Suspicious Allowance Timing

Never attribute to malice…

I've been pretty good about not lobbing unfounded accusations (remember, everything on here is opinion and I am not a lawyer). My issue on this site is squarely with the USPTO. My opinion is that the applicant and their counsel did wildly unethical things that were — again, as I've said several times here — perfectly legal… possibly legal, I don't know for sure. I'm also a firm believer in the old adage of "Never attribute to malice that which is adequately explained by stupidity." It's much easier to believe the examiner just wasn't very good at the job — though I'd prefer to think they were just lazy (the two are indistinguishable in some instances and obviously this is all just my opinion). I've interacted with several examiners and generally they are very sharp, diligent, and professional. I appreciate the work they do. I do feel bad heaping all this on one examiner and a supervisor, but I'd also hope the good examiners want to weed out the bad ones. This examiner did a particularly bad job here. Feel free to set me straight here if I'm wrong.

Now for the conspiracy

First, I can't prove anything. All I have is dates — and every one of them is straight off the public record (the file wrapper and the acquisition's own press releases). Crazily suspicious dates. The kind that make you wonder.

Let me be precise about what's actually fueling this, because it's not much: two things, both straight off the public record. The dates — five days. And an allowance that reads like nobody spent much time on it. The Notice of Allowance is rushed and careless on its face — the overly broad claim that slipped through, the typos, the inattention to detail — barely proofread, and honestly reading like it was barely examined. A hurried, sloppy allowance landing in a convenient five-day window is the whole of what makes me raise an eyebrow. I'm not inferring misconduct from it; I'm noticing speed and sloppiness and finding the timing hard to ignore. Everything past this point is me speculating out loud, clearly labeled as such.

For this one, you need to know Big Corp was being acquired by an Even Bigger Big Corp. And Even Bigger Big Corp didn't do any of this. This all took place before they got the keys to Big Corp. I'm still holding on to hope the new parent company will take an interest and right this wrong, just out of the goodness of their Even Bigger Big Corp heart. But that's not what this post is about.

Here's the questionable scenario. The one that makes me a conspiracy nut:

• It was an $8 billion acquisition.

• It was dragging on for over a year.

• Five days after the Notice of Allowance, the acquisition was finalized and publicly announced as complete.

Five fricking days — was this patent the thing the acquisition was waiting on? Yeah, probably not. To be clear: I have no evidence of any improper contact, and I'm not claiming any took place. All I have is the dates, and I'll leave you to opine on the timing. The allowance could have a perfectly mundane explanation — ordinary end-of-quarter docket pressure, coincidence, whatever. But the dates are the dates, and in my opinion this applicant's conduct (the text I believe was copied from my disclosure, what I read as misrepresented arguments, the typos, all of which I'll get to in future posts) hasn't exactly earned them the benefit of the doubt. Basically the totality of my experience makes me question this. I can't prove it, but I wonder.

Coincidence?

Yes, it totally could be a random coincidence. The overall timing of the prosecution, RCE, etc. was random and happened to put it within this window. That is a coincidence, of course. But it was on the examiner's desk in a very interesting time window. Probably one where the company being acquired was under pressure to tie up loose ends. I'm just saying… the timing was awfully coincidental. Some might say convenient, or maybe even urgent.

Examiners have had issues lately

And before you write me off as paranoid or a conspiracy nut: stuff happens. A USPTO employee agreed to pay $500,000 to resolve a conflict of interest; a former employee agreed to pay $122,480 over another. It got bad enough that Director Squires had to publicly respond to an examiner conflict-of-interest scandal. Am I saying that's what happened to me? No — to be clear, I have no evidence that this examiner had any conflict of interest, and I'm not alleging one. Those are unrelated cases; I mention them only to show this kind of institutional failure isn't impossible in the abstract — not because I think it happened here. Remember, this is all basically an honor system. My purpose in telling this story is to say the honor system is being abused. Maybe not here in my specific example, but assuming everything is fine is what got us here.

What do I actually think happened?

This is a story, so I can speculate. For the record I have no idea what really happened. No idea how the timing lined up. And I don't think the examiner took a bribe or had an intentional conflict of interest.

My intuition — what I venture to guess happened — would be more in line with the bumbling fool narrative. I prefer this explanation because it doesn't need any corruption, just incompetence.

Say you were a sneaky attorney who did a really crappy job writing this application and people were starting to catch on. And say you caught wind you were going to be out of a job soon (i.e. the acquisition was going through any day now). You have a few choices: do nothing and leave the application to die on the vine, or try to call the examiner. You're probably under a lot of pressure to deliver this patent. Maybe you'd pull out all the stops and try to prove you're a good attorney. Maybe they'll throw more work your way after the acquisition. Again, for the record, I can't prove anything. This is pure speculation. Examiners are supposed to log these sorts of calls, but we all know they don't always. I mean that's more paperwork, and what have we already established about this particular examiner?

Would you call the examiner and try to sweet-talk them into going easy? Would you say whatever, knowing that you've already gone very close to that line (over the line in my humble opinion)?

Would that be improper? Would that be traceable? What even would have been discussed? A favor? Hey, we're all just trying to meet our quotas? I don't know, but I would believe an awful lot at this point.

Calling the examiner is great

The thing that is great about the examination process is also a deep, deep flaw. Remember no one else can say anything (coming up in the next post). Plus it's an honor system. You wouldn't want to ask anything inappropriate because the examiner might report you. You might get in trouble. But what can you say that is plausibly deniable? You'll see, when I get into the written correspondence, that you can say an awful lot of misleading things and face no consequences. I can only imagine what could be said off the record… given all the things I've seen on the record. Stay tuned for the documented misleading statements that I found in writing.

The record

What the record actually shows, though, is sloppiness — the Notice of Allowance speaks for itself, with its complete inattention to detail (see Dispatch No. 9). I don't need to guess at a motive to point that out; the carelessness is right there on the page, whatever its cause.

Either way — sloppiness or something worse — none of it is relevant to a PGR. The Board won't weigh whether the examiner had a conflict, just a bad week, or was just being a nice guy to the applicant; it re-decides the claims on the prior art and §§ 102/103/112. The timing is a coincidence I find hard to ignore, but the invalidity case stands without it.

† I swear I'm not trying to get this character to look like a Rick. The AI is slowly morphing him into that, unprompted. I'd call that a conspiracy, but the underlying mechanics of how this is happening are far less exciting. Side note: I wonder if I'm going to get sued for copyright infringement. I never asked for a character that looks like a Rick. I'm leaving it in here as a fair-use commentary on AI and how Rick is actually modeled on a generic inventor type. Basically, a guy like me in more ways than one. I think we all know how Rick would handle what I'd call the IP thieves, which would make a pretty good episode. Come on [adult swim], make a Rick and Morty episode on this, I won't even sue you for plagiarism… seriously you can have this story. You can see my original character on the home page. ↩

Related dispatches

• Dispatch No. 8 — Back From the Dead — how the application later came back from the dead.
• Dispatch No. 9 — The Overly Broad Claim Slipped Through — the overly broad claim that got allowed.
• Dispatch No. 12 — A Private Conversation, Held in Public — the misleading characterizations of the record.
• Dispatch No. 14 — My Apology to Good Examiners — credit where it's due: examiners who do good work.
• Dispatch No. 16 — Claim 13 — Again — the Claim 13 misrepresentation this suspicious timing helped slip through.