The in-person meeting at the USPTO on October 18 about Patent Center

Here is a report about the face-to-face October 18, 2023 meeting with USPTO people about Patent Center. 

Executive summary. On October 18, 2023, representatives of the Patent Center listserv met in person with USPTO people connected with Patent Center. Based on exchanges of emails leading up to the meeting, we were under the impression that the meeting would be a dialog, with our side presenting a set of slides and discussing our concerns about the USPTO’s scheduled shutdown of EFS-Web and PAIR. When the meeting began, a new set of USPTO slides that we had not seen before was on a display screen, and what followed was not so much a two-way discussion about Patent Center, but was instead the USPTO telling us the USPTO’s position about Patent Center. Commissioner for Patents Vaishali Udupa proceeded with the presentation of the USPTO slides. What followed might be described as a frank exchange of views. The USPTO’s shutdown of EFS-Web and PAIR, scheduled for November 8, remained in place.

Details and background. In the days leading up to the meeting, there were emails discussing the agenda for the meeting. The first such email to Vaishali was on October 12, 2023 in which we asked if Vaishali could please advise us of the “open” or “closed” status of fifteen particular EBC tickets (blog article). (The source of this list of EBC tickets was the listserv’s Patent Center trouble ticket list; about sixteen of the CP tickets list a corresponding EBC ticket.) The email to Vaishali said that we were not looking for a discussion on the merits of the CP tickets related to each of the EBC tickets, but merely looking for her answer as to the “open” or “closed” status for each of the EBC tickets. The main point of this is that so far as we are aware, the EBC has never gotten back to any of the people who opened the fifteen EBC tickets.

On October 16, we wrote to Vaishali’s assistant to say that we would be presenting slides at the meeting. We asked if an HDMI cable and display screen could be provided for us at the meeting. Vaishali’s assistant said she would make the arrangements and asked if we could share the slides ahead of the meeting time.

On October 16, Vaishali wrote to us and asked that we get our slide presentation to her by the end of the day on October 17.

On October 17, in response to our email citing fifteen EBC tickets, Vaishali wrote to us to say that she had identified “over 350 EBC tickets” that she wished to discuss with us at the meeting. Our response was “We don’t have time tomorrow to discuss 350 EBC tickets. If you want to address this it will have to come at the end, after we finish our slide presentation.”

Later on October 17, we sent our slides to Vaishali as she had requested. We said, “the main agenda item is the slide presentation.”

On October 18 (the day of the meeting), at 2:08 PM (which was 52 minutes before our 3PM arrival at the USPTO security checkpoint), Vaishali emailed us an 18-page slide deck called “Patent Center Stakeholder Meeting – October 18, 2023” ( slide deck ). None of us saw this email or the slide deck until after the start of the meeting.

Kathi Vidal attended in person for a few seconds basically only to say hi. This was very much Vaishali Udupa’s meeting.

The meeting began somewhat acrimoniously, with Vaishali declining to proceed with our slides and our agenda, and stating that the meeting would proceed with her slide deck, not ours. She proceeded with the USPTO’s 18-page slide deck which she explained was a detailed discussion of sixteen of the Patent Center CP tickets that had been listed in our Offer of Compromise that we had sent to her on September 30 (blog article).

At first it seemed that maybe she was getting ready to either accept the Offer of Compromise, or to make some sort of counteroffer.  It will be recalled that what we had proposed in the Offer of compromise was that the USPTO would agree to several things:

• • Commit to publish when USPTO believes it has fixed any of the bugs on the Patentcenter bug list, cited by ticket number, including the bugs that we have denoted as “high priority”.
  • Agree to eventually commence work on the more than forty feature requests that are outstanding.
  • Agree to postpone the USPTO’s shutdown of PAIR and EFS-Web until after the USPTO had fixed the bugs in the Patent Center bug list that we had designated “high priority”.

The point of this Offer of Compromise was that if the USPTO would commit to these three things, then we would give the USPTO a pass on having to fix the rest of the CP tickets (the ones not designated by us as high priority) prior to the shutdown of PAIR and EFS-Web.

What became clear is that the significance of the Offer of Compromise to Commissioner Udupa was not that the USPTO might accept the offer, or make a counteroffer.  Instead, it seemed that Commissioner Udupa was only interested in that document to the limited extent that it would somehow count as a sort of party admission by the listserv community that the sixteen designed “high priority” trouble tickets were the only ones that would need to get fixed prior to the shutdown of PAIR and EFS-Web.    And the point of Commissioner Udupa’s 18-slide presentation was to try to convince us to agree with her that none of the sixteen trouble tickets really did count as “high priority”.   I guess the idea was that she would click through each of the 18 slides one by one, and for each trouble ticket, she would tell us why we were mistaken to think that it was actually a high priority.  I guess she figured she would be so persuasive at this that when we reached the last of her slides, we would have been forced to agree with her that there is no reason to postpone the scheduled shutdown of PAIR and EFS-Web on November 8.

