Patent Law

SPEcial Powers

By Gary Odom and Jordan Kuhn

With USPTO allowance rates at an all time low, there has been frequent analysis and speculation regarding cause and implication. There is a player in the shadows: the supervisory examiner.

Although the role of the Supervisory Patent Examiner (SPE) has not varied greatly over time, that SPEs act as gatekeepers to patent grant transformed with the morphing of PTO management into political creatures from the black lagoon.

Supervisors were once relied upon as the voice of reason: acting as cool-calm-and-collected liaisons between prosecutor and examiner, mentoring young examiners, and protecting legitimate innovation and inventor patent rights while ensuring that rubes with a pipe dream and a wad of cash failed to secure patent protection.

Unfortunately, while once the noble and proud voice of the PTO, many SPEs are now nothing more than under-qualified lapdogs to upper management, barking when told and never afraid of rolling over. So, when Dudas and Doll commanded that allowance rates decrease in order to stomp the illusion of too many junk patents, career SPEs, well seasoned in kissing ass, were all too eager to pucker up again.

Since a large percentage of allowances must be signed off on by supervisors (although, primary examiners sign a fair amount as well), SPEs have the power to dictate what is patented. Theoretically, this might sound OK. However, it is hell and gone from copasetic in a system where examiners spend untold hours desperately searching for prior art that fails to invalidate, yet still forced by an SPE to knowingly apply a bogus rejection in order to keep down allowance rates, since it is obvious that global innovation is dead, as proved by rigged statistics showing rigorous examination.

How long and how often can PTO honchos, including SPEs, discourage innovation through fallacious rejection of rightfully earned patent rights before they truly kill innovation? At least for now, SPEs earn the Dudas gold star of approval, however tarnished its integrity.

Full post as published by The Patent Prospector on February 22, 2008 (boomark / email).