The other day I encountered a new “feature” of EPAS and ETAS. You can see it in this screen shot:
Apparently the USPTO wants to make it possible for the filer to somehow influence the physical sequence in which recordations appear in the Abstract of Title.
As far as I can see this is not a good thing for USPTO to do.
I am not aware of any problem for which this is the solution.
Keep mind that for as long as there has been an online Abstract-of-Title system, which is over ten years, it has been the case that recordations sometimes appear in a different physical sequence in the AOT than the actual execution dates and execution times of day of the underlying documents. And sometimes it happens that a rogue assignment gets filed — somebody accidentally mistypes a property number when carrying out a recordation. Sometimes a document gets recorded twice, typically in cases where the left hand does not know what the right hand is doing. And one cannot really know the effect of some particular recorded document without actually viewing the document. (See https://blog.oppedahl.com/?p=181 .)
Because of all of these things, and for additional reasons beyond the reasons that I have listed, it is simply never the case that one could blindly assume that the physically “last” assignee listed in an Abstract of Title is the owner at all. Nor can one assume that the physically “last” assignee listed in an Abstract of Title has any ownership interest at all in the property. The only way to arrive at any meaningful understanding of the ownership is for competent counsel to study the whole situation including the actual recorded documents. Competent counsel will among other things look at the purported execution dates (regardless of the physical sequence of listing in the AOT) to see whether an actual “chain of title” can be constructed from some or all of the recorded documents.
Among other things this means that competent counsel, studying the AOT, should and will actively ignore anything about the physical sequence of listing of recordations in the AOT.
So now given this new “feature” of EPAS, a filer who is carrying out two or three recordations might click the “yes” button and might then insert an ordinal number in the “what number” box for each recordation. If so then it seems to me that there are nothing but downsides to doing so. Suppose for example that the filer enters ordinal numbers that do not match the actual dates and times-of-day of execution? The filer could later be accused of trying to mislead the public.
The wording in the quoted box talks about “multiple assignments with the same execution date”. The wording is not very clear but I suppose what the USPTO author is talking about is the case where there are assignments O to A, A to B, and B to C, all signed the same day. Which of course raises the question whether the B to C document was signed prior to or subsequent to the A to B document. As we all learned in first year of law school, if the B to C document was signed prior to the A to B document, then the owner turns out to be B, not C. The problem of course being that when B signed the B to C document, B owned nothing and thus had nothing to convey.
To the extent that this is a problem that needs fixing, it is the height of wrongheadedness to try to fix it by gaming the physical presentation of items in the Abstract of Title. Ownership is a matter of state law, not federal law, and there is no way that a state court is going to take the (flimsy) representation of some filer as to how to construe the signed documents. (Recall that recordation in EPAS or ETAS may be carried out by anyone. There is no requirement at USPTO that the filer in EPAS or ETAS be an attorney or a registered practitioner. As far as I can tell a six-year-old could do the filing without breaking any rule or statute.) And indeed if two or three filings were done, each with the button clicked and each with an ordinal number typed into the box, nothing about EPAS or ETAS would require that the same person do all of the two or three filings.
It seems to me the assignments need to be prepared by someone admitted to practice in the state that is involved, and that person needs to take into account things like the time of day of execution of same-day documents. In Colorado or New York (states where I am admitted to practice) I think it would be better to “age” the documents so that each is signed on a different day than the next. Or if this is for some reason impossible, at least make the documents nunc pro tunc with the recited effective dates selected to eliminate this problem. Or if this is for some reason impossible, at least recite in each document not only the date of execution but also the time of day of execution.
But to fail to take these steps, and instead to try to somehow avoid this problem by gaming the physical presentation of the recorded documents in the AOT, that seems the height of wrongheadedness. If I am right in thinking this, then USPTO has no business encouraging filers to use this gaming-of-physical-presentation approach to otherwise ambiguous collections of same-day-signed documents.
One Reply to “Odd new USPTO feature in EPAS and ETAS”
There is a more charitable way to look at this. While you are absolutely correct that one cannot rely on the order in which assignments appear in the abstract of title, and the PTO doesn’t claim that you can, this will make it more likely that the order is correct in certain instances. If someone used your suggestion to include the time and date of execution in the assignment, this change would ensure that the documents appeared in the correct order in the abstract. Otherwise, they might not. It is no worse than before, and may be slightly better.