If you want to copy any of this material into your own word processor, use your left mouse button to highlight the material, click on Edit - Copy, open your word processor, click the mouse to set the cursor somewhere, click on Edit - Paste and it will appear.
The exhibits referenced in this document are on this website in a .pdf file: exhibits.pdf. To view them you will need the free Adobe Reader at www.adobe.com/support/downloads/main.html. Once you have the exhibits into Adobe, you can print out all 511 pages, save it your hard drive or save it to a CD and take the CD to Kinko's who will print it out for you for about $35. If you have any trouble downloading the file, call me (813-634-6048) or send me email firstname.lastname@example.org
|Addresses for Service.|
All of these accept service by certified mail.
And the following are to also receive copies of your complaint.
|Jurisdiction and Venue.|
Any federal court has jurisdiction and venue over this action since it is multi-district and because of the provisions of the following:
The United States Code ("USC") is available at http://assembler.law.cornell.edu/uscode/
|The Statutes That Are Involved.|
|1. Paperwork Reduction Act (PRA):
The Paperwork Reduction Act [44 USC 3501-3521] controls the collection of information on particular forms by federal agencies. It supersedes all other laws, except the Privacy Act. It severely limits the collection of information by mandating very stringent standards for what (and how) it can be collected. Here are some examples:
View a number of Other Violations of the Paperwork Reduction Act.
View the Paperwork Reduction Act.
|2. Privacy Act (PA):
The Privacy Act (5 USC 552a) was enacted to protect citizens against the release of their private information collected by the government. To pay an overdue fine on a Patent, you sent in Petition Form PTO/SB/65 along with the maintenance payment and overdue fine. The Petition Form required a "Showing" of why you were late paying the fee. The Patent Office statement about the Showing is very fuzzy about the exact information to be supplied. After receiving the form, the Patent Office almost always (91% of the time) dismisses the petition (just as they did in your case) and then lists all of the additional information which must be supplied for reconsideration. And even though you may have supplied the required information, the Petition was denied (citing the Unavoidable Standard) and, no matter what, your patent expired!
The information which is "required" can be of a very personal nature. The financial and medical information comes under the Privacy Act because it includes "financial transactions, medical history" [5 USC 552a(a)(4)] maintained in a "system of records" that can be retrieved by the name of the individual [5 USC 552a(a)(5)]. The information that the Patent Office collects becomes part of the patent's "wrapper" which is available to anyone, both at the Patent Office building and over the internet. This is in spite of the fact that "no agency shall disclose any record which is contained in a system of records to any person except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains..." [5 USC 552a(b)].
The Act, at 5 USC 552a(e)(3), absolutely requires a very lengthy statement on any form that collects information. The statement informs the users of their rights and how their information is going to be protected. For example, "no agency shall disclose any record which is contained in a system of records to any person except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains..." 5 USC 552a(b). The required Privacy Act Statement was totally missing on Petition Form PTO/SB/65 from its inception until January of 2005!
In addition, "Each agency that maintains a system of records shall maintain in its records only such information about an individual as is relevant and necessary..." [5 USC 552a(e)(1)]. The financial, medical and docket system information is irrelevant since the examiners who dismiss and then deny your Petition don't even have the expertise to analyze it, according to their own job descriptions. And yet, it is collected and maintained in your patent wrapper and on the internet.
My dumb-as-dirt assessment is that, just as illegally obtained statements and evidence are thrown out of court, it seems that the Showing on Form PTO/SB/65 cannot be used to determine the merits of a reinstatement since the information was illegally collected via gross violations of the Privacy Act, the Paperwork Reduction Act and the Internal Revenue Code. That leaves just the fact that the person sent in the maintenance fee and the overdue fine which, in and of itself, should mandate that the patent be reinstated!
View the Privacy Act.
|3. Internal Revenue Code:
Some of you were required to submit Income Tax Returns which were then made public. It is forbidden for the Patent Office to release them. The Internal Revenue Code provides for relief when a federal employee discloses "any return or return information" who isn't allowed too. 26 USC 6103 is shown here with just the headers to show that the Patent Office is not included among those who can release income tax information.
The relief is in 26 USC 7431 and is the greater of $1,000 or damages/attorney fees.
|4. Criminal Codes:
Five sections of the Criminal Codes (Exhibits 6-4 & 6-5) prevent falsification of documents by federal employees.
Every three years, all agencies must send an Approval Request to the OMB to renew all forms covered by the Paperwork Reduction Act. Normally, several forms are grouped together into a "Collection." Form PTO/SB/65 is part of Collection 0651-0016.
