Case Detail

FOIA Project Annotation: In a ruling that serves as a graphic illustration of the lengths to which an agency will go to prevent disclosure of a record it does not want to release, Judge Royce Lamberth has rejected out of hand the U.S. Patent and Trademark Office's claim that an email from a patent examiner to a colleague commenting on Gilbert Hyatt's divorce was not subject to disclosure to Hyatt because it was not an agency record and, further it was protected by Exemption 6 (invasion of privacy). Hyatt is such a prolific inventor that the Patent Office has an entire team of patent examiners working on his patent applications alone. As a result of litigation over Hyatt's patent applications, Hyatt discovered an email sent by patent examiner Walter Briney sharing with colleagues a link to a 1993 newspaper article about Hyatt's divorce proceedings and indicating the article "provides a unique glimpse into Hyatt's mind." Another patent examiner, Hien Dieu Thi (Cindy) Khuu responded to the email. Since Hyatt already had the Briney email, he filed a FOIA request for the Khuu email. The agency refused to disclose the email, claiming it was a personal opinion not related to agency business. Lamberth found neither claim applied. He pointed out that "the PTO attempts to frame the email as containing a personal opinion 'in the context of an email exchange about divorce proceedings.' But a close reading of its filings reveals that it was unable even to assert that the email in question was about divorce. Indeed, a personal record in that context might have included Ms. Khuu making a general comment about divorce, lamenting about a personal experience with divorce. . .or expressing something similar. This email does not. Instead, it comments specifically on an element of Mr. Hyatt's character that reasonably would be at issue in any negotiation between Mr. Hyatt and agency employees at any level, from examiners to policymakers." The agency argued the email constituted a personal record because it did not bear on agency business. Lamberth disagreed, noting that "here, however, the Court has before it a FOIA request concerning what the requested document may reflect about how examination of a large group of patents has proceeded, and Khuu clearly expresses an opinion about a character at the center of her examination portfolio, to a colleague who has that same portfolio." Lamberth observed that "the PTO appears to wish the Court to find that opinion-laden documents are not agency records where the law does not allow for government employees to consider their personal opinions in the course of their official duties, or where statute or regulation limits the extent to which an employee's personal opinion is permitted to enter into consideration in the course of those duties." Responding, he indicated that "the fact that the creation and reading of the email thread may have been outside the scope of the sending and receiving examiners' employment with the agency is not dispositive as to whether the email is an agency record." He rejected the agency's claim that the email was protected under Exemption 6, finding instead that Khuu did not have a personal privacy interest in the content of the email. He noted that "Ms. Khuu does not give an opinion about divorce or other matters personal to her in the email; rather, she related an opinion about her charge. Further, it is worth repeating that Mr. Hyatt is not merely one of many patent applicants whose purported inventions Ms. Khuu is reviewing â€" he is the full-time subject of her job."
Issues: Agency Record, Exemption 6 - Invasion of privacy

Date Filed	Doc #	Docket Text
2018-02-01	1	COMPLAINT against UNITED STATES PATENT AND TRADEMARK OFFICE ( Filing fee $ 400 receipt number 0090-5312879) filed by GILBERT P. HYATT. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Civil Cover Sheet, # 8 Summons, # 9 Summons, # 10 Summons)(Grossman, Andrew) (Attachment 7 replaced on 2/1/2018) (jd). (Entered: 02/01/2018)
2018-02-01	2	NOTICE OF RELATED CASE by GILBERT P. HYATT. Case related to Case No. 05-2310, 09-1864, 09-1869, 09-1872. (Grossman, Andrew) (Main Document 2 replaced on 2/1/2018) (jd). (Entered: 02/01/2018)
2018-02-01	3	MOTION for Summary Judgment by GILBERT P. HYATT (Attachments: # 1 Statement of Facts Statement of Undisputed Material Facts, # 2 Declaration Declaration of Andrew M. Grossman, # 3 Memorandum in Support, # 4 Text of Proposed Order)(Grossman, Andrew) (Entered: 02/01/2018)
2018-02-01	4	MOTION to Compel Production of Document for in Camera Review by GILBERT P. HYATT (Attachments: # 1 Text of Proposed Order)(Grossman, Andrew) (Entered: 02/01/2018)
2018-02-01		Case Assigned to Judge Royce C. Lamberth. (jd) (Entered: 02/01/2018)
2018-02-06	5	SUMMONS (3) Issued Electronically as to UNITED STATES PATENT AND TRADEMARK OFFICE, U.S. Attorney and U.S. Attorney General. (Attachment: # 1 Notice and Consent)(jd) (Entered: 02/06/2018)
