(Update: more than a week has passed with no response from Director Vidal. See blog article.)
Hello fellow Patent Center users. The letter has been sent (blog article). You can see a PDF of the letter here. The letter that was sent by USPS to Director Vidal has been delivered (October 2, 7:29 AM, click here to see tracking). You can track the letter to Inspector General Gustafson by clicking here).
178 people signed the letter. They have between them paid over $93 million to the USPTO in the past decade. They have between them prosecuted more than 127K US patents to issuance in the past decade.
The signature system is now closed.
One Hundred Seventy-Eight Members of the Patent Center Listserv
By email and by Priority Mail 9405830109355026723875
Kathi Vidal, Director USPTO P O Box 1450 Alexandria, VA 22313
By email and by Priority Mail 9405830109355026723868
Peggy Gustafson, Inspector General Department of Commerce 1401 Constitution Avenue NW Washington, DC 20230
September 29, 2023
Dear Director Vidal and Inspector General Gustafson:
This is an urgent matter for your personal attention. We write to ask that decommissioning of the USPTO’s two main software systems for patent applicants, Private PAIR and EFS-Web, currently announced for November 8, 2023, be delayed until Patent Center is complete and robust. These software systems are the USPTO’s primary interface, critical-path linchpins for the entire US patent system. This letter identifies a number of individual defects in the Patent Center software. The pattern of software defects suggests something larger and more important—defects in the USPTO’s software development process. We suggest that the USPTO’s current process trajectory cannot bring Patent Center to acceptable functionality or quality in six weeks. These issues require your personal attention, and cannot be delegated.
Regardless of what you may have been told, Patent Center is not working correctly and has not come close to replicating the functionality of the USPTO’s current software systems, Private PAIR and EFS-Web, which it is supposed to replace. The shutdown of Private PAIR and EFS-Web (currently announced for November 8, 2023) will seriously hamper American inventors’ and applicants’ ability to file and prosecute patent applications before the PTO, causing potentially irreparable harm and loss of rights to American inventors and applicants across the spectrum.
In summary, and as explained in detail in this letter:
- Patent Center has long-known bugs that prevent certain kinds of filings.
- Patent Center does not replicate the functionality of Private PAIR or EFS-Web.
- Patent Center is unreliable and provides no backup (we rely upon Private PAIR and EFS-Web as the backup).
- Patent Center is not fully usable on all browsers.
- Patent Center’s design and implementation ignore the needs and requirements of actual users.
Who we are:
The 178 signatories of this letter are patent attorneys, agents, and assistants who actually use Patent Center, Private PAIR, and EFS-Web in our daily work to represent patent applicants. Most of us are members of a group of users of the Patent Center system called the Patentcenter Listserv. The signers of this letter, either directly or through our firms or corporations, have in the past decade paid over ninety million dollars to the USPTO in fees. The signers of this letter, either directly or through our firms or corporations, have in the past decade prosecuted over one hundred thousand US patents to issuance.
Our group alone has documented substantial failures, flaws, and omissions of essential functionality in Patent Center and has routinely provided the USPTO with this information. Rather than fix glaring problems and omissions, the USPTO has categorized most of them as “feature requests” and has not acted on most of them.
As described below, there are more than eighty such failure reports presently outstanding, any of which may prevent an applicant from making or completing a filing at the USPTO. There are more than forty “feature requests” presently outstanding, none of which the USPTO has acted upon.
We are astonished and concerned at the USPTO’s announcement on September 20, 2023 that the USPTO plans to shut down Private PAIR and EFS-Web on November 8, 2023. Shutting down the older, reliable Private PAIR and EFS-Web would leave the patent community with only the buggy Patent Center system. This would be a catastrophic mistake. As we will explain in some detail below, Patent Center is not even close to being a usable production system that would sufficiently fill the functions necessary for filing and prosecuting patent applications. Essential functions are not implemented in Patent Center, and many of the implemented features are unreliable. Our list of work-blocking bugs is at https://patentcenter-tickets.oppedahl.com/ and a compilation of articles discussing the bugs is at https://blog.oppedahl.com/?cat=21. Patent Center may at some future date be ready for general release as a production system, but no amount of wishful thinking can support a conjecture that completeness and reliability will settle on Patent Center by November 8, 2023.