Vaishali reached slide 3 which is Patent Center ticket CP28. This ticket, which was created in January of 2019, is about the Patent Center document upload screen. If a user fails to select a document description for a particular uploaded document, the failure to select a document description does not give rise to any error message when the user proceeds to a next screen in Patent Center. The Patent Center click path proceeds through two screens of fee selection and then reaches a “submit” screen. Only when the user reaches the “submit” screen and tries to click “submit” will Patent Center for the first time present an error message about the user having failed to select a document description for a particular uploaded document. Carl reminded Vaishali that this ticket CP28 had been one of the tickets discussed in the bilateral meetings about Patent Center bugs in 2020 (listserv people and USPTO people). During those meetings in 2020, the USPTO people agreed to provide a warning at the “document upload” page, when the user is moving forward from the “document upload” page, if the user had failed to assign a document description to any document. But that warning has not been provided as of now in 2023.

One thing that became clear during the discussion of USPTO’s slide 3 was that from the USPTO’s point of view, a bug in Patent Center only counts a “high priority” if the bug would cause Patent Center to crash or would otherwise completely prevent the filer from completing a filing. From the USPTO’s point of view, anything that is merely highly inconvenient but not fatal is not high priority, and is not something that would convince the USPTO to postpone the shutdown of EFS-Web and PAIR.

Another thing that we heard from Vaishali is that the USPTO’s selected shutdown date of November 8 is not tied to any contractual or external constraints, but is simply a date selected by the USPTO.

Vaishali then proceeded to slide 4 of the USPTO slide deck, which discusses Patent Center ticket CP31. This ticket, which was created on June 23, 2020, is about the lookback period in Patent Center for listing and displaying outgoing correspondence. It will be recalled that in PAIR, the default lookback period is 7 days. This is sufficient to pick up outgoing correspondence on any day of the week that a user might try to list and display outgoing correspondence, because USPTO staff pretty consistently manage to image each item of outgoing correspondence within six days.

In Patent Center, the default lookback period is 3 days. This means that if a user of Patent Center tries to view outgoing correspondence on a Monday or on a Tuesday, as a general matter the lookup will report that there is no outgoing correspondence. Viewing of outgoing correspondence in Patent Center does work reliably on Thursdays and Fridays. Carl reminded Vaishali that this ticket CP31 had been one of the tickets discussed during the bilateral meetings in 2020. During today’s meeting, the response from USPTO people was that if the user wishes to check for outgoing correspondence on a Monday or a Tuesday, this can be done by the step of manually changing the lookback period from the default value of 3 to an alternative value that is bigger, such as 7. We tried to explain that this is a trap for the unwary user who may be unaware of the fact that the default value of 3 does not work on Mondays or Tuesdays. Such a user might incorrectly believe the report from Patent Center that there is no outgoing correspondence, and might then fail to docket a response date. One of the USPTO people seemed to appreciate the user perspective on this, and we hold out some guarded optimism that this may lead to the USPTO changing the default value of 3 in Patent Center to a default value of 7, thereby matching the default value in PAIR.

Vaishali then proceeded to slide 5 of the USPTO slide deck, which discusses Patent Center ticket CP49. This is the problem that if the user is trying to pay an Issue Fee, and if the application type is a 35-series application (a US designation from a Hague design application), then Patent Center does not make available the web-based 85B form. The USPTO response was that this is not the kind of bug that prevents a user from being able to carry out normal work on Patent Center.  USPTO people pointed out that the user can simply do it the old-fashioned way, by typing all necessary information onto a PDF Form 85B.  USPTO people pointed out that this response also applies to tickets CP98, CP101, and CP102 (no web-based corrected ADS available for provisional, 35-series, or 371 cases). In each case the user can do it the old-fashioned way, the USPTO people explained. The USPTO response for all four tickets is “We will be looking at prioritizations of enhancements after retirement.”

At about the half-way point of our 90-minute meeting, with fourteen slides remaining in the USPTO slide deck, at our request Vaishali agreed to let us proceed with our agenda. This included our belief that Patent Center isn’t ready and that the shutdown of EFS-Web and PAIR should be postponed until Patent Center is ready.

