“It is embarrassing that the repository for innovation in America can’t figure out basic software and is making the conscious choice to plow forward despite the fact that Patent Center is not ready.” – Gene Quinn
Numerous letters have been submitted to the U.S. Patent and Trademark Office (USPTO) in recent weeks regarding the Office’s decision to retire Private PAIR and EFS-Web, the two main software systems used by patent applicants, on November 8. The organizations are urging the agency to delay the transition due to numerous bugs and missing features.
Groups that have weighed in so far include the American Intellectual Property Law Association (AIPLA), the National Association of Patent Practitioners (NAPP), the Patent Center Listserv, Patent and Trademark Attorney, Agents and Applicants for Restoration and Maintenance of Integrity in Government (PTAAARMIGAN), and hundreds of individual patent professionals.
The USPTO has been conducting trainings, listening sessions, and other stakeholder events on the Patent Center for several months. According to the Patent Center webpage, the new system “has 100% of the functionality of EFS-Web, Public and Private PAIR, and is available to all users for electronic filing and management of patent applications.” But an overwhelming number of IP stakeholders don’t think it’s ready for launch, and patent professionals have told IPWatchdog that the USPTO is simply incorrect—Patent Center lacks basic functionality found in both PAIR systems and EFS-Web.
AIPLA, for instance, said in an October 30 letter that the new system still has numerous problems, such as “not providing all the sponsorship features found in EFS-Web that allow attorneys and their assistants to hand work back and forth” and “Usability concerns around sponsored accounts with large (100+) amounts of customer numbers.”
While AIPLA said they believe Patent Center will eventually be a good replacement for the old systems, a recent survey of the association’s membership “indicated that users were not yet comfortable with Patent Center as a full replacement of EFS-Web and Private PAIR and were having difficulties adapting to the change.” The survey found that about 88% of respondents felt Patent Center isn’t ready.
AIPLA acknowledged USPTO staff’s statements that “there is no good time to make automation changes,” but said this is a particularly bad time, being “the fourth calendar quarter when workload challenges are at a high level,” and asked that the transition be delayed.
PTAAARMIGAN was less understanding, accusing the Office in its October 16 letter of “waste, fraud, abuse, and gross mismanagement in software operations.” The letter claims that USPTO IT staff “committed various patterns of misfeasance and malfeasance in the development of the new software (called Patent Center)” and adds that “[e]vidence suggests a pattern of lying by IT staff to senior management about current status and readiness, to cover up that misfeasance.” PTAARMIGAN asked for a delay (which by their estimate should be about one year) and also an investigation as to “why the USPTO has not implemented sound software engineering practices.”
The NAPP told the USPTO on October 31 that “[b]ased on the rate at which bugs and instabilities have been declining and features have been implemented over the past few months, Patent Center will not be ready for at least six months.”
According to the letter, the issue fee payment feature is one key example of a bug in Patent Center that can be fatal to obtaining a patent. The issues are causing waste and abuse “because applicants constantly run into Patent Center bugs and have to diagnose them and figure out work-arounds.” Contributors to the letter estimated that the cost of the software bugs will be $150 million to $450 million per year.
A letter from 137 IP professionals submitted to the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) on October 9 estimated the “economic effect because of the PTO’s software bugs could well be in the range of $1 billion per year.” That letter asks OIRA to remind the Office that it “may not impose a burden of this magnitude without an [Information Collection regulation] ICR clearance” and that the new system should be delayed until a clearance is obtained after full public comment.
In a November 1 follow-up to that letter and another, 82 patent professionals again requested the OIRA intervene and claimed new facts that have arisen “raise the possibility that the agency may have given you materially false information, and confirm that the nine-figure estimate we gave you in an earlier letter is likely correct.” The assertion about materially false information was based in part on the outcome of a meeting between the USPTO and patent practitioners detailed in blog posts by Carl Oppedahl of the Patent Center listserv.
