Don’t Write This Letter to the Patent Office

by Dennis Crouch

We all get frustrated. After an examiner rejected his client's application for a telescoping tripod sprinkler, patent attorney Andrew Schroeder could no longer resist and filed the following remarks:

REMARKS: 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 are… (I don't want to say the "R" word) "Special."

Numerous examples abound in terms of this particular Examiner not following the law. Clearly, the combination of references would render the final product to be inoperable for its intended use. However, for this Special Needs Examiner, logic just doesn't cut it. It is manifestly clear that this Examiner has a huge financial incentive to reject patent applications so he gets a nice Christmas bonus at the end of the year. When in doubt, reject right?

Since when did the USPTO become a post World War II jobs program? What's the point of 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 just 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.

Your job is not a joke, but you are turning it into a regular three ring circus. If you can't motivate yourself to take your job seriously, then you need to quit and let someone else take over what that actually wants to do the job right.

See U.S. Patent Application No. 13/068530 (PAIR). [Update: It appears that the PTO has now removed the letter from the file history.] Perhaps we should have a contest to rewrite this letter to get the same substantive points across without violating any rules of professional conduct.

The pending claims are listed as follows:

1. A Telescoping Tripod Sprinkler Cart comprising

a tripod junction unit, a plurality of support members, a sprinkler support assembly, and a telescoping assembly;

the tripod junction unit comprises a first leg, a second leg, and a hose conduit;

the plurality of support members are sized to mate with the legs;

the legs comprise a detent orifice sized to mate with a detent on a support member;

the support members comprise a detent for the purpose of fastening the support member to the tripod junction; and

the sprinkler support assembly is connected with the hose conduit of the tripod junction.

2. The Telescoping Tripod Sprinkler Cart of claim 1 further comprising a carriage assembly; the carriage assembly comprises an axle, an axle housing, a pair of wheels, and a pair of struts.

In the final rejection, the examiner found the claim 1 unpatentable over Richey (U.S. Patent No. 2,694,600) in view of Nies (U.S. Pub. No. 2009/0230206) and in further view of Harward (U.S. Patent No. 4,824,020) and claim 2 unpatentable in further view of Ward (U.S. Patent No. 5,484,154).

   

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

183 thoughts on “Don’t Write This Letter to the Patent Office

  1. While this is meant to be a cautionary tale about allowing frustration with inappropriate patent rejection to boil over, I’m much more concerned with inappropriate patent granting.

    Perhaps all the irascible ruminations in that letter properly reflect inappropriate roadblocks placed on some applications, But they certainly seem inappropriate with regard to the subject application.

    I tend to disagree that the claim is for a two-legged tripod although that is a clever jest — perhaps more clever than the application. I agree the written claim is ambiguous. But the illustrations of the embodiments with the exception of the wheeled version are clearly tripods and I put the disappearance of the third leg on the wheeled version down to the perspective of the illustration and desire to show the axle and two wheels. It is not at all clear to me that the third leg is not eclipsed behind the other axle leg. This provides an outlying support for the axles on either side and reduces the manufacturing attention needed to manufacturing an axle that would only be held a the center – and it is hard to see an advantage to a two legged design overall. And, in any event, even with a single leg to an axle the sprinkler still has in 2 wheels and a now wheeled leg presenting the typical tripod stance – regarding three points defining a plane (is that patented yet . . . )

    My problem is the focus on prior art as somehow eclipsing what to me are obvious increments one can apply to previously know innovations. If this attorney has cause to be upset that an ‘invention’ of his client is rejected, it is only because of the woeful state of attention to obviousness in the first place.

    This telescoping water delivery has been commonly used in dishwashers and in the irrigation market in lawn sprinklers. Whether the earlier embodiments were innovations to a great enough extent to confer patent protection it just seems – with homage to the host – that the proposed telescoping sprinkler is patently obvious. The need for height in sprinkling is no mystery to anyone who ever placed their sprinkler on higher ground for further reach or on top of a crate or upside down trash barrel. The connection of the hose at the tripod rather than to a gracefully bent extension as in prior art is obvious and balances minor pressure loss against convenience of connection. That is a question of marketing and implementation not of patentable innovation IMO.

    To simply embody these obvious workarounds is marketing more so than invention. I’m all for marketing and trademark but the notion that prior art all but subsumes obviousness ignores that, just because something is not commercially available, does not mean it is not obvious. It may just as or more likely mean there is a question of how big the market is for that embodiment.

