Posts Tagged: "patent examiners"

The end goal of any patent application is to obtain a patent, which is true whether an applicant find themselves assigned to a patent examiner in an Art Unit that issues over 95% of applications received, or whether they find themselves assigned to a patent examiner in an Art Unit that issues less than 5% of applications received. Unless and until the Patent Office can address obstinate patent examiners and patent examiners who continually fail to meet quality expectations how can the Office truly address the problem? Frankly, talking about improving patent quality seems to be much ado about nothing, or perhaps akin to rearranging deck chairs on a sinking ship.

In a statement released late afternoon on Thursday, USPTO Chief Communications Office Todd Elmer explained that the USPTO “takes very seriously even one incidence of time and attendance abuse, such as by this particular employee, who is no longer with the agency.” Elmer went on to explain the initiatives put in place over the last year since this abuse occurred, which include a new agency wide policy for full-time teleworkers and supervisors.

According to the IG report, “Examiner A committed at least 730 hours of time and attendance abuse, resulting in the payment of approximately $25,500 for hours not worked in FY 2014 alone. The examiner in question also received extraordinarily low performance evaluations, receiving a reprimand for poor quality on nine (9) separate occasions. Rather than cooperate with the IG’s investigation Examiner A resigned and declined the opportunity to review and comment on the investigation findings. But this begs the essential question: Why was Examiner A still working for the Patent Office after nine (9) reprimands for unacceptably poor quality? It seems the USPTO is not equipped to identify abuse unless a whistleblower identifies a particular problem.

A fair treatment of the issue of patent quality would have necessarily considered those applicants that were wrongfully denied, as well as the extraordinary wait one must endure on appeal to the Patent Trial and Appeal Board to rectify examiner mistakes. Anything short of a fair and even-handed inquiry is not only inappropriate, but seems intended to lead to a conclusion that supports a preordained narrative. Sadly, this preordained narrative fits perfectly into the view of one side of the patent reform debate. With Congress considering patent reform in both the House and Senate the timing on the release of this one-sided report seems hardly coincidental.

The fact is, patent examiners are struggling with the application of 35 USC 101 in light of the Alice decision just as much as everyone else. Greater uncertainty among both patent applicants and patent examiners surely increases the likelihood of disagreement between them. Thus, the Alice decision will not just increase the number of rejections under 35 USC 101, but is also likely to result in more rebuttals by applicants and more appeals of examiner decisions. A loss in patent examination efficiency, even if small, will act as a headwind against further reductions in patent pendency.

The terms patent strength and patent quality get used frequently within the industry, but what do they really mean? To a large extent the meaning of the terms depends on your viewpoint. The United States Patent and Trademark Office has historically employed a variety of quality metrics, but is a patent that is considered high quality from the perspective of the USPTO a strong patent, or a patent that the industry would view as a high quality patent, or one that would be viewed to be a valuable patent?

When reading patents it is not at all unusual for a patent to be issued a number of years after the original patent application was filed, but it isn’t every day that you see a patent issue more than 12 years after it was originally filed. Yet, that was exactly what happened with respect to the ‘327 patent application to HP. Worse yet, after HP successfully prevailed on claims in an appeal to the Board the case goes back to an examiner who for the first time raises a rejection never before made, while still continuing to make additional obviousness rejections. In short, this reads like the story of an application that examiners never wanted to issue in the first place… What if this applicant were a small business or individual? Had this applicant not been HP and instead a small company, would any patent be obtained despite the fact that the Board twice reviewed the claims and twice disagreed with the patent examiner? Of course not. Had this application been filed by an individual or entity with few resources the application would have been abandoned. Buried by a patent process that couldn’t care enough to administer justice in any kind of a timely fashion. That is rather pathetic. Getting a patent issued should not have taken 12 years, and resolving the application should not have taken more than 5 years after the first appeal was successful!