Browser Roulette 2015 Edition

It's Browser Roulette Time again at USPTO.  What follows is the latest communique for people who file their patent applications electronically.

The trials and tribulations of running an online site.  We feel you pain USPTO.

USPTO's Latest Communique

Chrome to Discontinue Java Plug-in Support and Impacts to EFS-Web and Private PAIR

In April 2015, Google Chrome removed the default ability to use the Java plug-in for browser version 42. This impacts your ability to access EFS-Web and Private PAIR because Java is required for your authentication into these systems. Currently, Chrome has a temporary workaround that will allow you to use the Java plug-in so that you can continue to log into EFS-Web and Private PAIR: https://support.google.com/chrome/answer/6213033

This workaround will only work through September 2015, when Google Chrome plans to end their support for Java plug-ins with their newest browser, Chrome versions 45 and above. Therefore, Chrome users using version 45 and above will no longer be able to use the workaround and thus will not be able to log into EFS-Web or Private PAIR. Oracle is recommending the use of alternative browsers such as Firefox, Internet Explorer, and Safari. For additional information regarding Java and Chrome please visit: https://java.com/en/download/faq/chrome.xml

Although the above browsers should continue to work with EFS-Web and Private PAIR, there is always a possibility that these providers may decide to discontinue support of Java plug-ins as well. The USPTO is closely monitoring for any changes, and is committed to keep the IP Community informed accordingly.

Furthermore, the USPTO is investigating if there are possible strategies to mitigate the impact. The Agency is working on a longer term plan to improve the overall authentication process. For USPTO updates regarding this issue please visit either of our Announcements pages:

• EFS – Web Announcements: http://www.uspto.gov/patents-application-process/applying-online/efs-web-announcements
• PAIR Announcements: http://www.uspto.gov/patents-application-process/checking-application-status/pair-announcements
If you need assistance with this matter, or have questions on any eFiling topic, please visit the Patent Electronic Business Center webpage: http://www.uspto.gov/learning-and-resources/support-centers/patent-electronic-business-center for comprehensive contact information, FAQ’s, and other eFiling resources.

Author Obfuscation in the Patentsphere

The Winter 2013 edition of Journal of Economic Perspectives features an article called , "Of Smart Phone Wars and Software Patents" written by Stuart Graham and Saurabh Vishnubhakat.

According to the abstract, "Principally, the article highlights how the US Patent Office acts responsibly when it engages constructively with principled criticisms and calls for reform as it has during the passage and now implementation of the landmark Leahy-Smith America Invents Act of 2011."

Fundamentally this is an articles designed to show that software patents aren't handled any differently at USPTO than other patents.  The authors select a group of patent classifications to define software patents and use the behavior of the patents in comparison with other non-software patents to illustrate that the USPTO outcomes are similar.

(We could make the argument that if we shifted the Classes included in the paper here and there, that the outcome might be different.  It is also curious that after the big build up to the new Cooperative Patent Classification (CPC) system by USPTO, that the authors didn't elect to use the new classifications in their article.  But we digress.)

But there is something very curious here.  Who are the authors?

The articles bibliographic information about the authors says,

"Stuart J. H. Graham is an Expert Advisor to the US Patent and Trademark Office.  He is an Assistant Professor, Scheller College of Busines, Georgia Institute of Technology, Atlanta, Georgia and is an attorney licensed in the State of New York.  Saurabh Vishnubhakat is an Expert Advisor at the US Patent and Trademark Office.  He is an Adjunct Professor at the Norther Virginia Community College, Alexandria, Virginia and is licensed in the State of Illinois."

Expert Advisors to the USPTO and academics.  Well, not quite.

