Be Sure To Stand Upwind From “Downwind”

Be Sure To Stand Upwind From “Downwind”

In 2003, Forbes Magazine ran a series of articles about the Patent Office. The following was my Letter To The Editor. They did print part of my letter, but not the part about “Downwind”…

To Forbes Magazine,

I read your series of articles about the Patent Office with great interest. However, I think you presented the agency in a much better light then it deserves. There are a number of points that should be clarified.

In one of the articles, reference was made to the 17-year life span of patents. Because of international treaties, that is no longer the case. Patents now expire 20 years from the date they are filed.

Another article noted that the pendency time between filing and granting had dropped from 25 months to 18 months but was now back up to 24 months. The author, quoting Director Rogan, attributed it to the number and complexity of patents. Actually, the way it works is that the Patent Office management tells the examiners how much time is to elapse between the filing and granting of an average patent. That’s how they were able to get it down to 18 months at one point. And that is why you never respond to an Office Action until the last moment. Returning a response early doesn’t decrease the pendency time, it just causes more Office Actions as the examiners try to fill the void of work. And the more Office Actions there are, the more diluted a patent gets.

In the article about the examiners themselves, it was noted that the “apparent quiet on [the examiner’s] floor is itself telling: no joking or socializing.” That isn’t exactly the whole picture…

In February 2000, I was in the Public Search Room at the Patent Office researching an idea. A group of examiners drifted in for their morning “joking and socializing” session. Standing in the middle of the room, they first talked about the odor of a chemical that had recently been spread around to control paper mites. The odor of the chemical led to talk about the odor of one of the Patent Office employees nicknamed “Downwind”. Apparently his hygiene habits were such that when you talked to him, you wanted him to be downwind. Each examiner took his turn reciting an anecdote about “Downwind”, evoking a round of laughter. After this went on for a while, a man (not associated with the Patent Office) told them to quiet down and get to work, which caused the meeting to break-up. This episode reinforced my rather low opinion of examiners. I got the distinct feeling these kids had never worked for a private company, or else they would have had better manners.

Another experience which shaped my opinion of examiners occurred during a face-to-face response to an Office Action. I was having to explain momentum reactions to an examiner with an engineering degree. It was like singing opera to a pig. He was clueless. This led me to the conclusion that engineering graduates who aren’t qualified to work in private industry end up on the doorstep of the employer of last resort for engineers, i.e., the Patent Office.

None of the articles touched on the bureaucratic arrogance which permeates the agency. Here are two examples.

If a Maintenance fee is paid late, it is processed by the Special Projects Examiner, Brian Hearn. He “requires” an inventor to submit very detailed financial and medical records concerning the late payment. These records are then made public! If you don’t submit them, your fee is returned and the patent is considered abandoned. There are two aspects to this that are really troubling. First is that under the Paperwork Reduction Act of 1995, Hearn doesn’t even have the authority to establish such requirements because the Act takes precedence over any agency regulations. Second is that making the information public is a violation of the Privacy Act (5 USC 552a).

Since 1995, over 400 inventors have refused to provide the information, which resulted in their patents being abandoned and a revenue lost of $1.25 million to the Patent Office. If Director Rogan is truly looking for more money for the Patent Office, he ought to pay a visit to Room CP4/03/D/27 and, with his legal background, have a heart-to-heart talk with Hearn.

Another example of their arrogance involves the Freedom of Information Act (FOIA) Officer, who is part of the General Counsel’s office. As I built the website I made a number of FOIA requests so that everything would be properly documented. Although FOIA requests are to be processed on a FIFO basis, mine were getting delayed – what should have taken 20 working days was taking over 50. When I complained about this to the FOIA Officer, it appears that she may have backdated a later response to me to make it look like it was within the proper FOIA time frame. (This is also documented on the website, including a game showing just how clumsy and inept the attempt was.) This may seem like a small matter, but the U.S. Criminal Code (18 USC 1001,1018) is rather specific that Government employees are not to alter dates. In fact, it is punishable by a fine, prison or both. And it makes me wonder that if lawyer-type people, who should know better, backdate documents, what mischief are the other Patent Office employees up to?

And none of your pieces touched on the very simple solution that would clean up the whole mess there – a solution that most other countries have already adopted. And that is the Certifying of patents instead of examining them. In effect the Patent Office would simply become a super Notary Public, i.e., a clearing house for inventions that would officially establish when and by whom something was invented. And if an inventor felt infringed, then he or she would go to Federal Court which has Rules of Evidence and a Judge who is far more qualified to handle the controversy.

Wouldn’t it be pathetic if in a few hundred years a book were written entitled “The Rise and Fall of the United States” and one of the chapters was devoted to the decline of innovation because of the Patent Office’s capricious and arrogant attitudes towards inventors.

My whole entanglement with the Patent Office reminds me of that quote (paraphrased from Pogo): “We have met the enemy…and they are the Patent Office!”

Alexandra Hoffman

Alexandra Hoffman is a licensed lawyer who is specialized in bankruptcy and foreclosure in the USA. She has a BA in Biology from the University of Pennsylvania and honors JD from New York University Law School. She has gained extensive experience by practicing in leading American law companies.

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