Day Three of PTO E-Filing Outages

We are now in Day Three of USPTO Computer System Failures:

A number of USPTO online business systems remain offline. We understand the impact to our users and the frustrations that come from having such systems down unexpectedly. The USPTO is working hard to resolve the issue and we will continue to provide updates to you. The latest information on alternative methods of filing and payment and our systems status can always be found on our website. More updates will be forthcoming.

Note that the system failures do not automatically serve as any excuse for filing delays. The Office of the Chief Information Officer (OCIO) is currently led by Acting Chief David Chiles and has a budget of $600 million.

 

93 thoughts on “Day Three of PTO E-Filing Outages

  1. 11

    Woe be to those practitioners without 20 yr+ experienced paralegals who are comfortable with paper filings. The system is back up, but I’ve never been so happy as to have a paralegal who was experienced with old school filings.

  2. 10

    Perhaps the question of “customers” of the PTO has been done to death already, and if so I apologize for making myself tedious. I have a few more thoughts on the subject however.

    (1) Random Guy has made an unassailable (at least I think) point in his 20 Aug, 12:07 pm post—viz., that you have to pay fees to file a suit in U.S. court, and yet no one speaks of the plaintiff as a “customer” of the courts. Indeed, I dare say that a plaintiff’s lawyer who started opening arguments “speaking as a customer of this court…” would likely face sanctions, and would—at a minimum—draw a sharp rebuke from most judges. That is because we have an expectation associated with the word “customer” (exemplified in the maxim that Ben rightly notes, “the customer is always right”) that the customer holds the “upper hand” (so to speak) in an exchange. It is not right that the plaintiff hold an “upper hand” in a court suit, and it is no more meet that an applicant should hold such an “upper hand” in the examination process. That is why the word “customer” (and the idea of applicant-as-customer) is so unsuitable.

    (2) If we imagine, however, that the applicant were a customer, what exactly is the customer buying? There are two plausible answers to that question:

    (2a) The first possibility is that the applicant is buying a patent grant. I would hope that we would all agree that the understanding “I paid my money, I am entitled to a patent grant” is wrong—both a descriptively and prescriptively. That is to say, an applicant who thinks that s/he is guaranteed a grant in exchange for the application fee is setting up for a disappointment. Also, it would be wrong (morally and as a policy matter) if the PTO really were to run its operations in such a manner.

    (2a) If we do not suppose that the customer is buying a patent grant, however, then the next most obvious quid that the “customer” could be said to be buying is an examination. If that is the case, however, does it not seem odd that the applicant is not actually entitled to insist on a particular quality of examination? That is to say, if I go into my Ford dealer and pay for a Taurus, then I am entitled to expect delivery into my possession of a Taurus. If the dealer gives me a Focus, or gives me nothing at all, then I have a cause of action in court for breach of contract.

    If, however, the applicant pays the application fee and receives a first action allowance, the applicant has no cause of action at all. The applicant cannot say “hey, I paid for an examination, but I see no evidence that an examination was done.” That state of affairs seems mighty strange if the applicant really is a “customer.” It is not strange at all, however, if one understands that the applicant is not the customer.

    1. 10.1

      does it not seem odd that the applicant is not actually entitled to insist on a particular quality of examination?

      I don’t know about you, but that IS the primary reason why (most) any office action is responded to. Any action that is complete on its merits – EITHER rejection or allowance need not generate a response (and not to get into the weeds too much, but yes, there are “bad” allowances that generate a need to respond).

      The “(most)” in “(most) any” comes from the ability to use the patent examination system to do the client’s prior art search and to narrow an invention suitable based on the same.

      Do you REALLY feel that quality of examination is NOT something that you are entitled to insisting upon?

      If so, then you are in the wrong business and your own customers are better off with someone (nearly anyone) else.

      Your penchant for NOT using the term “customer” is entirely unreasonable.

  3. 9

    I’ve been furiously filing patent applications covering databases configured to be more robust than current databases, wherein the data in said databases is related to patent applications.

    So far it doesn’t seem to have helped. I’m going to try amping up the volume of filings ten-fold. Surely that will make a difference!!!!

  4. 8

    The most recent update email indicated that they’re still working on PALM and will update the examining corps later today.

    Though they said the same thing on Saturday and there was no update until this morning.

    1. 8.1

      Statement updated at 4 p.m. ET August 19, 2018

      Experts in databases, operating systems, and storage from within the USPTO and our external vendors are continuing to work around the clock to restore the PALM database. Although we are working to restore systems as soon as possible—and our teams are always looking for ways to accelerate or compress activity to bring faster results—it is unlikely the restoration will be completed by the time the work week begins tomorrow. Our focus continues to be on complete and accurate restoration of service.

    2. 8.2

      These constant system outages of our IT systems at the PTO has become absurd, as has management’s response to the outages. I can’t remember the last time we went any significant amount of time without some sort of system outage. The IT department managers should all be fired for gross incompetence and we need to get people in place that actually know what they’re doing and recognize the importance of reliability and system uptime of mission critical software. No system should be down for more than a few hours, let alone 5 days and counting, and anything lower than 99.9% availability during working hours of all mission critical software should be considered a failure of our IT department (i.e. East, DAV, OC, PALM, and the internet). We all know PALM (the system that is currently down) is ancient software, but if it can’t be recovered quickly then THAT should have been management’s priority instead of replacing systems like eDAN with DAV (a browser based version of what we already had).

      1. 8.2.1

        Not relishing your dilemma, but the irony is impressive.

        Note that the “anti’s” below do not seem able to grasp the point.

      2. 8.2.2

        The IT department managers should all be fired for gross incompetence

        Now, wait a moment. We don’t know the cause, do we?

        Could be understaffing or underfunding from higher-level PTO administrators who don’t understand the importance of solid IT or the dimensions of the PTO’s infrastructure.

        Could be an underperforming vendor.

        Could be scalability issues that reflect bad decisions from a decade ago.

        We can certainly blame PTO administration (excepting Iancu, who’s been on board for like 20 minutes) due to the persistence and worsening of this problem. But let’s see how they choose to respond to it.