    Additionally, simply stating that there is a potential large market for a different embodiment doesn’t mean that is a patentable innovation. Amazon’s one-click is a case in point. In justifying the claim Amazon detailed that the typical web based shopping cart model could take longer to complete and order than the shopped had taken to find and choose a single item. And that wasn’t obvious to everyone using web based commerce without that stunning disclosure of intellectual property by Amazon. Give me just a small break. Now I haven’t viewed all the archives here, so I’m probably just late to that pile on in this forum, but I don’t see the telescoping lawn sprinkler with a couple cheap plastic wheels as any different, other than in likely market share. But the fact that something isn’t so obviously marketable doesn’t mean the embodiment isn’t obvious to anyone practicing the prior art. To me, prior art doesn’t show there is no difference in this claim, rather it discloses that it is obvious.

    The real innovations necessary for one-click were security and a track record for internet shopping in the first place so that customers could feel safe leaving their information on file, but what is the metaphorical difference between one-click ordering and having a commercial account with any business.

    While I understand that one-click has been rendered hollow, this is reputed to come from prior art when obviousness should have defeated this out of the gate.

    I understand it is difficult to establish a binary obviousness criteria and this will always raise a degree of subjectivity, I just think it is virtually ignored when it is the obvious bar to patenting the majority of marketing and embodiment innovations.

    I know this comment is modestly out of place in a thread about lawyerly conduct, but it seems every time a patent case comes to my attention I’m left wondering why the ‘invention’ is eligible for a patent in the first place.

    Well, back to my lunch of sandwiches with the edges sealed with a fork – taught not by the high art disclosed by Smuckers, but by my mother 50 years ago.

  2. Examiners can do websites too.
    HTML, CSS, SEO…what is this, 2005?
    What about PHP? MySQL? He even missed that boat.
    What about Rails? Python? SEO is a dead horse.
    “And I think that I can build one hell of a website”. Yeah, so did everyone else when Geocities launched.

    I don’t typically dissect things like this, but when people think they’re the sh.t but are really a decade behind, I can’t stand it. (See what I did there?)

    Skill is worthless if not applied justly.

  3. Gene the Quinn: This examiner, although new, hasn’t allowed a case yet. The SPE hasn’t allowed a case in 6 years, and the Art Unit involved wins on appeal 17% of the time. This doesn’t justify what the attorney filed, but it certainly informs the story.

    LOL. Yes, that’s certainly informative of something but probably not what Gene thinks.

    What’s more informative is that Trollboy cross-posted this “information” from his hero here as if anyone should care. Meanwhile, our heroic truthkeepers Trollboy and Gene were never able to grasp why Prometheus was such a straightforward 9-0 decision. And they still haven’t figured it out.

  4. Sorry, didn’t realize there was a “load more comments” link, and that the URL had already been posted.

  5. “Question authority, and the authorities will question you”? :-)

    I think pretty much the entire world knows this is going on by now.

  6. So, having told the world that he’d been in practice for eight years without ever having heard of Public PAIR, Schroeder has chosen to exhibit even more class by starting a blog on which he calls Dennis Crouch “dickhead of the year”, claims Crouch must have hacked the USPTO to read the letter, and has generally gone off the deep end with photoshopped images of Crouch.
    link to angelsharkwebsites.com

    I thought maybe the guy just had a seriously bad day, or had been on some medication or something (like the other similar letter-writer, whose info is posted elsewhere in the comments, claims to have been), but this is looking more and more like the guy has some serious “issues”.

    I guess a career as a web designer really is in his future.

  7. Pro Se, thanks. That was more fun.

    Seriously, though, should we inform the proper authorities about this guy? If I were Dennis, I would be concerned for my safety.

  8. 1. Should read “Pro Se”.

    2. Overlooked link to article. It is:

    link to techdirt.com

    3. Importantly, the subject application was published 11/15/12.

    4. Is Mr. Crouch’s DHOFT 2013 award now on his CV?

  9. The mere mention of the following site is generally upsetting, but it might be of interest to some to take a look at a related article appearing on “Techdirt”.

  10. Gene more serious problem is that Google Patents shows hunders of patents issued in the last five years by primary examiner Len Tran.

    The data is is trying to sell is seriously flawed.

  11. That’s pretty funny how Gene insists on calling it an “alleged” filing, but accepts the (alleged) statistics with little hesitation.

