Perhaps the question of “customers” of the PTO has been done to death already, and if so I apologize for making myself tedious. I have a few more thoughts on the subject however.

(1) Random Guy has made an unassailable (at least I think) point in his 20 Aug, 12:07 pm post—viz., that you have to pay fees to file a suit in U.S. court, and yet no one speaks of the plaintiff as a “customer” of the courts. Indeed, I dare say that a plaintiff’s lawyer who started opening arguments “speaking as a customer of this court…” would likely face sanctions, and would—at a minimum—draw a sharp rebuke from most judges. That is because we have an expectation associated with the word “customer” (exemplified in the maxim that Ben rightly notes, “the customer is always right”) that the customer holds the “upper hand” (so to speak) in an exchange. It is not right that the plaintiff hold an “upper hand” in a court suit, and it is no more meet that an applicant should hold such an “upper hand” in the examination process. That is why the word “customer” (and the idea of applicant-as-customer) is so unsuitable.

(2) If we imagine, however, that the applicant were a customer, what exactly is the customer buying? There are two plausible answers to that question:

(2a) The first possibility is that the applicant is buying a patent grant. I would hope that we would all agree that the understanding “I paid my money, I am entitled to a patent grant” is wrong—both a descriptively and prescriptively. That is to say, an applicant who thinks that s/he is guaranteed a grant in exchange for the application fee is setting up for a disappointment. Also, it would be wrong (morally and as a policy matter) if the PTO really were to run its operations in such a manner.

(2a) If we do not suppose that the customer is buying a patent grant, however, then the next most obvious quid that the “customer” could be said to be buying is an examination. If that is the case, however, does it not seem odd that the applicant is not actually entitled to insist on a particular quality of examination? That is to say, if I go into my Ford dealer and pay for a Taurus, then I am entitled to expect delivery into my possession of a Taurus. If the dealer gives me a Focus, or gives me nothing at all, then I have a cause of action in court for breach of contract.

If, however, the applicant pays the application fee and receives a first action allowance, the applicant has no cause of action at all. The applicant cannot say “hey, I paid for an examination, but I see no evidence that an examination was done.” That state of affairs seems mighty strange if the applicant really is a “customer.” It is not strange at all, however, if one understands that the applicant is not the customer.