Two things happened in the last 48 hours that come together.
First, I wanted to look at old bugs/requests. I recall looking at a LONG list of issues in summer or fall 2020. They're gone now.
Second, last week, the following conversation occurred on one of the email lists. A attorney (indicated "user 1" via '>') had made an error, and the PTO's software hadn't caught it. Then the PTO's humans were so attached to form paragraph responses and not reading the request for correction that the error can't be corrected.
User 2 responded to observe differences in design philosophy between ePCT vs PatentCenter.
The upshot of these two events makes a vivid point: the PTO's attitude in software design is narcissistic. The PTO does what's convenient for the PTO, and applicants and users be damned. That narcissistic philosophy is readily visible in the long lists of soft suggestions and hard bugs that get posted here in IdeaScale, and by email, and receive no action. Instead -- bug list getting to long? Erase it.
Many have recommended in the past, user 2 in this email exchange recommended, and I am writing to recommend again – throw Patent Center out. Start over, using WIPO's ePCT as starting point *for attitudinal mindset*, and very likely as a code base starting point as well.
User 1 wrote:
> Parent Patent issued [about a year ago]
> I attempted to file an eTD in the pending child application [about a month after issue], but accidentally filed in the already filed Parent Patent. The patent number being disclaimed is that of the Parent Patent and the application number of the case in which the eTD was being filed was also that of the Parent Patent.
> Thus, the eTD essentially disclaims whatever term extends beyond its own term… which disclaimed term is ZERO because the two terms are one and the same.
> I immediately realized my error after pressing the submit button and so the same day I filed the eTD, I filed a petition to expunge explaining the mistake.
> Just got the decision dismissing the petition citing a whole bunch of irrelevant case law about how a TD cannot be expunged after a patent issues (recall the eTD was filed in an already issued patent) and that expunging the eTD would result in improper recapture of patent term that was previously disclaimed (recall the eTD disclaims whatever term extends beyond its own term).
> It's really completely stupid stupid stupid:
> I was stupid in that I accidentally filed the eTD in the parent patent to begin with.
> The USPTO eTD system is stupid in that it allowed an eTD to be filed in an already issued patent AND that the system did not recognize that the application number it was filed in was for the same property… that Application No. X IS the application number of the patent for which the term is being disclaimed.
> [And the PTO's human petitions folks were stupid for not reading the actual petition, and hitting a form letter response before making sure that that response actually fit the situation].
[User 2 replied:]
If you search out and enumerate the validations in ePCT, you will see many dozens of validations that are in place specifically to help and protect the applicant and filer and practitioner. These include validations that might save embarrassment in front of the client. These include validations that might save a practitioner from malpractice exposure. And, yes, what you would find if you make a list, is that a small subset of the ePCT validations are designed specifically to save work for WIPO personnel or to facilitate some WIPO workflow.
As a particularly nice example think of the place in ePCT where you are getting ready to add a priority claim to a PCT application. And if the way you are going to satisfy the certified copy requirement is by means of DAS, then one of the validations is that ePCT does a real-time crosscheck with DAS. And if by some chance you had transposed a couple of digits in your priority application number, this will get annunciated to you instantly, within milliseconds of your mouse click. By comparison, no USPTO system ever cross-checks a proposed priority claim or proposed domestic benefit claim against any trusted source.
Now suppose we go to the trouble to search out and enumerate the validations in EFS-Web or in Patentcenter. There actually are not very many validations, but you can find a few.
The very striking thing is that every validation in EFS-Web or in Patentcenter got put there only to protect the USPTO or to save work for USPTO personnel. Making this point in a slightly different way, there is not even one validation in EFS-Web or in Patentcenter that has the sole purpose of protecting the filer or applicant or practitioner.
There are a few validations that you can point to in EFS-Web or in Patentcenter that do sort of by accident serve to provide some measure of protection for a filer or applicant or practitioner, but in each case a moment's reflection reveals that the reason the validation was set up in the first place was to save work for a USPTO person or to facilitate USPTO workflow.
Yet another way that one might characterize what you find from this is, WIPO cares about its customers and USPTO does not.
Anyone who spends a bit of time actually serving clients and using ePCT gets an unmistakable sense that everything about ePCT was designed from the ground up to serve both the interests of users and the interests of WIPO.
Anyone who spends a bit of time actually serving clients and using EFS-Web or Patentcenter gets an unmistakable sense that everything about EFS-Web and everything about Patentcenter was designed along the lines of "what will absolutely best serve the USPTO" and along the lines of "we absolutely do not care what this is like from the customer point of view."
We see here in [User 1's] story that of course what a normal and sensible system designer who cares about the customer would have done is to include a validation that pays attention to the fact that it makes no sense to file a TD in an already-issued patent. And then if somebody had accidentally started clicking to file a TD and had entered the number of the issued patent rather than the number of the application that needs the TD as the place where the filed document would end up, then the system would have puked the filing back in the filer's face. Or if not that, would at least have said "you realize it makes no sense to do what you are getting ready to do, and here is why". But you see the flaw in the way that I set up this paragraph. I imagined "a normal and sensible system designer who cares about the customer". And unfortunately that is is not our situation with the USPTO.
I am not merely talking about those content-free little popups that USPTO is very fond of that say simply "are you sure you want to do that?" A pop-up that merely asks "are you sure" without saying even one word about why it is that you should not be sure is a "boy who cries wolf" pop-up. It is the kind of pop-up that makes things worse instead of better because it trains the user to always click the button that closes the pop-up. See for example FR25 at https://patentcenter-tickets.oppedahl.com/patentcenter-feature-requests/ .
USPTO has no excuse for getting all of this so very wrong. USPTO has from the outset been repeatedly told by customers "if you want to know how to do it right, go look and see how WIPO did it in ePCT". That is a very simple path that would permit any patent office to get stuff like this right.
Another reason why USPTO has no excuse for getting all of this so very wrong is that USPTO has been given many suggestions for customer-friendly validations and features. See for example https://patentcenter-tickets.oppedahl.com/patentcenter-feature-requests/ . See for example FR20 and FR21 and FR22 and FR23 and FR24.
> The reasons for dismissing the petition are completely stupid as inapplicable and nonsensical for the given situation.
Agreed. You can tell that what must have happened a long time ago is (a) somebody filed a TD and got buyer's remorse and asked the USPTO for a do-over. And then somebody at the USPTO wrote up a big long set of form paragraphs all about how if there is anything you can't get a mulligan on, it is a TD, and TDs are irrevocable, and no you can't get back any patent term that you disclaimed, and it says somewhere that if you could somehow get a mulligan it would only be for a not-yet-issued patent and this one is already issued, and by the way did we mention that TDs are irrevocable?
And now the standard lower-brain-center programming that gets used at the USPTO is that no matter what the actual fact pattern is, and no matter how inapplicable the form paragraphs are to the actual fact pattern involved, any time that anybody ever asks for any relief that even remotely resembles a request for a mulligan on a TD will in perpetuity receive this set of form paragraphs.