Stuart Graham is the Chief Economist at USPTO.   Or as noted on the USPTO website, "The USPTO established the Office of the Chief Economist (OCE) in March 2010, with the appointment of Dr. Stuart Graham as its first Chief Economist.  The Chief Economist is responsible for advising the Under Secretary and the Administrator for External Affairs on the economic implications of policies and programs affecting the United States intellectual property system.  The Chief Economist initiates and oversees groundbreaking economic analysis in the field on the topics of intellectual property protection and enforcement, with the object of fulfilling the USPTO’s statutory obligation to provide the President (through the Secretary of Commerce) and the Administration with advice on intellectual property policy."  Dr. Graham has a considerable research agenda at USPTO and is the public fact of many of the Office's outreach efforts including encouraging colleagues in the patent research world to comment on issues like the impact of the lack of transparency on patent assignees and the real person of interest in patent litigation.

Mr. Vishnubhakat, another Expert Advisor at USPTO, works in the Office of the Chief Economist.  He works for Mr. Graham.  According to public, "Saurabh Vishnubhakat advises the USPTO's Chief Economist and senior management on a range of issues including genetic patenting, IP assignment, international trademark examination, and technology standards. ...As part of the USPTO's implementation team for the Leahy-Smith America Invents Act, Saurabh helps administer a number of regulatory reforms, studies, and reports to Congress."

Mr. Vishnubhakat was an active participant in USPTO's efforts to deal with the problems associated with hiding the real interests in patents and perhaps more importantly, patent litigation and the Roundtable on Proposed Requirements for Real-Party-in-Interest Information Throughout Application Pendency and Patent Term published in the Federal Register.  USPTO sought comments on means for collecting and dissemination information about who the real owner of the patent applications and patents  and how the USPTO what USPTO can do to collect more timely and accurate patent assignment information during patent prosecution and during it's term.  He was the conduit through which organizations submitted comments to USPTO.  (Here's an example.)

So what's going on here?  Mr. Graham and Mr. Vishnubhakat both work for USPTO.  Neither is simply an Expert Advisor doing some work at USPTO as a break from academia.  Both are active participants in research and analysis and are directly involved in policy strategy and formulation and the implementation of the new Leahy-Smith America Invents Act.  Why didn't the bios on the article reflect that?  Why did the editor of the Journal of Economic Perspectives not require a more accurate bio?

So the guys at USPTO who are working on seeking input on changing the rules of the game with respect to hiding the real-person-in-interest in patents are obfuscating their relationship with USPTO in academic articles.

Obfuscation must be contagious in the patentsphere.  A little transparency might be in order here.

(Oh - and the whole cotton gin, sewing machine, laser discussion gets a little hackneyed when you consider that the level of complexity in the patent system hadn't reached today's breathtaking complexity when these inventors were duking it out.  Just look at the size of the footnote needed to define the universe of software patents.)

Update - 4:47pm

This afternoon we reached out to the Editor of the Journal of Economic Perspectives (JEP) on their editorial policy with respect to the biographical information of their contributors.


Ms. Ann Norman Assistant Editor, JEP relayed the following, "Stuart Graham was Chief Economist at USPTO and now is an Expert Advisor. That status changed only at the last minute, apparently, at the last stages of preparing to send this paper for printing…

"So the authors did disclose their potential conflicts of interest to us, and it was/is an editorial decision as to whether these conflicts were significant enough to post online. We can, in-fact still post the full disclosure statements with the paper, though of course it is too late to mention in the paper itself that the online disclosure statement exists."

Ms. Norman graciously provided the full disclosures statements for both each author which confirm the status change.

We appreciate the timely response to our inquiry.  We still believe it is important to the readers of articles about patents that the affiliations of the authors are known.  We believe information transparency is an important element in fixing the perception that the patent system is broken.  We don't believe it's broke we believe that the system needs more transparency.

The Rube Goldberg Patent Term Calculator

- A Rube Goldberg - a comically involved complicated invention, laboriously contrived to perform a simple task. - Webster's New World Dictionary.

The first thing we did after we read the January 25th press release and accompanying information on how to use the new USPTO Patent Term Calculator was to check and make sure that it wasn't Rube Goldberg's birthday.  We thought that the new patent term calculator was the Patent Office's way of honoring the famous inventor, sculptor, author, engineer, known for his cartoons depicting complex gadgets that perform simple tasks.  To our disappointment, it was not Mr. Goldberg's birthday and sadly it isn't April 1st.

