Hyatt v. USPTO – Procedural Limbo in the Patent Process?
(Photograph Courtesy of Gilbert P. Hyatt)
Gilbert P. Hyatt v. USPTO (D. Nevada 2014)
We recently had an opportunity to speak with Mr. Gil Hyatt. Gil is a well-known and prolific inventor in early computer technology, being named on more than 70 issued patents. Over the years, he has also been a successful litigant in many patent-related matters. As recently as 2012, Gil prevailed in a case at the U.S. Supreme Court against the U.S. Patent and Trademark Office (USPTO).
On January 3, 2014, Gil filed a complaint against the USPTO relating to two appealed patent applications. The appealed patent applications have been pending at the USPTO since the early 1970s, i.e., over 40 years. Gil alleges that the delay of the USPTO in these appealed patent applications is unreasonable under the Administrative Procedure Act, 5 U.S.C. § 701(1).
As a patent practitioner, the facts of this case are quite shocking. According to USPTO statistics, the typical amount of patent pendency is 28.3 months. This means that, if an inventor were to file a patent application today, the inventor would normally expect to receive a patent in about 2-1/2 years. Gil’s patent applications have been pending for 16x longer than is normal.
According to Gil’s complaint, the USPTO has engaged in “a deliberate strategy to deny him adjudication of his pending patent applications.” In both cases, the USPTO has apparently furnished no written answer to the filed appeal briefs, and no decision has been made by the Appeal Board. Many formal petitions for action on the merits and requests for status updates have purportedly been filed by Gil, also to no avail. A number of interviews with USPTO officials have also taken place, allegedly without resulting in any action.
These conversations with USPTO officials have also caused Gil to believe that the USPTO is intentionally refusing to grant any more patents to him. Indeed, no patent has issued to Gil since 1997. According to the complaint at paragraph 46:
During an in-person conference with the Director of the Technology Center responsible for examination of Mr. Hyatt’s patent applications – which is documented in the record of two of Mr. Hyatt’s patent applications – Mr. Hyatt pointed out “the scenario of applications going round and round from the examining groups to the Board and then back to the examining groups and then back to the Board.” The Director confirmed that this was the policy that the PTO was pursuing toward him.
The Hyatt patent applications apparently exist in a state of procedural limbo at the USPTO. There is no doubt that this situation is quite unusual. However, since his patent applications are not published, the “file wrappers” or official records of actions taken by both Gil and the USPTO remain secret at this time. There is also no way of knowing the importance of the inventions being claimed, or the general impact that the patents would have if they were to issue. We will be following this case closely, and are most interested in reading the USPTO’s answer to the complaint when filed.
For other articles on Mr. Gilbert P. Hyatt, and his actions in court and at the USPTO, see the following links:
http://articles.latimes.com/keyword/gilbert-hyatt
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Good grief! When a government if hostile to its own people it is a failed government…..
Congress should work out a bill to apologize to Gil Hyatt, to give him a big stack of money. Then declare his inventions null and void, it’s been too long. It’ll cost the economy lest in the long run than if he gets them…
Since there is no reason given for lack of approval of the patents, it is effectively a denial, but a denial with the advantage that USTPO does not have to provide an explanation under the rules, because non-answers are not addressed in the procedures. Since there is no rationale given, when dealing with politicians or government agencies, departments, etc., we can always default to the “follow the money” strategy to get to the truth. Some large corporations probably donated(?) large sums of money to some elected officials that can impact the well being of USTPO or its bureaucrats. And their strategy has worked because those that came after Hyatt probably received their similar patents and royalties. I wonder if Hyatt’s 40+ years experience is reflected in that 28 month average for a patent?
The treatment of Hyatt’s patents, the coordinated effort not to allow any claims, regardless of merit, is carried out by formal internal USPTO policy. That policy is hidden from public view so that patent applicants cannot circumvent it. Because it remains a secret, it was also not taken into account in recent patent reform legislation. If our legislators had known what was really going on inside the patent office, would they have passed IPR in its strongest form?