        I think that the PTO needs a public-comment period to discuss IT. Not this latest outage – sure, we’re all irritated and eager to vent, but the PTO is keenly suffering as well through lost productivity – but the bigger picture of applicants’ met and unmet needs. That, followed by a lengthy and detailed report about USPTO IT past/present/future, would be a strong, positive community-building step.

        1. 8.2.2.1

          but the bigger picture of applicants’ met and unmet needs.

          Careful there David – you are treading on that sacred “capture” grounds…

    3. 8.3

      ** UPDATE 11:30a ET August 20, 2018**

      Palm will be unavailable today (Monday, August 20, 2018). We are being told internally that their best estimate for restoration is “sometime tomorrow (Tuesday, August 21, 2018).”

  5. 7

    Just so everyone is aware it isn’t just the filing systems that are down. The internal systems for the PTO are down as well. It’s like the whole system is boinked. I even know the guy that’s the head honcho over in the IT branch nowadays, won’t look good them over there.

    They really should have upped the fees enough to get new systems up and running that have 100% assured uptime by now.

    1. 7.1

      6, does that mean that examiners cannot really do any work at all? i got a call from an examiner on Wednesday (when our systems were down) and it seemed like nothing was wrong on his end.

      1. 7.1.1

        Examiners can search and read cases on their docket. Docket information is static from Tuesday. Search tools are on an old technology, due to be moved to the same system which is down in the next 2 years.

        Examiners can’t post any work for credit, review, or review other’s work. The database containing form paragraphs is inaccessible. Office actions can only be written manually using MS Word

      2. 7.1.2

        It means we can’t open the program for writing and filing actions. We can still view our dockets, perform searches and write in Word, but we can’t access some of our automated features (like importing previous actions or form paragraphs) and can’t file anything at all.

      3. 7.1.3

        pl: 6, does that mean that examiners cannot really do any work at all?… it seemed like nothing was wrong on his end.

        Different story from me – one examiner I reached by phone sounded a bit frantic.

        JB: Examiners can search and read cases on their docket….

        See 1) below

        Examiners can’t post any work for credit, review, or review other’s work.

        See 2) below

        The database containing form paragraphs is inaccessible. Office actions can only be written manually using MS Word

        See 3) below

        RandomGuy: It means we can’t open the program for writing and filing actions.

        See 2) below

        We can still view our dockets, perform searches and write in Word,

        See 1) below

        but we can’t access some of our automated features (like importing previous actions or form paragraphs)

        See 3) below

        and can’t file anything at all.

        See 2) below

        Ok

        1) the mess at the Office does not stop our deadlines, and we are getting stuff in. You (apparently) have enough to still do your job (you have your docket, can read cases, and still compose responses. That means that any other items are your internal concerns. Since our deadlines don’t stop – neither do yours.

        2) internal things like posting, filing, review, signature approval and the like: your lack of automated tools does not stop the capabilty of doing these things outside of the automated system. The Office operated without the automated systems for decades.

        3) the loss of form paragraphs and the “lazy” approach not being available MAY be a prime opportunity for examiners to actually buckle down and do more than the cut-n-paste that only too often passes for examination.

        1. 7.1.3.1

          “You (apparently) have enough to still do your job (you have your docket, can read cases, and still compose responses. That means that any other items are your internal concerns. Since our deadlines don’t stop – neither do yours.”

          I got an email a few days ago that said there would be docket management (deadline) adjustments. Our (Examiners’) deadlines have stopped until Wednesday. It’s almost like you’re incorrectly importing requirements of the Office into the job of an Examiner. When you get to your office on the 10th floor of Madison on Monday, you should use your authority to adjust our Performance Appraisal Plans and Job Descriptions to better conform our job requirements with the Office’s responsibilities.

          1. 7.1.3.1.1

            meh – that your internal metrics are adjusted is not a big concern – that you continue to examine (as opposed to sit on your thumbs), well that should be a concern.

            Maybe take the gift of time (based on the internal metrics) and learn how to do more than cut-n-paste….!

        2. 7.1.3.2

          1) You lost *an* avenue for filing cases, we lost the only avenue. There is literally no mechanism to move a page I have written to the mail room.

          2) Actually, yeah it does, for the same reason as (1) above – there’s no mechanism for a signatory to manually set that they have signed something, and there’s no mechanism for manually setting the type code of a document (at least, not for any but a small number of IT people otherwise occupied) which means if one were to type in word and email it to a signatory, that signatory couldn’t “sign”, the system wouldn’t recognize that the ball is back in your court, and the mail room would have no means to get the document.

          3) I suppose. I suspect you’d complain more about the lack of uniformity though. But its irrelevant anyway, as the same program that gives us our form paragraphs is the one that moves the document to the signatory and then to the mail room.

          Just so we’re clear – the office will still be receiving mail, but the office will not be outputting anything. Nobody is suggesting we can’t do our job – I’ve typed up several actions in word since Wednesday – only that we’ll do it slower and that nothing will be output at all.

          1. 7.1.3.2.1

            we lost the only avenue.

            Yeah, um, no – that is simply not correct.

            Likewise for your second reply.

            (hint: work was done before the dependence on these systems)

            1. 7.1.3.2.1.1

              There is no non- electronic workflow anymore. The fact that one can physically print something and take it somewhere does not mean that an examiner is capable of getting an Office action mailed. The electronic databases (when they are fixed) will not reflect the printed document, internal flags will not be cleared, counts will not be credited, the LIEs wouldn’t accept a printout, and if one did, they wouldn’t get credit for it and they wouldn’t be able to convince the mailroom to send it out. It isn’t as simple as sending a letter versus a text message, the entire office is CONFIGURED (no subtle reference to claim language here)
              for electronic workflow at this point, and there is no way to reconfigure the Office on such short notice to permit a temporary return to non- electronic processing. I’m not sure why this fact is so controversial.

              1. 7.1.3.2.1.1.1

                1) it is not “controversial.”

                2) it is not “a fact.”

                3) besides being moot (for the moment), there is NO such thing as “cannot do outside an automated system.” None. Might it be inconvenient? Sure. Might it need suspension of workflow parameters? Sure. But saying “can’t” and then demanding that “can’t” is some type of “fact,” merely confuses “won’t” with “can’t.”

                4) I dare say it is the type of thinking to which I am responding that drives systems to the crises mode we have just seen.