The Approval Requests which were sent by the Patent Office to OMB were definitely falsified. For example, in the 1999 Request, the amount of time to process a Form PTO/SB/65 was reduced from two hours down to thirty minutes with the grade of the processor being reduced from a GS-15 to a GS-7. However, the form continued to be processed by a GS-15, usually Brian Hearn. The reductions in time and grade were just an accounting trick to make it look to Congress like they had actually reduced the burden. On the other hand, if a clerk is spending just half-an-hour to process your petition, why were you asked to submit so much information?
Counsel Beware! In his motion to dismiss, the local U.S. Attorney cited U.S. v. Singleton, 165 F.3d (10th Cir. 1999) as showing that federal employees are exempt from obeying the Criminal Codes because those statutes start with the word "whoever." The court let him get away with that. If you read the decision in U.S. v. Singleton (Exhibit 6-6), you'll see that just the opposite is true. Federal employees who are not performing a government function are indeed subject to the Criminal Codes. Lying and falsifying documents is not a government function. U.S. v. Singleton established that only a federal employee specifically performing a government function, like wire-tapping, is exempt, but that all others are subject to the Criminal Codes!
That lawsuit revolved around the conviction of Sonya Singleton for money laundering and distributing cocaine. Under a plea bargain agreement, her boyfriend testified against her (which probably ended the relationship). Singleton pointed out that there is a criminal code statute against bribing a witness to testify - which is what plea bargaining amounts to. She pointed out that the bribing statute 18 USC 201(c)(2) starts with the word "whoever" just as do many of the other criminal code statutes and that the U.S. Attorney is part of "whoever" and thus violated the law by "bribing" her boyfriend to testify. Over and over in the decision the court noted that their finding that "whoever" does not apply to the U.S. Attorney's involvement in plea bargaining was for the statute 18 USC 201(c)(2) only, and that otherwise the government is included in "whoever" for criminal code violations. The example of inclusion that the court used was "whoever" as used in 18 USC 1622, wherein "whoever", including the government, cannot bribe a witness to commit perjury. The very clever test that the court set forth for federal inclusion in a statute that includes "whoever" is whether the statute refers to a "government function". Plea bargaining is (based on common law) a government function but bribing a witness to commit perjury is not a government function. Therefore, the government is not a part of "whoever" when it comes to plea bargaining but is a part of "whoever" when it comes to bribing to commit perjury.
Similarly, falsifying documents and making false statements is not a "government function", therefore in those cases "whoever" would include federal employees. The false statements made by the defendants and their dereliction of duty in connection with all of the counts were not "government functions." The defendants are guilty of violating the various criminal codes which should be factored into the relief sought.
I also believe that the citing of U.S. v. Singleton was a blatant attempt by the defendants to deceive the court and that it violated the Florida Bar's "Guidelines for Professional Conduct" and "Rules of Profession Conduct". If you are a lawyer with a client who plans to bring an action against USPTO/OMB/Galaxy, I don't know if this is important for you. Do lawyers attack each other for ethics violations? Are lawyers suppose to act in the best interests of their clients? If so, and the U.S. Attorney cites U.S. v. Singleton, then...
This was the defendants' version of U.S. v. Singleton. I don't think they took the time to check the decision or else they were trying to deceive the court.
This is what the court actually said in U.S. v. Singleton. Note that "whoever" includes the gov't except for 18 USC 201(c)(2) and that your litigation will make no mention of 18 USC 201(c)(2).
These are the two criminal code statutes cited by the court in U.S. v. Singleton as examples of when "whoever" does and does not include the government. The first statute excludes the government from "whoever" for plea bargaining. While the second one includes the government in "whoever" for bribing for perjury.
These are the Criminal Codes that the defendants violated and that do include the defendants as "whoever".
The court's full decision for U.S. v. Singleton. Note that it speaks often of acts' having to "government functions" to be exempt from the Criminal Codes.
|5. Administrative Procedure Act (APA):
The Administrative Procedure Act (5 USC 702,703,704,706) is a very powerful law. If judicial action is not provided for under some other statute, then it takes over. It provides that if an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority, the litigation shall not be dismissed nor relief therein be denied. That is, it provides that a person suffering legal wrong, adversely affected or aggrieved by agency action is entitled to judicial review.
If the relief sought is not money, the court cannot dismiss just because it is against the United States. If money is sought, the court has the discretion to dismiss or not to dismiss. And it applies to both civil and criminal code violations! It looks to me like if sovereign immunity is not specifically invoked, the APA serves as a catch-all for relief based on being "adversely affected or aggrieved by agency action." It is a very short, and to the point, law.
