Thursday, June 18, 2009

PPAC Meeting Sets the Stage for Patent Quality Improvements

The Patent Public Advisory Committee (PPAC) held a Public Session today (link) at the PTO Headquarters to discuss various issues relating to the USPTO and patent practice. One of the big topics during the meeting was patent quality, which was addressed by Marc Adler(member, Andrew Hirshfeld, Acting Deputy Commissioner for Patent Examination Policy). Marc identified some areas of consideration for the PTO:

Defining "Quality" - the term should be defined in terms of the validity of the granted patent, and not the commercial value of the invention. Quality should be composed of 3 main elements: (1) drafting quality of the patent application; (2) quality of search and examination, and (3) quality of prosecution.

35 U.S.C. §112 - compliance to §112 is "critical" to improving quality

Nix the Status Quo - improving quality will require behavioral modification by applicants and examiners. Quality improvement may be done without adding new rules.

Worksharing - identified as "key" to improving quality.

Incentives - provide incentives for applicants to be up-front about the prior art. One suggestion included a priority "bump" for applicants that identify the 5 most relevant prior art references for new applications.

Also Peggy Focarino, Acting Commissioner for Patents, identified some areas the PTO was exploring to improve quality:

Interview training - provide training for examiners on when and how to conduct interviews, and set up system to track interview requests. Currently, the PTO does not have interview-related data to identify pockets of "interview resistant" examiners. PTO data strongly suggests that early interviews lead to early indications of allowable subject matter. Incentives should be provided to examiners for interviews conducted before and after 1st office action

• Compact prosecution training - train examiners in how to shorten examination processes; create focus on "high-quality" first office actions.

• Ombudsmen - set up a neutral facilitator for each TC to get applications "back on track." The ombudsman would essentially resolve issues and help applicants experiencing breakdowns in communication and/or hesitant to contact SPEs. The ombudsman would also serve as a source of information and perform independently from the examiner's chain of command. (Note - the ombudsman proposal was previously tried in TC 1600, to mixed reviews).

• Examiner collaboration - create environments where examiners can freely exchange ideas on searches and examination techniques. Currently the PTO is getting ready to launch a beta "FaceBook" application to allow examiners to share best practices in searching.

• Reduce continuations - PTO is still holding fast to the goal of eliminating "unnecessary" continuing applications. The PTO is fully aware that premature final rejections contribute greatly to continuation filings and longer pendencies. Interestingly, the PTO is reconsidering examiner credit for continuing application, and even mentioned disincentives for continuation filings for examiners.

• Management training - just like the examining corps, PTO management is quite junior. The PTO intends to start "management skills enhancement" programs to make sure SPEs are following best practices in reviewing cases. A mentoring program is also said to be in the works.

• Next steps - the PTO is looking to formulate the 5 most important criteria that would drive improved patent quality and reduce pendency. After agreeing on 5 key metrics, the PTO will propose any necessary changes to the public and move forward with implementing policies.

Also, other points of interest:

- The yet-to-be-named PTO Commissioner will likely have to wait "several weeks to a couple of months" before stepping into the job, as the Supreme Court nomination will likely bump confirmation.

- Patent reform legislation will have to wait for the next session of Congress, as the reform prospect "doesn't look good" for the current session.

- USPTO is currently experiencing a 7% decrease in filings, leading to an estimated $140M shortfall. Of that amount, $110M was directly cut from the PTO budget (mostly in hiring)

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