    The fact that the “SPE hasn’t allowed a case in 6 years” is a little less shocking when you consider that the (alleged) data actually only indicates that the SPE hasn’t allowed a case in 5 years and 4 months, and that the SPE had only a small handful (single digits) of cases assigned to him for at least the first three of those years.

  12. What this attorney did was wholly inappropriate, but everyone who practices has had moments where they have wondered whether the examiner ever read anything filed and whether they were just manipulating the system. This examiner, although new, hasn’t allowed a case yet. The SPE hasn’t allowed a case in 6 years, and the Art Unit involved wins on appeal 17% of the time. This doesn’t justify what the attorney filed, but it certainly informs the story. With statistics like this the USPTO should look into the Art Unit and at least see what, if anything, out of the ordinary is going on.

    Paul Harvey, you are missed.

  13. Suggest structure?

    You are quite clueless.

    Claim elements can be composed of both strucutral and functioanl langauge, and the functional language NEED NOT AT ALL suggest structure.

  14. Certainly hope that someone is/will keep track of the OED’s reaction. I suppose if the letter is a hoax/fake, there is nothing much that the OED can do. But, if it is not a hoax/fake, then…

  15. Not if they don’t suggest structure! Unless you’re in business methods….IDK WHAT goes on over there

  16. Sorry IANAE, but Malcolm is the king of fact = spin. In Malcolm’s world, “the way things are” only means “the way Malsolm would like them to be if he could spin all facts to conform with his idiology.”

    When brought to his attention, all he could do was [shrug] and stand by.

  17. Recall the old legal aphorism that goes, “If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table.”

    The attorney was following this advice?

  18. your comment exemplifies your continued denial of ‘the way things are.’

    Certainly not Malcolm.

    Get a grip and get a clue.

  19. The focus should be on the examiner

    LOL. Do you remember the post which started this thread?

    Regardless, my comment explains the reason that applicants continue to play the game of arguing distinctions/limitations that are not in the claim. In the context of this thread, certainly, your comment exemplifies your continued denial of “the way things are.”

    Maybe you can do everyone a favor and find an Office Action that is 1/10th as vile as the screed posted by this attorney — a screed that is little more than a regurgitation of the whining that the patent teabggers post here and in Gene Quinn’s echo chamber on a daily basis.

  20. Accord.

    Speak softly and carry a big stick.

    And use that stick if you brandish it and the other side invites you to use it.

    There are times when handing the person their head (and forcibly so) is simply the thing to do.

  21. Would you care to inform us all of your success rate with patent applications?

    Personally I go for the polite approach and my clients are happy with my results. Admittedly during prosecution many clients have emulated the style of the patent attorney under discussion here.

  22. Not entirely true. I talked my way out of a ticket by explaining to the cop why he should get a real job – and he thought about and quit on the spot. And in my experience, aggressive forthrightness in advocating a client’s interests is far more effective than obsequiousness.

  23. The judiciary…?
    The applicant…?

    The focus should be on the examiner, as it is he that allows this “successful” obtainment of claims that you be-otch about here (and in the example of this thread are in fact not allowed).

    Your blame is as misguided as your posts. You continue to underwhelm.

    wtg Malcolm.

  24. This is classic argument about distinctions/limitations that are not actually in the claim.

    It’s a tradition that endures for one reason: the judiciary lacks the maturity necessary to consistently penalize applicants who successfully obtain claims which fail to recite the relied-upon limitations.

  25. I don’t support this knucklehead’s letter or claim-drafting but your claim analysis is a little off. He’s not claiming a two-legged tripod. He’s claiming a “tripod junction unit”, which is different than a tripod. Figure 2 and figure 7 show a two-legged variant of the “invention”. So he is (poorly, in my opinion) attempting to claim an embodiment disclosed in the specification.

    Funny comment on your part, regardless.

  26. I’ve had the “Yes, Sir, no Sir” experience, and both times, the officer was called away to an emergency. I’m sure if I’d been rude, that wouldn’t have happened.

  27. As noted above, there is no overlap between Scotch and whiskey. They are disjoint (though cousins.) Scotch is whisky, and Irish or bourbon is whiskey.

    Frankly, I don’t think there’s much overlap between milk and chocolate milk – though there’s a little bit of cow in both of them.