Counsel Beware!This is what the U.S. Attorney wrote in his Motion to Dismiss:
"Plaintiff does not appear to request review of the USPTO's decision on his maintenance fee petition. While such review is generally available under the Administrative Procedure Act ("APA"), plaintiff would face insurmountable burdens if he were to seek such review here. Because Plaintiff failed to file a request for reconsideration within the two-month period set forth in 37 C.R.R. 1.378(e), any right to judicial relief is foreclosed. McKay v. Commissioner of Patents and Trademarks, 217 F.3d. 856 (Table, Text at 1999 WL 955907 (Fed. Cir. 2000), citing Barrington Manor Apartment Corp. v. United States, 392 F.2d 224, 228 (Ct. Cl. 1968). Further, the APA waives sovereign immunity to permit suit against the United States only for relief "other then monetary dameages." 5 U.S.C. 702; see also Lane v. Pena, 518 U.S. 187, 196 (1996). Thus, Plaintiff cannot hope to obtain monetary relief under the APA for the USPTO's denial of his maintenance fee petition."
If you plan to cite the APA, you might want to anticipate what your U.S. Attorney might write.
These are the relevant statutes of the APA that could apply.
This is the relief page from the Complaint. Note that most of the reliefs sought are not monetary. As you are filing your own action against USPTO/OMB/Galaxy, you may want to tailor part of your relief to fit around the Administrative Procedure Act, if you think it applies.
This is referred to as the Public Protection clause of the PRA. It decrees that "no person shall be subject to any penalty for failing to comply with a collection of information that is subject to [the Paperwork Reduction Act]." Form PTO/SB/65 has failed to comply with the PRA since its inception, and when given the opportunity to correct the violations, USPTO/OMB/Galaxy all chose to essentially go with the form content from 1995, implying that they don't think the form has ever violated the PRA or the PA.
View the Administrative Procedure Act.
|Possible Approaches To A Lawsuit.|
There are several different angles of attack:
I based my litigation in part on the fact that significant property rights were lost by using an invalid form and by then being illegally required to submit additional personal information in order to pay an overdue fine. I think the latter would be a little bit like a U.S. Attorney making a plea bargain deal in which the individual was required to go out and murder someone, i.e., commit a crime, in order to qualify for the deal.
You might want to consider reviving your client's patent as part of the relief in your own lawsuit against USPTO/OMB/Galaxy. It might be that such a lawsuit would have to be brought in the D.C. Circuit - not sure.
I chose as the primary defendants (1) the Patent Office, (2) the Office of Management and Budget since it was their responsibility to make sure that Form PTO/SB/65 complied with all the laws, and (3) Galaxy Scientific Corporation who is a contractor of, and has very close ties with, the USPTO for the responsibility of making sure PTO/SB/65 complied with the law.
Possible Counts For A Lawsuit.
Please note that on this website I often mention USPTO and Galaxy together. Galaxy never bothered to respond to any of my requests for discover. So I don't know in many cases of who did what. The fact that I mention Galaxy is just to alert you that they may have been at fault, but I don't know for sure. To clarify matters, perhaps you will be luckier at getting discovery from them than I was.
The Paperwork Reduction Act (44 USC 35xx) became law on October 1, 1995. Section 44 USC 3512 of the PRA states "... no person shall be subject to any penalty for failing to comply with a collection of information that is subject to this chapter if the collection of information does not display a valid control number ... The protection provided by this section may be raised in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable thereto." The word "otherwise" means "otherwise" (Exhibit 8-2) and probably includes a "private right of action." The Congressional use of "otherwise" was to cover any action that could be raised. Otherwise, they would not have used the word "otherwise."
This is a memo from OMB's John Graham pleading with the various agencies to fully comply with the PRA. The ironic thing about this memo is that later exhibits will show that David Rostker, the OMB's Desk Officer who works directly for Graham, was the person most instrumental in allowing Form PTO/SB/65 to not comply with the PRA or PA. Responsibility for compliance with the PRA and PA is vested in the OMB's Director who delegates the administration down to Graham. I'm not sure if the administration is technically delegated to Rostker, even though, he's the one that does the work. This memo is available on the OMB's website at: http://www.whitehouse.gov/omb/inforeg/cio_memo053003.pdf
If the director of a particular agency so wishes, he/she may override the provisions of the PRA. Exhibits 10-1 & 10-3 are Freedom of Information Act ("FOIA") responses which show that there are no overrides in place for the USPTO and OMB. Therefore all of the provisions of the PRA apply to Form PTO/SB/65.
