By Ron D. Katznelson, Ph.D.
It is imperative that USPTO operations be the focus of any patent "reform": no reformed statutory scheme can work well if the USPTO doesn't. For the most part, dysfunction at the USPTO stems from long-term failure to invest in our nation's patent examiner corps and the infrastructure that supports their important work.
Reforms should focus on two areas: quality of issued patents that should not issue, and erroneous rejection and backlog of non-issued patent applications that should issue. The growing unexamined application backlog is a great damper on innovation. Pendency at the USPTO has grown to the point that four out of five granted patents have compensatory patent term adjustment due to USPTO's failure to meet the time goals set by Congress. Irregularities in examination procedure and administrative rulemaking have plagued the Office, resulting in successful legal challenges against the Office and causing costly distractions for the Office and the patent community.
This article reviews the necessary augmentation of the patent examiner corps capabilities, the current practices at the USPTO that gave rise to significant dysfunction in its examination operations, and suggests some specific areas for reform.
The problems described above developed under prior USPTO managements. Since assuming his new post as the Director of the USPTO, David Kappos began making significant improvements and changes. Recent welcome developments under Director Kappos include the Office's decision to provide an additional two hours per application and expand non-examining time allotments for examiners such as examiner-initiated interviews and increased resources available for examiner certification. The Office has also begun reaching out to its former examiners in an effort to recruit them back. Director Kappos also articulated what should have been the Office's policy all along: "Patent quality does not equal rejection" and there is evidence that movement away from the excessive weight on allowance errors have started to take place.
These important actions should be followed by an aggressive effort not only to increase the Office's force but also to build public confidence in the Office management's ability to project requirements and sustain the growth of the force. Additional important necessary reforms are detailed below.
Download the full article to read more about the patent issuance problems at the USPTO and suggested measures for improvement