Paperwork Reduction Act Violations
After a patent is issued, there are Maintenance fees due at the end of 4 years ($470), 8 years ($950) and then at 12 years ($1,455). If these fees are not paid on time, then the patent is considered expired. However, the patent can become active again by submitting a Petition to Accept Unintentionally Delayed Payment of Maintenance Fee in an Expired Patent (Form PTO/SB/065) [ Ref A ] and a late-payment surcharge - sort of like paying a fine on an overdue book at the library.
I was granted a patent (4,815,438) in March of 1989. I was able to make the 3.5 year payment, but could not afford the second payment in 1997. After starting to receive Social Security in January of 2000, I was able to save enough money to make the payment. Consequently, on May 17 of 2000, I filed a Petition (Form PTO/SB/065) accompanied by a check for $3,105 to cover the various fees.[ Ref B ]
In late July of 2000, I received a notice from Brian Hearn (a Special Projects Examiner) that my petition had been dismissed but if I would send him yet another $130 along with a lot of additional information, he would think about it some more.
The "required" information included such things as a complete revelation of my financial condition from March 28, 1997, through to May 17, 2000, "including all income (not just taxable), expenses, assets, credit, and obligations... A monthly breakdown is preferred."
I did not accede to his request for more money and very personal information. My $3,105 was returned in September [ Ref C ] and the patent expired.
Since I considered his requirement of personal information to be such a brazen invasion of privacy, I began to search the law and discovered the Paperwork Reduction Act of 1995, [ Ref D ] which controls the collection of information by all federal agencies. It severely limits the collection of information from the public to that which has been specifically authorized by the OMB, who oversees the Act on behalf of all agencies (including the USPTO). A complete copy of the Act is located at [ Ref E ].
The process by which an agency gains authority to collect information is that the Records Officer of the agency submits an OMB Form 83-I [ Ref F ] with a Supporting Statement [ Ref G ] to the Paperwork Reduction Act Officer at the Dept. of Commerce. She then reviews the submission and, if satisfied, issues an Authorization Number to collect just that information. That number is then included on the form soliciting the information.
In this case, the form is PTO/SB/065 (Petition to Accept Unintentionally Delayed Payment of Maintenance Fee in an Expired Patent) [ Ref A ]. The Authorization Number for the collection of information on this particular form is OMB 0651-0016.
In the intervening months, I have familiarized myself with the Paperwork Reduction Act of 1995 and made about 100 individual Freedom of Information Act requests to collect evidence against the USPTO's Office of Petitions.
As part of a response to an FOIA request, I received several Decisions with which Brian Hearn was associated as either the writer, contact person or signer. From these I was able to determine that my treatment was no different from that of many other inventors over the years who sought to pay their overdue fine.
I believe the material on this website presents a rather compelling case against the USPTO's Office of Petitions.
The Paperwork Reduction of 1995 [ Ref D, Ref E ] took effect on October 1, 1995. Its stated goal is to have Federal agencies [such as the USPTO] become more responsible and publicly accountable for reducing the burden of Federal paperwork on the public, with particular emphasis on those individuals and entities most adversely affected.
Here are some of the provisions of the Act:
In summary, here is what I found:
|Detailed Violations with Legal Citations|
Here are some of the provisions of the Act:
The information collection burdens should be reduced by specific yearly percents.
Here are examples of the USPTO's having violated these provisions.
A Section [ Ref 1 ] of the Paperwork Reduction Act of 1995 calls for information collection burdens to be reduced by specific yearly percents: 10% (1996), 10% (1997), 5% (1998), 5%(1999), 5% (2000) and 5% (2001). This means a 35% reduction of information collection burdens from 1996 to the present. This has not happened at the USPTO! The wording of the two sentences of the Showing Requirement (Form PTO/SB/65: Item 8 [ Ref H ]) has not changed from 1996 thru 2002, despite the fact that the form is simply concerned with paying an overdue fine. Nor has the time to complete the form (one hour) been reduced since 1995. In fact, the time is being increased to eight hours.
An interesting Catch-22 situation arises for the USPTO when one compares Brian Hearn's decisions from 1996 to 2000. If one accepts the premise that his requirements are "necessary and required" and are authorized by the Paperwork Reduction Act of 1995, then the burden has actually increased! Here is just one example among many:
In 1996, he required "what provisions were in place to ensure that the maintenance fee was timely paid".
