of applications, which include all filings and correspondence, unless the application is no longer pending, a national security order has been issued, or the applicant requested non-publication. Simply stated, this all means it should be legally impossible for the USPTO to operate a secret, shadow docket, but we know they did in SAWS because they have admitted to doing so.

Large Patent Families, OPQA and the Return of SAWS

The topic of large patent families spurred by continuation filings has sparked much controversy over the last several years. As a result, the Office of Patent Quality Assurance (OPQA) at the USPTO conducted a review of large patent families between November of 2021 and May 2025—the so-called Large Patent Family Review Program. Office actions reviewed by OPQA have not been identified to the public and were similarly unknown to applicants. The purpose of such a review was ostensibly to provide the examining corps with information to assist in improving the quality of issued patents. See MPEP 1308.03.

The quality assurance protocol authorized by MPEP 1308.03 is intended not to be used to affect allowance decisions, but instead to be used as an educational tool to aid in identifying best practices and problem areas. Id. To that end, if OPQA identifies an error, the MPEP specifically requires the reopening of the case, which would require applicants to be notified.  Id.

Based on our reporting, the so-called Large Patent Family Review Program was not simply to learn what is happening relative to the largest patent families, and it was not simply to use the obtained insights for educational purposes to establish best practices. Although not entirely clear due to a real lack of transparency, it seems that this Large Patent Family Review Program morphed into what can only be characterized as a SAWS reboot.

IPWatchdog has learned that when OPQA identified errors—which occurred prior to allowance—the applications were returned to examiners. Prosecution was not reopened and applicants were not notified, all of which is eerily reminiscent of the SAWS program. The views of OPQA were passed to examiners who then secretly changed allowance decisions unbeknownst to applicants, which makes this large patent family “quality review” yet another secret, shadow docket that violates federal law.

It is worth noting that OPQA-identified issues can and do trigger closer supervisory attention, which impacts an examiner’s record. As examiners and former examiners have repeatedly explained to IPWatchdog, no examiner wants to go against OPQA. This means OPQA gets what they want. If a quality reviewer wants more patent eligibility rejections that is what examiners deliver. If they want more obviousness rejections that is likewise what examiners deliver. So, it is entirely disingenuous for the Office to claim examiners have a real choice whether to allow a case when OPQA identifies errors and returns an application previously marked for allowance. When OPQA flags something, they get what they want, period. That makes them not the examiner assigned the ultimate decision-maker. That this happens unknown to the applicant and public violates federal law.

More Discovery Please

At issue in the latest filing in Morinville v. USPTO is whether additional discovery should be permitted. The impetus for this request was an April 13, 2026, deposition of Dr. Kathleen Bragdon, who is now Deputy Director of the OPQA. In that recent deposition, Bragdon’s testimony reveals insights into the Large Patent Family Review Program—and its potential relationship to prior controversial initiatives such as SAWS.

Make no mistake, this is not just another procedural skirmish over discovery. At a high level, this discovery dispute is about governance: who knows what inside the agency, how that knowledge is documented, whether internal quality initiatives operate with sufficient transparency to withstand judicial scrutiny, and to what extent is the USPTO violating federal laws that require all decisions to be memorialized in writing, with the applicant and public being informed.

The Inquiry That Reignited the SAWS Dispute

In June 2025 a Department of Justice (DOJ) investigation letter from then–DOJ official Edward Martin, Director of the Weaponization Working Group, (the “DOJ letter”) raised serious allegations about “weaponization” in the form of a continuation of the allegedly “retired” SAWS program. In essence, the DOJ letter asserted that the USPTO was still operating the SAWS program in 2025 to “secretly flag… allowable patent applications to prevent them from issuing.”

The DOJ letter framed this SAWS process as an investigation of “weaponization of [USPTO] policies and procedures against American companies and inventors” without even a mention of a “quality” program. But now the USPTO makes up a counterfactual story that the DOJ letter was really about a public quality program instead of the continuing secret SAWS program, even though the DOJ letter is focused on the expressly stated secret SAWS program and does not even mention a quality program. This USPTO argument does not ring true. Yes, there was a large patent family review, but that review went well beyond quality, education and best practices for the future and morphed into OPQA telling examiners that they could do what they want, but in the view of OPQA they are about to make an error. And even that second pair of eyes review—which isn’t supposed to happen—wouldn’t be as nefarious as what happened. If there was really nothing wrong with what OPQA was doing, then why not reopen prosecution as the MPEP demands and notify the applicant? That this was kept secret from the applicant and public is the problem and screams that the Office knew what was happening was prohibited.

