On May 16, inventor Gilbert Hyatt asked the PTO to disclose any “meme” images depicting him that were circulating among the examiners responsible for examining his patent applications. He subsequently paid the $1,056 that the PTO demanded to conduct the search and review the records.
On July 18, the PTO finally responded: yes, the images exist, but, no, you can’t have them.
As it did with the email between examiners discussing Hyatt’s personal life, the PTO has taken the position that a communication between examiners carried out on the PTO’s email system concerning the person who is the subject of their work is actually not an agency record at all and therefore not subject to FOIA:
Hyatt - Hyatt Image FOIA Denial
Hyatt’s litigation to compel the PTO to disclose the email is briefed and currently awaiting decision.
Background on inventor Gilbert P. Hyatt’s Freedom of Information Act request and lawsuit:
This Freedom of Information Act (“FOIA”) case is a dispute over a single email. Plaintiff Gilbert P. Hyatt, an inventor with numerous applications pending before the Patent and Trademark Office (“PTO”), learned during other litigation with the PTO that one of its patent examiners sent an email to all members of the “Hyatt Unit” that is responsible for examining his applications containing a link to a salacious 1993 newspaper article concerning Mr. Hyatt’s divorce, with the observation that the article “provides a unique glimpse into Hyatt’s mind.” The PTO produced that email in discovery. But what it did not produce, or even acknowledge the existence of, was a second email sent in response to the first one by another examiner, Cindy Khuu. This “Khuu Email,” the PTO has conceded, was sent from one patent examiner working on Mr. Hyatt’s patent applications to another, using the PTO’s email system, and concerns the subject of their work, Mr. Hyatt. Mr. Hyatt learned of the Khuu Email only by happenstance, when it was mentioned in a deposition. He filed a FOIA request for it, which the agency denied on the unbelievable ground that it is not an agency record at all. So Mr. Hyatt is now challenging that determination in court, seeking to compel the PTO to produce an email that it appears to be unwilling to release due to the embarrassment it may cause the agency.
According to the PTO, if the email is made public, “It is likely that Ms. Khuu would be subjected to annoyance or harassment, by Plaintiff or others.”
Hyatt’s litigation to compel the PTO to disclose the email is briefed and awaiting decision.
Hyatt – Khuu FOIA Complaint
Hyatt – Khuu FOIA MSJ – Memorandum
PTO – Khuu FOIA MSJ Memo
Hyatt – Khuu Response and Reply
The PTO’s ethics rules state that agency personnel may not use “office access to email and the internet…for engaging in any activity that would discredit USPTO” or “for prohibited discriminatory conduct.” And its “Rules of the Road” for the Internet and PTO computer systems prohibit use of “USPTO resources to store or transmit offensive material.”
Is the PTO ignoring those rules when PTO personnel use its computer systems to circulate materials mocking individual patent applicants? That’s part of what this FOIA request aims to uncover:
Stay tuned for any “Hyatt Images” the PTO produces.
On May 25, 2018, the PTO demanded that inventor Gilbert P. Hyatt pay over $130,000 to begin an investigation into the PTO’s handling of his patent applications and its mistreatment of him. In response to his showing that the PTO has shielded serious misconduct from public disclosure and scrutiny, the agency denied that the public has any interest in how it treats applicants.
Read the PTO’s response to Mr. Hyatt’s FOIA request here:
On April 27, 2018, inventor Gilbert P. Hyatt requested that the PTO disclose information on its handling of his patent applications and treatment of him, so as to shed light on misconduct by the agency, its treatment of independent inventors, and its handling of what it regards as “sensitive” applications.
Read the FOIA request here: