What if the Trademark Office took Taylor Swift’s controversial new trademark applications and stalled examination of them, preventing them from getting approved, despite having no legitimate basis to refuse their registration, because of the potential for public scrutiny?

Taking that a step further, what if there was an unregulated government program that in cases like Ferguson and Eric Garner essentially stalled the case, kept it from reaching a decision, and made sure that no charges were brought to avoid public backlash?

And what if that was all being done in secret with administrators denying such a program’s existence?

We’d be outraged, right?

Apparently that is exactly what has been happening to some patent applications at the US Patent Office, which is an agency within the Department of Commerce.  It has come to the attention of some patent attorneys, through examiners within the USPTO, that a program called the Sensitive Application Warning System is doing just that.  This article by Devan Rolf is a compelling look at this program from his own experience. 

Devan’s company, GoFigure, was informed by a patent examiner that he was instructed not to allow a continuation application that claims priority back to 1999, citing apparently no basis for that refusal but that the application had been identified for SAWS.  A journal article cited in Devan’s article states “the SAWS provides the PTO with a mechanism to identify potentially problematic applications and conduct additional internal review, as a means of preparing for, or perhaps even avoiding, negative publicity.”  The application  generally relates to a smartphone for downloading and streaming music and storing the title of a purchased recording into a user’s account – sound like iTunes to anyone?   GoFigure requested information relating to this decision, but their FOIA request was denied.  They spoke to the Ombudsman (a great avenue to use if you’re dealing with problems at the PTO) who  according to the article said that the pending application “reads on iTunes” and that granting the patent could result in a “very, very public case” so caution had to be exercised.  Did someone from “phone a friend” in the Commerce Department to alert them to this?

Now, there are good reasons that a patent application should be made secret (like national security reasons) and any patent applicant can request this, otherwise their application will be published and the file history related to that may be publicly available.  There’s a specific outlined process for that and the ability to make a patent secret is codified at 35 U.S.C. 181.   In SAWS however, the US Patent Office is self-selecting applications for this program, with no notice to the applicant, and no subjective, transparent regulations to explain why some applications are selected and others are not.

The GOP-lead Congress has made strong commitments to pass legislation to correct the problem of patent trolls, but it seems like SAWS, the biggest troller (that’s how kids are using “troll” these days, right?),  needs to be addressed too.

The US patent system originally was supposed to protect inventors, as ownership and the right to file for a patent application was reserved for the inventor, but following the America Invents Act, corporations have much more control over this process.  It appears that they also may have some additional influence within the Patent Office itself.