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16 “On the one hand, [DOGE’s] current primary tools… need some accommodation to grasp the unique aspects of the USPTO. On the other hand…[it] has stimulated some real thinking and activity to improve efficiency in both examination practices and patent enforcement.”
In recent weeks I have frequently been asked for my thoughts on the interaction between the new Department of Government Efficiency (DOGE) and the U.S. Patent and Trademark Office (USPTO). My answer is always that I am a bit concerned about the impact of DOGE on the Agency. It seems to me that a user-funded agency falls into a slightly different category with respect to government efficiency measures on the use of funds. Of course, those (steadily-rising) user fees are a form of “taxation” on the U.S. innovation system and should be part of a real drive to improve government-wide efficiency.
In addition, the USPTO could use some genuine incentives to improve its performance. The backlog problem has been perpetual throughout the many decades that I have participated in the patent system. Indeed, the standard response for decades (hire more examiners) has not really made a lot of progress. Maybe some outside “influence” could stimulate some new thinking about ways to reduce the problem. Of course, I “get it” that USPTO will face real challenges to reduce its backlog if many examiners take an “early retirement” offered by the Trump Administration. Maybe some special rewards for examiner efficiency and diversion of some resources toward backlog reduction would help? And I also “get it” that the “return to work” program may pose another challenge to improvements in examiner efficiency. Maybe a hybrid system that requires some “office days” every week and more productive monitoring of remote work would help?
The DOGE Mandate Presents an Opportunity for New Solutions
It is my profound hope that the Trump Administration inspires some new thoughts about solutions, not complications, to the backlog problem. At the same time, I would urge the USPTO to recognize better that the patent system is really an international system and our work and cooperation with the other primary IP nations (the IP 5 in particular, which should probably now expand to include India and Israel) is essential to make the patent examination and enforcement systems more efficient. Insightful patent practitioners have worked together on that approach for years.
I have often thought that examination could be better shared and harmonized amongst the major patent nations and thus make each nation and the entire system more efficient. Of course, the PPH (patent prosecution highway) is a baby-step in the right direction, but like other past solutions, it has not solved much. Maybe a system that truly shared prior art and allocated examination to one patent nation that other patent nations would honor would help? I am not oblivious to the harmonization challenges (primarily eligibility standards, grace periods, and objective considerations of non-obviousness) that must be met to make a genuine international patent examination system work. Maybe the intervention of a President who might demand that the U.S. Congress and Judiciary get domestic eligibility rules into the mainstream of international norms and who might threaten reprisals if the EU did not adopt a grace period might help? President Xi routinely demands that the Chinese IP systems meet state policies and goals. A similar directive from President Trump might really make a difference to “MAKE U.S. PATENTS GREAT AGAIN.” I hope that kind of thinking gets a more prominent “look” at DOGE and the USPTO.
In sum, I find myself somewhat of two minds on DOGE and USPTO. On the one hand, its current primary tools—early retirements and return to work— need some accommodation to grasp the unique aspects of the USPTO. On the other hand, I appreciate that the DOGE focus on all U.S. agencies, including the USPTO, has stimulated some real thinking and activity to improve efficiency in both examination practices and patent enforcement.
The Real Way Forward
For me, the real key to DOGE/USPTO interactions may be the actions of a new Trump-appointed Director at USPTO. I hope that he or she harnesses the impetus for change to really improve efficiency at the USPTO, which has not really done much different or made much progress for decades. And I will not really even start to comment on the uneven and disruptive doctrines at the U.S. Court of Appeals for the Federal Circuit that have made the United States an outlier in international patent enforcement norms.
As I suggest, the DOGE inquiries have at least supplied some impetus to review the efficiency of the U.S. patent prosecution and enforcement systems. The “way forward” to ensure greater efficiency in both areas will likely require some legislative changes (like the PERA initiative in Congress) and executive branch changes (like more international harmonization and improvements of the U.S. system to find genuine advancements). The DOGE inquiry may well be the stimulus that achieves some genuine improvement at the USPTO. In sum, I welcome genuine and fine-tuned attention to making IP systems more efficient: MAKE U.S. PATENTS GREAT AGAIN!
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Join the Discussion
16 comments so far.
