The following email communication was sent today to the USPTO from several Agora members. The members can announce themselves, if they so choose to do so. Please do not send any additional communications to the USPTO at this time, as that may not have the desired effect. Let’s first see if there is a response and what the response says.
Subject: Patent Reexaminations
To: Mr. David Kappos, Director USPTO
Dear Mr. Kappos,
We appreciate your efforts towards reducing the patent application backlog, as well as the efforts to improve the process and patent quality. However, in our opinion, there is another area that sorely needs attention. And that is the unprecedented length of time some patents involved in litigation can remain in limbo while being reexamined.
MPEP 2261 states "Any cases involved in litigation, whether they are reexamination or reissue applications, will have priority over all other cases." Experience has made it difficult to believe that the USPTO is adhering to that policy, even though it acknowledges the special situation. If the following examples are indeed getting priority and it still takes over three and one half years - and counting - then, in our opinion, the USPTO has a dire situation that needs fixing.
Of specific concern, and examples of what we are addressing, are patents 5809336 and 6598148, both of which have been in re-exam mode since the first request for re-exam in September of 2006. That is more than three and one half years of reexamination, and we are still waiting for some finality. There has been litigation in process (and, on occasion, suspended awaiting USPTO actions) involving these patents for virtually this entire period of time. The outstanding issue is patent validity.
And in the case of the 5809336 patent, a new re-exam was recently authorized based on the same issues and prior art that was already overcome in prior reexaminations, a seemingly blatant disregard for USPTO policy and statutory instruction. Authorization was granted just as this patent had received an NIRC from prior, lengthy re-exams. The examiner has since received official notice that there is no "significant new question" of patentability since all cited issues and prior art were considered as part of the prior re-exam, and either dismissed or overcome by patent claim amendment. Yet nearly three months after such notice, and over six months since instant re-exam commencement, we await the examiner's first Office Action which, in our opinion, should either be a (albeit delayed) rejection of the instant re-exam request or an NIRC reflecting the lack of a significant new question of patentability. The aforementioned notice and details may be reviewed by observing application 90/009457, Image File Wrapper of the nine page Transmittal Letter dated 3/2/10.
It is our sincere hope that these are the exceptions to the rule, and if any corrective action is in order, you will not hesitate to implement such.
Please accept this communication in the spirit it is being delivered - A desire to see the USPTO to be as efficient as it can be. Also, be advised that the undersigned are shareholders, among 16,000 shareholders, of the little company owning rights to the above-referenced patents. Thus, we are part owners of such patent rights and therefore have a vested interest in timely completion of USPTO efforts to establish the validity of these patents.
Thank you for your consideration,
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