The exhibits referenced in this document are on this website in a .pdf file: exhibits.pdf. To view them you will need the free Adobe Reader at www.adobe.com/support/downloads/main.html. Once you have the exhibits into Adobe, you can print out all 511 pages, save it your hard drive or save it to a CD and take the CD to Kinko's who will print it out for you for about $35. If you have any trouble downloading the file, call me (813-634-6048) or send me email email@example.com
|Lawsuit Summary and the Defendants
I lost my patent after trying to pay an overdue fine on a late Maintenance Fee, just like you did. I do not like the Patent Office's Maintenance Fee system. And in particular, I don't like the hassle they give you to pay the overdue fine on a late maintenance fee. I wanted to do as much as I could to curb the Patent Office's use of Maintenance Fees because I feel they hamper the efforts of individual inventors. So I brought a lawsuit against the U.S. Patent Office, the Office of Management and Budget and Galaxy Scientific Inc. (a private contractor to the Patent Office) concerning the content and processing of Patent Office Form PTO/SB/65. This website documents that action.
I brought the suit myself, without a lawyer, which is referred to as pro se. The lawsuit was originally brought as a class-action. The courts do not allow a pro se to bring a class-action lawsuit, so it was recast as an individual action. I made a number of stupid mistakes along the way. After almost two years, the lawsuit was settled out of court at the insistence of my wife, who got tired of all the legal papers laying around the house. In retrospect, I should not have settled. The Settlement Agreement was a cream-puff for the Patent Office. Mainly they agreed to put a Privacy Act Statement on all of their patent forms that collect information, by November 1, 2007. However, they agreed to this without any reservations, i.e., they did not deny their wrongdoing. Prior to the settlement, Form PTO/SB/65 did not have the required Privacy Act Statement on or attached to it, which violated the Privacy Act (see Exhibits 77, 78, 79). As of January 2005, PTO/SB/65 did start to have the required Privacy Act Statement (see Exhibit 80).
The Patent Office has denied hundreds of Petitions from inventors, like yourself, who used Form PTO/SB/65 (Petition to Accept Unavoidably Delayed Payment of Maintenance Fee in an Expired Patent) in connection with paying an overdue fine on a late maintenance fee. My suit alleged that their denials violated many laws, including the Privacy Act, the Paperwork Reduction Act and the Internal Revenue Code.
If you did not pay on-time because of medical problems, they required copies of all of your medical records. If you could not afford the fees at the time, they required all of your personal financial data. I'm not sure what the requirements were if your attorney failed to remind you about the fee because he died - you probably had to send in his exhumed body. See Exhibits 50 & 51 or view Additional Requirements.
And on top of all that, did you know that the Patent Office made all of your personal information public on the internet! See Exhibit 72 or view Personal Documents that USPTO routinely retains and releases that were submitted either with your Form PTO/SB/65 or for a reconsideration after your initial denial. These have included:
The other federal agency named as a defendant was the Office of Management and Budget (OMB). They are responsible for insuring that all federal forms that collect information, such as PTO/SB/65, comply with the Paperwork Reduction Act and the Privacy Act - which PTO/SB/65 did not.
The private contractor who was named as a defendant is Galaxy Scientific Corporation. They never bothered to respond to any of my requests for discovery. But based on the email documents that I was able to get through Freedom of Information Act (FOIA) requests, they appear to be the people who actually do the work to get Form PTO/SB/65 to comply with the statutes and ready for the OMB to approve. Their individuals who do this work are very close to the Patent Office operation - they accept mundane instructions from Patent Office personnel and they even have Patent Office email addresses and their emails to each other are maintained on the Patent Office's email server. This is important to note because there is case law that contractor's employees who are this close to an agency are considered "employees" of the government and subject to the same statutes. The Galaxy lawyer pointed out to me that they were supplied a "check list" by the Patent Office of what was required for PTO/SB/65 and their only job was to go over the check list. Therefore, my gripe should be with the Patent Office for giving them an inadequate check list. Galaxy had run up costs of $20,000 dealing with me. Had I lost, I would have owed them that money. Therefore, I settled out of court with them separately. They paid their legal costs and I paid mine. If you bring your lawsuit without a lawyer, I'd suggest that you leave Galaxy out of it. If you use lawyers, they will be able to provide more insight on Galaxy as a possible defendant.
The following exhibits show that Galaxy personnel are essentially
USPTO "employees" and are indeed liable for violations of the PRA, PA and
various Criminal Codes.
Exhibit 1: Norman v. U.S. v. Elwyn Ind.:
The test of whether employees of a federal contractor are "employees" of the federal government, and therefore liable for their performance under federal statutes, was established in Norman v. U.S. v. Elwyn Industries.
Operative sentences from Norman v. U.S. v. Elwyn Industries. Essentially, a contractor's employees are "federal agency employees" if their "day-to-day operations are supervised by the Federal government."
The full decision from Norman v. U.S. v. Elwyn Industries.
The following emails establish that Galaxy and USPTO have an extremely close relationship - to the point that Galaxy employees are indistinguishable from USPTO employees.
This is an email that was sent to Harry Wilson who is the Chief Financial Officer at Galaxy. Note that his email address ends with "@galaxyscientific.com" indicating that Galaxy employees are part of a corporate email system.
www.galaxyscientific.com/corpprofile/news.html is Galaxy's website page for news items. It shows, on the second page, that the Galaxy contact person has an email address that also has a suffix of "@galaxyscientific.com".
