Patent Law

Backlog

By Gary Odom and Jordan Kuhn

The root problem with patent quality has always been with the patent office. The current USPTO administration has rightly received nothing but criticism for its high-handed rules changes, poisonous work environment leading to massive attrition, shoddy examination regime, and blame game on applicants. In testimony last week before Congress, former PTO heads nattered about backlog.

Gerald Mossinghoff, Reagan's PTO director, argued that none of the patent reform proposals floating around are worth much until pendency is reduced. Mossinghoff called the 700,000 to 1.2 million application backlog "horrendous," and snapped at current PTO head Jon Dudas for setting "soft, stair-step goals" for addressing the problem, rather than tackling a long-term strategy.

Nick Godici, who ran the PTO from 2001 until 2005, considers the backlog as stifling innovation, calling the PTO "sand in the gears" of progress. Patents help start-up companies get funding.

The current accelerated examination (AE) program is becoming a farce. Under AE, an applicant does more examination work than an examiner, in return for a promise of patent grant within a year. Once docketed, an examiner has a month to grant the patent or get an office action out. But the office isn't geared to produce, so AE applications sit for months undocketed.

Bruce Lehman, PTO honcho for many of the Clinton years, noted PTO pride in cutting the allowance rate, the lowest now in "many years," but the upshot is driving patent pendency by bogging examiners down, Lehman argued. A spokeswoman for the agency disavowed allowance rate as a target or goal.

More rejections now are technically worthless and trivial than in years past. The Office claims as a key quality measurement office actions without error. That means dotting the i's and crossing the t's on the vacuous rejections, up from 94.7% in 2004 to 96.3% in fiscal 2008.

Mossinghoff, co-author of a recent report for the Obama transition team on how to overhaul the agency, likes turning the PTO into a government corporation. If you think that sounds like a shell game, with all the potential of shuffling the deck chairs on the Titanic, you're on the right track. The problem is not money, or structure, it's good management, and that's just getting quality people.

Source: Government Executive, December 12

Full post as published by The Patent Prospector on December 14, 2008 (boomark / email).