This particular count will be usable by you if you used Form PTO/SB/65 before January of 2005. After that date, the Patent Office began putting the required Privacy Act Statement on PTO/SB/65.
USPTO/OMB/Galaxy are mandated to obey the Privacy Act. Form PTO/SB/65 has lacked the required "Privacy Act Statement" from inception.
The lawsuit was settled out of court. In the Settlement Agreement, the Patent Office agreed to put a Privacy Act Statement on all of their patent forms that collect information including PTO/SB/65, by November 1, 2007. They agreed to this without any reservations, i.e., they did not deny their wrongdoing that prior to the settlement, Form PTO/SB/65 did not have the required Privacy Act Statement on, or attached to it. Starting in January of 2005, it now has the required Privacy Act Statement.
It is alleged that (1) from its inception, '65 has been invalid for the collection of information because it lacked the required Privacy Act Statement, (2) USPTO/OMB/Galaxy made false and fraudulent statements by the omission of the required Privacy Act Statement on '65, (3) USPTO/OMB/Galaxy were aware that '65 lacked the required Privacy Act Statement, (4) USPTO/Galaxy sent OMB a fraudulent Approval Request which lacked the required Privacy Act Statement, (5) OMB approved '65 even though it lacked the required Privacy Act Statement, (6) USPTO/OMB/Galaxy conspired to perpetuate an invalid '65 that lacked the required Privacy Act Statement. All of these acts were negligent and willful. Plantiff's privacy was invaded. Plaintiff lost "substantial property rights". Plaintiff was harmed by an illegal penalty, based on the use of flawed '65. Court ordered relief is obviously available by undoing the penalty. Relief is also available under the APA, as previously noted. Causes of Action could include Conspiracy, Fraud and Negligence.
The statute requiring the Privacy Act statement on PTO/SB/65. Also there is the statute that requires a notice when Social Security account numbers are requested.Exhibit 61-4:
The Privacy Act statement on a typical IRS form. That's the way the law requires that it be done.Exhibit 62:
All of the PTO/SB/65's from 1995 until 2006. Note that the required Privacy Act statement is nowhere to be found prior to 2005.Exhibit 63:
In 2004, I innocently called the USPTO and asked for a copy of PTO/SB/65. There was no Privacy Act statement in the packet.Exhibit 64:
My own Federal Register comments specifically noting that the Privacy Act statement was missing from PTO/SB/65. USPTO/OMB/Galaxy ignored my comments.
The significance of the next two exhibits is that Galaxy was aware (via the Federal Register comments) that PTO/SB/65 lacked the required Privacy Act Statement and yet they did not raise any concerns, even though that's what they were getting paid to do.
Exhibit 65-1,2 is the email from Rob Flax (Galaxy) to Jeanne Clark (USPTO) asking questions about how to handle this-and-that. Note that there is no mention of the missing Privacy Act Statement.Exhibit 66:
Again, this is a recital of the APA which I have put at the end of each count's exhibits to remind the Court that relief must be granted.
The Patent Office has released your personal documents (including over the internet) that were submitted either with Form PTO/SB/65 or for a reconsideration after the denial. These may have included:
The Court's "Report On Privacy And Public Access To Electronic Case Files."Exhibit 68:
Documents from the Dep't of Justice concerning the release of "tax return information." It notes that the Internal Revenue Code preempts the Privacy Act concerning the disclosure of tax "return information," which is defined at 26 USC 6103(b)(2). In my Petition Denial, the required "additional information" was a direct lift of language from the Internal Revenue Code.Exhibit 69:
This is a case and statutes concerning the release of Social Security account numbers. A number of the Petition Decisions required additional information consisting of "income tax returns" and "payroll documents" both of which include Social Security numbers. USPTO/OMB/Galaxy did not warn the inventors that this information would be made public.Exhibit 70:
The Federal Register comments in which the inventors expressed anger that their personal information which was submitted in connection with PTO/SB/65 was made public.Exhibit 71:
The two injunctive-type reliefs sought in my Complaint concerning privacy rights and the release of private information.Exhibit 72:
A small sample of forty-four documents available from the USPTO and available at their office and on their website. Some of them are quite personal, particularly those dealing with medical and psychiatric matters.Exhibit 73:I try very hard to never lie and I don't drink, but I sure do procrastinate! So on a lighter note (and since you may be a lawyer), my favorite exhibits in this group are the counseling session notes (Exhibits 72-13 to 72-20) for Charles Hilke, the patent attorney from Salem, Oregon, who is recovering from drinking but remained a master at lying and procrastinating. His counselor, Jerome Noble, another lawyer who is also a recovering alcoholic, starts on an upbeat note (Exhibit 72-14). But by the time a year has passed, he throws up his hands in disgust (Exhibit 72-20).
