Maybe progress in getting the USPTO to handle patent powers of attorney better

It’s like trench warfare, trying to get the USPTO to clean up its act on how it handles Powers of Attorney.  The war is not over, but one small battle has perhaps moved things forward slightly.

Most practitioners representing patent applicants before the USPTO have run into challenges getting the USPTO to recognize a Power of Attorney.  There are cases where I have had to try two or three or four times before eventually getting the USPTO to grudgingly recognize a POA.  But even the cases where a POA is gets recognized on the first try are cases where I usually have to do quite a bit of work. One of the big problems is that when the USPTO bounces a power of attorney, the USPTO often does not really say why it bounced it.  The form letter communicating the bounce is remarkably content-free.  You can try to call on the telephone to reach the person who did the bouncing and you will not succeed.  You will only reach the (misnamed) Application Assistance Unit where a well-intentioned person will state that he or she has no way of getting in touch with the person who did the bouncing, and who will not actually tell you why it got bounced but will instead try to guess why it got bounced, based upon a long list of possible reasons why the (unnamed and unreachable) USPTO person might have bounced it.

Sometimes USPTO bounces a POA for reasons that have nothing to do with a statutory or rule-based justification but based, seemingly, on whether or not the person doing the bouncing did or did not like what he or she had for breakfast that day.  Or the bouncing will be based upon made-up “rules” or internal guidance that are not the result of normal rulemaking under the APA.

Years ago I tried to get one of the well-known professional associations to try to apply pressure to the USPTO to clean up its act on bouncing Powers of Attorney.  I did not succeed.  I communicated privately to various higher-up people at the USPTO who I hoped might move the USPTO in a good direction on this.  Only very small improvements followed.

Which brings us to what I think is a sort of natural successor to the old-style professional and industry intellectual property associations, namely groups of practitioners who simply try to influence the USPTO directly.  I am thinking of efforts like these:

• One hundred ninety-nine trademark practitioners who wrote a letter asking the USPTO not to carry out its plans to force trademark applicants to reveal their personal email addresses and to publish the email addresses so that they could be harvested by spammers and spearphishers.
• Thirty-one patent practitioners who wrote a letter asking the USPTO to improve how it uses the DAS system.
• Twenty-one patent practitioners who wrote a letter asking the USPTO to walk back a Federal Register notice that had warned people not to use ePCT because of a supposed problem with USPTO’s Foreign Filing License rule.
• Seventy-three patent practitioners who wrote a letter commenting on USPTO’s proposed penalty for filing a US patent application in anything other than Microsoft Word word processor format.

Recently a group of patent practitioners decided to try a different approach for forcing the USPTO to be more reasonable about how it handles Powers of Attorney.    We all see those little “OMB numbers” on the various USPTO forms.  Each of these little numbers is connected with a filing that the USPTO has done with the Office of Management and Budget, and the USPTO is required to do such filings because of the Paperwork Reduction Act.

The time came that the OMB number for some of the POA forms was going to expire.  The USPTO did its usual filing to ask OMB to please renew the OMB approval for the POA forms for another 36 months (three years).  Such an OMB filing sets in motion a public comment period.  I’d guess that usually nobody files comments in response to most OMB paperwork filings by most government agencies.  But here was an opportunity, maybe, to put a bit of pressure on the USPTO.

I was astonished to learn that for all these years, the USPTO has been representing to the OMB that the USPTO thinks the average amount of time required to deal with getting the USPTO to recognize a Power of Attorney is … wait for it … three minutes.  This is from start to finish.   Oh and the USPTO thinks this never requires actual lawyer time but only calls for three minutes of mere paralegal time.

So what happened is that on March 12, 2021, 91 patent and trademark practitioners filed a comment with the OMB.  I think you will find it to be interesting reading, and I think if you are not one of the signers, I think that you will wish that you had signed.

The USPTO then filed a followup document after this comment got filed.  And on April 30, 2021, 52 patent attorneys filed a followup comment.  I think you will likewise find it to be interesting reading.

Now on June 7, 2021 comes the decision by the Office of Management and Budget.  You can see it here.  The decision is:

Approval granted for 6 months, USPTO should resubmit for the full 3-year renewal request. Public comments that were submitted will be carried over and continued to be considered during the renewal review.

For those interested to read everything in one consolidated place, the entire “play by play” for the entire proceeding may be seen here.

Translated into plain language, OMB seems to be saying something like, dear USPTO, it looks like you have really ignored all of the comments that got filed.  You say it averages 3 minutes, and the commenters say that the 3-minute number is disingenuous and understates the real burden by a factor of 30 or more.  So we are approving your forms for only six months, not for the 36 months that you asked for.  You have six months starting now, to do a good job of paying attention to the comments that got filed.

Of course it is far too soon to say what exactly will happen next.  Is this sort of thing embarrassing enough for the USPTO that the USPTO will actually start paying attention to practitioners when they complain about things like how the USPTO handles Powers of Attorney?   Or just from the dollars-and-cents point of view, will the USPTO add up how much internal cost it will incur to have to do the OMB filing all over again for POAs, and this time doing it right, and will the USPTO grudgingly decide that would have been cheaper if USPTO had actually paid attention to the practitioner gripes and suggestions in past years? 

I played a very small role in this — I was a signer to both letters.  But other people did all of the hard work.  It is an honor to find myself surrounded by practitioners like this who try to promote science and the useful arts, and who try to nudge the USPTO into doing the same.  On these two letters, most of the heavy lifting was done by David Boundy, a patent practitioner in Massachusetts.  Other practitioners also helped.

If you were one of the signers of either letter, good for you and thank you for your support.  If you want to help the patent applicants and the practitioner community with efforts like this, join the relevant listservs so that you can hear about it and get involved when efforts like this get initiated.

I hope the USPTO will somehow get a clue and realize that it needs to pay attention when practitioners complain about how it handles Powers of Attorney.  And that it needs to pay attention when practitioners voice concerns about other things that the USPTO gets wrong, or could do better.