So you want to get a patent on a great idea? Lots of luck! The patent examiners are taught to reject a large percentage of applicants

I made a post here three months ago about waiting for the mail that never comes. Well, it finally did come with a rejection of my patent application claims on our Miniaturized Loudspeaker Placement Platform, which I learned later that the U.S. Patent and Trademark Office (USPTO) examiners have to work on a quota system, and apparently the more rejections they issue the better for them, no matter whether you have a credible invention or not. There is very much written about the flaws in the patent system. The Patent Office’s 7,650 examiners received “more than half a million applications last year according to Forbes, and the numbers have kept climbing,” according to the Times. And those 7,650 examiners work on a production quota point system like post office workers used to have to do, to sort the mail. The fundamental flaw in using a production system where quality should take precedent over quantity should be obvious. The rejection rate is high, providing great incentive for the examiner.

An important article is by John Schmid and Ben Poston of the Journal Sentine where they write: “Penalized for flawed approvals, examiners keep pace – and pay – by refusing applications”+

Applying for and hoping to obtain a U.S Patent on your own as a pro se litigant without a patent attorney is one of the most difficult tasks you would ever want to take on, if not the very most difficult of all. It’s as bad as representing yourself in court with a bad judge. It is no wonder that patent attorneys demand thousands to write an application. I took it on starting over four years ago and went through all the hoops, from establishing the idea of listening to surround sound with speaker placement measured in inches in miniature, so to speak, as compared to full size placement of speakers in feet.

LIMITED TO ONE -2

Limited Edition 32 Arm miniature chandelier 5 inches tall by Don Meehan

 

Being also a miniaturist by trade with many years of making little museum quality chandeliers that actually light up, and how we paid attorneys and obtained the patent on miniature latch hooking, we understood the concept. We were always actually thinking of how things would look in a miniature setting, specializing in miniature carpeting and lighting. It was from the floor to the ceiling so to speak.

 

12arm plan reduuced

A plan for a Limited Edition 12 arm miniature chandelier

The tall task of planning the patent application was very much like the planning and note taking of the miniature chandeliers. Little notes and drawings of reminders of how things go together was the key. I guess no one could understand the 12 arm plan but me. And so, the tall task of putting the miniature platform idea over to a USPTO patent examiner was prime with months of studying, planning, prototyping, photography, over thirty drawings, and lastly a lengthy description, or should I say, a dissertation that should have gotten me a Ph.D title of instead of Git-erDon, making it Gid-DrDon,

 

2GITERDONcrop1

Git-erDon or Gid-DrDon (He don’t look like no doctor)

which was presented to the Patent Office, and according to procedure, was published here exactly two years ago on September 22, 2011. Well, an answer finally came last December rejecting my claims, but finally they ok’d all of the drawings. The drawings are hard enough but Claims are the hardest and an almost impossible part of the application to get accepted, whereas certain words and legal terms are mandatory; words like “consisting,” “said,” “clevis,” “fat,” “verrule,” “funicular,” “fossa,” “efferent,” and about 200 more listed in a glossary of a 572 page do it yourself book called Patent It Yourself.

Well, an answer came last December rejecting my claims. Claims are the most difficult part of filing an application, whereas certain words and legal terms are mandatory. This is all second nature to the experienced patent attorney, whom you could hire for thousands, and hopefully to one of the 7,650 patent examiners. However, the first official letter from my examiner rejected my three claims with ninety days to reply. Actually, the examiner, whether out of ignorance or carefully planned actions, rejected me while mistakenly comparing my invention with a virtual system with circuitry consisting of headphones and nowhere near what I had described. I had to go back and study and answer with a “with all due respect” official reply with at least a ten page argument tactfully pointing out his mistake or asinine thinking and a new set of claims. All of this was before I learned of the little inside tricks they have for getting their quotas with rejections.

Again, I waited and finally received a “Final Notice” rejecting nine more claims, which with more reading and studying I discovered that I still had a shot and that “final” does not in true language mean final. Of course, you need to dig to find this out. You have the option of calling the examiner on the phone and I did, only to discover that I was dealing with a person who could barely speak English, seemingly an oriental accent, and sounding like he was translating every word that I spoke. He seemed to be a brilliant individual on the one hand, but struggled with many words when he spoke, whereas I couldn’t follow him at all. One prime example was the word “shoulder” that came out as “shalder.” This began a series of phone calls twice a week with my discovery that seemed we were getting nowhere, since I couldn’t understand 90 percent of what he was saying.

Their Manual of Patent Examining Procedures states: “when, during the examination  of a pro se [no attorney] case, it becomes apparent to the examiner that there is patentable matter disclosed in the application [the examiner] shall draft one or more claims for the applicant…” Further it states:  “it will be expected to be applied in all cases where it is apparent that the applicant is unfamiliar with the proper preparation and prosecution of patent applications.”

I tried to be gentle and understanding and remain calm and withholding my temper, underlining the words from the Manual, “it will be expected.” And finally after about five hours of phone calls, and the clock running down to the final deadline, I blew my stacks in total frustration, since it appeared that he either didn’t want to write the claims, was afraid to write the claims, didn’t know how to write the claims, or had never written a claim, or just want to hurry it up for credit for another rejection. He seemed to know well from his cronies how to dance around, double talk and side step and it was also in my thinking that the foreigner routine may have just been an act. My paranoid side of me suggested that perhaps a relative in Korea or somewhere may have been given the idea to file an international app, since I only filed in the USA. I challenged him to put the supervisor on the phone and lets get this over with. She wasn’t available.