These are two letters that I wrote the then Director of the Patent Office in November of 2002 when I was at Arlington copying inventors' personal information. In the first letter I invited him to walk over and see some of the personal information that his folks are making available to the public. He apparently wasn't concerned because he didn't take the time to walk the fifty yards to see for himself. Pity!Exhibit 74:
My letter asking for my money back and noting that I refuse to accede to the USPTO's requirement for "additional information" concerning my financial situation.
The significance of the next two exhibits is that Galaxy was aware (via the Federal Register comments) of the release of private information submitted in connection with PTO/SB/65 and yet they did not raise any concerns, even though that's what they were getting paid to do. Since Galaxy was being paid for "records management" services, discovery will be required to determine if Galaxy ever discussed the privacy issues of releasing private information with USPTO personnel.
Exhibit 75-1,2 is the email from Rob Flax (Galaxy) to Jeanne Clark (USPTO) asking questions about how to handle this-and-that. Note that the retention and release of private records is not mentioned.Exhibit 75.5:
Again, this is a recital of the APA which I have put at the end of each count's exhibits to remind the Court that relief must be granted.
This particular count will only be usuable by you if you submitted or were asked to submit income tax information.
Some of the Paperwork Reduction Act statutes that deal with "practical utility."
The extract from the 1996 Approval Request about a GS-15's processing PTO/SB/65 information in two hours.
The extract from the 1999 Approval Request about a GS-7's processing PTO/SB/65 information in thirty minutes.
The extract from the 2003 Approval Request about a GS-7's processing PTO/SB/65 information in thirty minutes.
A Summary Chart showing how the Burden Hours and Costs to process PTO/SB/65 dropped dramatically starting in 1999 after the GS-7 started processing the form in thirty minutes. However, as noted previously, this was not a mistake nor was USPTO/Galaxy trying to cook-the-books, because it was brought to their attention in the Federal Register comments and no change was made. Therefore, USPTO/OMB/Galaxy are on record that a GS-7 is doing the processing of PTO/SB/65 in just 30 minutes.
Examples of typical requirements for additional information for PTO/SB/65. USPTO/OMB/Galaxy are on record that the information from such requests can be processed in a "timely and useful fashion" by unqualified civil servants in a very short period of time. Hard to believe, isn't it!
The Job Description for the GS-15 who processed PTO/SB/65 up until 1999. Note that he acts "independently" and that no credentials are required to process the medical, financial or docketing information on PTO/SB/65.
The significance of the next two exhibits is that Galaxy was aware that PTO/SB/65 lacked practical utility (via the Federal Register comments) and yet they did not raise any concerns about it, even though that's what they were getting paid to do.
Exhibit 30 is the email from Rob Flax (Galaxy) to Jeanne Clark (USPTO) asking questions about how to handle this-and-that. Note that "practical unility" is not mentioned.
Again, this is a recital of the APA which I have put at the end of each count's exhibits to remind the Court that relief must be granted.
One way Congress insured that the PRA would reduce paperwork was to require that specific forms which collect information must have on them an accurate time burden to "gather, prepare and submit" the form. From 1996 to 2003, '65's time burden was "1 hour" to "gather, prepare and submit." (Exhibits 33, 34). The Patent Offfice requires extensive "additional information" that takes hundreds of hours to "gather, prepare and submit." For example, one inventor was required to provide a complete showing of his financial condition by month for a 36-month period, "including all income (not just taxable), expenses, assets, credit and obligations." (Patent # 4,815,438). Another inventor was required to "fully and completely discuss every dollar the business spent during 1997, 1998, and 1999." (Patent # 5,336,186). Both of these are fairly typical requirements for "additional information." See Exhibits 50 & 51 or view actual Additional Requirements.
Form PTO/SB/65 that was used from 1996 onwards. The Circle/Arrow 1 points out that USPTO/OMB/Galaxy estimated that only 1.0 hour was required to supply all of the required information.
Form PTO/SB/65 that was used from 1999 onwards. The Circle/Arrow 1 points out that USPTO/OMB/Galaxy estimated that only 1.0 hour was required to supply all of the required information.
