An offer of compromise to the USPTO

(Update:  a week has passed and Director Vidal has not responded to our Offer of Compromise.  See blog article.)

This blog post describes an offer of compromise about the shutdown of Private PAIR and EFS-Web which we at the Patentcenter Listserv have extended to the USPTO today.  We hope the USPTO will accept it. 

By way of background, the USPTO has never been open in two-way communication with its users of Patent Center.  When our firm served as one of the alpha testers back in 2018, we never had any confidence that the USPTO was paying attention to our bug reports or feature requests (blog article).  When we set up the Patentcenter listserv, which is a community of Patent Center users that by now numbers more than four hundred, the USPTO went out of its way to rebuff our many offers of help, including bug reports and feature requests.  By December of 2021, Patent Center had gotten so buggy, and the USPTO had gotten so intransigent, that Seventy-four members of the Patentcenter listserv sent a letter to the Acting Director of the USPTO, Drew Hirshfeld.  You can see it here.  He never answered our letter.

On March 23, 2023, we managed to get a video meeting with some of the USPTO people about the problems with Patent Center.  The USPTO people promised to resume a series of meetings with us that had started in 2020 and then tapered off, discussing Patent Center trouble tickets.  But the meetings never actually resumed.  We asked about this twice by email and voice mail, on July 11 and again on September 18.  We never heard back from the USPTO in response.

Last week, on Wednesday, September 20, the USPTO unilaterally announced the date of November 8, 2023 for the shutdown of Private PAIR and EFS-Web.  Early in the morning on September 29, One Hundred Seventy-Eight Members of the Patent Center Listserv sent a letter to USPTO Director Vidal (click here to see the letter) in which we tried to help her see what a mistake the shutdown on that date would be, given that Patent Center is nowhere near to being ready to serve as a replacement for Private PAIR and EFS-Web.  We have heard nothing back from her or anybody else at the USPTO in response.

On September 30 a letter got sent by email and Postal Service to Director Vidal, making an offer of compromise to the USPTO about the shutdown of Private PAIR and EFS-Web.  You can see a PDF scan of the letter here.  The letter has been delivered to Director Vidal on October 3, which you can track here.  Here is the body of the letter:

Dear Director Vidal:

By now you have received the letter dated yesterday from One Hundred Seventy-Eight Members of the Patent Center Listserv, asking for indefinite postponement of the shutdown of Private PAIR and EFS-Web, currently announced for November 8, 2023. Today’s letter is intended to be helpful to you and your colleagues at the USPTO in our shared goal of eventually bringing Patent Center to a state where it will be tolerable to the patent community for Private PAIR and EFS-Web to be shut down.

As you know, the Patent Center listserv is a community of several hundred users of the Patent Center system. As you know, we maintain a Patent Center trouble ticket and feature request list at https://patentcenter-tickets.oppedahl.com/.

We are aware that the trouble ticket list presently lists some ninety open trouble tickets for Patent Center as well as some sixty-eight resolved trouble tickets. The progress of the USPTO in fixing the sixty-eight bugs represented by the sixty-eight resolved trouble tickets has been very slow, averaging only about two bugs fixed per month, on average. We share what we imagine to be your concern that at such a rate, it might take some years for the USPTO to fix the ninety Patent Center bugs that are represented by the ninety open trouble tickets.

With this in mind, we have tried our best to prioritize some of the outstanding Patent Center trouble tickets. We have marked about fifteen of them as “HPT” meaning “high priority ticket”. We invite you to join us in what we hope could be an amicable way to work together on our shared goal of eventually bringing Patent Center to a state where it will be tolerable to the patent community for Private PAIR and EFS-Web to be shut down. Here is what we propose:

• • • • We understand the USPTO’s desire to shut down Private PAIR and EFS-Web, replacing them with Patent Center.  As we made clear to you in yesterday’s letter, however, we believe that Patent Center is not yet at a stage where the older systems can be shut down.
      • We are providing to you our current list of high-priority bugs that we think must be fixed before the shutdown of Private PAIR and EFS-Web. This list may change as additional high-priority bugs are discovered, some of which may exist today but have not been discovered, and some of which may be created by the USPTO inadvertently as the USPTO continues to update Patent Center.
      • We welcome your agreement that you will 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”. We commit to you that for each such published citation of a fixed trouble ticket, we will let USPTO know promptly if we disagree that the bug has been fixed.
      • We will continue to report other lower-priority bugs as they are discovered, and we expect that the USPTO will continue to work to resolve them, but we are prepared for the prospect that they may not be fixed before the shutdown of EFS-Web and Private PAIR.
      • We also count on the USPTO eventually to commence work on the more than forty feature requests that are outstanding.

We look forward to your agreement on this approach for the USPTO and our Patentcenter Listserv community to work together toward our shared goal of eventually bringing Patent Center to a state where it will be tolerable to the patent community for Private PAIR and EFS-Web to be shut down.

Well, there it is, the settlement offer that we emailed to Director Vidal today and that she will receive by Postal Service on Monday, October 2.  We wonder if the USPTO will agree with us to follow this approach.