Expert: Secret PTO SAWS Program Likely Illegal

Law360 reports on an analysis by former Commerce Department Inspector General Todd Zinser of the PTO’s secret “SAWS” program to block issuance of patent applications:

In an interview, Zinser said the policy of keeping applicants in the dark about SAWS was “just not right” and the secrecy of the program may have violated federal record-keeping requirements.

“They basically instructed examiners to provide misleading information to applicants. That’s outrageous,” he said. “It’s really bothersome that the leaders of the office would conduct themselves that way, systemically.”

Zinser said that if the board, which rules on whether an application was correctly rejected, was in fact made aware of the SAWS designation during the appeal, it would be “especially unfair.” The applicant would be unaware of the program and could not address with the board the issues that caused the patent to be singled out.

“The applicant and the applicant’s attorney would have had no idea what they were arguing against. It’s a secret process within a secret process,” Zinser said. “The SAWS designation gives the application some type of stigma.”

The article also reports new details on how SAWS operated:

How this worked in practice is illustrated in a 2012 email exchange produced by the office, in which an examiner asks a supervisor how to respond when an applicant calls to ask about the status of an application that the examiner has allowed but has been put in SAWS.

“What should I tell them? That the case is under SAWS review and for [an] update they should contact [another official]?” the examiner asked.

Two minutes later, the supervisor responded, “NO … you do not [say] anything about it being a SAWS case. Just tell them that it has been submitted by you … and appears to be going through [some] additional review which happens every now and again.”

Read the full article here (PDF).