I finally calmed down and hit him with the regulation that the examiner is obligated to write claims for a pro se applicant. He still attempted to wiggle out of it and finally admitted that he was depending on my expertise. And so, with two weeks to go, I backed off after weighing it that he had probably never written a claim and we finally agreed that we would write them together, with me faxing him my ideas which he would put in the proper form, with the proper words, with the help of another examiner and his supervisor.

Since he had no means of a computer or email, he would give me certain words and ideas with me ending up writing three pages of double spaced claims and faxing to him. He would then hand write, correct, reword, etc and fax back for me to redo and write, fax it back to him to either approve or send back more corrections for me to prepare a final Internet electronic reply in the proper form by September 28 and wait for the patent to hopefully finally issue.

In the end I guess I have to give some credit to this man who obviously is very brilliant and trying to hold the difficult job given all the tricks of the trade and dealing with the English language and the Patent Office demands and the quota system. And so, once again, I will be waiting for the official word of an issue of a patent on the Miniaturized Loudspeaker Placement Platform that will hopefully bring on the real job of getting a manufacturer interested in getting it into millions of homes and even studios throughout the world.

After all is said and done I decided to do a little research about the patent process and the examiners who make a lot of money whereas I learned some hard facts of what an application is up against.

They publish that “a primary examiner makes between $102,000 – $145,000 a year. And you can be a primary examiner within only 5-7 years of joining the USPTO.

Your career path doesn’t stop there. You could be a manager, running a group of examiners, after only 7-8 years. Promotions are based on how well you perform relative to a fixed goal – not competition amongst employees. Employees are eligible for their first promotion after only 6 months of employment…Experienced USPTO employees describe themselves as independent thinkers, disciplined, decisive, self-starters.”

The following from an Internet forum is a quote from a former examiner turned attorney: “Each examiner is required to achieve a certain number of “counts” per year. Counts are primarily accrued via First Office Actions (looking at a new case and drafting an opinion on patentability), abandonments, and allowances, although various other things give “counts” as well. The number of counts you need to achieve per biweek depends on your GS level and your area of examination. When I was a GS-7 examiner, I had to achieve 4.5 counts per biweek, hardly a tough feat once you know what you are doing. When I left as a GS-12 examiner, I had to achieve 10 counts per biweek, which is a bit tougher, but not too bad.”

Most valuable information regarding information every patent applicant should be aware of is the crisis the USPTO faces that can be found here where Gene Quinn, President & Founder of IPWatchdog, Inc. writes about the terrible state of affairs at the USPTO, whereas at the end of fiscal year 2008 there were 1,240,704 patent applications pending at the US Patent Office. Of those pending, 140,877 were in pre-examination processing, 205,999 were beyond the pre-examination processing but not yet docketed, and 403,720 were docketed but awaiting a first action by the patent examiner.  That means that a total of 750,596 applications were pending that had yet to be acted on by the Patent Office.

Most appalling is an anonymous letter from the horse’s mouth posted by Mr. Quinn from a patent examiner telling all about thousands of apps rejected via the “quota”system. He writes:  “My view is that under Dudas the Patent Office became the Patent ‘Rejection’ Office, and instead of trying to protect IP rights (which is our purpose), USPTO management’s solution was to hire lots of people to reject out of the problem. This led to an assembly line of under trained, unknowledgeable examiners who were taught how to reject, but not how to get applications to allowance. This “reject, reject, reject now” policy is encouraged by management’s policy of issuing a written warning on an examiner’s permanent file for allowance error percentage above 10%. While this may seem high, if you only allow 20 cases a year it is no problem for quality to find some kind of error in your cases, especially when they aren’t experts in your art.

“Additionally, there is a lack of motivation to get cases allowed, because there is no incentive for the examiner to do the extra work required to arrive at claim language which can be allowed. Getting claim language to this point takes me several phone calls with attorneys and/or inventors due to the fact that disclosures typically contain multiple inventions, but claims must be limited to one and because the attorneys and not the inventors usually draft claim language which is usually broad. Add the time spent on phone calls to the lack of credit/counts given for time spent responding to amendments and the examiner is further discouraged from getting cases to allowance.

“Finally, regarding examiner pay and promotions. The fact is that a GS 15 examiner is paid less per case/count than a GS 9 examiner. Therefore all he cares about and has time for is rejections. Taking time to call applicant’s (attorney) for each of the 6+ cases the GS 15 must do every 2 weeks is impossible. Furthermore, as a GS 9 examiner there is no incentive to get promoted, because you know that you will make less per case/count if you get promoted any higher. Plus a GS 9 working OT makes more than a GS 11, 12 or 13 if he does the same number of counts as the respective higher GS level and does the OT to make up for the extra work. How does that make sense?”

And this last bit of information just about wraps it up about the true facts of attempting to get a patent. Stay tuned and please see the goods on the Miniaturized Loudspeaker Placement Platform by clicking here and our original published Application by clicking here 

 

 

One thought on “So you want to get a patent on a great idea? Lots of luck! The patent examiners are taught to reject a large percentage of applicants”

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