                5) if there is no post-mortem and corrective action put in place, how soon to a next similar event?

                1. Shake your fists in rage all you want, cry in the corner, deny reality to your heart’s content. The Office is *not* set up to handle prosecution without the electronic workflow. You’re right about one thing: it isn’t controversial. If the Office were capable of moving Office actions without PALM, OACS, OC, and various other systems, it would be doing that. Since that is not an option at this point, the Office isn’t doing that. I, as an examiner, cannot just do things manually and expect anything out of it, it would come to nothing. I’m not sure why you are arguing this, especially with such arrogance and disdain. It is, in fact, a *fact* that the Office is not set up to handle non- electronic workflow at this time. Could it be done, hypothetically? Yes, but not easily and not instantly, and certainly not before PALM is restored. It’s as though you are arguing just for the sake of it. I have six Office actions that I have drafted in Word that I CANNOT get posted for counting and mailing at this time. Believe me, if there was any way I could make that happen I would be doing that. What possible incentive would I have to just sit on these completed actions for days? You can call me a liar all you want, insist that the Office *can* get these actions out but just won’t because, what, we’re all lazy? None of us care? We want to be responsible for double production when we have to finally write these things up in OACS or OC (for last biweek) *while* we are responsible for production this biweek? Just to spite attorneys that I regularly work with? Because I’m not “in the know” regarding some backup workflow that a random internet commenter *insists* is available when the Office has provided me with no such options? I have been diligently working, searching, writing, and contacting attorneys throughout this outage, and the results of all that work are just piling up, frustratingly, with nowhere to go.
                  What could my motivation possibly be to delay the counting of the work I have done? And if the Office were prepared to handle this workflow offline, why do you think they haven’t provided us with that option (they have not). If you would insist that we examiners should just DO it and circumvent the procedures which are in place, then you must have no idea what it is like to work for a large organization.

                2. Shake your fists in rage all you want, cry in the corner, deny reality to your heart’s content. The Office is *not* set up to handle prosecution without the electronic workflow.

                  You apply the admonitions inappropriately.

                  I am not shaking any fist in rage.
                  I am not crying in any corner.
                  And I am certainly not denying any reality.

                  The mere notion of “not set up” simply does not preclude the FACT that such can happen. That capability is inherent in the task itself. You confuse the current method of doing the task as somehow necessarily BEING the task.

                  Could it be done, hypothetically? Yes, but not easily and not instantly, and certainly not before PALM is restored

                  There is NO “hypothetically” involved. And – if you read with any care at all – I had already mentioned that this factual capability is moot for the present crisis. Maybe it was you that too busy with rage or tears to bother reading.

                  The rest of your rant seems to indicate strongly that this is the case.

                3. So then you are arguing simply for the sake of argument, it would seem. Are you just a troll with no point? You’ve basically said as much.

                  I never said non-electronic processing was impossible. If the Office had a procedure in place to switch from an electronic workflow to a “hand-carried” workflow in a practical time frame to get cases signed, routed, counted, and mailed without computers in the event that the computer systems are down, then sure, such processing could happen.

                  But… the Office does not have such a procedure in place, even if it is easy to imagine an examiner hand-carrying (or emailing) an Office action to the LIE (or signatory authority, as the case may be) and so on down the line. An examiner could do that, but it would not end up being counted or mailed because everyone down the line would be relying on the current procedures until the Office tells them to do things differently, and they would ask the examiner to post it electronically when the systems are back online.

                  You may as well argue that the USPS could use the pony express model in the event their computer systems go down or all their vehicles are simultaneously sabotaged or lost in some way. Would that be possible? Sure. Would that be achievable in a time frame of one week based on a computer system malfunction? Absolutely not.

                4. So then you are arguing simply for the sake of argument, it would seem. Are you just a troll with no point? You’ve basically said as much.

                  Scott, you sir are a m0 r0n.

                  Clearly, I have a point, and no I have NOT “basically said as much.” You are (and were) completely wrong on the facts. Calling someone else a “troll” because they showed – at point – that you were wrong is a mindless retort, thus earning you the “mo” epithet.

                  I never said non-electronic processing was impossible.

                  Then why in the world did you start arguing with me?

                  Maybe instead of getting all emotional, you should calm yourself down and read what I have actually posted.

    2. 7.2

      They really should have upped the fees enough to get new systems up and running that have 100% assured uptime by now.

      Get the money “diverted” from innovators into the coffers of the general tax funds.

      How many Billions there…?

  6. 6

    Yes, there are alternative filing methods (facsimile, USPS), but they are no longer equivalent in terms of fees. If the USPTO truly cared about their customers, they should waive the higher fees for non-electronic submissions for the duration of the outage.

    1. 6.1

      If the USPTO truly cared about their customers…

      This is off-topic to the point you are trying to make, so my apologies if I hijack your quite sensible point. I do, however, want to object to the idea that patent applicants are the USPTO’s “customers.” The PTO is not there for the applicants’ benefit. The USPTO exists to protect the public, not to serve as a resource for applicants.

      Still and all, I agree that it would feel more fair if anyone who has to paper file during the outage were allowed to do so at electronic rates.

      1. 6.1.1

        Quite true. It is a government operation with certain legal obligations to both applicants and the public.

        Yet its own (mostly self-congratuatory) annual reports still sometimes refer to applicants as “customers”. For example, from the most recent Strategic Plan: “USPTO Management Goal Objective 4: Secure Sustainable Funding to Deliver Value to Fee-Paying Customers and the Public” and “Our operating structure is like a business in that it receives requests for services”. I seem to recall that quite a few years ago USPTO performance reports would frequently used business model concepts like “customer service” to describe to aspirational aspects of its operations.

        1. 6.1.1.1

          [The USPTO’s] own (mostly self-congratuatory) annual reports still sometimes refer to applicants as “customers”.

          Right. That is my concern. I agree that the PTO does speak (and think) of applicants as “customers.” That is the problem. That betrays a certain misunderstanding of why we have an examination system.

          There is word that described the condition where the regulator becomes particularly solicitous of the regulated: “capture.” My concern is that there is presently a measure of regulatory capture, and “customer” language is symptomatic of that capture. I would feel more comfortable in a world in which the USPTO described applicants as “applicants” rather than “customers.”

