SAWS? What SAWS? Nothing To See Here (Anymore), Folks…

In such a time as this, it helps to have a translator so that We The People can understand what just happened here.  Thankfully, IPTT is on the job with the PTT™ (Patent Troll Translator), which can be used not only to translate patent troll-speak, but USPTO-speak as well.

And here we go…

“Upon careful consideration, the USPTO has concluded that the SAWS program has only been marginally utilized and provides minimal benefit,” the post, which was published Monday night, reads.

Translation?

“By ‘marginally utilized’ we mean ‘arbitrarily utilized, depending on who offered to pay us the most’, and by ‘provides minimal benefit’, we mean ‘Oh, hell, you caught us!’

Further, upon being asked by Dennis Crouch (and probably others that it’s too early in the morning for me to go dig up) to provide statistical data surrounding our Sensitive Application Warning System, we decided that we’d better kill it before FOIA makes us disclose even more information, that will make us look stupid at best and devious at worst.”

Here’s the beef:  the USPTO had a system that allowed the examiners to flag certain applications for extended review and they didn’t have to tell anyone they did it.  Eeps.  Here’s how the process is supposed to work:

Usually, when you submit a patent application, it requires the approval of one or two examiners who work with the office. Those applications can take anywhere from 22 to 29 months to be issued, depending on fees you pay to speed up the process or the lawyers you have representing you.

Emphasis mine.  Oh good grief.  Ms. Lee?  This is something you need to fix.  You shouldn’t be able to pay your way to the head of the line, and you need to have examiners who are lawyers so that they are on a level playing field with the people submitting the applications for the inventors.  I said all this once before after interviewing a former examiner.

“The patent office has a tremendous latitude in making these illegal practices, whether it’s by SAWS or other processes,” Hyatt told Yahoo Tech in January.

That’s not the 1/2 of it, if anything my interviewee has to say about it is true.  I’m really hoping that Michelle Lee is able to make some changes in the examination process for two reasons:

  1. It will improve the quality of patents.
  2. It will take that bat out of the hands of inventors who want to gripe that the process is the problem.

Because as for #2 right now, they’re right.

<digression>

Beyond the fact that the program wasn’t publicized and the people stuck in it may or may not have known (did they, can anyone confirm?), there’s this bit that sticks in my craw worse than line jumpers:

So, say you’re an inventor who has founded a startup. You’re waiting for your patent to be issued, so you can start your company. In fact, some of your funding may depend solely on your ability to secure the rights to that innovation. If you were placed in the SAWS program, you could be potentially dragged along for years. Meanwhile, you might lose funding or face additional competition.

WHY does funding depend on a patent being issued?  I can’t get over that.  If a patent is all you have, you need to rethink your pitch deck.  Besides which, to the point of that last sentence, competition is good!  We all get better by playing against someone who’s better than us, right Gene Quinn? I dunno, like I said about the Fuzzibunz lady: are you an entrepreneur or a patent-preneur?

</digression>

In the end, there’s two ways to look at the death of SAWS, the first being this quote by Kate Gaudry:

“This is a good indication that they’re willing to objectively step back and look at their programs and efforts, and listen to their stakeholders,” Kate Gaudry, an associate at Kilpatrick Townsend & Stockton LLP, told Yahoo Tech. “And change what needs to be changed.”

Um, okay.  Let’s see if Thomas Franklin, also of Kilpatrick Townsend has a better take:

“I’m not sure this is a win for transparency to say: you found this program so we’re shutting it down,” he told Yahoo Tech.

Yeah, the second one.