Many of us were signers of the letter dated December 16, 2021 from Seventy-Four Members of the Patent Center Listserv to Drew Hirshfeld about the unacceptable reliability of Patent Center as it stood in 2021. A copy is attached as Exhibit A. Regrettably, the USPTO failed to respond meaningfully to that letter.
As we regularly communicate to Richard Seidel, Jamie Holcombe, and Greg Vidovich, we maintain a list of bugs in Patent Center that have blocked the ability to get necessary work done, https://patentcenter-tickets.oppedahl.com/. The number of outstanding Patent Center work-blocking bugs presently exceeds eighty. Though the USPTO has made some progress over years, many work-stopping bugs remain unaddressed, and many of them have been outstanding for more than a year. We also maintain a list of Patent Center feature requests on the web site. The number of feature requests presently exceeds forty. As best we can see, the USPTO has not implemented even a single one of the feature requests. We have also accumulated a list of good things about Patent Center, and this list is also provided on the website. Nothing would delight us more than if this relatively short list of good things could grow longer, perhaps in part as a result of future cooperation between the USPTO and our group of users of Patent Center.
The USPTO must do several things immediately to avoid significant harm to American inventors, applicants, and the patent community.
- The USPTO should immediately publish a notice retracting the November 8 date for the shutdown of Private PAIR and EFS-Web. In the past, the USPTO has waited until the last minute (as little as 3 days) to announce delays of harmful or ill-advised software changes. That kind of abrupt stop/start imposes substantial costs on the patent community. The probability that Patent Center can achieve acceptable feature completeness, let alone reliability, by November 8 is zero. It is unfair to applicants to ask them prepare for a conversion that cannot possibly go smoothly, only to retract it when reality breaks through at the eleventh hour to those to whom reality is a threat. The retraction should be immediate. Private PAIR and EFS-Web should not be decommissioned until a consensus of users says Patent Center is ready. Based on the USPTO’s consistent and demonstrated lack of willingness to correct serious bugs that, absent the availability of Private PAIR and EFS-Web, could easily cause applicants to lose rights, it seems that USPTO staff do not have a sound understanding of what is important and do not have the ability to set exit criteria wisely, and to the degree we can observe, don’t maintain a reliable bug tracking system to know when those exit criteria are met. To say this as clearly as possible, given that somebody within the USPTO reached the view that Patent Center was ready to replace Private PAIR and EFS-Web, but was completely wrong to think so (and actually selected shutdown dates for the existing systems), this means that the USPTO cannot be trusted to decide this important thing. It is the users who actually know how to figure out whether Patent Center is ready to replace Private PAIR and EFS-Web, and you are hearing from users now. Any eventual shutdown of Private PAIR and EFS-Web needs to be scheduled only in consultation with users. One way to measure how close the Patent Center developers are to being able to shut down Private PAIR and EFS-Web will be to look at the bug list at https://patentcenter-tickets.oppedahl.com/ and to see whether all of the “Open Issues” bugs have some day been reclassified as “Resolved Issues”.
- The USPTO should resume regular meetings with members of the Patent Center listserv to discuss the outstanding Patent Center defects and Patent Center feature requests. We requested this in our December 16, 2021 letter to Mr. Hirshfeld. On July 11, 2023 we sent an email to Assistant Commissioner Greg Vidovich, identifying at least five bugs that block applicants’ ability to get their work done. A copy of that email is attached as Exhibit B. We did not hear back from him. We sent a reminder to Mr. Vidovich about this by email and voicemail message on September 18, 2023. Even after these reminders, we still did not hear back from him. We look forward to your arranging for the USPTO to resume these regular meetings with us.
The USPTO has claimed that “Patent Center has 100% of the functionality of EFS-Web, Public and Private PAIR.” This is false. We wrote to you in an email message dated June 9, 2023, giving eleven examples of functions in Private PAIR and EFS-Web that Patent Center did not fully provide. A copy of that email is attached as Exhibit C. We did not hear back from you in response to that email message. At least nine of those failings remain outstanding today.
