I gave a talk last night in New York City, and I talked about various prosecution and litigation issues. In attendance was a primary examiner. We got to discussing nasty communications from practitioners.
She told me some things that should be obvious, but apparently my sense of what is obvious differs from a lot of practitioners.
First, being snarky doesn’t work. Telling someone they are stupid is not going to advance prosecution.
Second, when a particularly nasty communication comes in, it becomes the topic of conversation. “You won’t believe this one…” It’s a small world so if you’re practicing in one area, being nasty to one examiner may affect your reputation among several examiners in that art group.
Despite those two fairly common-sense things, nasty-grams continue. The OED occasionally gets involved.
Patent prosecution is, of course, an adversary process, with the practitioner attempting to overcome an examiner’s arguments as to why certain claims are unpatentable (among other things). Examiners are under time pressures, as are practitioners whose clients need efficiently delivered legal services. Sometimes that leads one “side” or the other to lose its cool.
That is understandable, and perhaps forgivable.
What seems to happen too often is that practitioners unload vituperative communications on examiners. This is probably counter-productive – telling someone they are stupid and wrong in my experience is likely not to change that person’s mind. Yet, practitioners persist in this nasty conduct.
Primary examiners have told me that when these sorts of nasty communications come in, they are passed around and ridiculed at the office. I doubt that is testimony to their effectiveness.
Beyond that, these are passed along to the OED. The OED has made it clear that it will not tolerate unprofessional behavior. In one recent disciplinary case, In re Schroeder, D2014-08 (May 5, 2015), the OED entered a default judgment against a practitioner who clearly went beyond the boundaries of decency. The practitioner wrote:
Are you drunk? No, seriously … are you drinking scotch and whiskey with a side of crack cocaine while you “examine” patent applications? (Heavy emphasis on the quotes). Do you just mail merge rejection letters from your home? Is that what taxpayers are getting in exchange for your services? Have you even read the patent application? I’m curious. Because you either haven’t read the patent application or you are … (I don’t want to say the “R” word) “Special.”
The practitioner also stated:
Since when did the USPTO become a post World War II jobs program? What’s the point in hiring 2,000 additional examiners when 2,000 rubber stamps would suffice just fine? So, tell me something Corky, what would it take for a patent application to be approved? Do we have to write patent applications in crayon? Does a patent application have to come with some sort of pop-up book? Do you have to be a family member or some big law firm who incentivizes you with some other special deal? What does it take Corky? Perhaps you might want to take your job seriously and actually give a sh.t! What’s the point in having to deal with you Special Olympics rejects when we should go straight to Appeals? While you idiots sit around in bathtubs farting and picking your noses, you should know that there are people out here who actually give a sh. t about their careers, their work, and their dreams.
Perhaps indicating that he was having a bad day, on the same day that practitioner filed a response in another application. That examiner had also rejected the claims based on the prior art. Rather than overcoming the substance of the rejection, the practitioner wrote:
Apparently, the current Examiner to which this application has been assigned, does not speak the native language here in the United States of America. Perhaps in Farsi, really ancient Latin, or even the post-Nimoy Vulcan dialect, the word “stud” just so happens to be synonymous with the term “ridge”. But here in this country, the same country to which [sic] Examiner receives his stipend, the word “stud”, and the word “ridge” have two separate and distinct meanings.
He also wrote examiners were like “athletes who participate in the Special Olympics [who] might initially make the same mistake after a wild night of cocaine and strippers in Las Vegas.” Finally, he said he had consulted an online dictionary “called www.USPTOexaminerswhoaremorons.com,” where, sure enough, a picture and name of the current examiner was found. Not surprisingly, enumerated synonyms include the following: ‘Down’s Syndrome, idiot, lazy, incompetent, blind, stupid, worthless.’”
Don’t do this.