USPTO Cancels Sensitive Application Warning System (SAWS)

by Dennis Crouch

USPTO management has announced the cancellation of its Sensitive Application Warning System (SAWS).  Writing in an internal email, Commissioner Focarino indicated that “the USPTO has decided to retire this program.”  This announcement is effective immediately and “applications currently in this program will now proceed through prosecution absent any additional SAWS-related processing.”

Focarino also promised that any future quality-enhancing initiatives on par with SAWS “will be disclosed to the public before implementation.”

As I wrote earlier, some ideas behind the SAWS Program offer potential benefits of better focusing resources. However, the downfall of the program was the lack of public accountability.  Congratulations to the USPTO for recognizing this issue and promising a more transparent future.

Focarino’s email alludes to the fact that the SAWS program began in 1994 – a time when pending applications were still kept secret.  “Today, unlike when the SAWS program was created, most applications are published eighteen months after submission, exposing them to public scrutiny and the potential for third-party submissions of prior art.”  Likewise, the public access has also pushed the USPTO further towards accountability in its operations.

[Update: Information has now been added to the USPTO website]

38 thoughts on “USPTO Cancels Sensitive Application Warning System (SAWS)

  1. 14

    From over at Yahoo tech news (courtesy of Alyssa Bereznak):

    ‘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.

    Seems to echo the “Rumsfeld” sentiment…

  2. 13

    “The Sensitive Application Warning System (SAWS) program is one of many practical, internal efforts that the USPTO has in place to ensure that only the highest quality patents are issued by the Agency.”

    Under what authority does the Office prevent patents of just less than the highest quality from issuing I wonder.

      1. 13.1.1

        Not sure if you were trying to be clever, Apotu, but the legal requirements (being as they are binary) do not lend themselves to a non-binary scale of highest quality.

        Further, there is no need for any additional “quality programs” for examiners to examine to the legal requirements.

        Do you see anything else beyond the known legal items? I think it is these “extras” to which Les’s question was directed.

        1. 13.1.1.1

          Do you see anything else beyond the known legal items?

          No, I don’t, and that’s exactly what I was getting at with my “clever” response. The highest quality of patent is one that cannot be invalidated because it satisfies all of the statutory requirements. Every quality assurance program that I’m aware of here at the PTO is ultimately focused on ensuring that the patents we issue meet those requirements.

          The patents we issue are, unfortunately, not gold-plated. The reality of patent examination is that when your time is up, if you haven’t found a way to reject a claim, you allow the case. The best we can do is ensure that patents are not easy to invalidate, and the harder it is to invalidate a patent, the higher its quality.

          1. 13.1.1.1.1

            Again you seem to want to apply a sliding scale to a binary question. The result of your examination is a binary Yes-Grant/No-reject result. There is NO middle ground of gold/silver/bronze/tin/whatever plating. You are either doing your job or you are not doing your job. Period.

            Now that said, if you are saying there is a spectrum of how well searches are performed, well yes, I can agree to that. Is there a spectrum of diligence in either doing your job or rubber-stamping (and that include BOTH rubber stamping Reject-Reject-Reject and Accept-Accept-Accept), then that too I can agree with.

            But these things are different than the binary question of meeting the law. That binary question is what your job is. Period.

            You slip into a fallacy mindset of “just do a little more search” or even worse – welp, that’s all the time I’m going to put into it to meet my quota. Neither of these things are your job and in fact – the “quota” mindset is a dereliction of your job and you should be punished for such. Your “wanting to stay employed and meet quota” is no excuse for a slipshod examination, and if any one particular application REQUIRES more time to properly examine, then it is YOUR JOB to spend that time.

            Don’t like it? Talk to your union rep. But please, let’s not confuse things here with talk of “gold-plating.”

  3. 12

    I still want to see an accounting of the history of the program. You cannot just shut something like this down and let it die without offering up any evidence of whether it was effective, how it operated, who was affected, etc.

    And now that they have shut it down, there is no compelling or legal reason under FOIA to keep these records hidden. There is no on-going investigation or program that needs the lack of exposure to operate.

    1. 12.1

      To play the devi1’s advocate, the counter question to be asked Alan, is whether any issue remains that is justiciable?

      (I think the answer is yes – but that’s merely my opinion)

  4. 11

    Glad to see that SAWS is going by the wayside, no doubt in part because of scrutiny brought to bear by this blog, the Washington Post, and others. Good job guys.

    I suppose a bit of contrition on the part of the USPTO in announcing SAWS’ demise was too much to expect.

  5. 10

    Since 1994? How would we know that? Just because the perpetrators of this clandestine operation say so?

    Sorry Charlie, the PTO, like the IRS and any number of other alphabet soup federal agencies, simply has no credibility for anything it says. History baby. Get caught dissembling and this is what happens, just like a lying witness who is impeached at trial. No one believes anything you say. They just deal with you by working around, and in many cases leveraging, your dishonesty.

    1. 10.1

      I am glad they shut this down.

      There are many in gov’t who work hard, are trustworthy, etc.

      However, our gov’t needs to be reformed. From top to bottom. Too many folks have no idea how different from the private sector. No idea.

    2. 10.2

      I agree Tourbillion 100 percent. (I note that these professors are in the same boat. Some of their vanity published studies have been discredited and yet they push forward.)

      Shine light on this SAWS program. Let’s see what they did.

