Earlier this week USPTO Director David Kappos announced on his blog the USPTO Data Visualization Center and the Patents Dashboard. During my behind the scenes tour of the Patent Office in July 2010, I attended a meeting on the Visualization Center and the Patents Dashboard, and was favorably impressed with what the Patent Office is trying to accomplish. In a word – transparency; that is what the USPTO is attempting to accomplish . Director Kappos takes seriously the Obama Administration mantra and wants to provide the public with access to as much or as little data as desired. The Visualization Center shows graphics that look much like a speedometer, which is where the Patents Dashboard moniker comes from, but the data is also available for those who want to see the numbers and figures used to create the easy to understand graphics. In fact, during my time at the USPTO, Director Kappos continually would say that he wants to allow anyone who is interested to drill down as much as they desire, including to the raw data level if they want.
The Visualization Center and the Patent Dashboards should be exceptionally welcome, as should the fact that the Patent Office is no longer going to allow “the RCE gaming” to provide an inaccurate picture of average total pendency. For years the Patent Office has allowed the filing of an RCE, which is a request for continued examination, to reset the pendency clock and pretend that the case in which the RCE was filed had come to a conclusion. This was intellectually dishonest and everyone knew it. For crying out loud, an RCE doesn’t even get a new serial number because it is the same file as the underlying previous case. Nevertheless, in order to make average pendency look far lower than it actually was the Patent Office gamed RCEs. Compound this with the fact that examiners have incentives to force RCEs, a well documented problem, and you can easily understand that up until now the average pendency information was not even closely accurate to reality from the applicants perspective.
The applicant cares about one thing and one thing only. If I am going to be entitled to a patent how long will it take to get that patent. Pretty simple and straight forward, but with the RCE accounting gaming at the USPTO that was really impossible to tell, other than to guess what that information should likely be. Now, however, the Kappos Administration is reporting pendency including RCE pendency, which is the average number of months from the patent application filing date to the ultimate disposal of the application, irrespective of any intermediate filing of a RCE. The Patent Dashboard explains: “This is unlike the traditional total pendency measure which treats the abandonment for the filing of an RCE as a disposal and stops the pendency clock at that point.” For August 2010 the average pendency including RCE filings is 42.8 months.
Kappos explains the new metrics as follows (emphasis in the original):
The dashboard introduces six new measures of pendency designed to give a better overall picture of the contributions of different parts of the examination process to application pendency. For example, the traditional total pendency measure stops the clock with the filing of an RCE, which may not provide an accurate measure of the total time it takes to complete the examination of an application through request for continued examination (RCE) practice. A new measure, called “Traditional Total Pendency Including RCEs,” looks at pendency of applications from filing of the original application to ultimate disposal of that same application, including any additional time attributable to RCE filings in those applications where RCE filings are made. Similar measures are provided relative to divisional applications and other types of continuation practice. We also provide information about pendency for applications in appeal practice.
I have indirectly heard that there are those who are complaining about the fact that in addition to providing far more realistic measures the USPTO will continue to report the highly cooked and inaccurate total pendency numbers under the old formula. My response is this — you have to be kidding me! Really? You are going to get upset with the fact that the Patent Office is providing too much information? My initial thought is that those making such complaints should suck up and deal, but that doesn’t capture my true feelings really. My true feelings are more like this — GROW UP! The Patent Office is going to continue to report the old, highly inaccurate statistics so that true comparisons can be made between apples and apples instead of apples and elephants. So we get the benefit of knowing what is REALLY happening and we still retain the ability to compare where the Patent Office is versus how statistics were previously provided. What could possibly be wrong with that?
In any event, as you can see from the screenshot below, the Patent Office is providing a lot of easy to comprehend information, and I think they know that some of this information is going to make applicants and their representatives take a deep sigh nearly simultaneously to a heavy gulping in the throat.
It is not pretty to see that the average pendency to a case where a Board decision is necessary is 76.1 months, and the average pendency of a case where one or more RCEs are filed is 60.7 months. This is unacceptable and hopefully leaders in Congress are paying attention! They have been mislead for many years. So the numbers are in some cases going to be terrifying, but ignoring the truth simply will not lead to the change and efficiencies needed.
Director Kappos explained in his blog article:
An important part of the effort to reduce pendency is better understanding the numerous factors that contribute to examination delays and measuring their impact in a way that makes the USPTO more transparent to the public. By looking at the whole picture, we can more effectively develop ways to increase the efficiency of the examination process. While we know we have to hire more examiners to reduce the backlog, we also know that we must re-engineer the way we do business at the USPTO and have already implemented a series of initiatives designed to improve efficiencies. These process changes will empower our workforce to be more effective and have already begun to yield important gains.
More data should not be a concern, and it will likely allow Kappos and Company to identify areas needing help. Now if only they can get the funds from Congress to do that, which seems a fanciful dream really.
Here’s a thought. Rather than new stimulus spending on infrastructure when not all the original stimulus funds have been spent on all of those “shovel ready” projects, perhaps some of the unspent and seemingly unspendable remaining original stimulus funds could be invested in the infrastructure of the USPTO. After all, they are the only government agency that can create wealth without causing inflation. No, they don’t turn on the printing presses in the night and flood the market with decreasing valued paper. Rather they participate on the front end of organic job creation by helping new businesses start and grow, creating high-tech employment and leading to the formulation of entire new growth industries. All they have to do is issue patents in a relevant time frame, which over the last 8 to 10 years has been an enormous challenge for the Office.
Something has to be done and soon! All this information is great, but depressing. The inventions that are likely the most valuable and most likely to lead to organic job growth are the ones that are accordingly highly regarded and valued by applicants. So those applicants who are willing to fund RCEs, continuations, divisionals and appeals to the Board are likely sitting on applications with the greatest potential positive impact on the economy, and average pendency in these cases that nearly 6 years (or more) is absurd! With that being the average there are quite a number that wait far longer, and these are the important inventions?
Hopefully this realistic view of the trials and tribulations of the Patent Office will get some in Washington to care a little more, which sadly ought not to be very hard to accomplish. But will it matter? Will they do anything? I sure hope so!
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5 comments so far.
Arizona Patent AttorneyOctober 7, 2010 02:42 pm
Sorry – I didn’t mean to insinuate you were condemning the idea. I noticed the article as well, but hadn’t seen much commentary on it. Just offering my thoughts on it.
The Mad HatterSeptember 14, 2010 01:37 pm
I don’t remember condemning the idea. I just asked Gene for his thoughts on the article.
Arizona Patent AttorneySeptember 13, 2010 07:53 pm
Mad Hatter – a friend forwarded that Bnet article to me as well. I think its author put a bit of an unfortunate spin on the new dashboard. Unless I’m missing something, he cites the dashboard incorrectly, stating that it took 35.4 months from filing to first office action, but the “traditional total pendency” dial measures time from filing to issuance/abandonment, I believe.
The PTO is trying to make real progress, and I think this release is to be complimented, not condemned. To adopt the author’s metaphor – if a child cops to throwing a ball through a window, should he be chastised for breaking the window or praised for owning up to it? That said, I think the Bnet article misses the point somewhat, or at least uses it improperly.
patent litigationSeptember 13, 2010 03:51 pm
It’s nice (though at this point not unexpected) to see Kappos adopting yet another measure to increase transparency and efficiency in patent law. And, yes, the USPTO always needs more funding … then again, don’t we all?
The Mad HatterSeptember 11, 2010 11:37 pm
Did you see this article?