  28. I am sure that this is NOT the first two-or-more-legged tripod to have been filed.
    And whether it’s two-or-more or three-or-more, it wouldn’t in general be a tripod. Perhaps a polypod, expanded in Claim 3 to be a tripod?

  29. Could it be that a disgruntled assistant filed it (them)? Wasn’t PAIR down or partially down on the date the papers were filed? Could his pki certificate and password have been hacked?

  30. Ned,

    You do spend a lot of time throwing stones from your glass house.

    Why is that?

    (and to answer your question, I ‘kick mud’ at those who have asked that mud be kicked at them. Plain and simple – I have stated often how to avoid this from happening)

  31. It was removed.

    And then placed back in.

    I have copies of the IFW both with and without the offending piece, both downloaded on Friday.

  32. My favorite part was using the period in “sh.t.” THAT’S what he chose to be discreet about?

    It’s a naughty word! Memories of mommy etc.

  33. Reminds me of when a cop pulls you over.
    In one case it is Yes, Sir.. No Sir.. Thankyou
    In the other– What did you pull me over for Pig…

    One has a slim chance (unless you a a Hottie) of just getting a warning with the 1st response.

    With the 2nd type of response, One has a snowball’s chance in Hxll.
    Always better to put the response away and read it the next day when one has a clearer view of things.
    But they both are funny to read.

  34. Yea, the (government granted monopoly) bar card club will go easy on him when they see he self-censored.

  35. At a previous firm, we found a response in a similar vein filed by an attorney that was no longer at the firm, in which he also accused the examiner of being drunk amongst other insults. Of course, that same attorney also called in a death threat to the managing partner several months latter.

  36. Re: the “update”. I just downloaded the “letter” 5 minutes ago. So… if it was ever removed, its there now….

  37. If you look more carefully at PAIR, you will see that his amendments were not entered. At least I assume not, because they are not even there. The PTO has this weapon against attacks on the Examiner, not to enter the response, and they use it. That I am sure is the real reason why they don’t bother to report anything to the OED.

  38. In truth, the Examiner’s English is poor, but I have seen English that bad from native English speakers that were not afflicted with Down’s syndrome. Some of them were even engineers. Most would just look past the poor English and address the arguments in a rational way.

  39. More than a few Examiners draw their pay under false pretences. As for us, Most of what you perceive as problems is just our duty to zealously represent our clients. OTOH, I wouldn’t have filed this letter. Even if true, it does no good. And there are many ways of effectively saying the same thing without such obvious attacks on the Examiner.

  40. Dennis

    A few things:

    1) I don’t know why people say the letter was removed, it is most certainly still there as entered on 4/24 as REM (remarks)

    2) Far be it for me to defend the Examining Corp, but WADR to Mr. Schroeder, I think he is overreacting – the claim he presented on 12/29/2012 (and which is pending now) does not contain the feature that he tells the Examiner (see comments on 12/29) is missing from the prior art, namely, that the “…hose connects with the apparatus from underneath the tirpod, whereas in Nies, it connects from the side. This limitation is clearly not taught….” This is classic argument about distinctions/limitations that are not actually in the claim. He may very well have a patentable distinction here, but if so, it is not expressed very well in the language of the pending claim. I think the Examiner is not being terribly unreasonable here.

  41. Raintower has been selling this exact thing for decades. Look up “rain tower tripod sprinkler” on google. So this lawyer doesn’t have a leg to stand on (which makes any tripod tip over).

  42. “Special Olympics Rejects”?

    In addition to the suspension before the PTO, a condition on return should be 500 hours of community service with the disability community.

  43. It’s obvious that you don’t get it. He shouldn’t have done that and didn’t do anyone any favors. Examiners are giddy about screwing attorneys and clients. I get that. You may think that the rules can be changed to do that in this case, but they can’t.

  44. Whisky is the original fluid from Scotland. On its way west it first acquired a spurious “e” in Ireland. In the US something funny evidently happened on its way to the stills wherein people found a disturbing need to use active charcoal.

  45. Ignoring the merits of the case, I confess that there are many times when I would have liked to have written such a letter. It is often clear that the Examiner has not read the material properly – indeed I have wondered whether s/he has read it at all. Now I sympathize with them in that they are often overworked and under pressure, but some of the stuff I’ve seen is not only staggeringly incompetent but also downright dishonest.

  46. Wouldn’t it be interesting to learn (pure conjecture here) that the attorney submitted such a letter following the client’s demand that such a letter be submitted? that such a letter was penned by the client?

