Post-Allowance, Preissuance — What could I do?

Once an examiner issues a Notice of Allowance, the train is moving and surprisingly hard to stop.

Once examination starts, the public is practically shut out — not from getting prior art in (the third-party submission window is still open early on), but from the back-and-forth itself: once you've filed, you have no right to respond to anything the applicant argues back. I describe it as a private conversation held in public. I'll do a follow-up post on this one because it's important. When you see the applicant making misleading statements, you are powerless to correct them. But now that the misleading statements resulted in a Notice of Allowance, you're even more powerless.

If I could fix the system

I'd put a cooling-off period in there. Ideally, I'd have a window where the USPTO basically asks, "we think this is allowable; public, what do you think?" Maybe another examiner should take a peek and weigh in too. Maybe a safety valve that lets you do what the PGR is supposed to be doing, but at the administrative level. I'd love to see something between "you can do absolutely nothing while your IP gets mischaracterized and taken" and this nutty PGR process. Basically, I think the PGR should be much easier than it actually is and should kick in once the examiner thinks it's allowable, opening a window for daylight to shine on the examination.

But that's not the case

I can't fix the system, but maybe someone reading this can.

So what could I do at this point?

Note: this was about 7-8 months ago.

The patent was allowed, under what I believe to be obviously flawed circumstances. Undeniably flawed (see Dispatch No. 9).

It had not technically issued yet, but the train was moving, so I wrote up my grievances in a sternly worded letter to the Director.^‡ This site is a much more detailed and entertaining version of that letter.

Surely (I thought) the USPTO would see the flaws and take corrective action. It was a long shot. Spoiler, it didn't work.

I was wrong. The USPTO's response was basically: "sorry, we won't be taking action." For what it's worth, the current Director (as of 2026) is doing great things for inventors at the USPTO. I sincerely hope the USPTO will see that this is a PGR in the purest form of its intended purpose, and that they will take a fair and honest look at the facts — and, more importantly, give me the benefit of the doubt. I didn't cause this mess. I actively tried to prevent it. I even paid a fee to that end (remember that third-party submission — see Dispatch No. 6). The PGR shouldn't be available only to corporations and large entities. This punitive financial burden is a deep problem.

† Ask my wife about this one. ↩

‡ Were there formal options? Technically, barely. A third party's protest under 37 CFR 1.291 generally has to be filed before the application is allowed — so that door had already closed. The only post-allowance levers — asking the Director to withdraw the application from issue under 37 CFR 1.313, or a petition to the Director — are discretionary and essentially never granted at an outsider's request. So the letter wasn't a procedural right; it was a longshot, and everyone involved knew it. ↩

Related dispatches

• Dispatch No. 6 — The Third-Party Preissuance Submission — the third-party submission I'd already filed.
• Dispatch No. 9 — The Overly Broad Claim Slipped Through — the overly broad claim I was trying to stop.
• Dispatch No. 12 — A Private Conversation, Held in Public — why my hands were tied during examination.
• Dispatch No. 28 — Let's Fix It — the fix: let the silenced party be heard before issuance.