In 2006, Peter Orszag, the current head of the Office of Management and Budget, observed in an article he co-authored for the Brookings Institution:
Because the U.S. is at the frontier of modern technological and scientific advances, sustaining economic growth depends substantially on our ability to advance that frontier.
Orszag is, of course, correct. Unfortunately, without meaningful and near immediate reform at the Patent Office little can be expected to be accomplished that will chart the course for the growth necessary to bring us out of this economic morass. If we are going to have any hope of pulling out of this economic nose dive as we have after so many recessions of the past, the Patent Office must develop new and better work-flow management techniques, and patent applicants must be treated equally and fairly. A patent system that grants speedy action within a few months to some, and which denies action for up to 10 years to others, is not only unconstitutional, but appears to be unprincipled to the point where we must hit the reset button. This will, of course, require additional resources and a new, bold approach that is modeled after the private sector.
How can one explain the fact that some applicants get speedy action, receive patents in relevant time frames and others simply do not. When the Patent Office approves a Petition to Make Special based on an applicant’s advanced age (in this case over 80 years old), how is it possible that no action is taken by the Patent Office for 3 years, while in other areas patents are issued more quickly not having been accelerated? For some time many commentators, including myself, have called the Patent Office dysfunctional, but does that really capture the magnitude of the problem? I realize that change cannot happen overnight, and that meaningful and important change is starting to take place, but the magnitude of the problem seems far worse than anyone could have ever contemplated. Wholesale change is needed to address the fundamental unfairness that causes discrimination between applicants, otherwise we risk honest, hardworking individuals to throw up their hands and capitulate. That is not the American way, but is that where innovation is heading?
Before any change can begin we need to get the problems out in the open. What is likely happening is that certain patent examiners, how many I don’t know, but it could be rampant, are taking cases out of order. The Patent Office is supposed to operate on a first-in-first-out basis. Examiners are assigned work and they are supposed to take the work in order. We all know that does not happen, and we all know it is because patent examiners have to meet a certain quota. The quota they must meet not only entitles them to bonus pay, but if they miss their quota twice I have been told they are released. So how often do you think an examiner misses their quota? With bad decisions of the past (i.e., second pair of eyes) having created a tremendous backlog of applications, what was once a nuisance is now a disaster.
I do not blame examiners. Who among us would not do what is necessary to make their bonus and keep their job? But in order to meet their quota it is well known that some examiners, perhaps a growing number of examiners, take cases out of order. They look for easy cases that won’t take much time. This leads to some applications never advancing, or advancing at a truly snails pace. It would be one thing for this to be happening, but given that the US Constitution requires equal treatment under the law, this happening is quite another thing given the truly disparate treatment some receive when compared to others.
I have known of this examiner quota abuse for my entire career as a patent attorney, and I am now in my eleventh year of practice as a patent attorney. Examiners who leave the Office and join firms tell stories about how they saw this type of stuff going on, but never admit to doing it themselves. I wouldn’t blame them if they did. If the management of human resources is so bad at the Patent Office then how can we realistically expect employees who are trying to earn a living and keep their job to not do whatever is necessary to keep their job? I will never blame examiners for this. I simply will not hold others to a higher standard than I am willing to hold myself, and if we are all honest we likely would admit to doing what is necessary to keep your job, save things that are illegal perhaps.
But how hard would it be to keep track of cases that are assigned to examiners? I realize that in years past examiners were professionals, saw their role as critically important (which it is) and felt as if they were truly a part of something bigger than themselves — they were part of the patent examining corps. From what I hear from many, there is no feeling among examiners that they are part of something bigger than themselves. Today, I suspect you would be hard pressed to find many, particularly the youngsters, who feel a fondness or particular bond that many old-time patent examiners felt with respect to being a part of the examining corps. This being the case, management techniques need to adapt and evolve. It is obvious you cannot simply load up an examiner with a pile of work and expect that they will manage their day to day affairs in a way that is not advantageous to them. It also seems clear that at least some examiners cannot be trusted to follow the first-in-first-out rule with respect to their own docket.
If the Patent Office really wants to reform and be a part of the solution, rather than the problem, the Patent Office must address the examiner quota system, revisit the goals, install realistic performance goals and prevent examiners from taking cases out of turn. Within a few days new policies could be placed into effect, requiring the collection of all assigned cases awaiting first action. These applications should be collected by the various front line Supervisors, who can then engage in basic triage and hand out a case at a time to the examiners they are managing. Due dates should be provided, expectations should be set and some centralized control returned to managing workflow. If for some reason the due date cannot be met then the examiner should be forced to explain and the Supervisor then considers whether an extension is given or whether to somehow put a note in the personnel file.
The problem of examiners taking cases out of order can and should be solved immediately. The Patent Office needs to operate more like a law firm, with bulk of examiners being junior partners or associates. Those who can be trusted are given more latitude, those who require more management get more management and have to deal with someone checking up and checking in. It is sad that it has to be this way, but this is no longer a matter of inconvenience or a problem that can be characterized as cherry-picking. With what are truly disparate treatment of applicants, Patent Office management must step in and institute rigid workflow management techniques to prevent the unconstitutional discrimination that is going on as a result of trusting all examiners to manage their own docket.
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2 comments so far.
Dale B. HallingJuly 22, 2009 03:47 pm
Improving the workflow at the USPTO is critical for our technology economy. In order to improve the spirit of the examining corp we need to debunk the myth that numerous bad patents are being issued. A couple of excellent papers on this point are “Patent Grant rates at the United State Patent and Trademark Office” (http://jip.kentlaw.edu/art/volume%204/4%20Chi-Kent%20J%20Intell%20Prop%20108.pdf) and “Bad Science in Search of “Bad” Patents” (http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=rkatznelson).
My suggested reforms to reduce pendency include changing the “count” or “point” system for examiners – see http://hallingblog.com/2009/07/10/three-steps-to-reduce-patent-pendency-times/.
My suggested reforms for the patent system generally include regional offices for the USPTO. This would increase retention rates for examiners and increase the probability of being adequately funded. According to one UK patent attorney, when the UK patent office moved from London to Wales they saw a marked increase in the quality of the people the patent office was able to attract. For my other suggested reforms see http://hallingblog.com/2009/05/29/real-patent-reform/
KeroseneJune 12, 2009 09:28 am
posted on an earlier thread that may not see traffic:
Thought you might be interested in this random post at Patently-O:
Prosecutor 6k said…
I just wanted to acknowledge that, within the past couple months, I have been very pleased by the responsiveness and general way things are going at the PTO. I’ve had three applications get FOAMs within 6 months of filing, I’ve had petitions and other minor submissions acted on within a week of submitting them, and I’ve found Examiner’s attitudes generally more pleasant and less combatitive. I’ve dogged mightily on the USPTO in the past, but I wanted to recognize good behavior when I see it. ::gold star::
Three FOAMs within 6 months of filing!