Re:A summary of the patents... (Score 1)

Just a quick question - I don't think I've read anywhere that examiners can be sued and be personally held liable for any damages resulting from the mistake. Where can I find this?

I'm not too well versed in administrative law, but I think common law agency principles and respondeat superior will govern in such a situation. And thus an aggrieved applicant may sue the Commissioner of Patents in a District Court, and not the examiner himself. The commissioner is the principal/master, and the examiner is merely an agent/servant; and since the harm will be in the ordinary course of business, the agent cannot be held liable for any of his/her mistakes.

Although the Commissioner can be sued, I don't think a judge will grant damages for failure to grant a patent where it should have been. A patent in the United States is enforceable from its effective filing date, (with a few exceptions that can modify that) so if a decision to reject is later overturned, any infringement action will grant damages calculated from that effective date. Since the patentee will be made whole from any damages it recovers from any infringers, there is no harm that the examiner caused by failing to allow.

Also - The court system is not the only way a patentability dispute can be resolved in the United States. Of course, an aggrieved applicant can sue the Commissioner of Patents in the DC circuit court, but the other route after a Final Rejection issues is to appeal to the Board of Appeals. Then, that decision can be appealed to the courts.

Likewise in the United States, the patent examiners are technical specialists in a very distinct practice area. Some may have legal training.