USPTO – En Route to Recovery

As one who typically finds himself aligned with the Republican side of the political aisle, it pains me to admit that under the Bush Administration the Patent Office became an terribly dysfunctional agency, thanks in no small part to political leadership having almost no patent experience prior to taking the position as Director of the PTO.

Gene Quinn

Gene Quinn

This lead both of President Bush’s appointments, and in particular Jon Dudas, to make bad decisions with respect to what needed to be done to tackle the issues facing the Office.  In an almost Soviet-era style of management, goals were set forth and completely achieved year after year, and the Patent Office would give themselves A+ grades across the board for meeting their objectives.  All the while the patent system sunk deeper and deeper  into the abyss.  Unfortunately, the goals established had little or nothing to do with making the patent system better, or even functional.  Thank goodness things are changing at the United States Patent Office, and changing for the better!

Several weeks ago I wrote an article detailing new initiatives that would be taking place at the Patent Office relating to quality review.  My source who told me about this new initiative has never been wrong, and although I was beaten around the head (albeit in a virtual way) by folks who thought I was just making stuff up, I knew it was right, no matter how crazy it seemed.  And trust me, it did seem crazy because it was really the first thing that one could point to showing that the Patent Office understood the problems it created for itself and were willing to make changes, including drastic changes, to get the patent system back on track.

After writing this article I received a call from the Patent Office and one thing lead to another and I wound up interviewing the Acting Commissioner for Patents, Peggy Focarino.  The Patent Office was happy to see that a commentator was actually giving the Patent Office the benefit of the doubt, and I explained that if what I had heard was true that the Patent Office certainly deserved the benefit of the doubt because this could start the march toward a better patent system, at least with respect to what it is that the Patent Office can do without Congressional assistance, but that is another story for another day.

During my 40 minute conversation with Commissioner Focarino, many things came up which were newsworthy.  Here is one particularly interesting question and answer:

QUESTION: I understand that there will also be a reorganization of the Office of Patent Quality Assurance (OPQA) in 2009.  Can you tell me what the Office has planned?

ANSWER: There will be no change to the organizational structure of OPQA or its major function, which is to measure quality.  OPQA will continue to provide estimates of examination quality at the Corps level with the desired level of precision and confidence (95% confidence and a sample error margin of +/- .5%). What is changing is the volume of end process reviews.   This will enable OPQA to increase the resources available to the Technology Centers to assist with TC specific quality improvement initiatives.  By having the reviewers working closer with the Technology Centers, OPQA will have a better grasp of training needs and areas needing improvement.   This approach will enable OPQA to better assess what is happening with respect to the quality of the examiners work product rather than what has happened.

This is big news indeed.  One of the problems facing the Patent Office is low morale of examiners.  Whether rightly or wrongly, there has been a perception under the Dudas Administration that all that mattered was meeting production goals, and rejections were just as good, if not better than allowances.  Examiners perceived quality review as a way to punish them for mistakes and hold it against them with respect to bonuses and promotions.  The reality was that quality review did include some review of cases where an examiner incorrectly rejected an application that should have been allowed, but I think it is safe to say that most focus was placed on cases that were allowed and should have been rejected.  The message to examiners was that they were better off rejecting than allowing, because the likelihood that a wrongly rejected application would come back to hurt them was much lower, and in the mind of some examiners completely non-existent.  So the mantra at the Patent Office became “reject, reject, reject right now!”

By focusing resources on helping examiners get work correct in a non-threatening way; in a manner that would not count against the examiner with respect to bonuses and advancement, the Patent Office is working to fix one of the primary problems created under Dudas.  On top of that Commissioner Focarino told me that examiners will be encouraged to work with patent applicants early in the process to identify allowable matter, if it exists.  Examiners will also be encouraged to have interviews with applicants late in the process to see if it is possible to eliminate the need for the filing of continuations and RCEs.  This is huge!  Allow me to decode this for you… examiners will be encouraged to find something allowable late in the process rather than forcing applicants to file another application to keep fighting or file an RCE to go back into prosecution.  This is great news!

Then a couple days ago I with Mark Malek, a patent attorney at the firm I am with, Zies Widerman & Malek.  Mark had an interesting conversation with a patent examiner who shall remain nameless.  The purpose of the call was to inquire about the status of a particular application that had been filed over 4 years ago and which was still waiting a First Office Action.  The patent examiner told Mark that about 2 weeks ago management started telling the examining corps that they need to start issuing patents.  The edict, which comes as part of the new training initiatives that Commissioner Focarino spoke to me about, encourages examiners to no longer simply reject applications and throw the ball back to the applicant.  Examiners are being encouraged to reject where appropriate, but offer solutions and suggestions when there does appear to be allowable and patentable subject matter.  So the examiners are being encouraged to meaningfully collaborate with applicants and get patents issued where appropriate.

It seems like the Patent Office is becoming the Patent Granting Authority that I have been begging it would become.  These new initiatives should start to streamline patent prosecution, get patents issued and really dig into both the backlog of patent applications and length of time patent applications remaining pending, both of which have grown to unacceptable levels.  Now we can only hope that President Obama will not appoint a new Director who will get in the way of the initiatives started by career Patent Office management.  I am keeping my fingers crossed!

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