Nelson
March 14, 2025 11:59 amToo much hurdles from USPTO examiners who don’t understand or not appreciate our efforts in new technology and innovations. As compared to China, the China National Intellectual Property Administration granted most patents than any other countries! Since 2015, the IP office of China has issued the highest number of patents, surpassing the US. In 2023, China issued 920,797 patents, almost three times the 315,245 patents issued by the US, which ranked second. At meantime China granted less than 13% PCT into China and the number is continuously going downwards: https://chinapower.csis.org/patents/
Jon
March 5, 2025 10:39 amImplementing an ai would help
VK
February 20, 2025 04:51 pmF22 Strike and JP… this is a sad state of affairs for the solo inventor and flies in the face of encouraging innovation.
David Lewis
February 12, 2025 03:49 pmIt seems to be that the allegations of government inefficiency are based on stereotypes and unfounded assertions and not based in facts. Examiners have quotas, as a metric of their efficiency, and are rewarded and disciplined based on meeting, exceeding, or falling short of that quota.
I agree that it is often worth taking some time to see if a system can be improved and made more efficient, because no system is perfect. Sometimes a fresh start, outside eyes, and new ideas can be helpful. However, causing big shakeups in government agencies without any real evidence of actual inefficiencies and imposing new policies without any evidence that those policies will improve anything, is likely more harmful than helpful.
The article states,
“Maybe some special rewards for examiner efficiency and diversion of some resources toward backlog reduction would help?”
That is already in place and has been in place for decades. As mentioned, examiners have quotas, receive awards, and are disciplined and rewarded based on comparing the number of applications examined to their quota.
The article states,
“The backlog problem has been perpetual throughout the many decades that I have participated in the patent system. Indeed, the standard response for decades (hire more examiners) has not really made a lot of progress. ”
The article is written as if the backlog is stagnant and hiring more examiners has no effect on the backlog. However, the backlog changes and is correlated with the number of examiners divided by the rate at which new applications are received. With time the rate at which new applications are filed increases and the number of examiners needs to increase also. Often the higing rate of the US PTO does not keep up with the chances in the rate at which new applications are filed causing backlogs. A simple way to control the backlog is to fix the hiring rate of examiners (and support staff) to the rate at which new applications are filed (that formula could likely be improved upon. For example, the allowance rate likely also plays a role in the backlog, but fixing the hiring rate to the rate at which new applications are filed would likely be a good first approximation for a solution to the backlog “problem”).
The article is written as if DOGE is truly primarily focused on fixing government efficiency. That does not seem to be the case. Forcing people to go back to the Office forces the government to rent additional office space, which is clearly an inefficiency imposed by DOGE, which in the case of patent examiners and many other government employees, is not needed since there are already other reliable metrics of the employees’ productivity. Firing inspector generals without cause other than possibly because they have opinions that are not favorable to the Trump administration only allows for inefficiencies and corruption (note the inspector generals help ensure that the government is working as intended). DOGE’s actions to date have government employees on edge, which decreases morale and likely leads to further inefficiencies and a poorer work product. DOGE’s actions to date do not seem to be motivated by improving efficiency but about shutting down government, making a big splash under the guise of improving efficiency (even though their actions in-fact often cause inefficiencies), allowing for more intolerance of minorities, allowing for the imposition of Trump policies (which may be at odds with our current laws), and/or replacing career employees with Trump loyalists.
As an aside, it seems to me that in general people should be looking at how Musk’s and Trump’s actions affect their finances.
Regarding the patent office, I would assume that Musk’s companies have many patents pending. Examiners likely feel somewhat intimidated by Musk. As long as Musk receives some direct or indirect financial benefit from his companies, one should wonder how any examiner can examine Musk’s applications without giving them favorable treatment in the face of the power that Musk has over examiners. Perhaps that is part of what Musk hopes to accomplish.
Likely, the examination of Musk’s applications should be paused until he steps down from power to ensure that the applications are examined without any conflict of interest. The terms of those patents can be extended, accordingly, to mitigate any harm such a delay may cause to Musk.
As an aside, I like the suggestion of forcing Examiners and patent practitioners to have an interview in every case. I would add that having the interview early on (e.g., before examination) could also be beneficial, and requiring an interview with most responses to office actions might also be good.
