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putting patent caselaw into practice

The ignored duty to disseminate patent- and trademark-related information to the public

Despite its massive size, budget and complex regulatory framework, the United States Patent and Trademark Office has only two statutorily defined duties. According to 35 U.S.C. §2, the Office:

"(1) shall be responsible for the granting and issuing of patents and the registration of trademarks; and (2) shall be responsible for disseminating to the public information with respect to patents and trademarks."

That's it. Grant, issue, register; disseminate information. Simple and straightforward.

While some may argue that the "issuing" aspect has been forgotten in recent years, its difficult to argue that the Office doesn't pay sufficient attention to the first responsibility. The granting and issuing of patents and the registration of trademarks is the business of the Office, and the Office treats these responsibilities with the appropriate attention.

The same cannot be said, however, for the second responsibility. The duty to disseminate information to the public seems to be forgotten and, at times, flat ignored.

Yesterday was one of those times.

A storm had dumped a mountain of snow on the D.C. area over the weekend, causing the Office of Personnel Management to advise on its website that all federal agencies in the Washington, D.C. area would be closed the next day, December 21. Many patent practitioners immediately wondered whether the Office was officially closed...thereby triggering "the rollover rule" that would effectively extend Monday due dates to Tuesday.

Unfortunately, the Office never told the patent community whether it was "officially closed," leaving more than a few of us with less than a clear picture of whether the rollover rule was in play. Morning came and went without any did the afternoon. Nothing. I'm writing this post at 11:38 PM and the Office website still doesn't say anything about the closure (or the non-closure).

A simple message on the website would have eliminated all confusion. "The Patent and Trademark Office is open (or closed) for purposes of filing papers and paying fees...."

If you think this is trivial, roll back the clock to Halloween, 2007. As many practitioners were preparing last minute continuation applications in an effort to beat the November 1 effective date of the controversial continuation rules, the United States District Court for the Eastern District of Virginia issued a preliminary injunction that temporarily blocked the implementation of the rules. With the stroke of a pen, the urgency associated with those last minute continuation applications disappeared.

While word of the injunction circulated quickly through the blogosphere, the Office remained silent. In fact, at the close of business that day, the Office still had not directly notified the patent community about the injunction that negated the need to file last minute continuations.


Sure the Office has successes in the dissemination arena - the ability to search patents and published applications on the website comes to mind. But there are other glaring failures as well - you still cannot, for example, download a .pdf of an issued patent from the website. amazing is that?

With these failures in the "information dissemination" systems, policies and procedures of the Office, can it be said that the Office is satisfying its duty to disseminate information to the public?

Clearly I think not. The Office can, and must, do better. The website should be viewed as the authoritative source of such information, not the butt of jokes and snarky blog posts. This won't happen, though, until the Office stops ignoring its responsibility to disseminate information.

Director Kappos is bringing welcome change to many areas of the Office. I'm hopeful that a refresh of the duty to disseminate is somewhere on the punch list.


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