Form PTO/SB/65 that was used from 2003 onwards. The Circle/Arrow 1 points out that USPTO/OMB/Galaxy estimated that only 8 hours were required to supply all of the required information.
Form PTO/SB/65 that was used from 2005 onwards. The Circle/Arrow 1 points out that USPTO/OMB/Galaxy estimated that only 8 hours were required to supply all of the required information.
A letter that I wrote to the USPTO's Chief Information Officer in September of 2000 commenting on PTO/SB/65's time burden. Note in the boilerplate at the bottom of the page 1's in Exhibits 33, 34, 35 & 35.5 that the Chief Information Officer is designated as the person to receive the public's comments concerning the estimated time to 'gather, prepare and submit' PTO/SB/65 to USPTO. This letter became FOIA request 01-001.
FOIA response 01-001 for the question of how USPTO/OMB/Galaxy arrived at 1.0 hour to 'gather, prepare and submit' PTO/SB/65 to USPTO. Note that the procedure is very precise in detailing how the time burden estimate is to be arrived at.
All of the Federal Register comments from individuals that questioned the time required to 'gather, prepare and submit' all of the information that the USPTO required of them.
FOIA response 01-025 asking for the documents detailing how the 1.0 hour estimate was arrived at. Note that there were no documents.
FOIA response 02-286 asking for the documents detailing how the 8 hour estimate was arrived at. In this case, the USPTO has just a one-sentence comment from Jeanne Clark and then Robert Bahr's cryptic response of "call me". Had the time estimate been honestly stated as hundreds or thousands of hours, then perhaps many more of the inventors would have been more influenced to divert money from mortgage payments or urgently needed medical operations for their spouses in order to pay their maintenance fee on time.
The Government Computer News article noting that Galaxy was being well paid by USPTO to provide "support services" for "records management." It is included to go along with the companion email exhibit to show the court that USPTO/OMB/Galaxy should have been much more concerned about the time burden based on all the Federal Register comments that were received and on the formal procedures for its proper calculation.
The cover letter and an analysis that I did to see how the 38 months of data that I was required to provide stacked up against the time period that all the other inventors would have had to provide data had their reason for not paying the maintenance fee on time been related to financial problems. Not all of the petitioners had financial problems as their reason. But I had no way of knowing who-was-who at the time. So I just did everybody. As noted on page 41-10, the average turned out to be over 36 months of data. One hour (or even eight hours) would be totally inadequate to provide 'all income (not just taxable), expenses, assets, credit, and obligations. A monthly breakdown is preferred.' which was the requirement for additional information made to me, and others, by USPTO.
A memorandum that I sent to the USPTO's Records Officer of some of the data that would be required to come up with 'all income (not just taxable), expenses, assets, credit, and obligations' for each month - which was the additional information required of me. Obviously, such requirements could not be fulfilled within the time estimated by USPTO/OMB/Galaxy.
The IRS time burden estimates just to arrive at the income aspects of the USPTO's additional information requirement. When one considers that the USPTO also wanted 'expenses, assets, credit, and obligations, by month' the USPTO/OMB/Galaxy's estimate of one, and then even eight hours, is ludicrous.
One way Congress insured that the PRA would reduce paperwork was to require that specific forms which collect information must have a "showing statement" that is "written using plain, coherent, and unambiguous terminology and is understandable to those who are to respond." ("valid showing statement"). 44 USC 3506(c)(3)(D).
The statute requiring the showing statement to be "written using plain, coherent, and unambiguous terminology and is understandable to those who are to respond."
IRS Form "2003-1040 Instructions" which is an excellent example of a showing statement. Although the IRS code is quite complicated, if one follows the instructions, i.e., the showing statement, the answer will be precisely what the IRS seeks.
The entire two-sentence showing statement from PTO/SB/65. When the inadequacy of the statement was made known to USPTO/OMB/Galaxy via the Federal Register comments, they chose to continue with the one that has been in use since 1995 which indicates that they firmly believe that the two sentences were and still are entirely adequate to state the showing requirement.
Three letters from high-level USPTO personnel advising me to look, not at Form PTO/SB/65, but at the resulting decision for the "required additional information." The letters are from (1) the Director of the Officer of Petitions who is the boss of the GS-15 and GS-7's who process PTO/SB/65, (2) the Administrator for External Affairs who is the link between USPTO and Congress, and, (3) none other than the Director of the Patent Office himself. These three high-level officials recognized that the showing statement on PTO/SB/65 is totally inadequate.