The Patent Office has a straight forward method of assigning email addresses. Here are the email addresses for two Galaxy employees. Instead of a suffix of "@galaxyscientific.com" which one would have expected as employees of Galaxy, they actually had addresses with a suffix of "@uspto.gov". These two Galaxy employees work so closely with the Patent Office that they even get their own USPTO employee-like email addresses.
Note that Exhibits 2-3 to 2-7 are emails taken off of the USPTO's mail server, not Galaxy's. And some of them are even Galaxy to Galaxy communications.
Email from one Galaxy employee to another Galaxy employee referring to the USPTO's Approval Request for Form PTO/SB/65 as "yours." Also note that emails chronologically read up from the bottom so that the top message with "yours" is (1) the most recent, (2) both Galaxy employees are "@uspto.gov", and (3) this email was on the USPTO's mail server, not Galaxy's.
This is an email originated by Rob Flax who works for Galaxy. In the email he asks a number of mundane questions of Jeanne Clark, a USPTO employee. Thinking back to Norman v. U.S. v. Elwyn Ind., Flax's questions show that his "day-to-day operations are supervised by the Federal government." and therefore he is an "employee" of the USPTO with regards to Form PTO/SB/65.
This is an email from Linda Engelmeier, the Commerce Dept. employee who was responsible for PTO/SB/65 at the time, which gives Christina Sandberg (a Galaxy person) the mundane order: "So, please change your file accordingly." This is further evidence that the Galaxy workers' "day-to-day operations are supervised by the Federal government" and therefore they are "employees" of the USPTO with regards to Form PTO/SB/65.
Lura Lee worked for Galaxy for several months. She was let go because of budget cuts at the USPTO. She is now looking for a job and these documents are from her website: www.luralee.com/projects/Galaxy/default.htm
This is Lee's resume summary. Note that she was "working for Galaxy Scientific at the US Patent and Trademark Offices." She considered herself working at USPTO.
Exhibits 3-2 and 3-3:
These are letters of reference written by Galaxy employees which attest to Lee's competence as a technical writer. Since she wrote that she worked "at the USPTO" and her co-workers attested to her expertise, one can infer that what she wrote was true. Also, the second letter notes that she was let go "only because of the loss of the contract funding for the task effort to which she was assigned" at the USPTO.
Here is a Government Computer News article from April 1999 noting that Galaxy had been awarded a contract by the USPTO to "support ... records management." Galaxy is inextricably intertwined in a major USPTO responsibility. The article is at: www.gcn.com/archives/gcn/1999/April12/12b.htm
This is the statement from Galaxy's Motion to Dismiss - Docket 40, page 1 - that Galaxy embraces the government's motions "in all respects." Even as a pro se, I can tell that the government's Motion to Dismiss was prepared in haste and that the U.S. Attorney didn't even bother to take the time to check his citations - for example, U.S. v. Singleton. I wonder if Galaxy's counsel allied himself with the government's motion as a short-cut to save him time or if he actually reviewed it for content. I suspect the former.
If You Are An Attorney.
If you are an attorney looking at this site, chances are you have a client who lost their patent and is looking to you for help. If you like what you see in the way of exhibits and statutes, and would be interested in filing a class-action and/or being available to those who seek counsel for these matters, I will help you as much as I possibly can.
As long as you don't hold me personally liable, you're welcome to use any of my exhibits that you want.
At the mediation meeting in Tampa, the Chief Financial Officer of Galaxy flew down from New Jersey to be with his lawyer who came over from Miami. And the Patent Office flew one of their people down from Virginia. In retrospect, I think they were very concerned by all of the evidence of wrongdoing that I had collected. Because of my inexperience, I handled the mediation poorly. I should not have settled.
I want to do as much as I can to curb the Patent Office's use of Maintenance Fees because I feel they hamper the efforts of the individual inventor. Please let me know if you find this website helpful. Or is it just a lot of pro se B.S. that is raising expections that can't possibly be fulfilled? Please call (813-634-6048) or send email to firstname.lastname@example.org with any comments.
|If You Are A "Pro se" litigant.|
I brought this lawsuit as a pro se litigant, which means that I am not a lawyer, and don't pretend to be one (and the court will certainly vouch for that). I'm not poor enough that the court will provide legal help. And I'm not rich enough to afford a lawyer just to get my patent reinstated. So I decided to do it on my own. After all, all my life I had been reciting the last four words of the pledge of alligience "... and justice for all." Over the past two years I've learned that's not the way the judicial system works in the U.S.
The courts, at least here in Tampa, don't give any lee-way to a pro se. They would much rather deal with someone who "knows the ropes". The playing field is not level and a pro se is put at the low end. It seems like the courts are much more enamored with the process than with justice - which could well be the reason that federal judges and their families are physically targeted by litigants who are frustrated by the process and, as a result, are denied justice. A pro se's lawsuit is probably his biggest and first, where he/she is likely to make the greatest number of procedural mistakes. Whereas a lawyer starts with small matters and with the help of a mentor "practices" his/her way up to the big stuff over a period of years.
I'm retired, so I had the time to spend doing the lawsuit pro se. You'll find that you spend a lot of time trying to figure out the procedure and documents that the federal court will accept. I made a lot of stupid mistakes! It can get very frustrating at times. It was pointed out to me that knowing the procedure is what puts a pro se on an equal footing with lawyers. One place to learn that procedure, before you file your lawsuit, is at www.jurisdictionary.com. I wish I had known about them before I started! Also, Greg Aharonian has a website that is very rich in Patent Office lawsuit filings and watchdog activities.
If you feel strongly enough about the loss of your patent to bring a lawsuit, and can afford a lawyer, by all means get one!
Being pro se, I will not give legal advice. But, as long as you don't hold me personally liable, you're welcome to use any of my exhibits that you want.