However, expecting the attorneys to do any of that on their own is not realistic. Generally, applicants pay for the attorney’s work based on the attorney’s hourly rate. It can be difficult to explain to the applicants why they should pay for an interview when there is no guarantee of any tangible positive result. Note to the conduct an interview properly means that the attorney needs to prepare by reviewing the prosecution history and the content of the references, the application, and the claims, which takes time.
F22strike
February 12, 2025 12:02 pm@Bob Dickerman
Typo Correction:
The bloated and inefficient federal bureaucracy needs to be fixed.
F22strike
February 11, 2025 08:07 pm@Bob Dickerman
Elections have consequences. The boated and inefficient federal bureaucracy needs to be fixed.
Registered patent attorneys that criticize the USPTO on this website need to preserve their anonymity or else they risk subtle retaliation.
F22strike
February 11, 2025 07:55 pm@Brian Graham
Quoting William Shakespeare:
“Let’s kill all the lawyers”
Albert Keyack
February 11, 2025 06:24 pmNice to see Judge Rader’s views. Patent Examiners have indeed worked remotely for decades and done so efficiently. Trademark Examining Attorneys even more so, and even more efficiently. SO “RTO” should simply mean “return to 2018/19 level of remote work.”
@F22Strike, I’m not sure having all patent examiners pass the bar would improve quality but bringing back the USPTO/DOC pay for law school would be a great incentive. It might also be useful to remember that the EPO does a very, very fine job at search and examination (broadly speaking) with a staff who are well compensated, well educated, extremely well trained–and not lawyers!
Bob Dickerman
February 11, 2025 10:42 amObviously, Trump has no clue and no opinion on patent policy, except for what Elon “patents are for the weak” Musk spoon-feeds him.
Musk is already disrupting the USPTO by pushing RTO; most examiners have worked remotely for decades, like it or not.
After he has disemboweled agencies and programs that serve the poor, Musk may bring his cadre of hackers to the USPTO. If so, he will simply attempt to hack the Office in ways that will serve his own or Trump’s buddies’ own businesses and interests.
Nonetheless, the official roadmap for the USPTO is now that of Project 2025 (which Trump and his campaign totally disavowed, of course). From page 664:
“The U.S. Patent and Trademark Office (USPTO) should be made into a
performance-based organization under the Office of Management and
Budget (OMB);
Alternatively, the USPTO should be consolidated with the National
Institute of Standards and Technology (NIST) in a new U.S. Office of
Patents, Trademarks, and Standards, with all non-mission-critical research functions eliminated or moved to other, more focused, federal agencies …”
What could go wrong?
As for Trump derangement syndrome (TDS) inspired comments, “F22strike” already anonymously delivered the obligatory apologist, TDS cult message – and even slammed unions, as icing on the cake!
Brian Graham
February 11, 2025 01:50 amI’d like to see these people who made comments do the patent examiner’s job for one day. They don’t have a clue. The job is very stressful. A patent examiner works a lot of unpaid overtime. Patent Attorneys make the worst examiners. Most get fired because they read too much into the claim and can’t make production. The attorneys on the outside is where the problem is. Attorneys should be required to interview with the Examiner to get a patent. Most attorneys don’t. They argue up a storm which wastes the Examiner’s time. They try to hide what they are really doing. If they were required to talk to the Examiner before the Examiner does a search then I think that would help both parties. The cost of living in Alexandria, Virginia and that whole area is high. Examiner’s don’t make anything like attorneys make. Examiners actually do a lot higher production from home than the office in Alexandria. So why don’t you think before you make these comments.
F22strike
February 10, 2025 11:31 pmI have proposed this improvement to the USPTO before and want to propose it again. It is a constructive solution and I would be interested to hear why others disagree.
Just like trademark examining attorneys, patent examiners at the USPTO should also be attorneys, admitted to the bar of at least one state or the District of Columbia.
Existing patent examiners who are not attorneys could be grandfathered but all newly hired US patent examiners would have to be attorneys.
The vast majority of patent examiners at the USPTO are not attorneys. With rare exceptions, the non-attorney patent examiners do not understand the impact, relationship and effect of sections of the US Constitution, Title 35 of the US Code (USC), Title 37 of the Code of Federal Regulations (CFR), and the Manual of Patent Examining Procedure (MPEP). They do not understand the concepts of following case precedent from the SCOTUS and CAFC and distinguishing the facts and holdings of different reported precedential decisions. They have almost no understanding of the laws of evidence and evidentiary burdens. I could go on and on. This lack of legal training and understanding severely hampers the fair, reasonable, and efficient examination of US patent applications.
