My Apology to Good Examiners

I pointed out in Dispatch No. 11 that I hope the good examiners would want to weed out the bad ones. I don't want to complain about this. I don't want to cast anyone in a bad light^† — that's not a good use of my time — and I don't feel good about that, even in the case of this one specific examiner. Patent examination is hard work. I hear tales of quotas and poor working conditions and honestly wonder how this doesn't happen more often. There are many good examiners who do very good work under terrible conditions. To those examiners, please accept my apologies for this blog. I am trying to demonstrate how those terrible working conditions lead to terrible errors and I sincerely hope this results in improved working conditions and resources.

† Any relation to actual individuals in this story is purely coincidental. I described my opinion of certain hypothetical actors to a machine, and it generated these images based on my opinions, not factual assertions of their character or physical appearance. ↩

My beef with this examiner

I should start with the apology, but I think I need to explain myself first. Why am I being so hard on this one examiner? First, it's actually 2 examiners — the primary examiner and supervisor. When there's a chain of command that screws up this bad, someone needs to speak up. My issue is that I did the work for the examiner. I mapped everything out. I'm annoyed that practically none of that made it into an office action. It's almost as if I offended the examiner into not doing their job out of spite (obviously my opinion).

Ok, even if you don't believe me about the merits. That's fine. Look at all the obvious and significant mistakes that were made by the examiner. If you had a job, and realized someone outside the organization was watching, would you do your job better or worse? I looked at some of the other examinations from this examiner's docket. It's hard for me to say this examination was "worse" than normal, but it sure feels like it.

So when you ask what my beef with this examiner is, keep in mind my issue is with both the quality of the work and the merits.

The good examiner

If a good examiner had reviewed this file, they would have realized the third-party prior art submission held everything they needed to handle this case. I put an awful lot of work into that and gained a new respect for the examination process along the way. Part of that is why I am so troubled by its utter lack of appearance in any office action. I practically did the whole job for the examiner. I'm confident that in the hands of just about anyone else, this would have been handled much better.

I should be clear about one thing, since this whole post is about examiners: a bad examination is not, by itself, a ground to cancel a patent. The PGR doesn't relitigate the examiner's job — the Board takes a fresh look at the claims on the prior art and §§ 102/103/112. The examiner is most of why this happened; the case is the prior art and their own disclosure.

I would like to sincerely apologize to all the good examiners out there. Thank you for your hard work.

Maybe it was a technical error?

I did have to file this third-party submission through EFS-Web in the last week of its existence because I had to pay the fee and Patent Center couldn't handle that yet. It was a weird time. I might have filed the last third-party submission through EFS-Web? It's possible.

Maybe then there was a technical issue and maybe somehow my actual description document didn't make it to the examiner? It was in the public-facing file, and the dedicated examiner who screens these submissions — before it ever reached the application's examiner — told me to remove the bit about the copied text (remember that from the backstory on the home page). I know, the document not being physically available to the examiner is a long shot (but it would explain everything). Still, this is my apology to the good examiners so I'm fishing for a reasonable explanation. Maybe this examiner was otherwise exceptional and just had a bad day (actually three days)? I don't know.

Also, I'm pretty sure this examiner never encountered a third-party submission, so that could explain the lack of attention it seems to have been given.

Claim 13

The examiner absolutely should have caught this (both on the merits and on a basic proofreading pass), but the applicant pulled a fast one. For this post, and in an apology to good examiners, I'll pull back my criticism slightly. I'm sure it's hard enough to do the job as-is, but when an applicant pulls shenanigans, it gives the examiner a bad rap. I could have helped point this out, but the system prevented that.

That misleading claim 13 typo is not the examiner's fault. That's the best I got… this should have been caught in a simple proofreading pass.

Quotas

Are there really quotas? Do examiners really have allowance numbers to meet? Even if it's just processing (production/disposal) quotas, that's a problem. If this applicant isn't going away, what's the fastest way to process that off the docket? That's a shame on the USPTO, although it makes sense in a Ponzi scheme sort of way. Those fees are the lifeblood of the Office — and the biggest stream, maintenance fees, flows only from patents that actually issue (an abandoned application pays nothing more; a granted patent keeps paying maintenance fees for years). So not allowing an application means no more fees. The structure perversely rewards allowance. That's a shame. Even Harvard realized (just this year) that handing out "A's" like participation trophies just reduces everyone's incentive. That's not an issue with the examiners, that's an issue with management. Like handing out A's where they aren't deserved, the value of our innovation (as individual inventors and as a country) is diminished. Everyone loses there.

Again, I am truly sorry

I apologize to the good examiners. This specific examiner and the supervisor can, as the Canadians say, take off, eh (that's me being polite, I'll offend someone if I say what I really want to say). But for the rest of the hardworking, diligent examiners, thank you.

Related dispatches

• Dispatch No. 4 — The first time this idea was good enough to copy — the highly relevant prior art a careful examiner would have applied.
• Dispatch No. 6 — The Third-Party Preissuance Submission — the submission that was too detailed to wave through.
• Dispatch No. 11 — Suspicious Allowance Timing — the suspicious allowance timing behind all this.
• Dispatch No. 15 — Strapping Cell Phones to Oil Wells — the cell-phones-on-oil-wells story.
• Dispatch No. 16 — Claim 13 — Again — the applicant conduct that still doesn't excuse the carelessness.
• Dispatch No. 21 — § 101 — What Even Counts as an Invention — the eligibility angle the examiner never reached; background commentary, not a PGR ground.
• Dispatch No. 22 — § 102 — Nothing New Here — the anticipation ground the examiner raised twice and then dropped.
• Dispatch No. 23 — § 103 — Obvious to Anyone in the Field — the obviousness ground the examiner never ran on the claim that mattered.
• Dispatch No. 24 — § 112 — They Never Said How — the strongest ground, and the one the examiner never raised at all.