This particular decision is one in which the USPTO stated expanded showing statements for medical, financial and docket problems. Although slightly more in line with the statute's requirement for what should have appeared on PTO/SB/65 - not on the decisions - even these statements fall far short when one reviews the "additional information" required in other decisions - some of which are detailed in Exhibits 50 & 51 or viewable at Additional Requirements.
This one is a gem. This is a page from the USPTO/Galaxy 2003 Approval Request. Note at Circle 2 that the USPTO/Galaxy writer of this document actually had to expand on PTO/SB/65's showing statement concerning docket problems in order to make a point.
Exhibits 50 & 51:
Actual quotes from the GS-7 and GS-15 at USPTO stating more fully what PTO/SB/65's showing statement failed to provide in the way of "using plain, coherent, and unambiguous terminology and is understandable to those who are to respond." Also viewable at Additional Requirements.
The significance of the next two exhibits is that Galaxy was aware of the inadequate showing statement on PTO/SB/65 (via the Federal Register comments) and yet they did not raise any concerns, even though that's what they were getting paid to do.
Exhibit 52-1,2 is the email from Rob Flax (Galaxy) to Jeanne Clark (USPTO) asking questions about how to handle this-and-that. Note that it doesn't mention the inadequate showing statement.
This count differs from the prior count in that the prior count was about the fact that the showing statement was inadequate. This count is about the fact that the additional information requested was illegal by not having been pre-approved.
One way Congress insured that the PRA would reduce paperwork was to specify that anytime the same question is asked of ten or more individuals, it is a "collection of information."
This count differs from the prior count in that the prior count was about the fact that the additional information requested was illegal by not having been pre-approved. This count is about the fact that the additional information was requested on a form (the Decision) which had not been pre-approved.
"No person shall be subject to any penalty for failing to comply with a collection of information... (1) if the collection of information does not display a valid control number ...; or (2) the agency fails to inform the person who is to respond to a collection of information that such person is not required to respond to the collection of information unless it displays a valid control number." (44 USC 3512).
I believe these are very powerful arguments because of the Public Protection clause of the PRA which is Exhibit 57. It decrees that "no person shall be subject to any penalty for failing to comply with a collection of information that is subject to [the Paperwork Reduction Act]."
My decision that was rendered following my use of PTO/SB/65 that asks for additional information. Note that mine, like yours, did not have an OMB control number and did not contain the required PRA statement that "no persons are required to respond to a collection of information unless it displays a valid OMB control number."Exhibit 55:
A short list of identical requirements for financial information culled from a small sample of PTO/SB/65 decisions. Note the repeated use of the phrase "including income, expenses, assets, credit and obligations" to verify the person's financial condition.Exhibit 56:
A sample of actual pages from decisions stating requirements for additional financial information. These are back-up for the quotes in Exhibit 55.
This exhibit first has the defendants' interpretation of the Public Protection clause of the PRA. Then second is the actual law which states that "no person shall be subject to any penalty for failing to comply with a collection of information that is subject to [the Paperwork Reduction Act].". Counsel Beware! Notice that the defendants' statement left out the words "or otherwise" and substituted the words "proposed penalty" for "judicial action applicable thereto."
The significance of the next two exhibits is that Galaxy was aware that the Patent Office was requiring information for PTO/SB/65 (via the Federal Register comments) that had not been approved and yet they did not raise any concerns, even though that's what they were getting paid to do. Since Galaxy was being paid for "management" services, discovery will be required to determine if Galaxy ever discussed the "collection of information" aspects of the decisions.
Exhibit 58-1,2 is the email from Rob Flax (Galaxy) to Jeanne Clark (USPTO) asking questions about how to handle this-and-that. Note that the collection of unapproved information is not mentioned.
Again, this is a recital of the APA which I have put at the end of each count's exhibits to remind the Court that relief must be granted
The next three exhibits are Form PTO/SB/65 from its inception until now. Forms subject to the PRA that collect information must be reapproved every three years. The different versions are presented here to show how very little the form has changed through the years. The USPTO allows old forms to be used indefinitely even though newer forms have been printed.
Exhibit 11: Form PTO/SB/65 that was used from 1996 onward.
Exhibit 12: Form PTO/SB/65 that was used from 1999 onward.
Exhibit 13: Form PTO/SB/65 that was used from 2003 onward.
Exhibit 13.5: Form PTO/SB/65 that was used from 2005 onward.
These are some of the statutes that require USPTO/OMB/Galaxy to consider Federal Register comments for a proposed form.
