Requests for Tech Center 2900

I received an Office Action the other day that reminded me that I have been meaning to make several requests to Tech Center 2900.  This is the part of the USPTO that examines design patent applications.  If your practice includes US design patent applications, I hope you will read on and post a comment or two. 

The Office Action that prompted this blog article was in a US design patent application.  As many readers know, in a design patent application the figures are of extreme importance.  If there is something wrong with the figures, this can be a big problem.  So it is of course important for the Examiner to look closely at the figures.  

Which brings me to my first request for Tech Center 2900.  My first request is tied to the fact that the USPTO e-filing system ruins any file that it loads into IFW if the file contains any amount of color or gray scale.  Normally the original figures file gets preserved in a separate system that is variously called “Supplemental Content” or SCORE.  The way the USPTO systems are set up, it is easy to click around in IFW to view things and to print them out, and it is easy to find the document that you want to view or print out.  In contrast, it is a lot of trouble to use SCORE.  It requires lots of extra mouse clicks, and you often must click around and download multiple files in a sort of treasure hunt to try to figure out which of the downloaded files is the one that you actually want.  It also takes a long time to download files from SCORE because the downloads go very slowly.  I think some Examiners get in the habit of trying to use IFW files whenever possible and try to avoid using SCORE unless there is no other choice.

What happened in my recent Office Action is that the Examiner focused on some particular portions of some of my client’s figures, saying that they were a bit fuzzy.  The Examiner took screen shots from her computer screen, cropped them, and pasted them into her Office Action, and said that these portions were examples of what was unacceptably fuzzy.

But what the Examiner failed to say is whether the fuzzy stuff she was griping about was from IFW, or whether she had gone to the trouble to look in SCORE.  Given that many drawings in IFW are fuzzy exactly because the USPTO system ruins them and makes them fuzzy, it is not at all a surprise if an Examiner might say that something in IFW is fuzzy.  I have had many times in the past where I had to ask an Examiner to please go look at the SCORE drawings and then the Examiner said those drawings were just fine.

First request.  It seems to me that Examiners in Tech Center 2900 should be required, when griping about the quality of a figure, to say in the Office Action whether the figure they are griping about is a figure that the Examiner obtained from IFW or from SCORE.  This will save the applicant from having to waste the time and trouble of a phone call to ask “are you complaining about the IFW figures or are you complaining about the SCORE figures?”

Now turning to a second request.  Blowing up a figure by 200% or even 400% and griping about some fine detail that can only be seen in the blown-up rendering of the figure but that would never actually be visible in the printed patent.  Examiners should not be allowed to do this.

Saying this another way …  just because your computer screen and your software make it so that it is possible for you to blow up an image by 200% or by 400%, does not mean that you are promoting science and the useful arts by actually doing so.  

What matters is that members of the public will use the actual issued design patent, and in particular will use the actual printed figures of the actual issued design patent, to figure out the scope of the claim.  When they are doing this, it will be absolutely irrelevant what the Examiner could see or could not see during the examination process in some image that had been blown up by 200% or by 400%.  What matters is what the image looks like at 100% size, printed with ink using the printer that the USPTO uses to actually print the design patent.

What goes unsaid in all of this is, I think, a sort of unstated hostility to vector drawings as distinguished from old-fashioned hand-drawn India-ink drawings on Bristol board.  If you (I mean an Examiner) blow up a PDF of an India-ink drawing, it just gets bigger and grainier.  There is nothing to criticize about it.  Then you drop the magnification back to a normal 100% and it looks fine on the screen and it looks fine if you print it on paper. 

But if you take a vector-drawn PDF and blow up some detail, you can really zoom in.  You can eventually see some super-fine detail that sort of looks weird because the software was making an approximation of the surface texture or threads or shading or stippling or something.  Now if you return to 100% and print it, it looks fine.  But no, at 400% it looks weird on the computer screen and you can certainly tell it was not drawn in that good old-fashioned way with India ink on Bristol board.  It was done by some computer person who does not respect the traditional ways.  And so we see one of these Office Actions complaining about how it looks when you blow it up to 200% or 400%.  Anyway, Examiners need to be told to stop this.

