Inside the USPTO: Current Initiatives and Possible Reforms

Inside the USPTO: Current Initiatives and Possible Reforms

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The United States Patent and Trademark Office (USPTO) plays a critical role in supporting the American innovation ecosystem, and issuing high quality patents that will drive U.S. innovation.  And for much of the history of the United States the U.S. patent system stoked the fire of creative genius by enticing creative persons to innovate by giving them incentive to do so in the form of a patent. Increasingly, however, once strong property rights, patents do not enjoy the same status or value as once upon a time. Instead of leading the world in issuing robust and reliable patents, America is at risk of being surpassed by China and Europe as better alternatives.

Thanks to Congress and the Courts, it has become more difficult to obtain a patent, easier and cheaper for infringers to challenge the validity of a patent, and less expensive to infringe. As this is going on, the viability of hundreds of thousands of patents has become in question as the result of the presumption of prosecution laches where a prosecution has taken longer than six (6) years. Meanwhile, the USPTO seems to be of the belief that too many patents are issuing, and is attempting to make terminal disclaimers so unpalatable that no one could file one, and continuations more expensive.

Various proposals have been made for improving patent quality, ranging from the better use of AI in examination to providing better training and more time for examiners. But lurking is a concerning problem that signals unrest at the USPTO. Recent workplace rankings by USPTO employees in the Best Places to Work in the Federal Government, a little-known survey outside of the government, should be a red flag for supporters of our patent system. Twenty years ago, the USPTO’s overall survey result was very poor but improved dramatically until the USPTO reached the top place for employee satisfaction in 2013. The improvement was the result of focused efforts by leadership to improve the agency. In the last 10 years, the USPTO’s overall survey score has steadily decreased and currently the USPTO finds itself in the bottom half of place to work in the federal government.

This panel of former USPTO officials will discuss what is currently happening at the USPTO, why it matters for the overall innovation ecosystem, and what can be done to improve the USPTO moving forward.

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