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New push for allowances at the USPTO?

By Lawrence B. Ebert, Esq.

Under a post at PatentHawk on changed overtime policies at the USPTO, one finds the following comments:

I believe that the allowance rate is artificially low, although not due to churning...at least not exactly.

I am a current examiner. Under Dudas, the PTO pursued a policy of "increased patent quality". The way that the PTO enforced this quality initiative was by reviewing office actions. Not reviewing all office actions, mind you, but only reviewing allowances.

Unfortunately, the PTO failed to see the problem that they were setting up. An examiner is then left with two choices:

1) An examiner could generate rejections without ever incurring quality review, or
2) An examiner could generate an allowance that would be scrutinized by quality review and possibly find themselves assessed a quality review error.

So, it has been safer for an examiner to always reject...at least until very recently. There has been some loosening of the allowance quality review rules in recent weeks as it appears that "reduced pendency" is the new key motivation under Obama.

OVERTIME

As for overtime...it's elimination appears to be working against the expressed motivations at the PTO to reduce the backlog and reduce pendency.

Posted by: Examiner B at April 10, 2009 4:41 PM

Examiner B - thank you for your comment. The churning does not produce the artificially low allowance rate - rather, the opposite occurs: the artificially low allowance rate produces the churning and the increased pendency (reject, reject, RCE, churn, reject, reject, RCE, churn, reject, reject, RCE, churn, allow in 60 months, instead of reject, allow in 20 months or reject, reject, appeal, decision in 26 months).

The endless churning/RCEa is somewhat necessary in some arts, though: only with "easy counts" (RCEs, continuations) can an Examiner make his outdated hrs/BD numbers. The churning has actually enabled the PTO not to revise/revisit the count system: it is a stop-gap phenomenon that makes working at the PTO with the outdated count system bearable.

(...)

I've been told that the real agency money is made on allowances and maintenance fees...which is why there has been a new push for allowances.

I agree the count system is totally outdated and needs to be revised...unfortunately, the PTO works at the speed of government.

And just so no one in the outside world misunderstands, overtime pay is not time-and-a-half at the PTO but just additional hours at an examiner's base rate.

IPBiz notes an irony. In [wrongly] arguing there was a patent "quality" problem based on a flawed analysis of patent grant rate, Quillen and Webster motivated the USPTO to cut back on allowances, creating a bigger problem. Among other things, the situation falls into the realm of unintended, bad consequences. The patent law academics bought into the bad analysis, without ever performing a rigorous analysis of what Quillen and Webster were saying.

Full post as published by IPBiz on April 11, 2009 (boomark / email).