Yes the pay scale for patent examiners who are attorneys would have to increase, and this would probably increase USPTO fees. However, the resultant improvements in the examination of US patent applications would be well worth it.
I have dealt with hundreds, if not thousands, of patent examiners over the past 40 years. I have dealt with hundreds of trademark examining attorneys at the USPTO. The latter have been far better at handling legal matters, which, after all are what patent examiners and trademark examining attorneys are employed to accomplish.
J
February 10, 2025 03:54 pmI have seen the same issues as F22Strike. One example (and I have many) is a simple mechanical invention where we had to file appeal briefs twice. The examiner and SPE (who stated the invention was obvious based on his review of figure 1 vs reviewing the claims). We filed first brief after confirming they would appeal, and they re-opened prosecution instead. We later filed second appeal brief and prevailed. For this patent, costs for independent inventors unreasonably high based on the USPTO failures- both examiner and SPE. There is no longer sufficient (a) training, (b) supervision, and (c) accountability. I would place USPTO high on least for much more efficiency and consistency.
mike
February 10, 2025 12:34 amMy bad. Typo on the “10 decades” bit. Posting again.
Pursuant to the efficient administration of the Patent Office under 35 USC § 316(b), the USPTO Director should prescribe a regulation under 35 USC § 316(a)(2) that sets forth the standard that, unless a petition challenging the validity of a patent having parallel litigation can demonstrate that the PTAB’s review is more efficient for the administration of the Office than what the petitioner can achieve in the district court litigation outside of the Office, then the petition should be denied.
Because, why do at the PTAB what can already be done in district court? Let’s be efficient here.
We have 14 years worth of data showing that the PTAB is not the faster or cheaper alternative that it was purported to be. It is duplicative and harms all inventor/patent owners.
Watch: https://www.youtube.com/watch?v=rTsD4vWl6Rg
#Department of Government Efficiency
#DOGE
#USPTO
mike
February 10, 2025 12:11 amPursuant to the efficient administration of the Patent Office under 35 USC § 316(b), the USPTO Director should prescribe a regulation under 35 USC § 316(a)(2) that sets forth the standard that, unless a petition challenging the validity of a patent having parallel litigation can demonstrate that the PTAB’s review is more efficient for the administration of the Office than what the petitioner can achieve in the district court litigation outside of the Office, then the petition should be denied.
Because, why do at the PTAB what can already be done in district court? Let’s be efficient here.
We have over 10 decades worth of data showing that the PTAB is not the faster or cheaper alternative that it was purported to be. It is duplicative and harms all inventor/patent owners.
Watch: https://www.youtube.com/watch?v=rTsD4vWl6Rg
#Department of Government Efficiency
#DOGE
#USPTO
Melissa Judy Moore
February 9, 2025 07:15 pmSomeone has been playing in out patent office. What is the punishment for this
F22strike
February 9, 2025 06:15 pmPrepare for the usual screams of chaos by those with Trump derangement syndrome (TDS).
Let’s talk about efficiency and the USPTO backlog. A recent prosecution that I handled on behalf of a client stretched over four years. The patent examiner shifted references each time his obviousness rejection was overcome. He did this three times. The last of the three obviousness rejections was appealed to the PTAB. The PTAB reversed the examiner, but made its own obviousness rejection based on a yet another new combination of references. The client gave up and since it had no patent to prevent copying of its invention by competitors, the start-up business could not obtain VC funding and was liquidated. The PTO collected $2,000 in fees for this debacle.
Query, how much time do USPTO patent examiners walk their dogs while working from home? The pandemic ended years ago.
However, the patent examiners’ union will no doubt argue that the return to work mandate is subject to collective bargaining. Unions were created centuries ago to protect miners, steel workers, textile workers and others doing hard physical labor from exploitation, long working hours, and dangerous working conditions, and to seek fair wages. Union representation does not seem appropriate for white collar professionals working on computers from home or in nice Alexandria offices.
Now, bring on the TDS inspired comments.