If the only failings of Patent Center were that it has many bugs (which it does) and that it fails to provide 100% of the functionality of Private PAIR and EFS-Web (which indeed it fails to do), those failings alone would mandate a deferral of the shutdown of Private PAIR and EFS-Web. But it is worse than that. Many recent software updates to Patent Center have made things worse instead of better and suggest to us (many of whom have substantial experience with sophisticated software) that the PTO’s software development processes are probably less than adequate. We can always tell when a new version of Patent Center software is released — over the course of the next two or three days, members of our email listservs alert each other to the new bugs that have been introduced into the system. To give just a few examples:
- The Patent Center software updates of March 17, 2023, gave rise to degradations or failures of several functions, as detailed in trouble tickets CP104 (outgoing correspondence table lists “page 2 of 1”), CP105 (restfulness failure for important links), CP109 (responsiveness failure for correspondence table page), CP110 (column sorting in tables becomes inconsistent from one table to the next), CP113 (system-generated file names for “print to PDF” versions of important pages were previously distinct and thus useful but are now identical and thus useless) and CP114 (PCT application number which could previously be copied and pasted is now impossible to copy and paste).
- A Patent Center software update on about September 15, 2023, deleted the ability of a user to see the customer’s docket number in displayed lists of applications. As you might guess, almost all patent practitioners track applications by their own docket number, not the USPTO’s application number, so this makes several aspects of Patent Center all but useless. This has been broken and corrected before (trouble tickets CP90 and CP91, January 17, 2023; trouble ticket CP108, March 19, 2023; trouble ticket CP148, August 28, 2023), and now it is broken again (trouble ticket CP151, September 18, 2023) — which suggests that Patent Center’s software testing processes are probably inadequate. In a USPTO Patent Center webinar training event on September 19, 2023, the USPTO presenter admitted this bug and said it would not be corrected until “sometime in October.”
- A Patent Center software update on about September 20, 2023, broke the application data display for every US design patent application that is a US designation from a Hague application (“35-series applications”) so that the “International Registration Number (Hague)” information is incorrect. Patent Center now lists only incorrect information in this field. The only way to get accurate information for this field is to use the system scheduled to be shut down on November 8, 2023 – Private PAIR. This is trouble ticket CP155.
As mentioned above, many important features required for the filing and prosecution of patent applications are either missing from Patent Center, or have work-blocking bugs:
- EFS-Web correctly checks for possible duplicate national-stage entry attempts from a single PCT application. Patent Center fails to do so. This is trouble ticket CP99.
- EFS-Web correctly permits uploading of sequence listings in ST.25 format. Patent Center fails to do so. This is trouble ticket CP153.
- For a US design patent application that is a US designation from a Hague application (a “35-series application”), Patent Center fails to provide the web-based Corrective ADS function. This is trouble ticket CP101.
- For a US design patent application that is a US designation from a Hague application (a “35-series application”), Patent Center fails to provide the web-based Issue Fee payment (Form 85B) function. This is trouble ticket CP49.
- Patent Center fails to provide the web-based Corrective ADS function for a US national-stage entry from a PCT application. This is trouble ticket CP102.
- Patent Center fails to provide the web-based Corrective ADS function for a provisional patent application. This is trouble ticket CP98.
- The “sponsorship” feature that allows attorneys and their assistants to hand work back and forth works for some tasks, but not for other tasks.
Patent Center is dependent on other failure-prone components. All too often in recent months, Patent Center has been (for practical purposes) unavailable for periods of time during peak working hours because some other component (for example the fee payment system or the system for authenticating user logins) is down. There have been times when EFS-Web is still up and working when Patent Center is down; given the absence of a contingency backup for Patent Center, EFS-Web is still needed.
As we told the USPTO in our December 16, 2021 letter to Drew Hirshfeld, the PTO’s bug reporting software, IdeaScale, fails at its purported purpose. It is absurdly difficult to use, having remarkably and needlessly stringent password rules, 24-hour lockouts, and the like. If a user does succeed in getting a bug reported, the human response from the USPTO is often dismissive — USPTO staff close bugs as “not reproducible” without ever contacting the reporting party, staff notes in IdeaScale mischaracterize the bug in ways that ensure it will never be addressed, and other utter non sequiturs are common. Both the software and human components of the USPTO’s defect tracking systems seem intentionally designed to discourage reporting of bugs, and to avoid surfacing crucial information up the reporting chain. Among patent practitioners, IdeaScale is often accurately characterized as “where good ideas go to die.” (If your staff are telling you that there is a low rate of defect reporting, we suggest that that is more likely the product of sample bias than genuine software quality.) Reporting of Patent Center bugs to the Electronic Business Center is no better. We have opened many dozens of EBC trouble tickets for work-blocking bugs in Patent Center, as detailed at https://patentcenter-tickets.oppedahl.com, and we have never heard back from the EBC about the disposition of even a single ticket.