Now turning to a third request.  Recall that I was describing an Office Action that an Examiner recently sent to me in a US design patent application.  This was a design patent application in which the Examiner rendered a figure on her computer screen, and maybe it was from IFW or maybe it was from SCORE (the Examiner did not say which).  And then the Examiner did a screen shot from her screen, and cropped it, and pasted the cropped image into her word processor.  And then, I suppose, printed it to PDF.  Or maybe printed it on paper, and then some USPTO employee scanned it into a PDF.  In any event, there was almost certainly a lot of gray scale in whatever was on the Examiner’s computer screen.  So what happened next is … wait for it … the PDF got loaded into IFW.  Which means … wait for it … it got halftoned by USPTO’s systems on its way into IFW.

Yes the same USPTO systems that ruin all images e-filed by USPTO customers when they contain any gray scale or color also ruin all images e-filed by USPTO employees when they contain any gray scale or color.

Think about it.  I am looking at an image in an Office Action.  The way I received it is, it was filtered through IFW.  It is an image that the Examiner is using to try to show me just what exactly is wrong with my figures.  The Examiner is trying to say look at where this arrow is pointing — it is fuzzy here!  The problem is that the image that I am looking at got fuzzed by the USPTO system.  It is almost certainly fuzzier than the image that the Examiner was looking at when she pasted it into her Office Action.  I will probably never actually get to see the actual image that the Examiner wanted me to see, because IFW degraded it.

So the third request is, for any Office Action containing images, can the Examiner please upload it to SCORE, and please tell the applicant that the original high-quality Office Action document may be downloaded from SCORE?

Now to turn to a fourth request.  Can every Examiner in Tech Center 2900 please be instructed that henceforth they must always instruct the Issue Branch to always use the SCORE images when printing the issued patent?  See this blog article dated August 19, 2015.  I suppose another way to address this concern would be for the USPTO to revise the MPEP to contain an express direction to the Issue Branch to do so.

I suppose what I need to do is make this blog article into a letter to the Director of Tech Center 2900, to be signed by several dozen design practitioners.  What do you think?  Please post a comment below.

9 thoughts on “Requests for Tech Center 2900

  1. We received a design office action recently where the examiner stated that the USPTO printing process screws up the design drawings, and that they shrink the design drawings from the scale as uploaded to EFS to whatever scale is used in the published patent. Accordingly, according to the examiner, the drawings as submitted were not good enough quality because even though they looked reasonably fine as uploaded (and when zoomed in or blown up by some percent), they were going to get ruined when printed by the USPTO and so we have to provide an even better version, including blown up portions of the design showing enlarged details, so that when smooshed down and degraded by the USPTO, the printed patent would still be clear enough the the public. It seems the easier solution would be to 1. print from SCORE (or not degrade the uploaded images in the first place in IFW) and 2. print better quality patents. But, unfortunately, for now, it is incumbent upon the filers of patents at the USPTO to try to devise ways around the system.

  2. I’ll take issue with your statement, “What matters is that members of the public will use the actual issued design patent, and in particular will use the actual printed figures of the actual issued design patent, to figure out the scope of the claim. When they are doing this, it will be absolutely irrelevant what the Examiner could see or could not see during the examination process in some image that had been blown up by 200% or by 400%.” Why do you think the public won’t download the PDF of the patent and blow it up by 200% or 400%? I’d be very surprised if that doesn’t happen, which means the public will potentially be noticing the same thing the examiner noticed at that magnification when they’re trying to figure out the scope of the claim. The public seeing the actual physical object made according to that design may not do that, unless they use a magnifying lens, but they very well might do that, too. So I’m not convinced that what the examiner can see under magnification is irrelevant. The problem comes when what becomes visible under magnification is an artifact of pixelization, anti-aliasing, etc. rather than what was really intended to be in the drawing. It’s bad on a display screen, but if you took that old India ink drawing on Bristol board and blew it up sufficiently, you’d see the same problem in an analog context of graininess, ink absorption, etc.

    • The question is, what is an issued US design patent? How do you evaluate the scope of its claim?

