The United States Patent & Trademark Office (USPTO) recently began an enhanced patent quality initiative. Over the past few years, the USPTO has significantly reduced patent application backlog and pendency and is now turning its attention to patent quality. The USPTO is better positioned to address patent quality than ever before, since the America Invents Act (AIA) allows the USPTO to set its own fees and retain the fees it collects. Previously, the USPTO was required to share a portion of its fees with other government entities. With the ability to charge higher fees and keep the fees it collects, it is possible to imagine significant progress towards improved patent quality. Currently, a large part of the problem is that patent examiners work in an environment where quantity is often emphasized over quality. The patent examiner count system awards points to examiners for processing patent applications. With a new emphasis on quality and more resources at its disposal, the USPTO has the opportunity to change this environment.
The USPTO has been seeking public input and guidance to direct its continued efforts towards enhancing patent quality. Their stated focus is on “improving patent operations and procedures to provide the best possible work products, to enhance the customer experience, and to improve existing quality metrics.” Just recently, on March 25 and 26, 2015, the USPTO held a Quality Summit with the public to discuss its outlined proposals. The USPTO has outlined six proposals:
- Requests for Quality Review: allowing applicants to request a review if they receive very low quality office actions
- Automated Pre-Examination Search: searching for new tools to find better search results in less time
- Clarity of Record: looking for ways to enhance the clarity and completeness of the prosecution record
- Review of and Improvements to Quality Metrics: measuring the patent system and examiner performance
- Review of Current Compact Prosecution Model: considering concerns that too many cases result in either an RCE (Request for Continued Examination) or an appeal
- In–Person Interview Capability with All Examiners: expanding locations for conducting in-person interviews
All of these proposals could contribute to improved patent quality. But in addition, I would like to see the USPTO commit to hiring more examiners and re-evaluating the examiner count system, or at least its importance compared to the “quality metrics” it mentions in proposal 4.
Hopefully, the USPTO is sincere in its commitment to considering public input and improving patent quality. Increased patent quality could go a long way towards changing the conversation in the face of anti-patent “propaganda” that has become increasingly loud in the past few years. Besides playing public relations defense against the anti-patent crowed, increasing patent quality obviously would also have many other benefits. Intellectual property-intensive industries support at least 40 million jobs in the U.S. and contribute more than $5 trillion (nearly 35 %) to US gross domestic product. Increased patent quality will lead to more predictability for patent filers, owners, and litigants. It will more equitably reward greater innovation with greater patent rights. It will make it harder for the few truly bad actors to use low quality patents and extortion-like tactics to collect frivolous patent litigation settlements. The initiative is good common sense and comes at a time when there is increased recognition and appreciation around the world of the importance of IP. Let’s hope that the patent community takes advantage of this opportunity for change by getting involved and that the USPTO follows through on its ideas and continues to work diligently towards the important and never-ending task of improving our patent system.
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Andrew Chipouras is an editor on the Michigan Telecommunications and Technology Law review, and a member of the University Michigan Law School class of 2016.