(Corrected to say “Hague Agreement” and “2013” everywhere that I wrongly wrote “Madrid Protocol” and “2003”. Thank you to alert reader Bill Eshelman!)
A recent Notice of Allowability received in our office contained the phrase “Please print from SCORE” which is highlighted at right. I was glad to see it and I was particularly glad to see that the Examiner had added this phrase even without my having to ask for it. What exactly does this phrase mean, and why am I so happy to see it?
To explain my happy reaction, I should offer a bit of background.
Those who regularly click “submit” in EFS-Web are well aware that the USPTO systems cause very serious degradations of image quality as the images pass into the IFW (image file wrapper) system. One source of degradation is the flattening of color to gray scale. A separate and far more damaging transformation is called halftoning, which is a very crude way of converting an image that uses eight bits per pixel into an image that uses one bit per pixel. The halftoning blurs things that were previously perfectly sharp and clear. You can see this web page from 2006 where I show side by side three versions of a patent image — the image as I e-filed it, the image the way the USPTO mangled it getting it into IFW, and the way the USPTO mangled it even worse for purposes of 18-month publication. Back in 2006 the main point I was trying to make was that I felt USPTO ought to make EFS-Web so that if you were getting ready to click “submit”, you could do a preview of your images and EFS-Web ought to show you how it was going to mangle your images on their way to IFW. Unfortunately even now in 2020, USPTO has not provided this function in EFS-Web. (WIPO does offer such a function in ePCT.)
(As a matter of terminology “one bit per pixel” is often synonymous with “color depth of two” and “bitonal” and “pure black and white” and “monochrome”.)
When the US joined the Hague Agreement back in 2013, one of the things that the USPTO necessarily carried out was a modification to some of its workflows to accommodate color drawings. Before the US joined Hague Agreement, a design applicant that wished to use color drawings had to file a petition to get permission to use color drawings. One thing that changed with the US joining Hague Agreement was that it was no longer necessary to file a petition to get permission to use color drawings in a design case.
Before 2013, the Publication Branch at the USPTO was able to get away with mere monochrome printing for the patents that it would issue every Tuesday. Patents with color drawings were extremely rare and the Publication Branch handled the occasional color-drawing patent manually, on an exception basis. But starting in 2013, the Publication Branch was dragged kicking and screaming into the world of high quality aesthetically pleasing drawings. I am sure this was not an easy transition. The Publication Branch ended up having to change completely its production systems so that no manual steps were needed for the printing of patents containing color drawings. Instead, the machines that do the printing and folding and assembling and gluing to are able to handle input image files that are color or gray scale just as easily as they handle input image files in the legacy monochrome format of the old days before 2013.
Okay, so the machines got updated to handle color and gray scale. So long as the design applicant files high quality color or gray scale drawings, then the design patent issuing from the design application will make use of those high quality color or gray scale drawings, right?
Nope. Even now, in 2020, sixteen years after I first griped to the USPTO about how the EFS-web system mangles perfectly good drawings when it jams them into the IFW system, the mangling keeps happening. And even now in 2020, unless it is told otherwise, when the Publication Branch is getting ready to print a design patent, the input image file that it will send to the printer will be the horrible degraded images from IFW.
Which brings us to “what is SCORE”? Score is a retronym, which means an acronym that started with some catchy word and then the people involved worked backwards to try to come up with a string of words that supposedly explain where the acronym supposedly came from. With most acronyms, nobody is fooled by this. “SCORE” is no exception. In the case of SCORE, the USPTO folks said that it came from “Supplemental Complex Repository for Examiners” (see for example Federal Register 77 FR 3745 January 25, 2012). Yeah, right, and monkeys might fly out of … well, you know. Anyway, even the USPTO does not maintain this fiction — everybody knows the “C” in SCORE really stands for “Content” as seen in this tab in the PAIR system. (Oh and of course regular readers of this blog know how strongly I feel about avoiding misuse of the term “acronym“.)