Vaishali insisted that everyone the USPTO has talked to about Patent Center (other than the members of the Patent Center listserv) believes that Patent Center is sufficiently ready that EFS-Web and PAIR can be shut down as scheduled on November 8. We reminded her of the five-page slide presentation from AIPLA that AIPLA had presented to the USPTO on July 28, in which 80% of the respondents to an AIPLA survey reported that they did not feel that Patent Center was sufficiently ready. (See blog post.)  We tried to talk through the five slides, but Commissioner Udupa cut us off.    She acknowledged that AIPLA had shown the USPTO this survey. She said, however, that the USPTO had had meetings with AIPLA after this. She said that both AIPLA and IPO had given the USPTO positive feedback that they are comfortable with the retirement of PAIR and EFS-Web. She said that both AIPLA and IPO are fine with moving forward with Patent Center.   In her view, the AIPLA’s position on Patent Center had changed since its presentation of the July 28, 2023 AIPLA survey to the USPTO.  In her view, it was unhelpful for us to ask on October 18 that the USPTO pay attention to the July 20, 2023 survey results, since subsequent events had supposedly rendered its findings moot.  When we heard this from Commissioner Udupa, we told her that we felt that her characterization of the position of AIPLA on these issues was inaccurate.

One of the topics on our agenda was the “open” or “closed” status of the fifteen EBC tickets that we had written to her about on October 12 (blog article). Vaishali was under the impression that the normal process with the EBC is that before closing an EBC ticket that relates to Patent Center, the EBC gets back to the person who opened the EBC ticket to report the manner in which the EBC ticket got resolved. We told her that to the best of our knowledge, so far as EBC tickets relating to Patent Center are concerned, there has never been even a single instance of the EBC getting back to the person who opened the EBC ticket. This seemed to be news to Vaishali and she said she would look into this.

We discussed the USPTO’s Patent Center information page, and in particular the places on that page where bugs are listed and where the status of the bugs is reported. One of our concerns has been that a bug may be listed as “RESOLVED” even if the bug has not actually been fixed. One of the USPTO people admitted that the USPTO has been simply copying text from the “Known Issues” section of the information page into the “Resolved” section of the information page, leading to some confusion about whether the problem really has been fixed. It seems possible that as a result of our discussions, USPTO people better understood the problem with that approach, and will look into how to report bug resolutions more clearly.

Outcomes of the meeting. During the meeting, although we tried to discuss a possible postponement of the shutdown EFS-Web and PAIR on November 8, the USPTO was quite firm about that date. Vaishali said the only type of development that might prompt the USPTO to postpone the shutdown is if some new bug in Patent Center were to arise in the days leading up to November 8, a bug so serious as to make it completely impossible for users to complete some very important task.

The USPTO will review the extent to which the EBC has or has not been getting back to users who have opened EBC tickets that relate to Patent Center, with resolutions of such EBC tickets. Maybe this will lead to the EBC, in future, getting back to users about resolutions of EBC tickets that relate to Patent Center.

We may have helped USPTO people to better understand Patent Center tickets CP28 and CP31. As for ticket CP28, there seems to be a chance that the USPTO will provide a warning, on the “document upload” page, if a user tries to exit that page without having selected a document description. As for ticket CP31, there seems to be a chance that the USPTO will correct the default lookback period of “3 days” to be the same 7-day default lookback period from PAIR.

Later communications about AIPLA position. It will be recalled that during the October 18 meeting, Vaishali acknowledged that AIPLA had shown the USPTO this survey. She said, however, that the USPTO had had meetings with AIPLA after this. She said that both AIPLA and IPO had given the USPTO positive feedback that they are comfortable with the retirement of PAIR and EFS-Web. She said that both AIPLA and IPO are fine with moving forward with Patent Center.

After hearing this from Vaishali during that October 18 meeting, we communicated by telephone and email with two AIPLA people who were involved in the communications on this topic between AIPLA and the USPTO. As we understand it, on October 19 and October 20, the AIPLA people told Vaishali (in person, at the AIPLA annual meeting) that AIPLA still does not believe Patent Center is good enough for the USPTO to retire the legacy systems.  On October 30, 2023, AIPLA wrote a letter to Commissioner Udupa (blog article), reiterating its earlier request that the USPTO postpone its shutdown of PAIR and EFS-Web from the presently scheduled date of November 8, 2023.  Attached to AIPLA’s letter was an extra copy of AIPLA’s July 28, 2023 slide presentation.