US, EU Patent Examiners Issue More Warnings Over Quality

Butch: You okay?

Marsellus: Naw man. I'm pretty far from okay.

Butch: What now between me and you?

Marsellus: I tell you what now between me and you. There is no me and you. Not no more.

- Pulp Fiction (1994)

As more and more pressure is put on patent offices to increase patent quality, examiners have started to push back, and have expressed a sense of isolation from most patent quality initiatives. For the most part, the sentiment from the examining corps has been that "we know what you want from us, we're just not sure how we are expected to do it."

Back in April, a Coalition of Patent Examiner Representatives from the US, Canada and the EU issued a letter to their respective patent office Commissioners/Presidents, warning that insufficient time and resources were available for effective examination of patents:

Patent offices worldwide continue to focus on their backlogs of applications and ways to increase examiner productivity. Unfortunately, in many patent offices, the pressures on examiners to produce and methods of allocating work have reduced the capacity of examiners to provide the quality of examination the peoples of the world deserve. Quality examination requires skilled, well-trained and motivated examiners, powerful and efficient search and examination tools and, most importantly, the time necessary for examiners to apply those skills, training and tools to the examination of patent applications. The pressure on productivity has greatly reduced the sense of job satisfaction of examiners, who feel unable to take the time to do the job justice. This has damaged the motivation of the examiners with concomitant impact on the operational effectiveness and the quality of output of Patent Offices.

Consequently, we, the undersigned representatives of patent examiners, join together in declaring that the combined pressures of higher productivity demands, increasingly complex patent applications and an ever-expanding body of relevant patent and non-patent literature have reached such a level that, unless serious measures are taken, meaningful protection of intellectual property throughout the world may, itself, become history.

Shortly after the letter was issued, Robert Budens, president of the Patent Office Professional Association (POPA) spoke with Managing Intellectual Property magazine (link), and repeated the call for more time and resources for patent examination. "Everyone except management believes that we need more time to do the job. Their rationale is that if we get more time, then the backlog will grow. I disagree. In the short term that's right, but in the long term it means that the retention level doesn't drop."

In the EU, an interesting development came to light this week as an internal survey entitled "Governance of the EPO: A Staff Perspective" was leaked to the press. The EPO confirmed that the document is authentic, but did not offer any official comment on its findings. After reading the study, it is apparent that the examiners have some serious issues with the logistical workings of the office:

• Only 8% of examiner agreed with the statement that "the MAC is actively supporting the quality development process."

• Only 6% of the examiners agreed with the statement "I identify with the views put forward by the MAC" (down from 12% in 2004).

• When asked to identify "opportunities to improve efficiency," the most frequently
chosen were "better functioning of the computer systems," "clear and consistent instructions" and "better balance between workload and capacity."

• The research group (Research International) concluded in the study that EPO staff perceives their management as “totally disconnected from my reality.”

• In the open comments portion of the survey, 93.7% of the comments were negative, 5.5% neutral (mostly "no comment") and only 0.7% positive.

View/download "Governance of the EPO: A Staff Perspective" (link)

View/download the Coalition of Patent Examiners letter (link)

Notably, Amitrajeet Batabyal and Gregory DeAngelo have conducted theoretical analysis on the issue of stringent examination versus backlog reduction at the PTO. Unfortunatly, the findings in the study were inconclusive:

Our theoretical analysis shows that there is no definite answer to this question [whether there is or isn’t a tradeoff between the twin objectives of backlog reduction and error minimization]. Hence, we use numerical methods and our numerical analysis leads to two conclusions. For many values of the model parameters that describe the stringency of examinations, a more stringent examination process does lengthen the pendency period. In contrast, for most values of the model parameter that describes the volume of patent applications handled by the PTO under study, a more stringent examination process does not lengthen the pendency period.

See: "Average Patent Pendency and Examination Errors: A Queuing Theoretic Analysis" (link)

See also: "Is there a Tradeoff between Average Patent Pendency and Examination Errors?" (link)