    Me – I would be firing the client at such a request.

  47. So what was the point in posting this exactly? To prevent others from writing a similar letter to a Patent Examiner, or to highlight the low point in one Attorney’s career? At first read, I thought: ouch, this Attorney just got hammered by the media.

  48. Say what you will…ya gotta admit, a two-legged tripod had gotta be new don’t it?

    Clearly anticipated by Milton Berle.

  49. At first I thought that MM had been “outed”, but after reading the screed quickly realized it was much too respectful for an MM work product.

    Good one!

  50. Wondering what the inventor’s recourse is in this situation. I would be a wee bit miffed at my invention being denied because my advocate flipped a bit at the examiner.

  51. See also, Rule 10.89(c)(5) and Rule 1.3. So, a violation of Canons 1 and 7 seems like a good place to start for finding ethics violations. Good enough for me.

  52. Do you actually think this was helping this guy’s client obtain a patent? I would say this may be malpractice…though it would be difficult to show any damages…since this guys “invention” is clearly not patentable anyways….But this is definitely an ethics violation…under the pto and his state bar.

  53. Well, perhaps. I always use “A dispassionate analysis, concise and accurate on the applicable points of law and fact” as you put it. I still get the entire analysis dismissed out of hand as “not persuasive” without as much as the shadow of a single argument. Then the Examiner tops it off with a final rejection. No wonder things get, uh, a little tense at times.

  54. wasn’t allowing you to get a patent based on functional language?

    Wow – talk about a non sequitur.

    You do know that functional language is perfectly allowed in claims, right?

    You do know that patents are granted on such all the time, right? Perfectly valid, legitimate and enforceable patents, right?

    Methinks you have a frowny face – but for a different reason. Try to stay on topic, OK?

  55. ooof…man someone has a frowny face, did a SPE smack you down because you called to complain an examiner wasn’t allowing you to get a patent based on functional language?

  56. Far be it for me to defend the Examining Corp, which, I’m sure, can defend its own, but really, here this is not an unusual case… Mr. Schroeder has over-reacted and made inflammatory comments that are really not justified – the claims are a bit aggressive/adventurous and I don’t see anything improper down by the Examiner.

    Of course I’ve been doing this for 25 years, so perhaps I’m jaded.

  57. It’s of course possible that these responses were actually filed by Mr. Schroeder, in which case shame on him.

    But let’s not rule out another possibility too quickly: That these responses are forgeries, filed by someone else altogether, with an axe to grind on Mr. Schroeder. Don’t forget, anyone with access to your .epf certificate, and knowledge of your password, can file anything in your name.

    Most patent assistants have both, and the PTO’s EFS-Web system specifically encourages filings made on behalf of registered attorneys by their assistants.

    I recognize that these filings are hand-signed, but so what. It’s also easy to forge a signature or copy-paste an old signature onto a new document.

    So perhaps we are looking at the vengeful actions of a disgruntled former employee.

    JAQT

  58. The default is that any time a paper is sent in by an applicant, it is presumed that it will be entered. Only if it is found to be defective, then a notice is sent to the applicant, telling them that it is not entered into the record, and why. Just because it appears on PAIR doesn’t mean it can’t be not entered (sorry for the double negative) and stricken from the record. There is no automated process to reject all defective papers which should not be entered before they are sent in.

  59. In Europe, do you mean before the EPO? Please do tell more.

    In have had to put the brakes on a few non-EPO Examiners in the past but I have always been excrutiatinly polite about it.

    One EPO Examiner cost us an absolute fortune, any advice on handling out of control EPO Examiners is welcome. A recent article in WIPR makes it very clear my painful experiences are not uncommon.

  60. There is a difference between whisky and whiskey. To some the very idea of drinking both is simply horrific.

    Thankfully there was nothing about drinking Scots, something that would require a downright Transylvanian preference.

  61. It looks like the attorney for this case is drunk and is flirting with the Examiner who he considers Special. I don’t think his Client will like being billed $400 for sexting an Examiner.

  62. Agreed as to “worse case” but perhaps you’ve heard of a little something called a metaphor. My point was simply that this guy’s arms are too short to box this way with the PTO or any other government agency. Nobody’s squirrel gun is going to change that.

  63. I don’t see any provision in 37 CFR 1.3 for un-entering papers that have been entered.

  64. Say what you will…ya gotta admit, a two-legged tripod had gotta be new don’t it?

    Can a two legged tripod really every be obvious, even in light of a combination of 4 or 5 documents?

    cummon….be honest.

