A USPTO Ombudsman Pilot Program, Now That's Using ADR in IP! Or is it?
On April 6th of this year, the Patent and Trademark Office announced its 
new Ombudsman Pilot Program for patent examinations. David Kappos, the USPTO’s Director, states in his blog entry of May 12, 2010 that the program was established to assist in meeting the Agency’s priority to improve relations with its stakeholders.
Sounds good, doesn’t it? Admittedly, it is refreshing to see that the PTO is responsive to complaints from patent attorneys. Patent practitioners and applicants alike have often been frustrated with the process. Director Kappos gives examples such as when the examination process has stalled, or where applicants are unsure of the appropriate person to contact for assistance. Or where attorneys need assistance getting connected with the right person to help them resolve a particular issue. In other words, he says, the program is intended as a “pressure relief valve”.
This is all very laudable, but is this really the job for an ombudsman, Mr. Kappos? I always thought an ombudsman was there to resolve disputes you might have with an agency, not just a sophisticated receptionist who can connect you with the right person.
Maybe this person ought to be called a Facilitator rather than an Ombudsman. Yes, I hear you wonder: “Isn’t an ombudsman a facilitator?” Yes, all mediators and ombudsmen are facilitators, but not all facilitators are mediators or ombudsmen. The online Merriam-Webster dictionary defines ombudsman as “a government official (as in Sweden or New Zealand) appointed to receive and investigate complaints made by individuals against abuses or capricious acts of public officials.” That is not, at least not at the moment, what the USPTO’s ombudsman is supposed to do.
The USPTO’s webpage dedicated to the Pilot Program describes its purpose as:
“enhanc[ing] the USPTO’s ability to assist applicants and/or their representatives with issues that arise during patent application prosecution. More specifically, when there is a breakdown in the normal prosecution process, the Ombudsman Pilot Program can assist in getting the process back on track.”
The “official” purpose sounds more meaningful, and even somewhat at odds with what Director Kappos describes. I can see that such an Ombudsman could be useful if the normal prosecution process has stalled or even broken down completely, and nobody seems to know why. But when you read on, the details are pretty much the same as what Director Kappos describes. So, back to “Facilitator”?
According to the aforementioned website, the Ombudsman Pilot Program is not intended to circumvent normal communication between applicants and examiners or Supervisory Patent Examiners (SPEs). Applicants are encouraged to continue to use established customer service offices throughout the USPTO for information on other related topics. But wait, SPEs also function as ombudsman representatives!
The Program is running across all Technology Centers, using TC ombudsman representatives who are Supervisory Patent Examiners (SPEs) and Quality Assurance Specialists (QASs) prepared to field questions and concerns from the public and work with the appropriate PTO employees (SPEs, Directors, Petitions contacts, etc.) to facilitate responses. The ombudsman representative will help ensure that the applicant's issues are addressed quickly – usually within five business days. The ombudsman representative will also ensure confidentiality when requested by the applicant or applicant's representative.
The good news is that this Pilot Program provides an additional tool in helping to move the patent application process along. Presumably, another set of eyes can look at the situation and inquire why the process is stalled. I hope the staff members who are expected to play a role in the Pilot Program will get adequate training to use mediation-derived techniques that they can use in dealing both with the applicant and their colleagues who have been assigned to the matter.
Note, however, that the Ombudsman Program is not designed to deal directly with the merits of the application. An answer to a “FAQ” summarizes it nicely:
“When you have a question about a specific application in prosecution and have been unable to find the correct person to assist you or have been unable to obtain assistance from the examiner or SPE to whom the application is assigned, then the Ombudsman Pilot Program is the venue to use. If your question is a general question and not associated with a particular pending patent application, then the Ombudsman Pilot Program is not the appropriate program to use. The Ombudsman Pilot Program is not meant to be a universal assistance center but rather a place to get prosecution assistance when you have exhausted normal channels in the Technology Center (TC).”
The Pilot Program is scheduled to run for a year. After that, the Notice in the Federal Register indicates that the USPTO may extend it with “appropriate modifications based on feedback from the participants, the effectiveness of the pilot program and the availability of resources.”
To use the program, you need to complete a form on the PTO website, which you will find by scrolling down all the way. This form requests basic information, such as name, e-mail address and telephone number. You submit this information directly from this webpage, whereupon someone will call you within one business day.
So, patent applicants, let the USPTO know how this program is working for you, and whether or not you would like to add certain tasks to the Ombudsman, such as receiving and investigating complaints, and acting as an intermediary to help resolve them. Under the form just described, you will find the e-mail address you can use to give feedback, questions or comments!
-EvG