      I wonder if you have ever looked to see what is in SCORE for an issued design patent? Maybe you don’t know that what you will see there is a new PDF on issue day, in addition to any other PDFs that may already be in there. Yes there may be vector PDFs from back on filing day that can be blown up big and Acrobat will cheerfully render the vectors TYFNIL. But there is also a PDF of record that gets put into SCORE on issue day, that is a raster (bit-mapped) PDF. If you blow that one up TYFNIL, it just gets grainier and grainier.

      Try it and then see if maybe you will want to elaborate on your comment.

  3. Please excuse me if this is a silly question: Does the same issue arise when US design patents are filed as International Applications via the Hague Agreement? I have been asked to file several such International Applications recently and because they have originated from GB priority applications they nearly always include multiple designs, which result in a request to choose one design to move through the grant procedure in the US and this in turn means that I invariably end up appointing a US attorney to help process this chosen design & later to file additional, divisional applications in order to obtain protection for the other designs if/where required by my client.
    From a US perspective, I know that you will say that it would be much better just to appoint a US attorney initially & file a US national application. However, on the occasions I have referred to above, my clients have usually left it to the last moment and so the Hague Agreement is better than nothing. The on-line filing of an International Application (Hague) is quite particular when it comes to design images, but I know that this is a particularly important issue in the US and I just want to know whether the images acceptable to WIPO will be causing a nightmare for the US attorneys that I subsequently have to appoint.

    • This is a very good question. Your posting prompted me to look at a US designation of a Hague case where I got asked to enter a Power of Attorney. The FOAP is 9 months as of right now. What I see in the US file are three versions of each figure. I can tell by looking at the case that the client surely started with an absolutely beautiful raster-drawn PDF. I don’t know what they filed at the IB. What I see in SCORE is a pretty decent bit-mapped PDF of 14 pages and also 14 JPG images, one per page. The PDF is loaded with gray scale and if viewed by a human or printed at 100% on a printer it would look really good. The JPGs are the IB’s best efforts I suppose (or maybe USPTO’s best efforts?) to extract some one-bit-per-pixel images from the PDFs. The good news is that when you do one bit per pixel, you deny the USPTO image-mangling software the opportunity to ruin the image through halftoning. The bad news is that in this case the extracted JPGs come nowhere close to communicating the richness of the original designs.

      Anyway then you can look in IFW. The USPTO software took the pretty good PDF that was in SCORE and halftoned it, and ruined it. The PDF that you see there is much more grainy and the richness of the original design is completely lost.

      I guess now I should write a blog post quoting some of the images so that people can see what I am talking about.

  4. I am dealing with an examiner right now in two applications where she looks at images blown up to 400%. It is ridiculous. You have my support in trying to get this practice stopped.

  5. I agree with all of the requests. Maybe the best strategy is to convince the USPTO to not copy limitations from old systems into future systems. That is: Allow PDF documents to be filed in PatentCenter to maintain color and grayscale. That would certainly help with design patents. I often find color useful also in prosecuting utility patents, for example to annotate a drawing and distinguish two parts. Today, the only way to get such annotations in front of the examiner is by email. There is no way to make them part of the public record though. Allowing original PDF documents is not without precedence: The PTAB E2E system is based on exactly that.

    • You beat me to roughly the same comment. The PTO just needs to stop ruining the uploaded perfectly acceptable pdfs with greater functionality (e.g., text searching) and smaller file size than the PTO processed documents. Just stop processing them to .tiff and back to .pdf and all of this goes away. The PTAB E2E doesn’t destroy what is filed. The TTAB doesn’t destroy what is filed. Same with all federal courts, many state courts, and other government agencies.

      Does anyone know why the PTO processes documents the way it does?

      Carl’s suggestions are a good way to deal with the current system but requires different things from different people. If the PTO just stopped unnecessarily ruining documents, nothing would be required.

  6. Carl, I’m changing the subject a little bit, but have you ever asked the U.S. Receiving Office to use the drawings in SCORE when they’ve issued an Invitation to Correct Defects complaining of the quality of the PCT drawings because their software ruined the drawings as filed (and the drawings look perfect in SCORE)?

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