  6. 9

    I think that the dwindling use of SAWS potentially created unfair application of the program, and agree that it is time for SAWS to go. Many art units never referred a case to SAWS, and some SPEs aggressively pushed SAWS classifications. In view of the abundant overlap between the subject matter of some art units, it could have been a matter of luck whether your application was subject to SAWS, rather than a balanced determination on the merits.

  7. 8

    Wow – one would have to majorly credit your efforts on this Dennis absent some other obvious push. Outstanding!

    Timely in re: a poster on the Smartflash thread implying that what happens on this blog has no meaning or real-world effect.

    I think maybe he or she was mistaken about that….

    1. 8.1

      Obviously. But don’t discount internal influence.

      This blog’s been driving patent policy for at least the last 5 years. Probably even a bit for the last 9. It’s no accident practically the same language you see on this blog turns up in decisions. The people in power just need people to lead them a bit. To provide all the points of view, and let them choose the wise path.

      1. 8.1.1

        I think that is right 6 that it is clear that a lot of the arguments that are played out here seem to magically appear in opinions and in vanity published law papers.

        Of course your contribution is very limited 6. :)

  8. 7

    SAWS was a PR disaster and canceling it is a smart PR move, and removes risks of litigation. As others have noted, it does not entirely remove questions about PTO practice.

    1. Although the official yet secret program has gone, the PTO can continue to have extra scrutiny for “sensitive” applications. Such internal deliberations would be more easily classified as “internal deliberations” to avoid FOIA disclosure. Yet, not entirely immune, if there is evidence that such additional scrutiny is not neutrally applied and inconsistent with the mandate of the PTO.
    2. My immediate thought is that it would be better for the PTO to have a SAWS program, but make it open and recorded.
    3. If SAWS caused significant delay in issuance, and that delay was not compensated through PTA, a well funded patentee might re-litigate the issue of SAWS. Tough, but worth it for a big pharmaceutical.

    1. 7.1

      Simon,

      Agree with your third point. The PTO’s action in “retiring” this program doesn’t answer the questions of which patents were placed in the SAWS program and what (if any) additional delays in issuance resulted as a consequence of being placed in SAWS. I suspect that this isn’t the end of the SAWS story.

    2. 7.2

      I doubt seriously more than a hundred pharma cases ever went into saws. They just aren’t the type. Of those hundred, maaaaaybe, one is valuable for some big reason. What are the chances they know that it was in SAWS?

      1. 7.2.1

        Well, we really don’t know because the PTO denied FOIA requests. SAWS categories included pharmaceuticals (e.g. treatments for Alzheimers disease).

        1. 7.2.1.1

          We don’t know what we don’t know (said in the best Rumsfeld tones).

          And we still don’t.

  9. 6

    When do we get to see the minutes of the meeting where the PTO decided that 103 was the appropriate statute under which to address claims that recite non-obvious but ineligible subject matter?

    I assume some of the geniuses behind that decision are still working there.

    1. 6.1

      MM, one trick pony, completely OT but galloping through cyberspace hysterically screaming the 101s are coming!!! The 101s OMG OMG!!!

  10. 5

    SAWS was the USPTO’s worst-kept secret, and it’s staggering that it managed to stay under wraps for over 20 years. Every single examiner was told about SAWS during training and various meetings, at least once a year, because it was up to the examiner to raise the initial question about whether a particular case was SAWS-worthy and bring it to their SPE. It may have been due to the fact that so few applications were flagged under SAWS that nobody bothered spilling the beans for so long.

    1. 4.2

      Because ALL the stink was about “bad practitioners”…

      Oh wait. None of the stink was about bad practitioners.

      Oops.

      (Random Examiner kicking at non-existent dust looks an awful lot like his usual flailing)

  11. 2

    Dennis, I think all those FOIA requests, by you and others, may have been a proximate cause of the program’s demise. The PTO certainly did not want to defend the program in a court challenge to its denial of relevant documents.

    You personally are to be congratulated for your efforts here.

    1. 2.2

      Thank you Dennis for bringing more public attention to the SAWS program and thank you Commissioner Focarino for ending this secret program. This gives us relief that we will be judged not by unseen patent death panels but by the substance of the described inventions and claims.

      1. 2.2.1

        …or not.

        Remember, “The Sensitive Application Warning System (SAWS) is one of many practical internal efforts…

        We don’t know what we don’t know (in the best Rumsfeld tones).

        1. 2.2.1.1

          Gj cutting the context out there anon. They’re talking about quality efforts and I’m pretty sure that all the rest are pretty much public knowledge, training, spe/qas review etc. etc.

          1. 2.2.1.1.1

            I did not take anything out of context 6.

            The attempt to portray this as somehow magically under the shield of “quality – therefore anything goes” is quite simply, bunk.

            For crying out loud you even had a new boss come in and have to tell you all that “Quality does not equal reject” – a lesson mind you that still has not been absorbed.

            No 6, there is still a need for sunshine, still a need to root out the machinations under foot.

            I do wonder though if this “moots” a potential move by Hyatt….

  12. 1

    You don’t think this is just a smoke screen pushing the program into the realm of black ops, wherein everything is done with a wink and a nod (or head shake) and the potentially embarrassing applications are still given extra scrutiny, but with no paper trail?

    1. 1.1

      Les, there really is no need for a special ops program if the examining corps is well trained on the fundamentals.

      I suspect that every examiner can still ask is boss or his colleagues for advice on how to handled something he or she has never seen before.

      1. 1.1.1

        I suspect that every examiner can still ask is boss or his colleagues for advice on how to handled something he or she has never seen before.

        Or even things they have seen before.

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