          1. 6.1.1.1.1

            I agree that the PTO does speak (and think) of applicants as “customers.” That is the problem. That betrays a certain misunderstanding of why we have an examination system.

            The effect of this on the actual examination is the biggest problem the office has.

          2. 6.1.1.1.2

            I agree that the PTO does speak (and think) of applicants as “customers.” That is the problem. That betrays a certain misunderstanding of why we have an examination system.

            The purpose of the patent system is set forth plainly in Article I:

            “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

            The patent system exists to grant patents to patentees, thereby promoting the progress of science. The End. Notice there isn’t any qualification, like “…while defending the public domain.”

            I understand that you believe the PTO should pay no attention whatsoever to whether inventors are well-served by the patent system. If the PTO solely took steps to satisfy “the public” – particularly at peak “patent reform” hysteria, say, back in 2011 around the time of those NPR hit pieces – then the patent system might have reverted to a “flash of genius” test, where only the most worthy frontier patents were granted. Maybe three per year, four during an especially prolific year. A victory for “the public,” yes?

              1. 6.1.1.1.2.1.1

                I’m citing the words of the Constitution, CFR, the MPEP, and the statements of the patent office.

                You’re citing your personal philosophy.

                The record of the substantiality of those competing sources of authority speaks for itself.

                1. I don’t personally see where your constitution citations show that Greg “believe[s] the PTO should pay no attention whatsoever to whether inventors are well-served by the patent system”.

                  It is not inconsistent to believe (1) that the PTO should treat applicants better and (2) that the PTO should not treat applicants as their customers.

                2. Well stated David.

                  Watch out though – with words like that you can expect Greg to stop having discussions.

                  Why? Because when his feelings get in the way, well, that’s how he rolls.

                3. Ben – you don’t see because you WANT to see something else.

                  Why in the world would “customer” put you so on edge?

                  Do “customers” really go about and capturing agencies (as depicted)?

                  This, while the fingerprints of actual capture are so blatantly in the opposite direction?

                4. It is not inconsistent to believe (1) that the PTO should treat applicants better and (2) that the PTO should not treat applicants as their customers.

                  I completely agree with you. I believe, and have argued in the past, that bad allowances (of the “how could the patent office issue this, it damages the public, etc.” kind) are often the product of preceding bad rejections (of the “this prior art isn’t even in the right ballpark” kind).

                  37 CFR and the MPEP are super-specific on many aspects of patent law, but there is an open question: When an examiner cites prior art and the applicant traverses it, what factors should the examiner consider in choosing between another rejection and an allowance? I have seen examiners err on both sides – allowing applications with surprisingly little searching, and issuing a series of rejections citing new art that wasn’t more relevant (and was often less relevant) than the previously traversed prior art.

                  So I agree with you. But the tone of Greg’s arguments is that the PTO should take the public interest more seriously: he is arguing that the PTO should take applicants less seriously, demoting them from “customers” to an “accidental” beneficiary of examination (directly funded by fees paid by the applicant).

                  Greg can cry “straw man” all he wants – his perspective is clear from his choice of words, and also contrary to the words of the Constitution and statutes.

                5. All of those words require a determination as to who an inventor and what their discovery is. The suggestion that the person who walks in off the street is a customer who should be satisfied is an attempt to put a thumb on the scale of the determination aspect.

                  Let me put it like this – there are signatories who think that everyone should get something from what they file, which is a ridiculous situation to have sight-unseen, as it suggests that everyone who asserts they are an inventor is an inventor.

                6. Random, I don’t believe that the identity of “the customer” – whether the applicant or the public – should change the outcome of reviewing a particular claim set. Not one bit. In an ideal world, the legal standards would be objective and consistent.

                  The difference is the sufficiency of the *explanation* – the quality of the office action. If an applicant pays for examination and ends up with no patent, the office actions should be clear and strong enough that the applicant *should*, reasonably, be persuaded.

                  The crux of my argument is that the PTO routinely falls short of that mark. Requirements about the sufficiency of explanation – for 101 mostly, but also 102/103 – are wantonly disregarded.

                  For me, a good day in patent practice is when I recommend that my client settle for narrowing claim amendments, or even an abandonment, because the examiner did a good search and the explanation, given KSR / BRI / etc., is at least reasonable. I’m perfectly fine saying: let’s not throw money away; let’s find a more effective alternative.

                  A bad day is when the examiner fails to present a plausible explanation and refuses to clarify, and I have no reasonable explanation for why the examiner isn’t following the law. Yes, I have a dozen tools at my disposal to break that logjam, and my track record reflects my proficiency with them. But I don’t like being forced to use them when reasonable examination gets us the same result faster and with less money and aggravation.

                7. David Stein:

                  Bingo. I have stated the same exact thing.

                  (and yet the anti’s like Malcolm will surely scoff, lob ad hominem and think themselves clever for their mindless ways)

                8. Greg[‘s]… perspective is… contrary to the words of the Constitution and statutes.

                  Two responses:

                  (1) Show me where anything that I have written is contrary to the Constitution. I know that you have cited the Constitution, but I think that you will find if you go back and read the cited portion carefully, that you will be hard pressed to find anything there that is actually contrary to anything that I have written.

                  (2) Not to put too fine a point on it, but you have not actually cited the statute—at all. You cannot possibly have established a contradiction between my point and the statute, because you have not even cited the statute. You have cited the CFR. The CFR is not the statute.

                  Let me be perspicuous. If there is a contradiction between anything that I have written and the statute, then I concede that I am wrong. Congress authored the statute, and Congress has the authority to decide what the examination system is, and for whose benefit it exists. If Congress intends the applicant to be the beneficiary of the examination system, then the applicant should be understood as the intended beneficiary (the “customer,” as it were) of the examination system.

                  It is my contention that Congress did not intend the applicant to be the primary beneficiary of the examination system (see, 35 U.S.C. §2(a)(2)). I believe, however, that you are correct that the CFR reflects an understanding in which the applicant is the primary beneficiary of the PTO’s operations. That is because the CFR are the creature of the PTO—not of Congress—and the PTO envisions its role in a manner (somewhat) contrary to its statutory mandate of service to the public.