On the other hand, if one accepts that Brian Hearn's extraordinary requirements are not authorized by the Paperwork Reduction Act of 1995, then why has he been permitted to dismiss petition-after-petition year-after-year based on the lack of unauthorized information?
Here is another Catch-22! Either the USPTO is guilty of violating Sections [ Ref 2, Ref 3, Ref 4 ] of the Paperwork Reduction Act of 1995 which stipulate that an agency (such as the USPTO) must responsibly estimate the amount of time that the collection of information will take. Or else Brian Hearn is guilty of violating Sections [ Ref 5, Ref 6 ] of the Act by attempting to collect information far beyond that authorized by the OMB.
From 1996 to 2002, the USPTO has specified that Form PTO/SB/65 "is estimated to take one hour to complete, including gathering, preparing, and submitting the complete payment of maintenance fees. Time will vary depending on the individual case." For the sake of argument, let's assume that since 1995, the Records Officer at the USPTO has done her job properly and prepared "a specific, objectively supported estimate of [the] burden" [ Ref 3 ] which was arrived at by using the "standards and guidelines" [ Ref 2 ] of the Director of the OMB. Accordingly, she has set the time to complete Form PTO/SB/65 at one hour with the caveat that "Time will vary depending on the individual case."
So, the next logical step is to determine what is normal (within the one hour estimate) and what is extraordinary, thereby increasing the burden for an individual case beyond one hour. This is very easily accomplished by reviewing a sampling of Brian Hearn's decisions from 1996 to the present.
Here are examples of his requirements over the years. Note that his extraordinary requirements for information are routine from one decision to the next and, therefore, would be expected to be part of the one hour estimate. I have included variant quotes so that you can see that even though the specific wording varied, Brian Hearn has been demanding the very same information since at least 1996.
Fee payment: who was responsible, steps to ensure payment
"A verified statement with supporting documents from petitioner as to: (1) who was responsible ... for payment of the maintenance fee; (2) what provisions were in place ... to ensure that the maintenance fee was timely paid." (1996)
Reasons why payment was not made on time
"A proper showing to establish unavoidable delay must enumerate ... the reasons why payment was not timely made." (1996, 1999)
Failure to pay: reasons and evidence
"All the causes which contributed to the failure to timely pay the maintenance fee must be presented and supported with appropriate evidence." (1996, 1999, 2000)
Statements from all persons
"All statements must be verified and be from all persons who contributed to the delay." (1996, 1997)
Personal financial data
"A complete showing is required of [name]'s financial condition from [date], through [date], including all income, expenses, assets, credit, and obligations, which made the delay until [date], in payment of the maintenance fee unavoidable." (1996)
So here's the Catch-22 dilemma... Year-after-year the USPTO has specified that Form PTO/SB/65 should only take an hour to complete. And yet, year-after-year decision-after-decision Brian Hearn has required all of this extraordinary information. So which person has been violating the law all this time?
Although I consider all of Brian Hearn's requirements to be totally off-the-wall in terms of simply wanting to pay an overdue fine, the one I find most egregious is the showing of one's financial condition.
Any U.S. taxpayer will recognize that Brian Hearn's routine request for "A complete showing ... including all income (not just taxable), expenses, assets, credit, and obligation... A monthly breakdown is preferred." is going to take a bit more than an hour, since it essentially requires one to do one's income tax (Form 1040 and Schedule D) for each-and-every month in question! In the "Forms and Instructions" booklet which accompanied my tax forms this year, the IRS estimates that it takes 13 hr., 1 min. to complete and file Form 1040 and 6 hr., 58 min. for Schedule D. [ Ref I ] That's one minute shy of 20 hours for just one reporting period! (And keep in mind that only one of the five items that he requires would already have been prepared for the IRS.) For the sample of Brian Hearn decisions from 1996 to 2000 that I have analyzed, the average number of months for which he wanted personal financial data was 34.3. That amounts to a preparation time of over seventeen 40-hour weeks!