For those of you who haven't seen the press release we present it here for your reading pleasure:

"USPTO Releases New Patent Term Calculator
Downloadable Resource Helps Determine Estimated Expiration Date of Patents 

"Washington – The U.S. Department of Commerce’s United States Patent and Trademark Office (USPTO) today announced the release of a new calculator that enables members of the public to estimate the expiration date of a utility, plant, or design patent. The calculator can be downloaded at www.uspto.gov/patents/law/patent_term_calculator.jsp. 

“This new calculator is another educational tool we’re providing to our nation’s innovators and entrepreneurs,” said Under Secretary of Commerce for Intellectual Property and Director of the USPTO David Kappos. “In conjunction with the Intellectual Property (IP) Awareness Assessment Tool we released in March, the calculator can help manufacturers, small businesses, entrepreneurs, and independent inventors assess and improve their knowledge of IP. 

The calculator provides a best estimate of a patent’s expiration date, based on a comprehensive list of factors than can be found in USPTO records. Before relying on an expiration date, individuals should always carefully inspect all relevant documents available through the USPTO, court records and elsewhere, and consult with an attorney."

Sharing the objective of making patent information easier to find for regular joes (and joettes), we were excited about the prospect of something that would advance the ball by helping folks figure out what patents were enforceable and which are not.  We were expecting an online tool where you enter a patent number and get back an expiration date and maybe a status, something delightfully simple.

The patent expiration date is an important and largely inscrutable piece of information.  Inventors and entrepreneurs need to know if they need a license to patented technology and for how long.  Likewise inventors and innovators also need to know if the inventions disclosed in a patent are free to use. It's part of that whole advancing knowledge and promoting innovation part of the patent compact.  Being able to find out if a patent is enforceable or not is an essential piece of information on this asset.

Instead what we found is a tool that will help "the public" understand what patent professionals deal with every day.  A tool that in a single download will fuel the patent haters and the patent system is broke crowd.   (And guarantee patent attorney full employment.)

Here's how the Patent Term Calculator Works.  (The Rube Goldberg part starts here…)

First, the Patent Term Calculator is a downloadable Excel spreadsheet. USPTO assumes that the ‘public’ is  spreadsheet-savvy; and has access to a spreadsheet program that is compatible with whatever macros and/or formulae it has built in to this spreadsheet.

For most folks it won't work on their mobile devices unless they already have a spreadsheet app on their smartphone or tablet.  Not very new millennium.

Next, after downloading…

"Please enable macros in order to use all features of the calculator."

So now we have a downloadable piece of software from a public site where we are being instructed to enable the macros.  Macros are a primary source of viruses, spyware, and other  mechanisms for viruses to enter a computer. The NIST Guide to Malware Incident Prevention and Handling specifically instructs government cyber security personnel to restrict macro use.  (Check out NIST 800-83)

“The calculator contains prompts to enter specific information related to the patent in order to help in estimating expiration dates. (Doesn't USPTO know a definitive expiration date?)

"This information can be obtained from USPTO’s online systems, links to which are provided below.”

Ok, download the spreadsheet, have a chat with your resident cyber security officer before you enable macros, scan for malware, crank open the USPTO spreadsheet, and get ready to rumble.  Then get your list of links to USPTO systems.

Next the "Factors to Consider for Patent Term Calculations."

“A patent owner or the public must consider the following factors in calculating the expiration date of a patent for utility and plant applications." (Ok now it gets scary, the patent owner is part of the target audience for the Patent Term Calculator.  What?  They don't know the expiration of their patent either?)

"The factors include the following:  (We added the bullet points for clarity.  It's a long list of factors. Commentary in  {} brackets is ours.