                9. Greg, I understand your position. I think we’ve come to an impasse, and that’s fine. I suspect we’ll broach the topic again another time in another context.

                  Thanks for the interesting discussion. This kind of chatter is one of the two main reasons I visit PatO.

                10. The crux of my argument is that the PTO routinely falls short of that mark. Requirements about the sufficiency of explanation – for 101 mostly, but also 102/103 – are wantonly disregarded.

                  Well, I can cheerfully agree with this. Especially with §101, but also with §§ 102/103/112, the quality of analysis is frequently very poor.

                  To be very fair to the PTO, however, only some of this reflects a failure of the PTO to perform its side of the process in a reasonable manner. It is surely true that some faulty office actions could be improved with better training.

                  Some of the dross, however, fairly reflects the adage that “one gets what one pays for.” Our U.S. search and examination fees are comparatively slight relative to peer nations, and the quality of our search and examination process are correspondingly poor. I am not sure whether that is a good or a bad thing (not everyone, after all, wants to buy a Cadillac, so maybe it is not so bad that the USPTO only charges Chevrolet prices). If it is a bad thing, however, then we should consider raising prices so that the Office could afford to hire proper attorneys (instead of mere bachelor of science graduates) to do the examination.

                11. Thanks for the interesting discussion. This kind of chatter is one of the two main reasons I visit PatO.

                  Likewise yourself.

                12. Greg,

                  Give what you are asking of others first.

                  PTO envisions its role in a manner (somewhat) contrary to its statutory mandate of service to the public.

                  Nowhere in the statutes is the type of mandate that appears to drive your mania about those using the patent system to turn an inchoate right into a legal property right NOT being deemed customers; nor the concomitant elevation of “the public” to be above the users of the system.

                  Your feelings remain unmoored.

              2. 6.1.1.1.2.1.2

                Random, I don’t believe that the identity of “the customer” – whether the applicant or the public – should change the outcome of reviewing a particular claim set. Not one bit. In an ideal world, the legal standards would be objective and consistent.

                A few points:

                (1) I do not believe that anyone on this thread considers the public to be the “customer” of the PTO. The PTO exists to defend the public’s interest, but that does not make the public a “customer,” any more than a minor child is the “customer” of a guardian ad litem.

                (2) If one believes that the standard should be the same whether the applicant is or is not the customer, then why use the “customer” language? The idea of “customer” carries a connotation with it that is not present with the word “applicant.” Given that we can all agree that the applicant is an applicant, why argue that the applicant should also be considered a “customer” if—as you say—the outcome should be the same regardless of whether there is or is not a “customer” in the PTO application process?

                1. This then turns (again) to some penchant of yours against the very word “customer.”

                  Tell me Greg, do you have any customers? Does having these customers create – in you – the “wrong” that you want to see based on the term “customers?” How are you dealing with you being “captured?”

                  What exactly is it in the connotation that you find sooo irksome?

                  By the by, your reference to 35 U.S.C. §2(a)(2)) does NOT show the point that you appear to want to make.

                  shall be responsible for disseminating to the public information with respect to patents and trademarks

                  This is but a part of the “promote” as that term was understood to carry from a marketing perspective. There is no elevation of the general public above those applying for patents and trademarks with that duty. There is NO way to read that as making the general public the primary beneficiary of the patent system. THAT is an invitation to draw that same general public INTO being contributors and participants of the patent system.

          3. 6.1.1.1.3

            betrays a certain misunderstanding of why we have an examination system.

            GREG – What exactly is it that you think it betrayed? Why does “customer” scare you so much? Are YOU ‘captured’ by your customers?

      2. 6.1.2

        The PTO is not there for the applicants’ benefit. The USPTO exists to protect the public, not to serve as a resource for applicants.

        An exceptionally wrong view of the purpose of the patent office.

        Yes, “protecting the public” is a duty – “A” duty. Innovators are a member of that public, and another duty that your position not only glosses over (but sets up an unnecessarily confrontational tone) is: 35 USC 2(a)(1): shall be responsible for the granting and issuing of patents and the registration of trademarks in conjunction with
        35 U.S.C. 131 Examination of application. The Director shall cause an examination to be made of the application and the alleged new invention; and if on such examination it appears that the applicant is entitled to a patent under the law, the Director shall issue a patent therefor.
        – CLEARLY shows a true customer aspect that you are denying.

        6 loves to make a “joke” of the “entitled” language, but that language is directly on point here.

        Additionally, the historical notion is one of Quid Pro Quo – and that applies in the sense of patent applicants as customers. It is NOT (as 6 mis-implies) an entitlement that comes from nothing on the part of applicants. Applicants HAVE put something in – and in any meaningful sense ARE customers based on that “putting in.”

        Additionally yet again, ALL monies running the Office are derived ENTIRELY from applicants. If you want to elevate NON-PAYING members of the public to somehow have a greater status as “customers,” then the entire money structure needs to be immediately changed (for example, run the Office entirely on the full “customer base” and then pay those for actually putting their side of the bargain up (at least in the processing stage – once granted, the grant would cease any further payments).

      3. 6.1.3

        From dictionary.com: “customer: noun. 1. a person or organization that buys goods or services from a store or business.”

        From merriam-webster.com: “customer: 1. one that purchases a commodity or service.”

        The USPTO is 100% funded by user fees, the near-totality of which are paid by applicants and patentees. Hence, it is entirely accurate to describe applicants and patentees as the PTO’s “customers.”

        1. 6.1.3.1

          From dictionary.com: “customer: noun. 1. a person or organization that buys goods or services from a store or business.”

          Right. I agree with that definition, which is why I quibble at the use of the word “customer” to describe a patent applicant. The applicant is not buying a good or service from the operation to whom the fees are paid—no more so than a non-custodial parent paying child support can be said to be “buying” something.

          1. 6.1.3.1.1

            The applicant is not buying a good or service from the operation to whom the fees are paid…

            Oh? What do you suppose the fees are for, then?

            Applicants pay fees for the examiner to perform the service of reviewing the application, performing a search, deciding whether or not the application satisfies the requirements of 35 U.S.C., and writing up an office action.

