One of the things I like about the USPTO’s EFS is that for most types of filings, a practitioner doesn’t need a power of attorney in order to file a document or a response. That’s because the USPTO assumes that the typical practitioner values his license to practice, and won’t jeopardize his livelihood by filing something he’s not authorized to file. This allows one practitioner to take over a file from another practitioner even before the POA is filed. We have availed ourselves of this feature on many occasions, and then subsequently filed the POA, also via EFS in the application of interest.
Not so with the Israel PTO’s new electronic patent filing system. Oh no: if the electronic filing system has a different practitioner or group of practitioners associated with an existing application, then you can’t e-file anything in that application until you’ve recorded a POA with the ILPTO and you’ve been associated with the application. Because, you know, the temptation for patent practitioner malfeasance in a country of 300 million people just pales in comparison to that temptation in a country of seven million people, since patents in the smaller must be worth commensurately…less…
Where it gets humorous is the fact that this barrier to electronic filing by non-associated practioners includes, of course, filing a POA so that you will associated with the application. Try to file a POA so that you’ll be associated with an existing application and the system spit an error message back: “You’re not authorized to file papers in this application because you’re not associated with this application”. In other words, You can’t file that POA because you haven’t yet filed a POA.
What does this mean? Apparently, the ILPTO expects POAs to be filed in paper, and only after the administrative task of registering the POA and updating the electronic filing system accordingly will the new practitioner be able to file electronically in that case. How efficient.
Alternatively, perhaps the ILPTO expects the attorney of record to e-file the new POA that takes him off the case. How awkward.
But come June, things stand to get downright Kafka-esque. As mentioned in an earlier post, in the ILPTO’s zeal to make its own life easier, the regulations that enable electronic filing that it pushed through include the provision that starting June 21, patent practitioners and companies (but not individuals acting pro se) will be required to file electronically. If we’re required to file POAs electronically, but the e-filing system won’t let us, how will it be possible to record a POA?
That’s not just an administrative issue: as presently worded, the rules will effectively preclude patent applicants from engaging the patent counsel of their choice, since the rules don’t allow for a change of representative.
Since it appears that the ILPTO didn’t solicit input from actual patent practitioners before it launched its system, here’s some unsolicited input for an after-launch fix. There are two obvious solutions to the problem. The first solution is to follow the USPTO’s lead and to allow all registered practitioners to e-file in all cases (except for certain actions like express abandonment, where a POA should still be required - but the POA itself should be e-file-able). The second solution, not mutually exclusive to the first one, is to continue to allow for paper filings, not just of POAs, but of all papers, by everyone. To encourage electronic filing, the rules should be amended to allow for a discount in cases of initial electronic filing of applications.
Since the proverbial excrement will hit the proverbial fan fairly soon, the ILPTO will have to deal with this issue quickly. I suspect that it won’t adopt either of the approaches suggested above, and instead will say it waives the no-paper-filing rule, but only for POAs, not for other documents.
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