JustSayin_small_New

IPTT

 

 

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Dear Michelle Lee: I Hope You Win, Plus A Couple Of Things

Dear Michelle,

Happy Monday!  I listened with rapt attention to your interview at the Brookings Institution last Thursday the way some people listen to Taylor Swift.  I wrote quite a few things down, because I never read a book or listen to an interview without a pen and paper handy lest I forget something important, and plus my 9th grade English teacher Ms. Fritchey (oh, you betcha we had fun with that name and also? Sorry Ms. Fritchey) would kill me if I didn’t.  The first thing I wrote down was this:

Deputy Commissioner for Patent Quality coming from the ? Step in the right direction…

I wrote that down on paper and on Twitter because I think it’s such a great idea.  When I interviewed a patent examiner (Part I, Part II, and Part II), s/he said

While I was employed at the USPTO, there were two search systems, called East and West.  Examiners would choose which one they wanted to use.   These systems searched only the patent database.  Now days, most examiners use Google Patent Search, but again that searches only the universe of existing patents.

Prior art search then is 99% patent literature.  So that is a huge lesson learned after leaving…technical manuals and publications need to be searched too.

charlie_brown_thumb[3]

“Oh, brother!” is right.

Emphasis mine, and it speaks to the issue of patent quality directly because good googely woogely, how on earth can you know if an idea is unique if you don’t search in more than one place?  To say nothing of the fact that some people couldn’t come up with decent search terms if their very life depended on it.  I may know one or five of those people, who can’t even find an address for the nearest pizza shop because they search The Googles for something like “italian pie” or “round thing college kids like to eat” and may I suggest you don’t google that second one from a government computer?  I have my reasons.

Quality is a real issue, is what I’m saying, and only partly because the examiners themselves don’t have the tools to do the job.  While there are market solutions to this problem, like the studs at Article One Partners, don’t you think it’s time the USPTO upped its game a little on that front?  Clearly you do, which is why you suggested a Patent Quality Czar.  You can totally steal that title because between you and me, it’s way cooler than “Deputy Commissioner for Patent Quality”.

Not to belabor the point even though I’m totally going to, have you seen this?  Where Exxon has patented selling energy, because that’s never been done before and is a completely non-obvious idea?  This is exactly the sort of crap the PQC has to stop letting through.  His or her first job out to be to check out the flaws in SAWS:

Sensitive Application Warning System (SAWS) that is supposed to flag applications that if issued could be controversial and subject the USPTO to undesired calumny and scorn,

It is highly unlikely that the USPTO wishes to bring calumny and scorn upon itself, that first one especially, now that I looked it up and know what it means.  SAWS should have have flagged this application from the get go but it didn’t and someone needs to understand why.

If one of your goals is to reduce nuisance patent litigation, even if you don’t want to call out patent trolls by name, then I think requiring that patent examiners be attorneys is a good first step.  Maybe not all of them, but somewhere along the path to a patent there should be a step where an attorney for the USPTO goes head to head with the attorney for the inventor.  You need to two people who speak the same language talking before the patent is ever issued.  Lawyers for inventors have only one goal:  GET THE PATENT.  Maybe it’s a good goal and maybe the invention is awesome and patent-worthy.  Or?  Maybe the lawyer’s just a wordsmith and out-maneuvers the examiner with legalese and wears them down with all.the.words far too often.  Just a thought.

Finally, I heard you mention that there might be an event of some kind in the near future, maybe something akin to the Patent Stakeholders Meeting almost a year ago?   Having attended that event, might I make a suggestion or two?  Like, maybe bring in some hors d’oeuvres?  Cheese plate?  Cash bar?  On that last one, I’d like to heartily recommend the bartenders from Lincoln because can they make a 1931 Mai Tai or what?  

mai_tai

It’s 5 o’clock somewhere…

 

All kidding aside, it sounds like a great step forward to bring some stakeholders back in and reprint the road map.  The way to find out what people want and need, in this and any arena, is to actually talk to them.

I wish you the best of luck in the confirmation process, and hope that you’re able to accomplish all that you set out do!

JustSayin_small_New

IPTT

{Charlie Brown image found here, delicious Monday morning mai tai found here, complete with recipe.  You’re welcome.}