This is the Federal Register notice in which USPTO/Galaxy requested comments on the proposed Form PTO/SB/65.
Twenty-nine people took the time to send in their comments about the Federal Register Notice. I was pleased that this many people responded. This exhibit is a one-page summary of some of the matters that were raised in the comments. All twenty-nine comments are further down in Exhibit 19.
Back a few paragraphs ago I mentioned the statement that David Rostker, the OMB Desk Officer, left on my answering machine. His full statement is the basis for another Count, later on. This exhibit is two of the sentences from his statement. They show that he considered other factors, such as my lawsuit, rather than the Federal Register comments, when he approved Form PTO/SB/65's use for another three years.
This is a Summary of the Federal Register comments from the twenty- nine individuals. Note that 41% of the individuals mentioned Privacy concerns, 51% questioned the Time Burden Estimates and 10% were never even refunded their money after the USPTO denied their PTO/SB/65 petition.
These are the actual comments received by USPTO in response to the Federal Register request for comments about the proposed Form PTO/SB/65.
These are eleven pages from the 2003 Approval Request submitted to the OMB Desk Officer by USPTO/Galaxy. Because Galaxy never bothered to respond to my requests for discovery, I'm not sure who drafted this document - USPTO or Galaxy. Of particular interest to me for this count is which organization came up with the statement that many of the Federal Register comments were "not germane."
The significance of the next two exhibits is that Galaxy was aware of the shortcomings of PTO/SB/65 (via the Federal Register comments) and yet they did not raise any concerns, even though that's what they were getting paid to do.
Exhibit 21-1,2 is the email from Rob Flax (Galaxy) to Jeanne Clark (USPTO) asking questions about how to handle this-and-that. Note that no mention is made of Federal Register comments.
This is a recital of some of the APA which I have put at the end of each count's exhibits to remind the Court that relief must be granted.
The OMB Desk Officer left a message on my answering machine in May of 2002. Of all the exhibits, I think this one is the most damning of the arrogance and total disrespect of law by civil servant. And it certainly confirms that USPTO/OMB/Galaxy knew the form didn't comply with the PRA or PA. [Technically I'm not sure if it was Rostker or his boss John Graham who is charged with administering the Paperwork Reduction Act.
A transcript of Rostker's statement - minus the "errs" and "ahhs."At Circle 1 he notes that the package was "improved." And yet, for example, he knew it didn't have a Privacy Act statement but still he didn't even bother to fulfill his statutory responsibility and require that it comply with the law.
These next three exhibits show that the only 'improvements' that took place between 1995 and 2005 were changing the time burden from one hour to eight hours and the addition of a telephone number. Exhibit 80, for 2005 onwards, has the addition of the required Privacy Act Statement.
Exhibit 77: Form PTO/SB/65 that was used from 1996 onwards.
The significance of the next two exhibits is that Galaxy was aware (via the Federal Register comments) of all the statutes that were being violated on PTO/SB/65 and yet they did not raise any concerns about it even though that's what they were getting paid for. Since Galaxy was being paid for "management" services, discovery will be required to determine if Galaxy participated in or was aware of the "discussions" that Rostker had concerning PTO/SB/65.
Exhibit 81-1,2 is the email from Rob Flax (Galaxy) to Jeanne Clark (USPTO) asking questions about how to handle this-and-that.Exhibit 82:
Merits of the Decision:
Taking of Property Rights without Due Process:
However, if the property rights aspects appeal to you, here is some reference material that I accumulated along the way...
It has been suggested that the failure to reinstate a patent amounts to "taking petitioner's property without due process". View a Commentary from the Journal of Law and Technology.
Another source wrote
My initial thought was that the juice may not be worth the squeezing to include the "due process" angle. However, on reflection, I wonder if the "reasonable conditions" of U.S. v. Locke would include requiring one to make illegal filings, i.e., being required to submit information in violation of the Paperwork Reduction Act, Privacy Act and Internal Revenue Code.
Civil Rights Act:
Sections 45 CFR 160 and 164 of the Civil Rights Act seem to have something to do with keeping medical information private. Those rules may only apply to health care organizations - I'm not sure. If you (or your client) were required to submit medical information, you might want to check it out. And please let me know what you find so that I can pass it on to others who were required to submit personal medical information for themselves and their families.
View the Docket documents
that most concerned the matters of my lawsuit. Keep in mind that I did this whole lawsuit pro se, i.e., without a lawyer. These documents show my lack of experience and knowledge about pleadings and should not be copied. They're presented here just to indicate the arguments that the court and defendants might present against you.