Continuing the discussion on FOIA request denials by the USPTO under Exemption 7(A), another aspect of the exemption is that even if the USPTO was a law enforcement agency, the information must still be released if doing so will not cause harm.

Specifically, Exemption 7(A) applies to instances where disclosure “could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A).  This makes sense, since the whole point of Exemption 7(A) relates to law enforcement and it would not be helpful if release of information hindered that enforcement.  In order to justify withholding information under Exemption 7(A), the government must point to some articulable harm the might result from the disclosure.  See, e.g., Juarez v. U.S. Dep’t of Justice, 518 F.3d 54, 58-59 (D.C. Cir. 2008).  The primary type of harm targeted by Exemption 7(A) arises in instances when “the government’s case in court would be harmed by the premature release of evidence or information,” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 232 (1978), or when release of information would hinder investigation efforts by the agency. See, e.g., Solar Sources, Inc. v. U.S., 142 F.3d 1033 (7th Cir. 1998) (investigation of anti-trust law violations).  In the context of information about publically available patent applications, the USPTO has to reach hard to find some harm.  In one of my requests, the USPTO alleged that applicants may attempt to route their applications to certain examiners if they had the information complied in the way I was asking for it. Note, the USPTO often tries to use this argument in various contexts in denying FOIA requests, but here it is far from the type of harm contemplated by Exemption 7(A).

A big problem for the USPTO is that this type of alleged harm is a red herring.  Surely the USPTO is aware of its own rules and regulations.  MPEP §903 explains that it is the Agency itself that assigns applications to examiners.  From MPEP §903.08(a), “New nonprovisional applications are assigned to the various Technology Centers (TCs) in the first instance by the Office of Initial Patent Examination (OIPE).”  Further, MPEP §903.08(b) explains that “[e]very nonprovisional application, new or amended, and including the drawings, if any, when first assigned to a Technology Center (TC) must be classified and assigned to an examiner for examination. The supervisory patent examiner normally classifies the application and assigns the application to an examiner.”

Furthermore, even if applicants could somehow attempt to circumvent this process and try to steer their application in some way, the MPEP further explains that the USPTO is in full control of the assignment of examiner and can modify such assignments.  From MPEP §903.08(a), “[w]hen a new application is received which, in the opinion of the primary examiner, does not belong to his or her TC, he or she may request transfer of it to another TC.”  The MPEP then provides detailed processes in §903.08(d) for the transfer procedure – all of which have no input from the applicant.  Thus, there is no mechanism provided in the Rules by which applicants may route their applications to certain examiners.

Good luck with your future FOIA requests and hopefully you will not need to argue about Exemption 7(A).