            Supporting facts:

            (1) The filing fees for a patent application literally include discrete fees for: search fee and examination fee. Note that those fees are only due for nonprovisional applications – and not provisional applications, in which those services are not performed.

            (2) When applicants submit an RCE, they pay a fee for the examiner to continue performing increments of examination. They can continue paying RCEs for additional increments of that service until the application is allowed.

            (3) The MPEP describes the burden of specificity in the office action as for the benefit of the applicant – e.g.: “The reasons for any adverse action will be stated as may be useful in aiding the applicant to judge the propriety of continuing the prosecution…”

            …no more so than a non-custodial parent paying child support can be said to be “buying” something.

            Child custody is not a “good or service,” but a court order. Non-custodial parents are not “customers” because (1) they have no choice in the matter (much like taxpayers) and (2) they are not entitled to anything in return for their payments.

            By contrast, (1) patent prosecution is 100% voluntary, and (2) a patent applicant pays fees for examination, they are entitled to have the examiner perform those services on their behalf.

            1. 6.1.3.1.1.1

              What do you suppose the fees are for, then?

              I think that the fees are for exactly the same thing that you think that the fees are for: search and examination. I merely think that it is a mistake to take this as a service that the office is performing for the applicant. It is not. The service is being performed for the benefit of the public. The applicant is paying for it, but the applicant is not the intended beneficiary. The applicant is, at most, an accidental beneficiary.

              I grant you that the analogy to child support is imperfect, as you rightly note. I would urge you to notice, however, that the analogy to “customer” is equally imperfect. A customer, for example, must be pleased if the business is to remain a going concern. Not so with a government operation like the PTO. A “customer” can take his or her business elsewhere, but the applicant has no other place to obtain a U.S. patent than the U.S. patent office.

              The plain fact is that a patent applicant stands in a position that is somewhat sui generis. It bears similarities to other commercial or social arrangements, but it is not exactly like any of them, and therefore any analogy to such other stations will be necessarily imperfect. I mention the analogy to child support only to make clear that the fact that some one is paying for something does not ipso facto make that person a “customer,” a point that I believe we would all concede.

              1. 6.1.3.1.1.1.1

                I merely think that it is a mistake to take this as a service that the office is performing for the applicant. It is not. The service is being performed for the benefit of the public. The applicant is paying for it, but the applicant is not the intended beneficiary. The applicant is, at most, an accidental beneficiary.

                Merely an “accidental” beneficiary?

                So when I file an application for, let’s say, a potato peeler, and in response to my application (and search and examination fees), and the examiner then performs a search of the field of potato peelers and describes the distinction of my application in that field – it’s just a happy coincidence? Like: the examiner was just about to review the field of potato peelers when my application came along?

                On the contrary, 37 CFR § 1.104 (“Nature of Examination”) requires examiners to articulate the sole work product of those services – the office action – for the benefit of the applicant. Nothing in 37 CFR refers to the public as having any interest in the examiner’s actions.

                I propose that the plain meaning of the statute is of more evidentiary value than your philosophical perspective. You’re welcome to review 37 CFR to find something to the contrary.

                I would urge you to notice, however, that the analogy to “customer” is equally imperfect. A customer, for example, must be pleased if the business is to remain a going concern.

                Comcast has a whole lot of unhappy people paying for broadband. They continue doing so because (a) they want internet access and (b) Comcast is the only option in their area. Would you challenge the characterization of Comcast’s subscribers as “customers” because they are unhappy?

                The USPTO’s interest in satisfying applicants is even lower – because unlike Comcast, the PTO’s exclusive monopoly on issuing U.S. patents is enshrined in the U.S. Constitution.

                The PTO will continue to be heavily patronized, despite its costs and inefficiencies and inequities, because it is the only place to get a U.S. patent – and because it is dangerous to disregard the patent system while your competitors do not (as per Research In Motion v. NTP).

                1. If a college started referring to the people who paid and met requirements to earn a degree as “customers” rather than “students” and propogated those changes down to the teaches, I think it’d be clear what the effect would be. You also pay to have a drivers license processed, etc.

                  Referring to an applicant as a customer is like referring to a student as a customer – it creates a viewpoint that the person paid money and therefore SHOULD end up with something, rather than the neutral act of judgement and letting sufficient things pass.

                2. So when I file an application… and the examiner then performs a search… and describes the distinction of my application in that field – it’s just a happy coincidence? Like: the examiner was just about to review the field… when my application came along?

                  No. You misunderstand me. I agreed with you in 6.1.3.1.1.1 that the search and examination fees pay for a search and examination. It is not an accident that the search and examination happen. If, however, the applicant benefits from that search and examination, it is no more than a happy accident. The whole process can be done and done well, and the applicant derives no benefit from the process.

                  You’re welcome to review 37 CFR to find something to the contrary.

                  Perhaps you misunderstand the point that I am making? The PTO authored the 37 CFR. To cite, then, to the 37 CFR does not prove that the PTO should conceive of the applicant as a customer, but rather merely that the PTO does conceive of the applicant as a customer. I agree with the assertion that the PTO does view applicants as customers (see 6.1.1.1 above). My point is not that they do not, but rather that they should not.

                  What we have now, as reflected in the cited CFRs, is a measure of regulatory capture. I gather that you are pleased with that state of affairs (the regulatory captors usually are). I am troubled by it.

                3. Greg,

                  I certainly hope that your clients have this level of being informed when you take them on.

                  After all, they are customers, right?

                4. You grossly misunderstand what service means.

                  No, I don’t. People who pay taxes fund the PTO just as people who pay fees for searching do. The fact that we get to keep some portion of the fees we collect is accounting handwaving.

                  You pay fees to file in federal court too, but because there’s no accounting gimmick it’d be wrong to call those people “customers” despite the fact that they’re also paying money for services.

                  Yet the federal circuit doesn’t refer to litigants as customers, and if judges stated that litigants suing the government should be inherently preferred over the public interest simply because they paid fees (otherwise known as pay-to-play) those judges would be tossed off the bench. Yet the PTO expressly tells its first-tier judges (examiners) that making the “customers” happy is part of their performance.

