Don’t be That Attorney – If You Must Rant, At Least be Right

I’m at the drive through teller at my bank yesterday, to cash a small check. I sign the back of the check and send it up the tube with my driver’s license and ATM card, a process I have followed dozens of times. But this teller is clueless. He asks if I have an account there, then asks for more identifying information, then he asks for the name of my business (even though the check is made out to me and has nothing to do with the business).

I remain calm, even when he comes back and says he cannot cash the check because they can’t find my account. I calmly ask, “You can’t get my account number from the ATM card?” He politely responds, “We can, but you only sent your license and a credit card.” I look down, and realize I had sent the wrong card. He had not been clueless at all, and was actually being quite accommodating trying to find my account information with what I had provided.

So what is the point of this quaint story? Imagine if when he had told me that he could not cash the check, that I had torn into him, calling him an incompetent idiot for being unable to look up my account information from my ATM card like every teller before him had been able to do? Then my diatribe would have all fallen back on me, and I would have been the idiot; a lesson I have learned from other times that I did not hold my tongue.

Realize that as an attorney, you can be wrong, no matter how convinced you are of your position, and that a rant seldom serves any purpose and can come back to bite you. Bringing us to today’s attorney not to emulate.

As reported by ABA Journal, Above the Law, CBS News, PatentlyO, and even a blog about whiskey, a patent attorney apparently had had enough of patent examiners denying his applications. I don’t do patent law, but in my never to be humble opinion his client’s “Telescoping Tripod Sprinkler Cart” was not eligible for a patent. Examiner Alexander Valvis agreed with me and rejected the application. The patent attorney responded by FILING the following rant:

REMARKS: Are you drunk? No, seriously … are you drinking scotch and whiskey with a side of crack cocaine while you “examine” patent applications? (Heavy emphasis on the quotes.) Do you just mail merge rejection letters from your home? Is that what taxpayers are getting in exchange for your services? Have you even read the patent application? I’m curious. Because you either haven’t read the patent application or are … (I don’t want to say the “R” word) “Special.”

Numerous examples abound in terms of this particular Examiner not following the law. Clearly, the combination of references would render the final product to be inoperable for its intended use. However, for this Special Needs Examiner, logic just doesn’t cut it. It is manifestly clear that this Examiner has a huge financial incentive to reject patent applications so he gets a nice Christmas bonus at the end of the year. When in doubt, reject right?

Since when did the USPTO become a post World War II jobs program? What’s the point of hiring 2,000 additional examiners when 2,000 rubber stamps would suffice just fine? So, tell me something Corky … what would it take for a patent application to be approved? Do we have to write patent applications in crayon? Does a patent application have to come with some sort of pop-up book? Do you have to be a family member or some big law firm who incentivizes you with some other special deal? What does it take Corky?

Perhaps you might want to take your job seriously and actually give a sh.t! What’s the point in having to deal with you Special Olympics rejects when we should just go straight to Appeals? While you idiots sit around in bathtubs farting and picking your noses, you should know that there are people out here who actually give a sh.t about their careers, their work, and their dreams.

Your job is not a joke, but you are turning it into a regular three ring circus. If you can’t motivate yourself to take your job seriously, then you need to quit and let someone else take over what that actually wants to do the job right.

Now, to be completely fair, the patent attorney was surprised to learn that his letter would be available to the public. In response to those who felt his letter was inappropriate, he stated:

Everyone assumes that this was some sort of ‘Open Letter’ to the USPTO that I wrote to shame this particular Examiner (in fact, this was just between the Examiner, his Senior Examiner and me… and no one else).

But whether or not he thought the letter was semi-private, what did it accomplish? Do you think the application will be reviewed and reconsidered? Do you think this Examiner will be inclined to approve the next application submitted by this attorney on behalf of a client?

Don’t be that attorney.

[May 19, 2016 UPDATE: It actually came out about a year ago, but today I happened to come across a decision by the United States Patent and Trademark Office concerning Mr. Schroeder. Apparently, the USPTO did not find much humor in his ranting. After Schroeder failed to respond to a USPTO complaint, a default judgment was entered, suspending him from any practice before the USPTO for six months. The decision is worth reading, if for no other reason than the Administrative Law Judge, Alexander Fernandez, quotes Spock.]