Comment by David Boundy

Attached are several letters and a meeting handout presented by me, David Boundy on behalf of PTAAARMIGAN, Brad Forrest on behalf of AIPLA, and Richard Baker on behalf of NAPP in May 2024. In it we point out a number of technological flaws in DOCX filing, show that PDF/A is a standard that guarantees the properties that the USPTO and public need for patent application filing, and point out a number of procedural lapses—including outright falsehoods—in the PTO’s rulemaking and submissions to OMB. - We provide a number of examples of DOCX filings gone wrong. In its 2023 Supporting Statement, the USPTO claims "The USPTO is simply not seeing the unreliability asserted by the commenter." This claim is remarkable for the audacity of its falsehood. In the attachment, we give several examples of errors reported to the USPTO. In several the USPTO acknowledged it had made an error. In one it was forced to pay an $8000 refund to correct its own error. The USPTOs claim of "simply not seeing" is either an intentional lie or willful blindness. If the USPTO has a system for finding and tracking errors, please explain it—but if the USPTO is not actively gathering information, it is unhelpful for the USPTO to discount the experiences of applicants and instead realy on opinion based on personal ignorance. Perhaps the USPTO intentionally Chinese Walls Mr. Isaac and Mr. Tamayo from the rest of the Office so they can make statements of non-knowledge. Nonetheless, the USPTO is fully aware of "unreliability." Mr. Isaac’s and Mr. Tamayo’s representations were false at the time. -- We provided several statements that the USPTO had made to the public and OMB that are either outright false, or only truthful in the most hyper-literal sense, while being framed to communicate a statement that is 180° opposite. The later phases of an ICR are ex parte; the USPTO’s lawyers operate under the obligations of candor of Professional Responsibility Rule 3.3. - In the 2019 NPRM and 2020 final rule, the USPTO claimed "The collection of information involved in this Final Rule have been reviewed and previously approved by the OMB." That was a lie. At the time, no filing had even been made. The first filing didn’t come until September 2023. This claim of "previously approved" appears to be part of the boilerplate in all USPTO rulemaking notices, regardless of truth. It’s a pattern of false representation. - Similarly, the USPTO claimed to be exempt from Executive Order 12866 because the fee-setting rule is a "transfer payment." Perhaps the USPTO’s user fees are transfer payents, but the DOCX surcharge is not. This is one example of a pattern of false claims of exemption from rulemaking that pervades the USPTO’s rulemaking.