  65. At first I thought that MM had been “outed”, but after reading the screed quickly realized it was much too respectful for an MM work product.

  66. 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

    I thought the PTO removed the bathtubs after that Examiner in 2859 got electrocuted during an Interview.

  67. Like a lot of beginners, he makes extensive arguments about his own specification without giving any hint of where in the claims those limitations appear.

    Gosh, that reminds me of someone.

  68. Sorry, Sgt., but Francis is a troll name of a different poster here.

    (Take a guess which one – here’s a hint: he’s famous for accusing others of that which he does)

  69. The Government has a large standing army and all of the tanks and fighter jets

    Perhaps you’ve heard of a little something called the Second Amendment?

    This guy is the worst case scenario of Thomas Jefferson’s dreams.

  70. Not a good idea to use the PTO as therapy. The Government has a large standing army and all of the tanks and fighter jets – browbeating and personally insulting a government official into changing their action never works.

  71. I’m not saying that is a bad idea but if you read these cases the examiner is being very reasonable. In the first case the ‘breaking the invention’ he tries to describe is a totally different combination of parts, and in the second he is arguing features that are not in the claims (the difference between a circular stud and a stud).

  72. I call off all of this. This guy was registered in 2003 and changed status to ATTORNEY in 2004. Wow. Heck of a bad day.

  73. Read the remedy part – non-entry of the paper.

    You may be able to (rightfully) heap a lot of scorn and ridicule on someone for such a submission, but it’s not illegal, un-ethical, or anywhere near malpractice.

  74. 37 CFR 1.3: “Business to be conducted with decorum and courtesy.”

    Applicants and their attorneys or agents are required to conduct their business with the United States Patent and Trademark Office with decorum and courtesy. Papers presented in violation of this requirement will be submitted to the Director and will not be entered. A notice of the non-entry of the paper will be provided. Complaints against examiners and other employees must be made in correspondence separate from other papers.

  75. In Europe, you can report substandard examiner behaviour, and they actually respond. Time for the USPTO to have some quality oversight.

  76. You’re using words that you don’t understand. Please quit trying to comment on practice issues.

    Malpractice (or “ethics violations”) and telling an examiner what kind of job they’re actually doing are not the same thing.

    The PTO applies the law about like you do when examining cases: do what you please and then figure out the justification later.

  77. 37 CFR 1.3

    1.3 Business to be conducted with decorum and courtesy.

    Applicants and their attorneys or agents are required to conduct their business with the United States Patent and Trademark Office with decorum and courtesy. Papers presented in violation of this requirement will be submitted to the Director and will not be entered. A notice of the non-entry of the paper will be provided. Complaints against examiners and other employees must be made in correspondence separate from other papers.

  78. What ethics violation do you see here? Exactly.

    Unprofessional? Absolutely.

    Stick to being an examiner.

  79. Sorry, Sgt., but Francis is a troll name of a different poster here.

    (Take a guess which one – here’s a hint: he’s famous for accusing others of that which he does)

  80. And I can’t help but think of George Costanza wiping strawberry juices on Babe Ruth’s uniform in an attempt to get fired from the Yankees.

  81. “On what authority can the Office remove/destroy public records from a file wrapper when the records are subject to the freedom of information act?”

    You’re just now figuring out that PTO management doesn’t think the law applies to them?

    Where you been?

  82. The response disserves the client’s interests and those of the PTO.

    Probably fair to say that he, his client, and the PTO disserve each other.

  83. anyone have the image of the original response before it was removed from PAIR? Since it was public at one point I don’t see any violation by it being circulated now.

  84. No this is not the attorney’s first application nor his first response. He’s been in the business since 2005.

  85. “i hope the PTO took action against the attorney.”

    Not likely, the PTO rarely sanctions attorneys for ethics violations and unprofessional conduct, even egregious ones like this.

  86. The response has gone viral within the PTO and just about every examiner has seen it.

    While this level of abuse is rare, rude responses and borderline (or flat out) malpractice is fairly common from attorneys in the patent prosecution bar. The USPTO and state bars in which the attorneys are registered rarely do anything about it, so the abuse goes unchecked. Hopefully the Office finally steps in and makes an example of this egregious malpractice.

    I do feel sorry for the clients in the cases where he filed this and similar responses recently.

