Ant-Like Persistence

(Update:  we wrote to Commissioner for Patents Udupa about the open-or-closed status of these fifteen EBC tickets on October 12, 2023 (see email).  We have sent a followup letter to the Commissioner and hopefully we will hear back from her.)

The USPTO claims to listen to users who report bugs in Patent Center.  The USPTO says that one of the ways that a user can report a bug in Patent Center is to open a trouble ticket with the Electronic Business Center.

Here are fifteen EBC trouble tickets which users of Patent Center opened, reporting bugs in Patent Center.  In this table, each EBC ticket number is listed along with the corresponding CP ticket number on the Patent Center trouble ticket list, and along with the date of creation of the trouble ticket.

The USPTO is disingenuous when it pretends that reporting Patent Center bugs to the EBC supposedly works.  Never, not even once, has any Patent Center user who opened a trouble ticket about Patent Center with the EBC ever heard back from the EBC with any progress or resolution for the bug that was being reported.  The USPTO never got back to any of these fifteen Patent Center users.

EBC ticket number	CP ticket number	creation date
1-690814254	CP16	May 4, 2020
1-695641646	CP30	June 8, 2020
1-701563481	CP33	July 5, 2020
1-761431662	CP55	June 14, 2021
1-761431662	CP56	June 14, 2021
1-823950504	CP63	October 22, 2021
1-839307926	CP69	December 3, 2021
1-783509075	CP71	December 8, 2021
1-826155667	CP103	March 13, 2023
1-827293068	CP127	March 28, 2023
1-828414131	CP135	March 30, 2023
1-830635911	CP139	May 18, 2023
1-831159389	CP140	May 25, 2023
1-831173674	CP141	May 25, 2023
1-838522518	CP148	August 29, 2023
1-836237428	CP160	September 30, 2023

Hello readers.  Yesterday you learned (blog article) that a face-to-face meeting has been scheduled between USPTO people and representatives of the Patent Center listserv.  It will take place on Wednesday, October 18.  What prompted this meeting are the concerns that were raised in the letter dated September 29, 2023 from One Hundred Seventy-Eight Members of the Patent Center Listserv to USPTO Director Kathi Vidal.

As of yesterday the attendee list was as follows.

From the USPTO:

• • Vaishali Udupa (Commissioner for Patents)
  • Richard Seidel (Deputy Commissioner for Patents)
  • Greg Vidovich (Assistant Commissioner for Patents)
  • Terrel Morris (Director, Office of Information Technology for Patents)
  • Kimberly Williams (OITP)
  • Patricia Mallari (Special Advisor for Patents)
  • Steven Griffin (Senior Advisor at USPTO)

Representing the Patentcenter listserv:

• • Carl Oppedahl
  • Richard Schafer
  • Suzannah Sundby

Today we have learned of a small change in the attendee list.  On the listserv side the attendee list remains the same.  But see if you can spot the change in the attendee list on the USPTO side:

• • Kathi Vidal (Director of the USPTO)
  • Vaishali Udupa (Commissioner for Patents)
  • Richard Seidel (Deputy Commissioner for Patents)
  • Greg Vidovich (Assistant Commissioner for Patents)
  • Terrel Morris (Director, Office of Information Technology for Patents)
  • Kimberly Williams (OITP)
  • Patricia Mallari (Special Advisor for Patents)
  • Steven Griffin (Senior Advisor at USPTO)

I find it very encouraging to be able to report that a face-to-face meeting has been arranged between USPTO people and people from the Patentcenter listserv.

This will happen on Wednesday, October 18, 2023, at room 10D79 of the Madison Building (600 Dulany Street, Alexandria, VA 22314).  The meeting is scheduled for 3:30 PM to 5PM.

Attending on the USPTO side will be:

• • Vaishali Udupa (Commissioner for Patents)
  • Richard Seidel (Deputy Commissioner for Patents)
  • Greg Vidovich (Assistant Commissioner for Patents)
  • Terrel Morris (Director, Office of Information Technology for Patents)
  • Kimberly Williams (OITP)
  • Patricia Mallari (Special Advisor for Patents)
  • Steven Griffin (Senior Advisor at USPTO)

Attending on behalf of the Patentcenter listserv will be:

• • Carl Oppedahl
  • Richard Schafer
  • Suzannah Sundby

What prompted this meeting are the concerns that were raised in the letter dated September 29, 2023 from One Hundred Seventy-Eight Members of the Patent Center Listserv to USPTO Director Kathi Vidal.

