Secrecy Is the PTO Policy

In his litigation with the PTO, inventor Gilbert P. Hyatt was able to obtain through discovery a wealth of information concerning the SAWS program, the PTO’s handling of so-called “pre-GATT” patent applications, its treatment of his applications, and its bias and animus against him. The PTO blanket designated many of its discovery materials as confidential under a protective order. And so, in November 2017, Mr. Hyatt moved the district court to (in effect) unseal that evidence so that Mr. Hyatt could share it with the public.

The PTO opposed that motion, specifically seeking to maintain the secrecy of internal PTO emails that would serve as “evidence of unclean hands” in its treatment of Mr. Hyatt. Without citing any legal authority, it argued (in Section II of its brief) that “internal emails between USPTO employees, reports from internal USPTO databases (e.g., PALM record reports), and other internal USPTO documents” should not be disclosed to the public, even if they are not subject to any privilege and even if they could be obtained through a FOIA request. It also argued that PTO materials displayed in open court should be withheld from disclosure to the public.

In his reply brief, Mr.Hyatt explained that the PTO had “failed to ‘establish[] good cause for the “Protected” designation’ for each of the individual records at issue,” as the district court’s protective order required it to do.

Meanwhile, two days after Mr. Hyatt filed his motion to unseal, the PTO filed an “Emergency Motion To Seal Protected Material Filed By Plaintiff,” asking the district court to pull down off the public docket evidence produced by the PTO that had been shown and discussed in open court. Mr. Hyatt filed his opposition to that motion the same day, November 9, 2017, and the PTO never filed a reply. To date, the district court has yet to rule on the PTO’s “Emergency Motion.”

PTO Examiner Opines on Inventor’s Divorce, But PTO Refuses To Disclose What She Said

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.

Legal filings:

Hyatt – Khuu FOIA Complaint

Hyatt – Khuu FOIA MSJ – Memorandum

PTO – Khuu FOIA MSJ Memo

Hyatt – Khuu Response and Reply

FOIA Request: PTO Personnel Mocking Individual Inventor

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.

PTO: Public Not Interested in Learning About PTO Misconduct

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:

Hyatt v. U.S. Patent and Trademark Office

In the mid-1990s, the PTO decided that it would never issue another patent to inventor Gilbert P. Hyatt. After delaying action on his pending applications for years, the PTO changed course and threw them into administrative purgatory, expecting to wait out Hyatt until he gives up or dies. Instead, he filed suit against the agency.

Read the complaint:

Hyatt v. PTO – Redacted Complaint

Update: Why the redactions? Ask the PTO.