Patent Center is not fully usable on all screen sizes and browsers or computer systems. On our email listservs, there are frequent comments from users who are unable to use Patent Center on one or other browser or computer system. The observable behavior suggests deficiencies in the USPTO’s testing procedures — failure by USPTO people to test using computer systems, browsers and screen sizes that are actually used by many users.
Considering the many recent times that the USPTO’s efforts to update the Patent Center software have made things worse instead of better, we worry that even if the USPTO were to intensify its efforts during the next few weeks to correct the many dozens of outstanding Patent Center trouble tickets, the likelihood is that, as in the past, the intensified pace of software changes will introduce even more new bugs and defects between now and November 8, 2023. This is yet another reason to defer the planned shutdown of Private PAIR and EFS-Web.
A number of signatories of this letter have conducted pre-release readiness reviews for their own software projects, some for software used by Boeing to design passenger aircraft. We suggest we may be able to assist the Patent Center developers in improving the USPTO’s engineering, quality, and readiness review process.
USPTO’s goal of developing Patent Center to provide all of the functions of PAIR and EFS-Web is still a long way off. Our listserv was established, first, for users to warn each other of bugs and secondarily, to gather intelligence to assist the USPTO toward a Patent Center that gets the necessary job done. USPTO’s goal of correcting the outstanding flaws and deficiencies in Patent Center is likewise a long way off. This goal of the USPTO is stymied by the reluctance of the USPTO’s software staff to receive and use the information we offer to them. We hope the USPTO would realize that it can better serve its own goals by accepting our offers of help rather than by rebuffing them. Let’s work together in the coming weeks and months on our shared goals for Patent Center.
To reiterate, this is an urgent matter. Patent Center is not working correctly and has not come close to replicating the functionality of Private PAIR and EFS-Web. The USPTO’s current software processes cannot bring Patent Center to an acceptable level of functionality and reliability on the time set by the USPTO. The planned shutdown of Private PAIR and EFS-Web will seriously hamper American inventors and applicants’ ability to file and prosecute patent applications before the PTO, causing potentially irreparable harm and loss of rights to American inventors across the spectrum.
Deliverables may be emailed to, and questions may be directed to, Carl Oppedahl, firstname.lastname@example.org, at +1-303-252-8800.
Carl Oppedahl for One Hundred Seventy-Eight Members of the Patent Center Listserv
Timothy G. Ackermann, Ackermann Law Firm
Sarah Adriano, Adriano & Associates
Benjamin Appelbaum, Attorney-At-Law
Christine Arthur, Potomac Law Group
Sherbonne’ Barnes-Anderson, Paralegal, Kilpatrick Townsend and Stockton LLP
Elizabeth Barnhard, Leason Ellis LLP
Law Office of Owen Bates
Andrew Berks, Ph.D., J.D.
Robert A. Blaha
Michael A. Blake
Matthew J. Booth, Matthew J Booth PC
David E. Boundy, Potomac Law Group PLLC, Newton MA
Roger L. Browdy, Browdy and Neimark, PLLC
Michael J. Brown
Patricia C. Brzostowicz
J. Michael Buchanan, Cantor Colburn LLP
Julie Burke, PhD, IP Quality Pro LLC
Samuel P Burkholder, Capitol City TechLaw, PLLC
Karen S. Canady, Ph.D., Esq.
Christopher V. Carani
Zhakalazky Carrion, SLW
Marcellus Chase, Randall Danskin P.S.
Cindy Chen, KOS IP Law LLP
Michele A. Cimbala, Sterne, Kessler, Goldstein & Fox P.L.L.C.
David V.H. Cohen, AEON Law
Michael B. Comeau
Ryan Dean, Umberg Zipser LLP
Bradley K. DeSandro, DeSandro Law Group PCC
Diane Dobrea, Member, McNees Wallace & Nurick
Daniel Douglas, Weitzman Law Offices, LLC
Michael P. Eddy
Gerry J. Elman, Elman IP
Rebecca L. Endsley
Grace J. Fishel
Nancy J. Flint
Alan Flum, Stone Creek Patents
Derek P. Freyberg
Diane L. Gardner, Mastermind IP Law P.C.
Antoinette G Giugliano
Judith L. Goldberg, Leydig, Voit & Mayer, Ltd.
Steven M. Greenberg for CRGO Global
Kasie Grover, SLW
John M. Hammond, Patent Innovations LLC
Eric Hanscom, InterContinental IP
Charles Hayes, McDonald Hopkins LLC
Matthew T. Hoots
Gudrun E. Huckett
Nathan Huynh, Elliott Law PLLC
Jeffrey H. Ingerman, Partner, Haley Guiliano LLP
Demian K. Jackson
Krista S. Jacobsen, Jacobsen IP Law
Andrea R. Jacobson
Jeremy M. Jay
Willliam A. Jeckle, Randall Danskin, PS
Ronni S. Jillions
Law Office of Ronald R Kilponen
Karen L Kimble, Technology Law PLLC
Karen King, KBKING IP Law
Bernard S. Klosowski, Jr., Esq.
Wendy W Koba
Dr. Katherine Koenig, Koenig IP Works, PLLC
Stanley H. Kremen – Law Office of Stanley H. Kremen, Esq.
Herb Lacey, Hollowell Patent Group
Mary LaMorte, LaMorte & Associates, P.C.
LynnAnn Leikam, Zilka Kotab, PC
Jeffrey Dean Lindsay, Planet Lindsay, LLC
Guy V. Manning
Marilen Manzo, Sterne Kessler
Steven K. Martin, Altman & Martin
Ana Molina, Procopio
Esther Moron, Kilpatrick Townsend & Stockton LLP
George L Murphy
Jeanette Nakagawa, iPA & iPM
Daniel Nesbitt, Nesbitt IP
Sam L. Nguyen
Axel Nix, Smartpat PLC
Ryan P. O’Connor, O’Connor & Company PLLC
Carl Oppedahl, Oppedahl Patent Law Firm LLC
Neil R. Ormos
Karen Dana Oster
Miriam Paton, Integral IP
Daniel Peters, Wolf Greenfield
Gerald T. Peters, JTT Patent Services, LLC (NH)
Jennifer Picini, Devlin Law Firm
John Pietrangelo, Tech Valley Patent, LLC
Daniel J. Polglaze, Westman, Champlin & Koehler
Susan Pollyea, Law Office of Susan Pollyea
Kevin Prince, QuickPatents LLC
C. Dale Quisenberry, Quisenberry Law PLLC
Michael D. Reilly, Michael Reilly LLC
Sarah J. Rhoades
Allen Richter – Israeli Patent Attorney
Patricia Smink Rogowski
Robert J. Rose, Law Office of Robert Rose
Frederick F. Rosenberger, III
Dov Rosenfeld, Inventek
Susan Stone Rosenfield
Robert J. Ross
Jill Santuccio, Patent Paralegal
Richard A. Schafer, Schafer IP Law
Lisa M. Schreihart
Jeffrey E. Semprebon, Semprebon Patent Services
Mitchell W. Shapiro
Jarrett Silver, Silver Legal LLC
Robert M. Siminski
Bennett Smith (aka Walstein B Smith III)
Donald E. Stout, Stout, Uxa & Buyan, LLP
Richard Straussman, Weitzman Law Offices, LLC
Donna M. Studley
Suzannah K. Sundby
Randall S. Svihla
Daniel J. Swirsky
Marcus Thymian, GrowIP Law Group LLC
Christine Tigges, Wolf Greenfield & Sacks PC
Melody Tolliver, Fennemore
Doreen Trujillo, VLP Law Group LLP
Marc Van Dyke
Catherine A. Van Houten
Kurt L. VanVoorhies, Ph.D., P.E.
Louis Ventre, Jr., Law Firm of Louis Ventre, Jr.
Terry L. Watt
Edward K Welch II, IP&L Solutions
Werschulz Patent Law, LLC
Al Wiedmann Jr., Wiedmann Law LLC
Allen Yun, Browdy and Neimark, PLLC