Everybody knows that you cannot enter the national phase twice from a single PCT application.  Everybody, that is, except:

• • the people at the USPTO who wrote the software for Patent Center (see Patent Center bug CP99), and
  • the USPTO presenter who, on September 19, 2023, said (listen to the recording) that it was intentional that Patent Center was designed to permit duplicate entries into the US national phase from a single PCT application.

EFS-Web had been correctly programmed all along to guard against this mistake.  If, in EFS-Web, a filer were to attempt to enter the US national phase in a PCT case in which the US national phase had already been entered, a warning would appear.  But the Patent Center developers had failed to bring this feature forward from EFS-Web into Patent Center.  This was Patent Center bug CP99, reported to the USPTO on February 20, 2023.  This was one of many reasons why it had been false for the USPTO to claim that “100%” of the features and functions of Private PAIR and EFS-Web had been brought forward into Patent Center.   (It continues to be false for the USPTO to claim, as it continues to claim, that “100%” of the features and functions of Private PAIR and EFS-Web have been brought forward into Patent Center.)

The Patent Center developers at the USPTO have now quietly corrected this bug in Patent Center.  Now, for the first time starting at about October 11, 2023, if you try to enter the US national phase twice from a single PCT application in Patent Center, a warning pops up.  This problem was reported to the USPTO in February, and it took more than seven months, but the Patent Center developers have now fixed this problem.

It would have been courteous of the USPTO to let us know that it cleared trouble ticket CP99, but USPTO did not do so.  We had to find out by stumbling upon it.

The other corrective step that needed to happen was for the USPTO to send out a correction, perhaps by email, to the people who attended the September 19, 2023 Patent Center training event.  Those people were expressly told by the USPTO presenter that it is possible, and indeed, advisable, to enter the US national phase multiple times from a single PCT application, for example if there had been a finding of a lack of unity of invention in the international phase.  (Listen to the recording here.)  But the USPTO has not sent out any such correction.

Patent Center bug CP151, which is one of the “high priority ticket” bugs, got quietly fixed by the USPTO within the past 36 hours.  This would have been the ideal time for the USPTO to fix Patent Center bug CP31, which is also a “high priority ticket” bug and has been outstanding for more than three years now, but the USPTO failed to do that.  Continue reading “CP151 cleared, CP31 still not cleared”

One hundred thirty-seven intellectual property professionals have written to the Office of Information and Regulatory Affairs at the Office of Management and Budget, asking for regulatory action regarding the USPTO’s handling of Patent Center and Private PAIR and EFS-Web.  The letter is dated today, October 9, 2023.  You can see it on SSRN (https://ssrn.com/abstract=4597405) and it is archived here.  The letter asks that OIRA do three things:

• • Remind the USPTO that it may not impose a burden of this magnitude without an ICR clearance.  Decommission of incumbent, working software should be postponed until the USPTO’s new replacement software demonstrates a level of reliability that provides practical utility. Decommission should be postponed until the PTO has a clearance obtained after full public comment. The PTO has done none of these things.
  • Remind the PTO that Information Quality principles govern the PTO’s decisionmaking.  Readiness and quality reviews of the new software on which the PTO relies are “influential,” and should meet requirements for objectivity, utility, integrity, and reproducibility, and public consultation. Software utility, quality, and readiness must be assessed from the point of view of the PTO’s users, not the PTO’s staff. The PTO has not done so.
  • Exercise its authority under 44 U.S.C. § 3504(a) and (h) to “oversee the implementation of policies, principles, standards, and guidelines for information technology functions and activities of the Federal Government, including periodic evaluations of major information systems” to ensure that the PTO’s major information systems are designed to achieve agency missions. As we note below, the PTO’s software engineering and quality processes are suspect.