2018-02-21	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES PATENT AND TRADEMARK OFFICE served on 2/6/2018 (Attachments: # 1 Return of Service on Dept. of Commerce GC)(Grossman, Andrew) Modified date of service on 2/22/2018 (znmw). (Entered: 02/21/2018)
2018-02-21	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 2/6/2018. Answer due for ALL FEDERAL DEFENDANTS by 3/8/2018. (Grossman, Andrew) (Entered: 02/21/2018)
2018-02-21	8	CERTIFICATE OF SERVICE by GILBERT P. HYATT re 4 MOTION to Compel Production of Document for in Camera Review , 3 MOTION for Summary Judgment . (Grossman, Andrew) (Entered: 02/21/2018)
2018-03-06	9	NOTICE of Appearance by Jason Todd Cohen on behalf of UNITED STATES PATENT AND TRADEMARK OFFICE (Cohen, Jason) (Entered: 03/06/2018)
2018-03-08	10	ANSWER to 1 Complaint by UNITED STATES PATENT AND TRADEMARK OFFICE.(Cohen, Jason) Modified to add link on 3/9/2018 (znmw). (Entered: 03/08/2018)
2018-03-09	11	NOTICE of Appearance by Paul Marc Levine on behalf of GILBERT P. HYATT (Levine, Paul) (Entered: 03/09/2018)
2018-03-09	12	NOTICE of Appearance by Mark Wendell DeLaquil on behalf of GILBERT P. HYATT (DeLaquil, Mark) (Entered: 03/09/2018)
2018-03-15	13	PROPOSED BRIEFING SCHEDULE by UNITED STATES PATENT AND TRADEMARK OFFICE. (Attachments: # 1 Text of Proposed Order)(Cohen, Jason) (Entered: 03/15/2018)
2018-03-20	14	Order directing the parties to adhere to the following briefing schedule: Summary Judgment motions due by 4/9/2018. Response to Motion for Summary Judgment due by 4/23/2018. Reply to Motion for Summary Judgment due by 5/7/2018. Signed by Judge Royce C. Lamberth on 3/19/18. (lsj) (Entered: 03/20/2018)
2018-04-09	15	Cross MOTION for Summary Judgment by UNITED STATES PATENT AND TRADEMARK OFFICE (Attachments: # 1 Memorandum in Support of Defendant's Cross-Motion for Summary Judgment and in Opposition to Plaintiff's Motion, # 2 Defendant's Statement of Material Facts Not in Genuine Dispute, # 3 Defendant's Response to Plaintiff's Statement of Facts, # 4 Declaration of Louis J. Boston Jr., # 5 Text of Proposed Order)(Cohen, Jason) (Entered: 04/09/2018)
2018-04-09	16	Memorandum in opposition to re 3 MOTION for Summary Judgment filed by UNITED STATES PATENT AND TRADEMARK OFFICE. (Attachments: # 1 Defendant's Response to Plaintiff's Statement of Facts, # 2 Defendant's Statement of Material Facts Not in Genuine Dispute, # 3 Declaration of Louis J. Boston Jr.)(Cohen, Jason) (Entered: 04/09/2018)
2018-04-09	17	Memorandum in opposition to re 4 MOTION to Compel Production of Document for in Camera Review filed by UNITED STATES PATENT AND TRADEMARK OFFICE. (Cohen, Jason) (Entered: 04/09/2018)
2018-04-23	18	REPLY to opposition to motion re 4 MOTION to Compel Production of Document for in Camera Review , 3 MOTION for Summary Judgment filed by GILBERT P. HYATT. (Grossman, Andrew) (Entered: 04/23/2018)
2018-04-23	19	Memorandum in opposition to re 15 Cross MOTION for Summary Judgment filed by GILBERT P. HYATT. (Grossman, Andrew) (Entered: 04/23/2018)
2018-05-07	20	REPLY to opposition to motion re 15 Cross MOTION for Summary Judgment filed by UNITED STATES PATENT AND TRADEMARK OFFICE. (Cohen, Jason) (Entered: 05/07/2018)
2018-07-23	21	NOTICE OF SUPPLEMENTAL AUTHORITY by GILBERT P. HYATT (Grossman, Andrew) (Entered: 07/23/2018)
2018-07-24	22	ORDER granting 4 Motion to Compel. Defendant shall produce an in-camera submission of the document referred to as the Khuu email to the Court by 8/2/2018. Signed by Judge Royce C. Lamberth on 7/23/18. (lsj) (Entered: 07/24/2018)
2018-09-28	23	MEMORANDUM OPINION. Signed by Judge Royce C. Lamberth on 9/28/18. (lcrcl2) (Entered: 09/28/2018)
2018-09-28	24	ORDER DENYING 15 Cross MOTION for Summary Judgment and GRANTING 3 MOTION for Summary Judgment. Signed by Judge Royce C. Lamberth on 9/28/18. (lcrcl2) (Entered: 09/28/2018)
2018-10-12	25	MOTION for Attorney Fees and Costs by GILBERT P. HYATT (Attachments: # 1 Memorandum in Support Memorandum of Law in Support, # 2 Declaration Declaration of Andrew M. Grossman, # 3 Exhibit Exhibit 1, # 4 Exhibit Exhibit 2, # 5 Exhibit Exhibit 3, # 6 Exhibit Exhibit 4, # 7 Exhibit Exhibit 5, # 8 Exhibit Exhibit 6, # 9 Declaration Declaration of Gilbert P. Hyatt, # 10 Text of Proposed Order Proposed Order)(Grossman, Andrew) (Entered: 10/12/2018)
2018-10-24	26	MOTION for Extension of Time to File Response/Reply as to 25 MOTION for Attorney Fees and Costs by UNITED STATES PATENT AND TRADEMARK OFFICE (Attachments: # 1 Text of Proposed Order)(Cohen, Jason) (Entered: 10/24/2018)
2018-10-25	27	RESPONSE re 26 MOTION for Extension of Time to File Response/Reply as to 25 MOTION for Attorney Fees and Costs filed by GILBERT P. HYATT. (Grossman, Andrew) (Entered: 10/25/2018)
2018-11-30	28	STIPULATION of Dismissal by GILBERT P. HYATT. (Grossman, Andrew) (Entered: 11/30/2018)
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