The USPTO Needs to Investigate This Disturbing ‘Patent Examiner’ Reddit Thread
“It is astonishing that a patent examiner would take to a public forum, disclose information relating to the application on which they are working, and confess to not wanting to issue a patent based on personal political beliefs.”
Editor’s Note: A USPTO spokesperson sent IPWatchdog the following statement in response to the topic of this article:
“As a general practice, we do not comment on unverified statements by anonymous commenters on Reddit or any other social media platform.”
If you have done a search for just about anything using Google, you have no doubt at one time or another stumbled across Reddit, the self-described “home to thousands of communities, endless conversation, and authentic human connection.” Regardless of what you are interested in, there is a community and conversation to be found on Reddit.
For those familiar with Reddit and the breadth of topics covered it probably comes as no real surprise that there is a patent examiner Reddit, which has some 4,800 users. What should be surprising—shocking even—is what was recently discussed in one quickly deleted thread within that patent examiner Reddit.
Inappropriate and Indicative
Earlier this week, User Snoo_86350 posted the following:
“I have a case in my docket filed by a company in Israel, which is basically for soldiers to provide military solutions by combining real battlefield experience with technological innovation. I have been watching news about Columbia campus protest. And Obviously, I can’t refuse to examine this case and I won’t, but can’t help thinking of Gaza Strip where about 2 million Palestinians live, can’t escape and bombarded. So I have mixed feelings, as I would allow this case, thus strengthening their portfolio only to get more investment. Do you guys any similar experience or feelings? It is my first time to examine this kind of case as our Art Unit rans out of cases.”
Eventually, after being active and collecting comments for a day, the Reddit moderator removed the post, explaining that the post was unprofessional: “This post has been removed because it was deemed unprofessional, and reflected poorly on the community. Ask your SPE what to do,” wrote the patent examiner-ModTeam.
As stunningly inappropriate as this post was, the replies by other self-identified patent examiners are even more troubling and indicative of deep problems at the United States Patent and Trademark Office (USPTO).
“Then don’t allow,” wrote zyarva, a self-identified patent examiner. “I once had a computer network application that blogsphere were mocking when it was published, alleging the application was going to monopolize a basic service of the Internet. I kept rejecting and finally they abandoned.”
While almost obligatorily concluding that “no one rejects based on personal beliefs,” after railing about how there is no objectivity possible when it comes to examining and implying that the broadest reasonable interpretation will allow for any desired outcome, CurlyBluePiranha, another self-identified examiner wrote: “If a case ends up on my docket and I feel strongly about it and I am willing to invest extra time on my dime to make sure it doesn’t get allowed then so be it.”
To be fair, there were several self-identified examiners who gave objectively good advice. Beast82 suggested that if the poster was not comfortable working on the case, he/she should talk with the Supervisory Patent Examiner (SPE). But perhaps the best advice was from DonPeligro, who wrote: “To be a civil servant, you need to leave your personal beliefs at the door and just do the job. If you can’t do that, I’m not sure being a civil servant is right for you.”
Despite the several pieces of good advice provided, it is astonishing that a patent examiner would take to a public forum, disclose information relating to the application on which they are working, and confess to not wanting to issue a patent based on personal political beliefs. What kind of culture is growing behind the scenes at the USPTO? Why would examiners feel comfortable enough to openly discuss not following the law and Office protocol in a public forum?
And let’s not pretend—self-identified examiners who commented on this thread and say they “work extra hard” or “on their own dime” or that they keep rejecting until the applicant gives up are not following the law and are ignoring Office procedures and protocols. The law literally says that an applicant is “entitled to a patent” unless the examiner can articulate a reason to deny. And the reason has to be on its face plausible, a sensible, fair-minded rationale, and not based on prejudice. That is why the law requires the examiner to use the “broadest reasonable interpretation” of a claim, not any ridiculous, wild, unreasonable interpretation that will send the message to the applicant they have no hope and should give up.
Is the USPTO Tolerating This Approach?
The USPTO has an examiner problem, and everyone in the industry has known about it for a very long time. There are some examiners that do not follow the law, and they ignore Office procedures, rules, and protocols. There are some examiners that never issue any patents, year after year denying everything they review. Likely because of archaic government human resources rules, it is virtually impossible to fire malcontent and malicious examiners. The Office solution is to leave them in place and turn the application process into a crapshoot for innovators.
Luckily, as the result of examiner allowance data being readily available, it is easy enough today to identify when you have received an examiner with a single-digit allowance rate, which should simply cause sane innovators to abandon immediately. What is impossible to identify, however, is when an examiner will use their own biases and morality rather than the law to prevent a patent from ever issuing.
Examiners are given a certain number of hours to examine applications. If they are unable to find prior art or any legitimate reason to reject within the allotted hours they are supposed to issue the patent. That is the law, and it is what the rules require. But that is apparently not what always what happens.
Action Should Be Taken
While the USPTO seems content to dismiss this as unverified and anonymous, a review of the Reddit user profile for Snoo_86350 suggests this person is, in fact, a patent examiner. In addition to this now removed question, post after post made by Snoo_86350 discusses special assignment within the Office, eSignature requirements, GS pay-grade, and even non-public emails sent by the Director to all employees relating to celebrating LGBTQIA+. Snoo_86350 has described themselves as a new primary examiner seeking advice from more experienced primary examiners, explained that at times they have no motivation to search, and has asked questions about what to do when relevant prior art is located after already sending a notice of allowance.
Is Snoo_86350 an examiner? It certainly appears so. If I were running the Office I’d want to know and would not feel content to dismiss this as unverified and anonymous. Because if Snoo_86350 and the others commenting are the examiners they purport to be, we are getting a disturbing glimpse into the underbelly of examination, which at times doesn’t seem to be governed by the law or Office rules and procedures, but rather on personal political beliefs and an individual examiner’s own sense of morality.
This situation is different than anything I can remember from the past. If the self-identified examiner who posted this initial question actually exists, they will be easy to find if the Office wants to identify the individual. There can’t be that many examiners who are reviewing Israeli military technology in Art Units not typically assigned to undertake such work. So, the specificity of what has been published publicly demands an investigation be undertaken and discipline handed out to this examiner. Alternatively, the Office needs to assure the public that this was nothing more than a poser pretending to be an examiner and remind examiners to check their personal beliefs at the door and use this as a teaching moment.
Notwithstanding, if you are an Israeli military company with pending applications at the USPTO, prudence demands that you with all due haste investigate whether this is your application examiner Snoo_86350 is discussing. It will be much easier to take action now, both publicly and behind the scenes, than it will after your application has been wrongfully subjected to the whims and fancy of an unprofessional examiner who doesn’t want you to be able to strengthen your portfolio because of their political views.
Image Source: Deposit Photos
Author: merzavka
Image ID: 12839202
