Of course patent quality too should be a priority

Summary: The USPTO faces legitimacy problems after a long downtime, failure to explain this downtime, and persistent questions about enforceability of USPTO-granted patents in courts, not to mention in the USPTO's own Patent Trial and Appeal Board (PTAB)

THE MONTH of August was a tough one for the USPTO and we can imagine that some technical staff needed to be recalled from holidays.

"Iancu sounds like PR person.""The recent failure of USPTO PALM database is a direct result of John Owens, Tony Chiles and Pam Isom's incompetency," an insider wrote. "This time Owens cannot blame a power failure," this insider added, alluding to previous incidents which were nowhere as severe as the latest [1, 2].

"After a week of the USPTO’s electronic patent filing systems being down, the office says “the director will prescribe a procedure that will allow you to seek a refund of the paper filing fee”. But some observers say this will be tricky," Michael Loney wrote. The USPTO was still 'on fire' (as in up in flames) until a few days ago. Every page came up with pop-ups containing a face-saving message about key services being down. At the moment (minutes ago) the pop-up instead says: "You have been randomly selected to take part in this survey that is being conducted by ForeSee on behalf of the United States Patent and Trademark Office. The feedback you provide will help the United States Patent and Trademark Office enhance its site and serve you better in the future. All results are strictly confidential – see our Privacy Policy for details."

So we assume that the downtime is over, well over a week after it started. Now comes Director Iancu with 'damage control'. A nontechnical director, selected by Trump after he had worked for him, is talking about a technical problem. Patently-O has the full text, which is pure spin from Iancu (a lawyer, spin is what these people do for a living), spinning over a week's downtime as a 'feature' or 'improvement'...

"In the process of getting everything back up and running, we sought not merely to restore but also to improve our PALM operating systems," he wrote. "Among other things we now have enhanced servers and performance optimization, such that the resulting condition is better than it was before the outage."

Aha! So people should really be thankful for the outage! A blessing in disguise? Iancu sounds like PR person. But see the comments. They're rightly upset. To quote the first couple of comments:

What challenges? I guess it doesn’t matter how/why it happened? Any interest in explaining how the PTO plans on it not happening again? This is now the second time that a lengthy outage has occurred, on top of the daily sporadic outages.

Also, is there any logical a reason to tie the contingency EFS in with the same system that houses the primary PALM database? What’s the good in a contingency system if its availability is inextricably tied to the availability of the system that it’s supposed to back up?

It’s simple: Two is one and one is none.

And the second:

It is part of the citizens of the US becoming peons. People in charge don’t have to explain. I don’t think that contained an apology either. And it described “the outage” as if it was an act of G*d.

There's lots more along those lines. Why the USPTO was down is still unexplained. What a mystery. From a government-connected entity better can and should be expected.

Patently-O has meanwhile published the "USPTO New Strategic Plan (Draft)," to which I replied with: "a good strategy for the USPTO would be to first brings its service back online :-) there has been a one-week downtime!" (it was still down at the time).

From Patently-O: "The Strategic Goals reflect the fact that the PTO is primarily a bureaucratic agency — and the main goal is quality bureaucracy. That means efficient, correct, and timely work. Thus, the PTO’s first strategic goal is “Issuing reliable IP rights.”"

If patent quality is improved rather than lowered, patents would be more reliable in courts (the same goes for trademarks).

They speak of "optimizing patent and trademark quality," so Iancu should just formally forbid software patents at the USPTO (it's about time to do so, but of course he wouldn't, he used to advocate these for money). IP Watch wrote about this draft as well:

The United States Patent and Trademark Office (USPTO) is seeking comments on its draft strategic plan for the years 2018-2022. The draft plan covers a range of goals, including optimizing patent and trademark quality and timeliness, and providing “domestic and global leadership to improve intellectual property policy, enforcement, and protection worldwide.”

Remember that the USPTO said its systems/services would be restored by last Tuesday. But no... that did not happen. It was down for over a week! The issues were apparently resolved in the past few days, maybe a couple of days ago.

Iancu's response appears to have mostly angered stakeholders, who still don't know what happened and whether anyone (company or person) was held accountable. Perhaps the above draft was released (prematurely even) as a form of distraction from Iancu and his team.

In other news, this one from Joseph Herndon, patents on candles were brought up in relation to a Federal Circuit ruling. Luminara is upset and is complaining that its own patents are utter rubbish. They should never have been granted by the USPTO (which merely profits from granting anyway, whenever there's doubt). To quote Herndon:

Luminara Worldwide, LLC appealed from three inter partes review (IPR) decisions, in which the Patent Trial and Appeal Board held unpatentable a total of 31 claims across Luminara's three patents. On appeal, Luminara challenged the Board's decisions as to one claim from each patent and asserted that the Board's application of the 35 U.S.C. ۤ 315(b) time-bar was improper as to the '319 patent. The Federal Circuit dismissed the IPR with respect to the '319 patent, holding that the ۤ 315(b) time-bar applied, and affirmed the other two IPR decisions.

The patents here are directed to making flameless candles that look and behave like real candles. Shenzhen Liown Electronics Co., Ltd. (Liown) requested inter partes review of 31 claims of the Luminara patents including U.S. Patent Nos. 8,696,166; 8,070,319; and 8,534,869. The three patents, which employ moving pendulums to simulate the appearance of a natural flame, are related.

In summary, Iancu's Office (leadership) needs to seriously think about the quality and thus legitimacy of the patents it grants. It needs to do more to demonstrate that it can handle technical matters (over a week of outage certainly disputes this) and improve transparency, e.g. regarding the cause of the outage.

As things stand at the moment, the Office loses credibility even within or among its own stakeholders, who complain that their US patents are worthless, the service is poor, and the Office is facetious. Don't make the USPTO another Battistelli-esque EPO. ⬆