Owning What You Make | USPTO, I Can’t Believe What You Say, Because I See What You Do
During my senior year of college I developed an idea for a bottle. I’d drawn it and modeled it as part of my technical illustration and 3D model classes. A few years later, it was suggested I should patent it. 12 years later I finally have enough time, money, and experience to see this project come to full fruition: a patented, licensed, marketed, mass-produced, and sold product. This miniseries, Owning What You Make, covers the highs and lows of when a graphic designer pursues product design.
There’s a common but unspoken practice within employees of the federal government: Cover your ass and get it in writing.
This means bean-counters and obsessive note-takers can be as opaque, obscure, and irrational as they need to be. As long as they look like they followed archaic rules set by previous administrations, they are protected.
For months, I was under the impression that my application was in the search process. I was hoping that the next entry would be about prototyping and marketing to companies. Instead, my application was abandoned.
How did this happen? Let’s go back to a year ago.
Last summer, I refilled an Oath of Declaration to include my address and a $35 fee, which the USPTO cashed at the time of my submission. By Fall, I’d received a letter stating my application was in the search process. Shortly afterward, they sent me another letter saying I hadn’t filled out the Oath of Declaration properly. At the time, I didn’t know what they were talking about. A lot of language in patent letters is very redundant. What you’ve read in one letter carries over into the next, and it’s hard to know what a new complaint is about. But without regular access to a design patent lawyer, I didn’t know what to do.
I use Baldwin's words to evoke the deep mistrust of a system we are told otherwise, especially as a product designer of color who has historically been left out of the benefits of patent ownership and protection.
Months pass, and by Spring the agency sent a final letter, stating they were abandoning my application.
Their claim is that I failed to underline my address on the updated application. So a year’s worth of work has unraveled because I didn’t underline my address.
Ironically, the Oath of Declaration is the only printed document I don’t have a copy of to verify the USPTO’s claim. But I do distinctly remember in the Summer of 2016 printing the Oath of Declaration, adding my address, underlining it, and mailing it with the fee.
A lot of language in patent letters is very redundant. What you've read in one letter carries over into the next, and it's hard to know what a new complaint is about. But without regular access to a patent lawyer, I didn't know what to do.
The USPTO’s mistake was sending me a letter saying the application was complete and being searched when, according to them, it still had errors. I shouldn’t have to pay for that mistake.
But what’s worse is I feel betrayed by the U.S. Patent Office. Whether I’d send parts of the application electronically or paper mail, the USPTO almost always responds using paper mail. So that if something goes wrong, it’s my word against theirs.
Now I find out that with access to the right patent lawyers and experts, the game is designed in a lot of ways to be rigged.
You Game A System (Not Made For You)
After this had gone down, I talked to a USPTO customer service agent to find out how to digitally-underline an electronically-submitted PDF. She said that when updates to the application are requested, people (re: patent lawyers) print out the parts that need updating, underline them in black ink, scan them, then send them via e-file.
Later this summer I met a UX designer who worked for Apple. He also spent some time working in patent law. I asked how something like this happens, and what to do. He told me that when new applications are filed with the USPTO, his team would send it via certified mail, eschewing the whole electronic process, and ensuring the USPTO has to sign the receipt.
Clearly, no one in this process is committed to cutting down on paper. Paper protects their asses. But the fees-as-fines are set up to avoid paper. So while everyone else is sitting on a mountain of paper, I’m left with a bunch of digital “keys” for digital files I can longer access.
Every day individuals like myself are left with futile workarounds made for a Kafkaesque process only a few people with privilege and access can understand.
What is the value of a public agency protecting intellectual property if they can't even tell when someone has added an address to their application?
To quote James Baldwin, I can’t believe what you say, because I see what you do. I know his statement addresses institutions beyond government. I’m not comparing my specific experience with the U.S. patent application process with underfunded schools, surveillance of citizens, police brutality, or any form of institutional oppression. I use Baldwin’s words to evoke the deep mistrust of a system we are told otherwise, especially as a product designer of color who has historically been left out of the benefits of patent ownership and protection.
So What Happens Now?
To revive my patent application would cost $850, almost the entirety of what I’ve personally invested in this process so far. Until I go back to working full-time, I cannot commit $850 to revive the process. Companies like Apple can afford fees like this. I cannot. And I see that I will need a paid patent lawyer who specializes in design patents. I can’t continue to handle this kind of government incompetence on my own.
While I haven’t given up on my dream of owning and licensing a patent, I am weakened and vulnerable. What’s to stop someone else from pursuing a patent for the same design? Going public with the process has actually really helped me, not hurt me.
This, I truly believe, is a temporary setback. And one day, I will own a patent on a bottle design of my own making. Dealing with the U.S. Patent Office has cost me more than time and money, that no amount of prettier UI or nice customer service can fix. This has eroded my trust of the government to be logical participants in regulated creativity. What is the value of a public agency protecting intellectual property if they can’t even tell when someone has added an address to their application?
There’s an undercurrent of cynicism running between the patent office and applicants that undermines protecting creativity and originality. Which is damaging to the social contract, especially if that creativity comes from people who benefit the most from government protections but have historically had their ideas co-opted and commoditized.
Owning What You Make, covers the highs and lows of when a graphic designer pursues industrial design.