A Deposition That Raised More Questions Than It Answered

The plaintiffs’ position in the pending discovery dispute hinges on a central claim: that Dr. Bragdon’s prior declaration—used by the USPTO to resist reopening discovery—was not grounded in firsthand knowledge and she could not answer important relevant questions. According to the filing, her deposition testimony revealed limited personal familiarity with key aspects of the Large Patent Family Review Program, including its mechanics, scope, and relationship to other initiatives.

Most notably, Dr. Bragdon acknowledged that she lacked direct knowledge regarding the external catalyst for the dispute: the June 2025 DOJ letter that was specifically directed toward uncovering a “SAWS program”. When pressed on that issue, she testified unequivocally: “I have no personal knowledge of the circumstances referred to in the Martin letter.”

That admission has become a focal point for plaintiffs, who argue it undermines the government’s earlier reliance on her declaration to characterize the program at issue. If the agency’s principal declarant lacked visibility into the triggering allegations, plaintiffs contend, additional discovery is not only justified but necessary to get to the truth. The government’s narrative cannot be allowed to rest on the testimony of a witness who by her own admission is not competent because she admitted to having no firsthand knowledge.

Institutional Knowledge vs. Organizational Structure

Beyond the DOJ letter, the deposition surfaces a deeper structural issue: the fragmentation of knowledge within the USPTO’s quality review ecosystem. Dr. Bragdon acknowledged both the breadth of OPQA’s current role and its limitations. While she characterized OPQA as the “cornerstone” of quality review within the agency, she also conceded that other units may operate independent programs without full coordination. In her words: “The Office of Patent Quality Assurance is often consulted as the cornerstone quality group… but it’s quite possible we would not be.”

That admission introduces ambiguity into the government’s position that no undisclosed or analogous program exists. Plaintiffs are now leveraging that ambiguity to justify expanded discovery, including depositions of other USPTO personnel and requests for internal documents, data sets, and program criteria, all of which seems essential given the Director of OPQA has admitted that it is “quite possible” OPQA is not the only unit within the USPTO conducting quality reviews.

The institutional evolution of OPQA further complicates the analysis. Dr. Bragdon emphasized that the Office has expanded significantly since the era of the SAWS program, both in size and in influence. Yet she also confirmed that SAWS itself operated outside OPQA’s purview, saying in a declarative manner that “SAWS was not run by the Office of Patent Quality Assurance.”

For plaintiffs, that historical precedent matters. It demonstrates that major review programs can exist—and operate—without centralized oversight from the agency’s primary quality body. That fact fundamentally undercuts any categorical assertion that OPQA visibility equates to agency-wide awareness.

Competing Narratives: Clarification vs. ‘Fishing Expedition’

The USPTO, for its part, frames the deposition very differently. The agency argues that plaintiffs are attempting to “go on a fishing expedition” years after discovery closed, seeking to expand the case beyond its original scope.

In its view, Dr. Bragdon provided extensive testimony confirming that the Large Patent Family Review Program was a legitimate quality initiative, distinct from SAWS, and not reflective of the allegations in the DOJ letter. Of course, while it may initially, and structurally have been distinct from SAWS, there are serious questions about what it became. The secrecy elements, lack of transparency and violation of federal laws regarding decisions being memorialized in writing and made a part of the file are all points of worrying commonality with SAWS, which is why the DOJ letter expressly addresses the SAWS program over and over again.

What Comes Next

No one is challenging the Office’s right to conduct quality review aimed at identifying best practices and creating a better patent system. What is being questioned is whether what started out with laudable goals morphed into a secret, shadow docket that violates federal law.

The court now faces a classic discovery management decision: whether the plaintiffs have shown sufficient cause to expand the record, or whether the existing testimony closes the loop. Given the primary declarant admits to being unfamiliar with the salient facts and also admits that SAWS was not an OPQA initiative and that other entities within the Office can and do conduct their own reviews outside of the OPQA structure, additional discovery seems necessary to get to the truth.

Regardless of how the court ultimately rules on additional discovery, the dispute has broader implications for patent system governance. If additional discovery is permitted, the case could evolve into a broader examination of USPTO internal processes, including how applications are selected for enhanced review, how data is used to guide examiner behavior, and whether those practices are consistently disclosed. That would be a very good thing for the system as a whole. If additional discovery is not granted, the agency’s current framing—that the Large Patent Family Review Program is a benign quality initiative unrelated to the allegations at issue—will stand largely untested.

Either way, the litigation is no longer just about one program. It has become a proxy for a larger conversation about how the patent system manages risk, enforces quality, and communicates those efforts to stakeholders operating outside the agency.