PublishedAugust 12, 2014

The PTO’s Culture of Poor Quality Patents

There have been a few scandals at the USPTO in recent weeks. First was a report of nepotism in hiring on the trademark side of the PTO. Then, there were reports that some paralegals working for the Patent Trial and Appeals Board were basically being paid to goof off.

This week, the Washington Post reported that not only is the USPTO’s telework program being abused, but the USPTO tried to cover up the problem:

Some of the 8,300 patent examiners, about half of whom work from home full time, repeatedly lied about the hours they were putting in, and many were receiving bonuses for work they didn’t do. And when supervisors had evidence of fraud and asked to have the employee’s computer records pulled, they were rebuffed by top agency officials, ensuring that few cheaters were disciplined, investigators found.

Disclosure: my wife is a patent examiner who teleworks. This post is based entirely on publicly available information.

The problem, I think, is not simply a bunch of crooked people trying to get away with something. There is clearly a cultural problem at the USPTO.

Patent examiners are measured based on the number of applications they process (“production”) and how quickly they get to applications that are sitting in their dockets. Examiners can also be penalized based on errors that are found in their work, although that is a smaller component of their performance measurement than production.

The metrics the USPTO uses to rate examiners are generally clear and objective. Certainly, it’s better for employees to know what’s expected of them than not.

But the problem is that these metrics (with the possible exception of error flagging) aren’t directed towards producing high quality patents. They’re focused on clearing the backlog of patent applications.

Patent examiners have a strong incentive to get patent applications off their dockets, and there are basically only two ways to do that: allow the application or get the applicant to abandon it.

If an applicant is willing to keep paying fees, it can keep a patent application alive indefinitely. A patent examiner, however, cannot afford to keep applications around indefinitely. If an examiner has too many “actions per disposal” (in other words, isn’t allowing enough applications) that’s a potential black mark. That imbalance leads many applicants to keep pushing until an examiner gives in.

recent study (purchase may be required) showed that because of the pressure to meet production goals, when examiners become “primary examiners” (that is, examiners with the power to sign their own actions and make their own allowance decisions) they start allowing applications at an increasing rate.

And more importantly, the USPTO has an unofficial policy started under David Kappos that as long as a patent examiner is meeting production goals, there won’t be questions about recording time. The first draft of the investigative report (see page 26) found that:

There is a lack of accountability for Patent Examiners to record their time correctly as long as the examiner meets his or her production goals. This allegation is SUBSTANTIATED

The first draft report (see page 27) also found that:

There is no reasonable way for a supervisor to monitor the quality of the work. SUBSTANTIATED

This is not to excuse the conduct of patent examiners who are abusing the count system. They should be disciplined and terminated in appropriate cases.

But going after the problem examiners alone won’t fix anything. The USPTO has to change its emphasis from production to quality product. The USPTO should not be an assembly line where the goal is to push out as many patents as possible.

As we’ve seen from the growing patent troll problem, patents have a huge amount of power. It’s critical that the USPTO allow the right patents, not the most patents. And that will take a major cultural shift.

Matt Levy

Previously, Matt was patent counsel at the Computer & Communications Industry Association

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