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Who Ya Gonna Call? PAIR Ghost Busters

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This week brings an update on the latest efforts to fix PAIR and pry public patent information from the death grip of the USPTO. (For those out of ear shot of me screaming from the mountain tops about lack of accessibility to public patent data and how the antiquated and unreliable PAIR system is adding massive amounts of overhead to the patent budgets of U.S. patent filers, you can get caught up here, and here.) But first, a small request:

Add the BlackHills public PAIR speed tracker extension to your browser

The USPTO claims that much of the problems with PAIR are “ghosts” (which I interpret as meaning (a) we are too computer illiterate to use such a space-age piece of software; and/or (b) we are lying about the problems in an effort to get our greedy hands on the public patent data that our clients paid for with their fees). Lucky for us, the great public servants over at BlackHillsIP have built a proton pack to help bust these PAIR ghosts.

The have built a browser extension (get it for Firefox here; get it for chrome here) that tracks PAIR reliability and performance issues. The extension collects anonymous information about requests made on public PAIR (e.g., how long it takes to return requested files and how often it gives “high system volume,” “application does not exist,” or the other errors that we all love). In addition to collecting anonymous information for debugging PAIR, it also provides a dashboard that finally answers the question “is PAIR super slow for anyone else?”

But it will only work if we get enough people using it. So, if you use public PAIR regularly, PLEASE channel your inner Rick Moranis and join the PAIR ghost busters by installing the browser extension.

PAIR at the PPAC

In response to the letter we sent to Director Iancu in January, the PTO held a meeting for stakeholders to voice their concerns about PAIR. You can read a summary of the meeting on IPWatchdog. Those of us that attended the meeting (mostly law firm practitioners, a handful of service providers, and at least one in-house counsel) left the meeting feeling somewhat optimistic. USPTO CIO Jamie Holcombe promised he would: (1) investigate whether seeing PEDS through to its original vision of a complete, up-to-date, cloud-based mirror of public PAIR was the solution (it is); and (2) ensure that U.S. stakeholders have at least as good of access to the data as to the Chinese and other IP5 governments (we don’t).

Just about week later, however, our optimism was severely diminished.

Ahead of the PPAC meeting on Febuary 5th, members of the Open PAIR coalition reached out to members of the PPAC directly and I also sent the following letter to the [email protected].

The Open PAIR coalition is a large group of practitioners, applicants, and service providers who have banded together in an effort to shine a light on the negative effects that poor IT systems – namely public and private PAIR — are having on the U.S. patent community.
The USPTO’s core mission is to disseminate information in exchange for the exclusive rights that a patent confers. A patent cannot be properly prosecuted without access to the data and file wrappers that are currently available only through PAIR. The scope and term of an issued patent cannot be understood without access to the data and file history that are currently available only through PAIR.  But instead of working to improve access to the data and reduce the IT costs imposed on patent applicants, the USPTO has instead decided to expend much of its recent IT efforts on adding additional technological barriers in front of the data. The result is that the USPTO is granting record numbers of patents while simultaneously disseminating less of the information that was supposed to be part of the bargain in exchange for those patents.
In January 2019, we sent a letter to Director Iancu expressing these concerns and proposing some solutions.
In response to the letter, a meeting was held on Jan 27, 2020 with CIO Jamie Holcombe, Chief Data Strategist Thomas Beach, and Midwest Director Damian Porcari.  In the meeting. we heard from law firm staff and partners, in-house counsel, and third-party service providers. Each of these groups explained myriad ways in which public and private PAIR are negatively impacting the timeliness and quality of patent filings, as well as imposing large, unnecessary costs on patent applicants. A summary of the meeting can be found on the popular IP news website IPWatchdog.
CIO Jamie Holcombe left the meeting with two action items:
(1)          To ensure that U.S. stakeholders have as good of access to USPTO data as China and other IP5 governments currently do under worksharing agreements. Our understanding is that the USPTO currently provides IP5 governments with a much more reliable connection to USPTO data than does public or private PAIR, including by providing a Point-to-Point dedicated Virtual Private Network (VPN) directly to the IP5 governments (”
(2)          To investigate completion of the patent examination data system (PEDs) as a solution to many of the problems caused by PAIR being a single point of access and failure to up-to-date file statuses and file wrapper contents. In fact, the original vision for PEDs was intended to be just that – a cloud-based, API-driven source of patent data to take much of the load off of PAIR and provide data services on par with other patent offices such as the EPO and WIPO. After a promising start, however, PEDs appears to have been totally defunded recently and to languish with data integrity and timeliness issues that make it completely unusable for active docket management.
We believe USPTO stakeholders would be well served by the PPAC raising these issues in this week’s meeting.

We appreciated very much that the members of the PPAC heeded our request and did raise the issue at the Feb 5 PPAC meeting. But then, we got this:

I would encourage anyone that suffers with PAIR regularly to watch the video. But, for the rest, the key takeaways are:

  1. Many problems with PAIR are “ghosts”.
  2. The rest of the problems with PAIR are “bots” (i.e., docketing systems and other tools and vendors that help keep patent operations overhead manageable).
  3. Registered practitioners will NOT be getting back access to public PAIR via private PAIR.

The only hope here is that they do decide to throw a few dollars toward the PEDS project which was the right idea and then left to rot on the vine.

Absent a complete re-architecting of PAIR, I do not believe PAIR can ever hope to keep with the continually growing demand for file wrappers. Continuing to spend money to make it even harder to access file wrappers only adds overhead for patent applicants. Adding more technological barriers to keep this public data out of the dirty hands of those “bots” (again, those dirty bots that are saving patentees thousands of dollars in manual labor) is a cat and mouse game the PTO will lose. Reducing access just makes the pdfs even more valuable and thus increases the business case for captcha farms etc.

Oh, and it bears repeating, China and the other IP5 governments get better access to the data than U.S. applicants and practitioners and t

So should the PTO spend millions putting more duct tape on PAIR and sticking more fingers in the dam? No. They should do the obvious thing of making the public file wrappers available elsewhere and letting PAIR focus on just the private part. There is no need or reason to force the private pair infrastructure to support public PAIR. For systems not built during the Clinton Bush administration (e.g., cloud storage solutions from Amazon, Microsoft, Google, et al.), serving 10s of terrabytes of pdf files is nothing. Done semi-intelligently, we are probably talking something on the order of $1000s per month for an organization with an IT budget of $600 million.

How Can You Help?

Install the BlackHills PAIRStats browser extension (Chrome; Firefox). Complain about PAIR as often and as loudly as you can. If you are in-house counsel, this is especially true because you are really the only ones the PTO cares about. If you are a paralegal or admin or other support staff, make sure your bosses know what a waste of time it is. Let the patent office know that you think they should complete PEDs.