95 users of the Patent and Trademark Office’s computer systems alert OIRA to new facts that arose earlier this week, on March 6-8, 2021. These new facts give further impetus to comments on this ICR in the November 60-day comment period and the December 30-day comment period. This letter does two things: (a) adds further facts that must be considered in this ICR, to urge that PTO’s request for approval for DOCX filing should not be approved; and (b) invokes OIRA’s authority under 44 U.S.C. § 3504, § 3506(c)(3)(J), § 3506(h)(3), 5 C.F.R. § 1320.8(d)(1)(iv), to assist the PTO in implementation of appropriate information technology. Recent issues with the PTO’s electronic filing system suggest that the PTO may lack ability to objectively evaluate its own technological decisions, is vastly underestimating burden on the public, and is almost certainly overestimating savings to itself. Many of the problems stem from inappropriate technology.Fifteen years ago, when it was developing the current electronic filing system for patent applications, the PTO made an incredibly poor design decision. The PTO included an extra, unnecessary step in its processing of documents that users submit electronically: the PTO throws out some of the information that users submit. But the PTO needs this information in every application. So the PTO’s computers first throw out the information, and then recompute and reconstruct the information. Notably, analogous computer systems at all other leading patent offices worldwide and all U.S. federal courts work by not throwing out the information—the PTO is an outlier. The PTO is developing a replacement system, now in beta test. The PTO could have simply eliminated the “throwing out” step. Instead, the PTO now proposes to add another unnecessary step. The new step makes the filing process far more unreliable for the public. We agree with the Boundy and Forrest estimates submitted during the 60-day comment period, that the additional burden will be about $200 million per year, because users will have to error check the PTO’s processing before hitting “submit.” As any engineer knows, adding a new failure-prone component to “compensate” for an old failure-prone component never compensates; it increases the likelihood of error. Likewise, adding human error is only a good idea as a way to compensate for computer error if the PTO single-mindedly considers only its own costs, and ignores burden on the public and the requirements of the Paperwork Reduction Act—as the PTO quite pointedly did in its NPRM and final rule
