Letter of 123 Patent Professionals and PTAAARMIGAN to Office of Information and Regulatory Affairs (OIRA) re information collection DOCX Submission Requirements (Oct. 27, 2023)

52 Pages Posted: 29 Nov 2023

See all articles by David Boundy

David Boundy

Potomac Law Group, PLLC; Cambridge Technology Law LLC

Date Written: October 27, 2023

Abstract

This ICR seeks clearance for the PTO’s buggy new software. The PTO proposes to displace a reliable, voluntary consensus standard that it currently accepts, and replace it with a single-company standard. The PTO proposes to create about $200-600 million of annual burden for proofreading and error correction, in order to yield a savings to the agency of only about $780,000 per year. OIRA should not clear burden created by the PTO’s software bugs, and should not clear an information collection that shifts costs or burdens onto the public that are “disproportionate” by a ratio of over 200-to-1.

The PTO’s computer system for filing patent applications is about 20 years old. It is comparatively reliable and more-or-less adequate, but could use some updating. (A more detailed tutorial on the technology is given in the first few pages of our 60-day letter.) In 2015, the PTO commissioned a “yearlong study” that concluded that the update should do what every other agency and court does—collect information in PDF form (the industry-wide voluntary consensus standard for “portable document form” that guarantees stability across all computers for all time). Instead, the PTO’s engineers ignored the PTO’s own study, and decided to collect information in DOCX form (Microsoft’s proprietary format used in Microsoft Word® and that no other vendor implements with high reliability, that leaves many parameters variable and “implementation defined.”). Public comment letters have pointed out that DOCX cannot work reliably for this purpose—DOCX is not designed to ensure portability or reliability as a file moves from one computer to another, or over time, as Microsoft changes Word in unpredictable ways. During the NPRM comment period, the public reported filings that failed because the PTO’s buggy software changed the document3—the PTO responded by claiming “The Office has not received notifications of any issues resulting from the filing of applications in DOCX format”4 Over the last three years, many more bugs have turned up and been reported to the PTO. The Supporting Statement attempts to conceal the truth from OIRA, claiming “The USPTO has not experienced the issue raised by commenters.” While perhaps literally true, the PTO’s “experience” is irrelevant as a metric for software bugs in user-facing software. The PTO’s software is buggy and unreliable because the PTO made an unreliable choice in its initial design. Software built on an unreliable foundation is inherently unreliable. The bugs can’t get fixed because the PTO insists that it hasn’t “received notifications” or “experienced” the bugs for itself.

Keywords: patent law, administrative law, rulemaking, Administrative Procedure Act, Paperwork Reduction Act, Information Collection regulation, Information Quality Act, Patent and Trademark Office (USPTO)

Suggested Citation

Boundy, David, Letter of 123 Patent Professionals and PTAAARMIGAN to Office of Information and Regulatory Affairs (OIRA) re information collection DOCX Submission Requirements (Oct. 27, 2023) (October 27, 2023). Available at SSRN: https://ssrn.com/abstract=4616069 or http://dx.doi.org/10.2139/ssrn.4616069

David Boundy (Contact Author)

Potomac Law Group, PLLC ( email )

PO Box 590638
Newton, MA 02459
United States
646 472 9737 (Phone)

HOME PAGE: http://https://www.potomaclaw.com/professionals-David-Boundy

Cambridge Technology Law LLC ( email )

PO Box 590638
Newton, MA 02459
United States
646 472 9737 (Phone)

HOME PAGE: http://www.CambridgeTechLaw.com

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