    P.S. On what authority can the Office remove/destroy public records from a file wrapper when the records are subject to the freedom of information act?

  87. The response disserves the client’s interests and those of the PTO. A dispassionate analysis, concise and accurate on the applicable points of law and fact, would have advanced the case on its merits, or at least strengthened the record for appeal. And sometimes that type of feedback helps the examiner improve.

  88. Is it a good thing then that he does not include in his fee schedule any amount for office action responses?

  89. If I got out of school 1.5 years ago (after the great tuition run-up) and was writing utility cases for 2k on a half now (good look getting the) half later basis, I’d be pretty high strung too.

  90. glass houses

    (and yes, while this is “just a blog,” we shouldn’t lose track of practicing ethics here and not be in the habit of mischarcterizing fact (with spin), law, or what other people post, or violating posting policies concerning the personal nature of posted comments)

  91. Thanks. I just discovered that this was recent insanity. I thought the source might be an OED decision like this one.

  92. That is interesting; I hadn’t noticed that. My guess is that these cases are about to go abandoned and he thought he could get in some parting shots.

  93. It would be a lot more entertaining if he could have decided whether he was writing to the examiner or a supervisor. Because of the multiple, random voice changes, I had trouble enjoying the examiner bashing, and that’s saying something. Disappointing overall.

  94. “No, seriously…are you drinking scotch and whiskey…”

    Guy obviously doesn’t know anything about whiskey (which is the genus, of which Scotch is a species).

    He should get himself a bottle of something though for the day he finds that letter from OED in his inbox. Unless somebody in his mail room opens it, reviews it, and throws it away.

  95. I started checking OED decisions.

    Both of these were filed two days ago.

    The real interesting timing question is why the attorney filed this type of thing, in two cases, exactly three months after the final rejection was mailed. It’s clearly not responsive to the rejection. If he was upset about the rejection, he could have done this months ago. Or after three months, though I suppose it might not get forwarded to the examiner then. Maybe he’s frustrated precisely because he first picked up the case on the due date, and having two of them due the same day was more than he could handle.

    I’d love to see a copy of his reporting letter to the client.

  96. Yeah, I would imagine this attorney is not going to have a good time of it. I would imagine the PTO will take action, and they should.

  97. Yeah, the attorney signed it by submitting the remarks that are referred to above his signature. What are you talking about JAE?

  98. Wow, antagonizing the examiner, brilliant prosecution strategy. NOT. – does that ever work? really people? If the attorney and examiner agree to disagree, ok, the next step in the process is called “appeal.” i hope this lawyer has the shortest IP career on record. I feel sorry for this guy’s client – unbelievable.

    Hopefully this attorney gets to learn all about MPEP section 714.25 – discourtesy by applicant and attorney.

  99. “…and should be a comedian or a TV sitcom writer – he would most likley be more successful at that.”

    I doubt it. He’s not funny.

  100. If you want, look at his response to application 13134890, he not only insults the special olympics, he brings in Farsi, Latin, and Down Syndrom people, too.

  101. The attorney submitted 3 pages on 24 April. Page 1 has a signature, and pages 2 and 3 contain the remarks reproduced above.

  102. We examiners have been passing this around the office for a laugh. Nice to see it made it to the internet for all to enjoy!

  103. Regardless of the examiner’s action, this lawyer’s behavior was totally inappropriate and unprofessional – i hope the PTO took action against the attorney.

    but it is funny though. the attorney should give up on IP law if he gets this easily frustrated and should be a comedian or a TV sitcom writer – he would most likley be more successful at that.

  104. jj, I only did a brief scan of his remarks. Like a lot of beginners, he makes extensive arguments about his own specification without giving any hint of where in the claims those limitations appear. I think that is why he includes the specification each time.

  105. That’s a two-or-more-legged tripod, IANAE. You’ve got to love the open-ended nature of “comprising.”

  106. It’s not the attny who wrote that. Note that the attny didn’t sign the arguments. It’s prob the client.

  107. Is this the attorney’s first application? He doesn’t know how to use claim status identifiers and refiles the specification with every response.

    Are we supposed to say the bold words in his claims louder than the rest of the words?

  108. What impresses me most is that the attorney took the time to cull so many statements about examiners from this board’s comment threads and piece them together into a single letter.

    What impresses me least, I think, is seeing this level of condescension and sanctimony from an attorney who is attempting to claim a two-legged tripod.

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