Oppedahl has authored numerous posts about the situation, and also filed a letter on behalf of 178 members of the listserv. The letter explains that there are more than 80 “failure reports” presently outstanding relating to bugs with the system but that the USPTO has categorized these as “feature requests” and has failed to act on most.
In his latest blog, Oppedahl recounted an October 18 face-to-face meeting with USPTO staff about Patent Center that he describes as having gone badly, to say the least. According to the post, Commissioner for Patents Vaishali Udupa hijacked the meeting with a last-minute slide presentation and resisted allowing the listserv’s slides to be presented. Oppedahl also said Udupa claimed AIPLA was now on board with the launch, but this was subsequently proven to be false.
One in-house managing patent attorney who spoke to IPWatchdog about the Patent Center launch reiterated AIPLA’s concerns with the sponsorship features. The attorney said that, as of two weeks ago, a sponsored user was not able to submit corrected application data sheets (ADSs), E-Terminal Disclaimers, or Quick Path Information Disclosure Sheets (QPIDS) requests in Patent Center like they have been able to under EFS-Web. It also does not seem like a sponsored user is provided any option of being able to start/generate an e-petition in Patent Center as they were under the old system.
According to the Patent Center FAQs, Practitioner Support users “can prepare Web 85b submissions, but will need the Practitioner’s signature to submit.” The FAQ continues:
“In accordance with MPEP 37 CFR 1.4(d)(4), only registered patent practitioners and pro se inventors may sign correspondence. These include ePetitions, eTerminal Disclaimer, micro-entity certification forms, and other web forms, which allow for signing by S-signature. As such, Practitioner Support users are unable to enter the s-signature on behalf of patent practitioners.”
And the “What’s new” section of the Patent Center webpage includes a September 2023 update indicating that, while Practitioner Support users will be able to prepare eTerminal Disclaimer and Corrected ADSs for the practitioner, the practitioner must sign and submit them. But, at least as of two weeks ago, based on information IPWatchdog has received, this update seems to be erroneous.
Despite the many comments and concerns, it seems tomorrow’s launch is a done deal. A USPTO spokesperson told IPWatchdog that the Office “values all stakeholders’ feedback,” and that it will continue to work with users:
“Our goal is to provide high quality service to all who do business with us. Since its launch in 2017, Patent Center has been rigorously user-tested, and we have made many improvements based on public feedback. We are never done listening, and continue to welcome customer feedback as we retire the legacy EFS-Web and Private PAIR system in favor of modern technology that is more capable of meeting the evolving needs of our stakeholders.
We realize a move to any new technology requires our customers to learn a new system and, to the extent they have built systems around our old technology, to update their own systems. We are doing all we can to support them in those endeavors including offering extensive training, and we continue to stand ready to assist all those who need it.”
IPWatchdog CEO and Founder Gene Quinn said this is just the latest example in a long history of computing resources offered by the USPTO “being substandard and unacceptable.” Quinn explained:
“Indeed, if there were private sector competition possible, the USPTO would have gone out of business long ago because of antiquated, inadequate, and extremely buggy frontline software. Of course, the USPTO has a monopoly and doesn’t need to provide user friendly, or even user acceptable or user usable software systems, and they typically don’t. Over a number of years, however, the Office managed to turn the much-maligned early version of EFS-Web into something that was at least acceptable, and usable for its intended purpose. So, why would the choice be made to retire EFS-Web and PAIR rather than continue to improve what finally became a workable solution?
By forcing Patent Center onto the community before it is ready, the Office is consciously choosing to start over by taking a step backwards. The problems and bugs facing Patent Center are well-known, with both AIPLA and NAPP urging the USPTO to slow down and stand down from retiring EFS-Web and PAIR until such time that Patent Center can actually function without long stretches of down time and without capacity issues. It is embarrassing that the repository for innovation in America can’t figure out basic software and is making the conscious choice to plow forward despite the fact that Patent Center is not ready and does not reliably work for its intended purpose. The patent community deserves better—much better.”
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