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

 

 

Advertisements

Interview With A Patent Examiner: Part I

Admit it, you thought I was going to say “Interview With A Vampire”, didn’t you?  Well, here’s some news for you:  I don’t do vampires.  Or spiders.  Or Tom Cruise movies, but I digress.  As usual.

But what I do do, or rather did, is interview a patent examiner.  Actually, he is a former examiner, having worked in the USPTO from 2000-2008.  I had a list of questions prepared, and we spoke on the phone for over an hour, and this and probably at least one other post is the result of our discussion.

With all the talk of patent quality right now, it occurred to me that other than purchasing Patents For Dummies lo those many moons ago (and then not actually reading it), I had never done much to understand how something comes to be patented in the first place.  Turns out, what I learned was every bit as life-changing as when I discovered that I could teach my kids could to fix me my dinner.  Goodbye, in-home chef!  (Kidding, he lived in the garage.) I think it’s crucial to understand what happens when a patent is applied for, and the circumstances surrounding when that application comes in, because it matters.

It’s fortunate that the time frame my subject was employed was during the time that software patents became en vogue.  Sometimes, I’m lucky that way and all the stars align.

Although the A’s don’t corrolate exactly with the Q’s because it was a fairly free-flowing conversation, here are the questions I asked:

  1. What does a typical day look like for a patent examiner? Do you arrive at the office with a queue of patents and just churn through them?
  2. Are you given a quota of patents that you have to review? Are there percentages that are expected to be granted vs. rejected that you must adhere to, similar to what people think goes on with cops and traffic tickets?
  3. What tools do you use to search for prior art? Is a prior art search even really a major part of a patent application review, or is that expected to have taken place before the inventor files?
  4. What is your opinion on software patents, and the mantra that “computers do math and math is not patentable”?
  5. What would you change about the USPTO as it pertains to the number of examiners and their skill set?
  6. Would more funding solve any of the problems that you now see at the USPTO?
  7. Any general comments
  8. Are your results vetted by other examiners, meaning do you ever work in groups to review an application or is it always just one on one, one examiner per application?
  9. In a standard work month (i.e. no holidays), how many patent applications did you review on average during your tenure?
  10. Are you paid a salary, or paid by the number of applications you review and/or approve?

Without further ado, lets get to the meat and potatoes.  Questions 1, 2, 4, and 5 were sort of lumped together in our discussion and a picture began to emerge about how the USPTO is set up.

What you have is an “intake office”, where the applications are initially received.  They are given a precursory review, and lumped into categories, or Art Units.  Art Units are groups of 10-12 examiners who review applications that cover a specific subject matter area.  The Art Unit my examiner belonged to dealt with biomedical devices and technologies, things like the machine used to cauterize errant electrical pathways in the heart for people with Wolff-Parkinson-White syndrome.  Like my 10 yr old son who just went through this procedure and boy am I glad those patents were approved because Holla!  The boy is fine now.

Aaaaanyway, each Art Unit is headed up by a Supervisory Primary Examiner.  This is the person responsible for the work of all Primary and Junior examiners in his or her Unit.  To back track a little, when you first arrive at your new job as a Patent Examiner, you are essentially given the title of “Junior Patent Examiner”.  You’re assigned to an Art Unit and for the first six months or so of employment, your work is reviewed by a Primary Examiner.  (This becomes important in later parts of the interview because it matters who you go to. )  Here’s a graphic for you visual learners out there:

PatentExaminerInterview_Graphic1

Each examiner, Junior or Primary, as the Primary Examiners have their own docket of applications in addition to the ones they review and sign off on for the Junior Examiners, has a queue of 6-12 months worth of applications.   You work your queue based on what stage the application is in, and when it’s due date is.  So for example you might have a few applications where you need more information from the applicant, or you need to do some research on the technology, etc.  As a matter of work flow practice, the examiner I interviewed would work on those items together.  In other words, it’s not a process where an examiner sticks with one application all the way through the process and only when it is stamped GRANTED or REJECTED does he/she move on to the next one.  It’s a very iterative process and examiners sort of set their own pace to work through the queue and meet the individual deliverable deadlines.

To that end, my interview subject pointed out that there is not a lot of interaction amongst the examiners.  Each sort of works in a bubble, coming out when they need to get approval for something and then move on.  Additionally, many are working on their law degrees at night…this is not a party office environment where people are discussing their applications, going over claims and sharing knowledge with others.  It’s a silo farm.  This isolation, if you will, was increased when the USPTO began a work-from-home initiative (I can feel Marissa @ Yahoo rolling her eyes) and  the examiners rarely occupied the same physical space.

Each examiner may have 5-6 deadlines within a two-week period, but no actual quota of applications that have to be completed within a given time frame.  And to that point, there is no metric that says a specific percentage of applications in your queue must be granted or rejected.  Performance is judged not as much on the quality of the work, as it is on the percentage of available work performed on  time.  It is a deliverables-based metric, essentially, and you get points for each deliverable that you meet.  If the percentage of earned points available in a given time period falls below the acceptable range (95 to 110% of available points kept you out of trouble) then you are visited by the Supervisory Primary Examiner.  Note: in the South, we use the word “visit” as a euphemism for ass-whooping, as in “Frank? I need to visit with you about your internet usage on company time…”

The Art Units convene every six weeks or so to review processes and go over any procedural issues and discuss the productivity of the unit as a whole.  I’m not sure if there’s competition between Art Units, but if I were an SPE I would totally use my powers of motivation by saying “Seriously guys?  Those people in Heavy Farming Equipment are eating our lunch.  We’re Biomedical Devices, y’all…let’s show ’em what we’re made of!!”  But I have no confirmation from my source that that sort of thing ever actually happened.  The meetings were probably more about the TPS reports and who brings the best donuts.  Nevertheless, regular meetings were part of the process, is the point I was making.

I don’t think it would be fair to say that quality work doesn’t matter at all to the USPTO, I want to be clear on that.  But from the conversation I had, it appeared that it was more about  getting acceptable work done in an acceptable range of time.  This is a point I’ll address in the next installment when we answer questions 3, 6, and 7.

Now that we understand the background of what a USPTO examiner does and how the process of approval works at a 10,000 foot level, we can move on to things like patent quality, software patents, and what changes could potentially be made that would make the most difference in the fight against patent trolls.  The goal for me in understanding this process was to figure out if there was something awry, something that was aiding and abetting these patent trolls as they go about wreaking havoc on American businesses.  I think the next few installments coming this week will shed some light  on that.

Y’all come back now, y’hear?

JustSayin_small

IPTT