The point of SCORE is that it is a sort of digital dumping ground where the USPTO puts things that don’t easily fit into any other place in PAIR. So for example if a design applicant files nice drawings, they will get mangled and the mangled images will get loaded into IFW, and then in an automatic way the nice drawings will also get loaded into SCORE. You can see a complete list of the types of data files that might get dumped into SCORE here. (From the practitioner’s point of view the chief file type other than drawings that is of interest that turns up in SCORE is genetic sequence listings.)
When I am getting ready to pay an Issue Fee in a design case, if I know that this is a case where the IFW drawings are crummy and the SCORE drawings are nice, I will usually think to ask the USPTO to please use the SCORE drawings in the printing process for the issued patent.
In this particular case, I did not think to ask. But what delighted me is that the Examiner thought to ask. The Examiner in this case added the words “Please print from SCORE” in the Notice of Allowability. You can see it quoted above. This is the Examiner telling the Publication Branch that they should use the SCORE drawings instead of what they would normally do which is to use the IFW drawings. I went back and looked closely in IFW in this case, and sure enough, the SCORE drawings do look a little better. I had not noticed it but the Examiner apparently had noticed it.
Kudos to yet another Examiner who apparently feels that it matters what the quality is of the drawings in an issued design patent. Well, come to think of it, the Examiner’s name will be on the front page of the issued design patent. So I guess it also makes sense that the Examiner might take a bit of pride in his or her work, and that this might help to explain the Examiner going to the trouble to tell the Publication Branch which drawings to use.
Interesting post, Carl! Thank you. It makes me wonder, however, how do you ask the USPTO to please use the SCORE drawings when paying the issue fee? Do you include a “miscellaneous incoming letter” containing the request along with the issue fee payment?
Yes it sort of depends when I think of it.
Sometimes when I think of this, it is while I am still in communication with the Examiner, for example responding to an ex Parte Quayle action, something like that, and I toss in the SCORE request with those documents. Otherwise yes sometimes I have used an MIL. I imagine part of what you are getting at is that nobody really knows what happens to MILs. I have always assumed that MILs go into a sort of cesspool at the USPTO and that everybody at the USPTO always assumes that it is somebody else’s job to look at them.
Thanks. It seems that in practicality, this might be one of those things where you hope to remember to bring it up at the appropriate tiime with the Examiner and the Examiner can include the note in the Notice of Allowance/Allowability. It would be nice if there was a spot on the PTOL-85B where you could note it, but I am also not sure who looks at that form either.
I’m a bit confused. You mention the US joining the Madrid Protocol in 2003 and that having an effect on design drawings. Wasn’t Madrid only directed to trademark issues?
Thank you so much! I wrote the wrong thing very consistently all the way through the article. Thanks to you, I have now corrected it.
Does the USPTO’s Office of Patent Publication have a protocol in place to check the Notice of Allowabililty to see if it includes a “Please print from Score” instruction from the Examiner? If not, what is the likelihood that they will pick this up in the process of printing the patent?
A design examiner who spoke at the NAPP conference in 2018 told us that there had been a recent change in policy and that all design patents would be printed using the SCORE drawings if there were drawings in SCORE. I looked at a couple of recently issued design patents after that and they certainly looked better than typical. But I don’t file that many design patents and for most of what I have filed since then, the IFW mangling is subtle, but I just checked one issued in November and while the drawings are not bad, it is clear that they are NOT as good as the drawings that are in SCORE. So it looks like either the examiner gave us bad information or the processed in the USPTO are not as good as they should be. I will try to remember to specifically request printing from SCORE in the future. It is too bad that the USPTO doesn’t automatically do this.
I have only now seen this post. What about the case of PCT drawings submitted to the U.S. Receiving Office that get mangled by the conversion software, but the drawings under the Supplemental Content tab are perfect, and then the USRO issues an Invitation to Correct Defects alleging that the drawings don’t admit to reproducibility? Does one have the option to suggest that the drawings in SCORE be sent to the IB?