                  This issue isn’t a matter of opinion to be debated. There is a right side to this and a wrong side, and Greg is right and you and David are wrong. You don’t set up an allegedly impartial adjudicator and then seek to influence the outcome by making their pay be based upon one side’s preferred outcome. If you want to talk the constitution – that is why Article III exists. There is only one kind of actual judiciary – the independent judiciary. Giving someone the alleged power to decide an issue fairly and then telling them that they run the risk of being fired if you don’t like what they do is not making them the judge of anything.

                  Which, by the way, would be fine if you were transparent about it. All you’d have to do is call this a recording system, where Examiners search the best art, suggest possible rejections, but allow everything. That would not create the appearance that we have judged the issue so that future courts could not be waylaid by a presumption of validity. But if you’re going to create a system where there’s an alleged impartial judgement, then you can’t turn around and influence the judgement by saying one side has paid you money, is your customer, and should be satisfied – that’s just bribery.

                5. No, I don’t. People who pay taxes fund the PTO just as people who pay fees for searching do. The fact that we get to keep some portion of the fees we collect is accounting handwaving.

                  You have to try really hard to be that wrong.

                  This issue isn’t a matter of opinion to be debated. There is a right side to this and a wrong side, and Greg is right and you and David are wrong.

                  Except you got that completely backwards as to who is on which side. But thanks for playing.

                  Which, by the way, would be fine if you were transparent about it

                  Is that the “royal” you? As you surely must know, my side is completely transparent (which is more than what can be said about the shadows of the Office).

                  And you still grossly misunderstand what service means.

            2. 6.1.3.1.1.2

              I’m with Greg on this. The term “customer”, as used by the PTO to refer to applicants for patents, rankles me.

              The fees are more akin to taxes levied on users of the government-administered system, and they are designed (at least in part) to curtail bad behavior and abuse.

              Put another way, the PTO doesn’t sell “patents” nor does it sell “patent examination” as a “service” provided to applicants. The proof of this is that, generally speaking, nobody gets their money back if they’re unhappy with the service.

              1. 6.1.3.1.1.2.1

                I’m with Greg on this.

                Not shocking at all – and both of you are simply and utterly wrong.

      4. 6.1.4

        I think the term “customer” is somewhat loaded in American culture. The phrase “The customer is always right” comes to mind. That attitude is not appropriate for processing patent applications.

        (That doesn’t mean the PTO should be anything less than as helpful and fair as is possible.)

        1. 6.1.4.1

          If you really believe that “the customer is always right,” you have never been in business in the real world.

          1. 6.1.4.1.1

            Ah. I always thought that phrase described an aspirational attitude that organizations use to guide their policies and interactions with customers. I didn’t realize it was a literal rule! You’re lucky to have gained such valuable insight in your industry experience.

            1. 6.1.4.1.1.1

              Far more than you – as apparent with your first comment.

              That you backtrack with your second is obscured with your (rather undeserved) snark.

          1. 6.1.4.2.1

            Tell us about your customers, Greg.

            Then tell us how you are “captured” by them.

            So terrible.
            Any ideas on what you are going to do about it?

  7. 5

    I would like to riot, but I look around at my colleagues and see maybe 1 who would join me. As a whole, we are too sedate.

  8. 4

    EFS-Web Contingency filing page:

    link to epfportal.uspto.gov

    (no guarantees EFS-Web Contingency will remain operative throughout the day but it has been operative at various times during this outage)

    (…for new filings of continuation, divisional, continuation-in-part and reissue applications, as well as reexamination and supplemental examination proceedings. A request for continued examination (RCE) and continued prosecution application (CPA) are considered existing documents and must be filed as a registered eFiler.)

    Filing follow-on documents and follow-on fee payments to an existing patent application is not permitted via EFS-Web Contingency. When an applicant improperly files a follow-on document as a new application via EFS-Web Contingency (or EFS-Web) and requests the USPTO to move the follow-on document to the appropriate application, a petition under 37 CRF 1.182 accompanied by the petition fee will be required. <– I'm curious as to whether anyone has ever had their petition to move a follow-on document denied

    1. 4.1

      Thanks, I didn’t realize the contingency system was back online, I was able to access it just now. Yesterday was the first time I saw the inside of a post office in about 10 years!

      1. 4.1.1

        I got an e-mail with a list of Express Mail numbers from one of my outside counsel yesterday because they had to paper-file a bunch of national stage entries for us. I felt the same way that I did last time gas dropped below $2/gallon (“wow, I never thought I would see this again…”).

  9. 3

    Public PAIR has been awful for the ~20 years I’ve been using it, but it’s been steadily degrading over the last few years.

    Here’s my experience from the 2000’s:

    Welcome to PAIR. Please complete this captcha.

    Complete captcha –> Search page (enter query) –> Bibliographic page –> Image file wrapper –> Here’s your document.

    That turned into this:

    Welcome to PAIR. Please complete this captcha.

    Captcha succeeded –> Search page (enter query)

    Cannot access page due to high system volume; try again later. (Happens at all times of the day and night, including 3am on a Saturday)

    Complete captcha –> Search page (enter query) –> Bibliographic page –> Image file wrapper –> Here’s your document.

    Then:

    Welcome to PAIR. Please complete this captcha.

    Captcha succeeded –> Search page (enter query)

    Cannot access page due to high system volume; try again later.

    Reload –> search page

    No file or record exists with that name. (Not true!)

    Reload –> Search page (enter exact same query) –> Bibliographic page –> Image file wrapper –> Here’s your document.

    Over the last six months, it’s turned into this:

    Welcome to PAIR. Please complete this captcha.

    Complete captcha –> Please complete this other captcha.

    Complete second captcha –> Search page (enter query)

    Cannot access page due to high system volume; try again later.

    Reload –> Search page (enter exact same query)

    No file or record exists with that identifier.

    Reload –> Search page (enter exact same query)

    500 / Not Authorized

    Reload –> Search page (enter exact same query)

    Bibliographic page (click Image File Wrapper)

    ……………………..404 Not Available

    Reload –> Welcome to PAIR. Please complete these (one or more) captchas.

    Complete captchas –> Search page (enter query)

    Cannot access page due to high system volume; try again later.

    Reload –> Search page (enter exact same query)

    Reload –> Search page (enter exact same query) –> Bibliographic page –> Image file wrapper –> Here’s your document.

