DOJ ‘Weaponization’ Leader Sought Info on Patent Office Program

The Justice Department’s weaponization working group began an investigation earlier this year into allegations the US Patent and Trademark Office improperly gave too much scrutiny to certain pending patent applications.

Ed Martin, who heads the DOJ working group, said in June he’d investigate policies and processes that could violate President Donald Trump’s executive orders on government weaponization and transparency in administrative proceedings, according to a letter he sent to then-Acting PTO Director Coke Morgan Stewart, a copy of which was obtained by Bloomberg Law.

Martin said Stewart “recently discovered a Biden-era directive to secretly flag pending patents and allowable patent applications and claims to prevent them from issuing” and thanked her for acting “swiftly to end this illegal activity.”

The letter asked Stewart to provide documentation of “policies and processes” that led to heightened reviews of “patent applications in the electrical arts,” and applications involving artificial-intelligence inventions. Martin said these policies, which aren’t described in detail, trace back to 2021.

The letter describes the policies as a “new Sensitive Application Warning System program,” referencing a retired PTO program in force from 1994 to 2015 under which patent examiners were instructed to internally flag patent applications for additional attention when they appeared frivolous. Such applications might cover “things like free energy or miracle cures,” said a US Justice Department lawyer in describing the program at a court hearing in February.

Patent owners fiercely opposed that program, arguing it deprived them of due process rights, delayed flagged applications, and raised costs for applicants. It was shuttered shortly after its existence was made public.

Martin’s investigation was prompted by an agency presentation earlier in June about a four-year study of “patent thickets,” a term used to describe big families of related patents covering variations on an original invention, according to a source familiar with the letter.

The PTO declined to comment on the letter or answer detailed questions submitted by Bloomberg Law, including what responses, if any, it’s provided to the Justice Department. Martin didn’t respond to several emails asking questions about the letter, and the DOJ Office of Public Affairs didn’t immediately respond to a message about the investigation.

Sandie Spyrou, who heads the PTO’s Office of Patent Quality Assurance, described the study in a public June 4 presentation as a response to congressional outcry over patent thickets in the pharmaceutical space.

Spyrou said in her talk that patent examiners struggled when reviewing certain continuation applications due to complicated connections to earlier applications and patents. Examiners tasked with reviewing applications from “very large patent families” in almost 22% of cases failed to reject claims under the legal principle called double patenting, the study concluded.

Spyrou said in her talk that large patent families also tended to crop up more frequently in the “electrical disciplines,” a reference to technology fields that include computer networks, semiconductors, and AI.

The quality assurance office worked with patent examination units in such instances to ensure “the appropriate corrective action was taken in any application where we found that there was an omitted rejection,” Spyrou said.

Spyrou didn’t respond to questions about the study and the Martin letter, and referred an interview request to the PTO press office.

Several lawyers who work with inventors on patent applications called the error-correction aspect of the study troubling and said they’re wary of the PTO conducting additional layers of review that might be invisible to applicants and their lawyers.

More than a decade ago, Tom Franklin of Mughal Gaudry & Franklin and a colleague shed light on the previously under-the-radar SAWS program after learning from a patent examiner that a client’s application had been flagged for more extensive review.

Inventors and their lawyers should remain vigilant when it comes to additional layers of scrutiny that operate outside of the normal boundaries of patent examination, Franklin said. If an application is going to be flagged by an examiner or another part of the agency, the applicant’s lawyer or patent agent should have the opportunity to argue over the propriety of that decision, he said, adding, “Rule of law dictates you have to be able to get to your decisionmaker.”

“There’s smoke, but I don’t know if there’s a gun,” he said of the comparison between the OPQA study and SAWS.

Alex Moss, executive director of the Public Interest Patent Law Institute, took a different view. She said efforts by OPQA to improve the quality of applications before they become issued patents should be strengthened, if anything.

“It’s so preposterous to me that any of that would be illegal,” she said.

“Here was a milquetoast study that probably understated a huge problem—failure to identify rejections, which happens across the board—as well as an especially egregious problem of double patenting,” Moss said. “But any effort to apply patent law correctly incenses patent owners.”