Either the USPTO has consistently and grossly misrepresenting the reporting requirements to the OMB and petitioners OR Brian Hearn is routinely requiring an unauthorized collection of information and thus violating the Paperwork Reduction Act of 1995. Which is it?
If one believes that Brian Hearn is actually authorized to collect his extraordinary requirements, then the USPTO is guilty of violating the Section [ Ref 7 ] of the Paperwork Reduction Act of 1995 which specifies that "each collection of information [is to be] written using plain, coherent, and unambiguous terminology ...". To have absolute proof, I have tried in several different ways, by way of FOIA requests, to ascertain that there are no documents which use "plain, coherent, and unambiguous terminology" to authorize Brian Hearn to collect personal financial information, an explanation of a docketing system, etc. In several of her responses, the USPTO's FOIA Officer has indicated that identifying "plain, coherent, and unambiguous terminology" would require her delivering an opinion which she is not permitted to do. I have finally resorted to actually quoting some of Brian Hearn's requirements and asking if the USPTO's FOIA Officer could locate documents that authorized such requirements that used 100%, 75%, 50% or even 25% of the words of the quotes, figuring that would be yet another way to pin down that the collection of information using "plain, coherent, and unambiguous terminology" doesn't exist. I haven't yet received her response but one can safely assume that she will not be able to find any responsive document for that request either, since we all know that it doesn't exist.
However, I have received a response from the Commerce Dept's FOIA Officer that there are "no documents" "filed by the Patent Office requesting authorization to collect: A complete showing of patentee's financial condition ...".
[ Ref J ]
[ Ref 5,
Ref 6 ]
of the Paperwork Reduction Act of 1995 mandate that an agency may not conduct a collection of information unless it displays a valid control number. None of Brian Hearn's decisions (from 1996 to the present) that I examined carry such a control number, despite his "requirement" of extraordinary information. Of course there is no control number - because there is no authorization for collecting the information that he claims is "required".
Sections [ Ref 8, Ref 9 ] of the Paperwork Reduction Act of 1995 deal with the "practical utility" of the specific collection of information, i.e. is it necessary, will it be used. In the Supporting Statement from the USPTO to the OMB documenting the Burden Hours/Costs of Form PTO/SB/65, it is estimated that a Petition requires about thirty minutes of processing time on the part of an examiner. [ Ref K ] To suggest that Brian Hearn can do his routine paperwork, plus analyze an average of over 34 months of detailed financial information, a docketing system and even the extent of petitioner's incapacitation in less than a 30-minute period is a real stretch, even if he were a combined Financial Advisor, Systems Analyst and Medical Doctor. In light of that, I would consider all of his requests to lack "practical utility" [ Ref 8 ] and thus violate the Act.
The USPTO's FOIA Officer was unable to produce a document detailing the routing of Petitions, which one could take to mean that each examiner does his/her own processing, i.e., he/she does not have available on an immediate and in-house basis a Financial Advisor, Systems Analyst and Medical Doctor to determine the merits of the showing. I note that even Brian Hearn's Job Description (Petitions Examiner - GM-1220-15) does not provide for his having personal contacts (Factor 6) with Financial Advisors, Systems Analysts or Medical Doctors. [ Ref L ] As such, to qualify for his job, he doesn't even need to know the difference between $10,000 in debentures and $10,000 in bonds or the difference between Catarrhal Jaundice and Infectious Hepatitis. [Webmaster's note: If any of you Examiners have to look this stuff up, I've made my point, haven't I!] And yet he's requiring that information. The fact that he is unqualified to analyze the information causes its collection to be superfluous and again have no "practical utility" [ Ref 8 ] which is a violation of the Act.
So given that he has neither the time nor the expertise to analyze the data means it cannot be collected under the Paperwork Reduction Act of 1995!
[ Ref 10 ]
of the Paperwork Reduction Act of 1995
mandates that the Act takes precedence over "any other law ... subject to the authority of the Director". The FOIA Officers of both the USPTO and the Commerce Department (their parent organization) were unsuccessful at finding any Directorial override of the Act. And the fact that the USPTO periodically goes through the authorization process for Form PTO/SB/065 indicates that they, too, acknowledge that they are supplicant to the Act. This makes Brian Hearn's many legal citations, as backup for his requirements, bullshit!
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