    It sometimes takes me 10-15 minutes to get a single PDF from PAIR. It is borderline unusable, and sometimes literally. So this week’s experiences are not exactly unprecedented.

    I have no idea why the patent community is not rioting over this. I expect that (a) it’s a boiled-frog thing – people have slowly accustomed to the steadily degrading experience; and (b) the people who talk directly to PTO administrators (large firm partners) have no idea of the problems experienced by the people who interact with PAIR (admins, associates, solo practitioners, etc.)

    1. 3.1

      Add to the experience, when you are searching a patent number and get the Cannot access page due to high system volume; try again later message, it defaults to searching by serial number, so you inevitably forget to recheck the patent number radio box at least once and then proceed to throw your keyboard out of the window when you the the No file or record exists with that identifier. message

      1. 3.1.1

        The idea of radio-buttons for selected record types is ridiculous, since it’s trivially easy to determine the type of record from the query.

        * xxxxxxxxxxx or xxxx/xxxxxxx (eleven digits) is a publication.

        * xx/xxxxxx (eight digits) is a patent application.

        * xxxxxxx or x,xxx,xxx (seven digits) is a patent.

        * PCT/* is a PCT application.

        * TwoDigitCountryCode/* is an International Design Registration Number.

        The radio buttons include a separate entry for “Control Code.” Here’s the PTO’s helpful description of each:

        “Application Number – Made up of a two digit series code followed by a six-digit serial number which is assigned by the USPTO.

        “Control Number – Made up of a two-digit series code followed by a six-digit serial number which is assigned by the USPTO.”

        Note that the PTO routinely refers to these terms interchangeably as “Application/Control Number,” so this appears to be redundant. Sure, there might be some back-end subtlety to the query handling process… which is probably lost on 99% of visitors.

        Now, for some web pages, an approach like radio buttons is better for some technical or user-experience reason, like reducing server load. However:

        1) It would be trivially easy to encode the document-identification step in Javascript. Don’t give the user an array of radio buttons: show the user one textbox, and have the user’s browser decode it and tack on a URL parameter to the request. Notably, nothing on the server search side would have to change except for the static content of the page that’s served to users.

        2) The radio-button selection significantly increases the number of incorrect queries that get submitted to the PTO, which increases server load both in the error response and in the subsequently submitted second query.

        Finally… let’s just acknowledge that this form has barely changed since at least 2001. And you can tell because it has all the visual appeal of an old Geocities page. (I think the PTO should signal the current PAIR outage with ubiquitous “Pardon Our Construction” construction-guy-shoveling GIF… just for visual thematic consistency.)

        1. 3.1.1.1

          Your reasoning is two months too old. As of 2018-06-19, patents are eight digits, i.e., numerically indistinguishable from applications, unless non-numeric characters are demanded also.

          1. 3.1.1.1.1

            An excellent point.

            Still, it’s an edge case, and easily handled in several ways:

            (1) Patents beginning with 10… will likely pick up as searches for applications numbered 10/… recede. (Note that application no. 10/999,999 was filed in 2004.) The server could be updated with the highest-issued patent number, and a presumption that searches up to that number are likely patents while searches beyond that number are likely patent applications.

            (2) The formatting of the number may disambiguate the query, since 10,xxx,xxx is a patent and 10/xxx,xxx is an application.

            (3) The search can use a default presumption of which one is intended, with an option for explicit user ovveride – such as applying the formatting, or searching for “patent 10xxxxxx” vs. “app 10xxxxxx.”

            Again, client-side logic can resolve all of that.

        2. 3.1.1.2

          In the same vain, why is it absolutely necessary to enter both the patent number and its application serial when checking whether renewal fees have been paid? (BTW, that system lately wasn’t working too well either).

          A peeve of mine is with US application publication numbers, where PAIR insists on having 4+7 digits, where the publication number is presented with 4+6 digits in Espacenet. So you always have to fumble in adding or deleting a zero somewhere when moving numbers between systems. Of course, PAIR must clear the entry and reset the radio button to the default position if it doesn’t like what you entered. If at least PAIR could be clever enough to parse strings beginning with “US” and ending with “A1”, “B1” or “B2″…

          Espacenet and the EP Register have become remarkably flexible in that respect over the last few years. With the exception of PCT publication numbers, where WIPO made changes in their format right in the middle of the year circa 2003, instead of implementing them on 01 January.

          The EPO seems to need several weeks to make available online the pamphlets received from the USPTO. That several weeks too many in my opinion.

          I learn reading this thread that I wasn’t the only one who’s affected by the outage, that makes me feel better. It has been a lousy week getting of file wrappers for a couple of rather crappy patents. At least it was worth the effort.

      2. 3.1.2

        I love it when it’s 1am on the Pacific coast and I’m told that the problem is high system volume. Sure it is. But while we’re at it, can we do something about the on-hold music? It’s been the same for the 20 years I’ve been practicing.

    2. 3.2

      Private PAIR is archaic and imperfect, but it’s nowhere near as horrible as what you’re describing with Public. I imagine the patent community isn’t rioting because most of us are using Private, and it’s functional, and we’re used to it.

      My main complaint is the PKI certificate Java nonsense. There are much better ways to do security in 2018.

      1. 3.2.1

        That Java/PKI certificate experience is one of the reasons I don’t use Private PAIR.

        We’ve also run into a problem where admin #1 uses a certificate to file something around the same time that admin #2 uses the same certificate to file something else, the PTO’s servers blacklist the certificate as potentially stolen or misused, and now nobody can use it to login or file anything. Getting the certificate reissued was a nontrivial and protracted experience, and as I recall, a M-F/9-5-only type of task. So I stay out of Private PAIR in order to minimize all of those issues.

    3. 3.3

      I have no idea why the patent community is not rioting over this.

      Because it is predictably “Abstract” and pizzas are at the coffee shop…?

    4. 3.4

      Over the last six months, it’s turned into this:

      Yes. Good to know it’s not just my own bad luck.

      it’s a boiled-frog thing – people have slowly accustomed to the steadily degrading experience

      Yup. Also true for the Internet as a whole.

  10. 1

    Yes so much fun faxing to avoid late fees and meet deadlines. Those extra fees are fun too. (Of course this is all MM’s fault for destroying software patents.)

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