As we recently reported, the Patent Office is giving examiners secret guidance that ensures more invalid patents on abstract ideas are granted. Thanks to the Freedom of Information Act (FOIA), we obtained and released some of that guidance. But we did not obtain all of it: the Patent Office withheld 8 full pages. We have now filed an administrative appeal of that decision because the public has the right to see guidance examiners are using to deciding whether patents should issue. 

The Patent Office withheld 8 pages by invoking the FOIA’s “deliberative process” exemption. That exemption exists to ensure government personnel can have candid discussions when making policy decisions. For example, the exemption might apply to email correspondence discussion whether patent examiners should receive new guidance. It does not apply to guidance documents distributed to patent examiners so that they apply the law correctly. Courts have repeatedly rejected attempts to block public access to documents such as these because the public has a right to know what the government thinks the law is.

We hope the Patent Office will do the right thing and give the public access to all of the guidance examiners are using to decide whether patents on abstract ideas should issue. Granted patents affect the public because they restrict everyone’s ability to make, use, and improve products or services within the scope of a patent’s claims. It does not matter if you know the patent exists or independently invented your product; if it’s substantially similar to what a patent claims, you can be prevented from making, using, or selling it. Because patents restrict the public’s freedom, we have the right to know how examiners are deciding to grant them. If the Patent Office again denies public access to examination guidance, we will not hesitate to ask a district court to order its release.