Our Patent and Trademark Office has taken a decidedly activist bent over recent years, single-handedly elevating itself from patent system administrator to patent policy maker. Today’s injunction against the new rules is the first serious wound inflicted on this new animal, and now we must all wait to see if it’s a mortal one…or a mere flesh wound that might, in the long run, make the beast stronger.
Responsible activism would probably be welcome. No one disputes that the Office has serious backlog and quality issues that must be addressed. The patent community – all sides of it – would no doubt welcome carefully planned and fully contemplated changes to the administrative process that are designed to increase efficiency and quality. Indeed, this is the pipe dream many stakeholders bought into years ago when lending support to a significant fee increase.
But, unfortunately, the Office has seemingly decided that its role in our patent system is much greater than it actually is. Placing limits on an applicant’s ability to protect his or her fully disclosed invention is the province of Congress and the democratic process, not that of the regulators and notice and comment rulemaking. This is especially true when the explanation offered by the Office for the need for the rules is the fabled ‘continuation abuse’ and not the old-reliable problem of the application backlog.
Making matters worse, the attitude of the Office during this nearly two year affair has been nothing short of brash and arrogant. From the early “you’ll have to sue us” comments regarding the Office’s authority to limit continuation filings to the final decision that dropped the biggest patent prosecution deadline since the GATT date squarely on Halloween – a holiday celebrated immediately after ‘normal’ business hours, not in the morning – the Office has repeatedly shown a new air of arrogance to the patent community. The end result will likely be – and probably already is – an evaporation of the sense of partnership that seemed to exist just a few years ago. Pity.
The new attitude shows itself even today – at the time of writing this post – nearly two and a half hours after the first blog post on the issuance of the injunction, the Office still has not put any information regarding the injunction on its website. Surely the administration knew an injunction was a possibility (unless the arrogance runs so deep that they couldn’t fathom the possibility of a loss). Surely they knew that a surge of deadline-inspired filings was coming (and already in process). Surely they appreciated the fact that every minute, on this day, was critical. Surely they didn’t mean to shirk their administrative responsibility to disseminate information relating to the patent prosecution process. Surely they weren’t going for political effect when they chose to talk to the Wall Street Journal before talking to their own customers.
The injunction is nothing short of a watershed moment that will – in time – tell us if this new animal lives or dies. Patent reform appears to now be focused on the question ‘what is the proper role of the Office in our patent system?’