• Type of application (Utility, Design, Plant)  {Doesn't the patent number tell you this?}
• Filing date of the application  {Isn't this data created by USPTO and associated with the patent number? OK, there are international filing dates and PCT dates but couldn't USPTO at least provide the US basics?}
• The grant date of the patent {Ditto - see filed date above. }
• Benefit claims under 35 U.S.C. § 120, 121 or 365(c)m  {Huh?  Where do you find these? Oh, a little light reading on the Uruguay Round.}
• Patent term adjustments and extensions under 35 U.S.C. § 154  {More legal mumbo jumbo and patentista speak.}
• Patent term extensions under 35 U.S.C. § 156 {Ditto on the legal mumbo jumbo}
• Terminal disclaimer(s)  {A term we hate when working with real people.}
• Timely payment of maintenance fees.  {Doesn't USPTO know about the timely payment of maintenance fees, can't they help the regular joes and joettes with this? Besides the rules on maintenance fees, when they are paid, when things can be reinstated are also hard to understand and even more unknowable than the patent expiration date.  The patent management firms are safe.}

Right around this time intellectual vertigo starts to set in.

Next go on the tour of USPTO public systems to harvest the information needed to use the prompts to enter specific information related to the patent in order to help in estimating expiration dates.  Let us not forget that all of the systems you need to use for this drill  have different user experience and interface interactions and require lots of browser/operating system/Adobe PDF alchemy to get everything to work.

USPTO then suggests that users of the Patent Term Calculator access PTO links to explore the various factors that contribute to the calculation of a patent term using their system resources:

Public PAIR portal
Images of Published Patents
Patent Term Extensions under 35 U.S.C. § 156
Patent Maintenance Fees (can also use Fees tab in PAIR portal)

Isn't this the Patent Office?  Aren't these the people who are supposed to know the definitive answer on when a patent expires?  Aren't these the guys who grant the patents and collect the fees?  Does USPTO really expect that the average person interested in learning when a patent expires to use or be able to make sense of PAIR?

Then there is the problem of having the right browser/operating system voodoo to be able access the nasty TIFF patent images and the other public information resources available through the USPTO website.  Are regular joes going to know to look for the Certificates of Correction at the back of the image file?  Or to know how to search all these different places and what to look for when they get there?

Can the public make sense of 35 U.S.C § 156?  The pharma and biotech patentistas know about this one.  (Here's useful link to USPTO 156 page.)  A note that this type of adjustment to patent expiration dates is related to pharmaceuticals might have been helpful so an inventor trying to patent a new wrench doesn't have to waste any time.

The level of subject matter knowledge USPTO expects for a citizen using their new Patent Term Calculator just to figure out an estimate  of the expiration date of a single patent is breath taking in its expansiveness.

Why  can't USPTO provide the information interactively?  Enter a patent number, get the date?  This is an example of how truly inaccessible the innovation, invention, and patenting system in this country is to the average member of ‘the public’.

The Office says that “This calculator is only an educational tool.” A disclaimer which basically says use this tool at your own risk and then consult a patent attorney.  This is a another affirmation that you can't really be sure of anything in the patentsphere and that even figuring out the expiration date of a patent requires a patent attorney or two.

This tool adds fuel to the "patent system is broken" fire.

(We'll deal with figuring out priority dates in some other posts.  We're too tired to do it now.)

Patent It Yourself - A Self-Help Book

We'd like to believe that you can get all of the information you need from the internet and from the vast array of information on the USPTO website.  Sadly, it doesn't work that way.  When you've worn yourself out clicking on links and reach the point where you want to smash your computer to bits, it's time for a real book.  Even as patent nerds ourself, we often find ourselves reaching for this trusty little tome to get a quick answer about the basic mechanics of creating a patent application - hence it's inclusion on the Way Better Patents Reading List.  Even if you are working with a patent agent or attorney, this book will help you speak their language.



Patent It Yourself: Your Step-by-Step Guide to Filing at the U.S. Patent Office by David Pressman — The handbook to turn to when you are tired of mousing around the USPTO web site or in need of relief from patent attorney speak on how to get a patent.