Raymond D. Gilbert
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Sent: Tuesday, February 10, 2004 3:41 PM
To: ethicsrules comments
Subject: Response to Recertification proposal #03-35
Raymond D. Gilbert P.E., P.A.
6501 Inwood Dr
Springfield Va. 22150
703 971 7443 raybik@...
Ref: Recertifying attorneys and agents who practice before the agency #03-35 Dec 19 03
69442 Federal Register / vol 68 No. 239 Dec 12 2003 / Proposed Rules
Attention Mr Harry I. Moatz. Tel 703 305 9145 Fax 703 306 4134
Dear Mr Moatz and other USPTO executives,
I have read the 122 page Arecertifying@ offering by USPTO cited above and I am offering a response by e-mail Ethicsrules.email@example.com. The content of my response is:
Abstract of my qualifications regarding Federal criteria over patents and other Technical issues.. Abstract of my thoughts regarding changes proposed changes in reference #03-35.
Brief discussion of initiating a set of objective criteria
for measuring and disciplining practitioners and selected
agents of practitioners.
My Qualifications include:
Professional Engineer (PE), Mechanical Industrial, Currently Registered in States of Washington and Virginia.
[Both states demand 2-day examination for P.E. license.]
Undergraduate Engineering School, Bach. Science, Oregon State University
Graduate School; MBA, Stanford Graduate School of Business; Stanford University
Military Reserve Schools include Squadron Officer=s Course, Command and Staff Course
Experience as GS-15 team leader / manager for Production Readiness Assessment used in SECDEF acquisition decisions regarding major weapon systems.
Registered Patent Agent 29,155 through examination by USPTO. Owner of 9 patents in 3 areas of art: 474/80, 244/217 & Automotive Valve Trains Past president, Alnventors Network of the DC Area (INCA); website www.dcinventors.org Editor, 8-page monthly INCA newsletter, 5 years. [See Anewsletter@ link on website.]
My thoughts regarding proposals within Arecertifying@ paper.
1. Proposed requirement for recertification of
practitioners is not sufficiently defined nor supported to be
used as an immediate base for an already stable, though
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USPTO Administrative actions in upgrading and maintaining MPEP to highly consistent and objective standard are commendable.
Equitable and affordable adjustments in fees already have an economic effect to drive timeliness in response by responsible practitioners. Selectively steepened fees for extension of patent application is dramatic. Similarly steepened petition fees directly motivate responsible practitioner=s attention to pertinent USPTO policies and working rules.
Commendable also is USPTO sustained performance in enhancing visibility of policy, rules, status-of-patents and data. Web service reveals working rules in their current status. A n open report of regrading decisions provides objective evidence of fairness and also teaches USPTO rationale. Policy changes become evident as they occur.
An increased public recognition of the National importance of IP has prompted NYT and other major news media, including TV commentators to commend or ridicule Federal agencies as they become more self-governing.
2. Proposals within ARecertification@ paper for outsourcing practitioner entrance exam is not objectively supported. As interpreted from an initial reading, interaction between USPTO and an independent provider of examination media and process carries risk of slowing feedback between applicant and USPTO, the only legal registration authority.
As described in proposal, applicants result feedback would be delayed beyond current expectations. More seriously, all provisions for regrading, and income therefrom would be terminated.
Note: I reviewed a group of regrade papers for 2000 and 2001, finding them well written and acting as a responsible Adue process@ for response to judgment challenges that evolve from complexly-expressed multiple choice answers.
The website=s regrade documents offer an authorative teaching tool to reflect the law and basis for precedent within USPTO. This source offers a cost-effective means for practitioners to Akeep up@ should they be subject to minor disciplinary action within their firm, or to surprising USPTO administrative Afines@ for being untimely in their knowledge of the law, rules or policy.
Further, if outsourced examination contract is limited to a sole source provider, USPTO would be subject to further allegations of supportingAarbitrary and capricious decisions@regarding Abest answers@ or other administrative interpretations within USPTO. .
3. Proposed Ano-error@ grading of certification examination is unwarranted within USPTO. Such practice imposes undue demand on a professional-level discipline where examination also demands judgment calls as well as identification of facts. regarding one or more Abest@ answers within multiple choices.
ANo-error grading as a USPTO practice is unwarranted for an entrance examination; because important subsequent lapses of memory will be identified through economic disincentives within the current patent fee structure.
ANo-error grading within a proposed re-certification is even more egregious to the extent that very effective, therefore busy, practitioners must sacrifice real contribution to client and to timely USPTO timeliness to execute private studies that are extraneous within his/her practice within a well organized IP office.
Registration and licensing for other professionals including Certified Public Accountant and Professional Engineering utilize passing grade levels of approximately 70% and like the patent prosecution examinants continue to have passing rates of less than 60%, with or without open book privilege. .
4. Recertification and its proposed fees offer no benefit to sound patent practice in US. Such a ruling from USPTO is expected to draw ridicule from US House and Senate which is processing a decision to let USPTO be in charge of the spending of all their fee income. USPTO is finally becoming a self-liquidating Acost center@.
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The subject recertification proposal is expected to remind the American public and their legislators that USPTO policy makers seem to have forgotten a Bible-story precedent that was not tolerant of a forgiven debtor when he punished his subdebtor for not paying a debt to the recently totally-forgiven debtor.
5. Proposal for recertification is not persuasive.
Dependence on ethic structure from general legal practice rules of 40-some states is not a persuasive argument for overcoming major problem linked to malpractice of practitioners who are linked to inventor promotion firms.
Need for objective criteria for measuring and disciplining practitioners and selected agents of practitioners.
6. Proposal #03-35 discusses a scourge of inventors: the unethical invention promotor firms. However, the proposal abstains from proposing explicit measures, criteria and thresholds for objectively defining significant malpractice, nor does it define disciplinary actions including fines against practitioners whose technical and USPTO - registration make the unethical actions of some promotion firms possible.
Current level-of- fines are merely token against predatory invention promotion firms who are found guilty. Fees of almost any fully-scammed inventor are sufficient to meet current fines. After being found and prosecuted, the predatory firms can move to another state and then reengage in similar interstate commerce.
It seems logical to a private citizen who is not a member of the Bar that the USPTO lack of strong policy against such predatory patent-oriented fraud results in weakening cases by local attorney firms and their inventor clients against unethical invention promotor firms within State jurisdictions.
I believe that the good precedent for holding USPTO practice administratively superior to state laws in matters of patent practice could be extended
-to holding USPTO Aobjective evidence criteria @ as a national level standard for use in state level prosecution.
At least one set of such criteria has been expressed by www.UIAUSA.com . Conclusion: I believe the total plan within the 122 page Arecertifying@ document severely weakens the USPTO contribution toward a strong patent structure. I recommend ceasing its communication.
I recommend a fundamental change in USPTO policy as cited in item 6.
I am willing to invest a level of pro bono personal effort, not to include travel expenses, in an initiative, on behalf of USPTO to frame, test, and objectively promote item 6 criteria.
Thanks for bringing this issue to public notice within the USPTO web page.
Raymond D. Gilbert