"That's One Small Step . . ." Kappos Starts PTO Reform By Tweaking Examiner Productivity Metrics

Yesterday, the PTO published a briefing paper that was provided to the USPTO examining corps (via POPA) on a proposal that would change the "count system" in the USPTO, which is universally blamed as being a large contributor to the current backlog. Under the current count system, examiners are paid using a modified GS schedule and earn more money through productivity "count" incentives. As examination progresses, examiners get counts to earn incentive credits at various stages. The more "counts" an examiner gets, the more money he/she typically earns.

Of course, this has led to accusation of examiners (as well as applicants) "gaming" the system to gain an advantage (e.g., "RCE churning"). The current proposals are aimed at curbing these practices.

The modified count proposal rests on the following:

• Combining count system with more time for examiners;

• Providing more time overall for examiners by: (1) adding 2 hours to each examiner’s FY09 Hrs/BD); and (2) add additional time, if necessary, to account for reduction in RCE counts so that every examiner gets at least 1 net additional hour over their FY09 expectancy;

• Give more time for First Action on the Merits - shift counts so FAOMs get more credit, and subsequent actions get less;

• Diminish credit for Requests for Continued Examination (RCEs);

• Provide time for examiner-initiated interviews - one hour of non-examining time would be granted for conducting the interview and preparing the post-interview documentation for examiner initiated interviews (interviews for restrictions would be excluded); and

• Provide consistent credit for transferred or “inherited” amendments - initial or first Office Action done by the new examiner on the transferred or “inherited” amendment will get a set amount of counts (non-RCE transfers = 1.5 additional counts total; RCE transfers = 1.75 counts).

With regard to patent quality review:

- No examiner shall receive an oral warning based upon a single clear error in Patentability Determination.

- No examiner shall be deemed to have failed an oral warning improvement period on the basis of a single clear error in Patentability Determination.

- However, an examiner may receive an oral warning for multiple clear errors in Patentability Determination over a period of two or more consecutive quarters during a fiscal year.

As a side note, the Kappos proposal is not final - the modifications must still be approved by agency employees in the coming weeks. If enacted, the modifications to the count system would be the first major change since 1976.

Applicants should be encouraged that this proposal came so quickly after Kappos took over in the USPTO. Additionally, the USPTO has traditionally been less-than-eager to post or otherwise publish these types of internal documents - the openness of the current regime is certainly refreshing.

To view the briefing paper, click here (link)