In previous articles we introduced a variety of problems in the patent system that result from a USPTO that has been slow to adapt to the technological surge of the past twenty years. Sharp increases in the number of submitted applications in the past twenty years have overwhelmed the PTO’s patent examiners. Further, widespread use of the internet means that the USPTO no longer has an edge over applicants in efficiency and effectiveness of informational searches. In many ways, this imbalance was brought on by a disconnect that has developed between the scientific and research communities and the patent and intellectual property community.
The early twenty-first century was a difficult and tumultuous time for the USPTO. Symptoms of a growing patent backlog began to rear their head, and the agency began to recognize difficulties and implement changes to the system, but broader unknown changes still loom on the horizon.
Expertise and experience
Examiners at the USPTO, once completing an extensive training program, affiliate with a specialty group. These groups organize the examiners into topics so that their specific knowledge and experience is applicable to the subject matter they will examine. Examination of an application, though the responsibility of a single examiner, often involves participation or assignment by more senior group leaders who have been working in a particular field for much of their career. Between 2005 and 2007, the USPTO recognized that examiner attrition had become a significant problem. The body of experienced patent researchers was shrinking rather than growing. The problem is not about whether examiners can simply identify what’s going on in a patent--most university graduates can eventually read and understand patents in their field. The problems are efficiency and effectiveness. Inexperienced examiners take longer, and their lack of familiarity with the history of particular field means they miss critical knowledge that would help them complete an effective prior art search, particularly of non-patent literature.
Non-patent literature is at the heart of a divide between the scientific community and the intellectual property community that at very least aggravates many of the USPTO’s existing problems. Scientific researchers at research universities or laboratories are seldom concerned with the details of the patent process, and few (if any) remain apprised of the latest patents in their field. These researchers typically develop a very high degree of specialization in their field and devote most of their energy into becoming and remaining a part of the academic community through academic publishing in scientific journals. [http://www.ieee.org/about/ieee_history.html] The IEEE alone publishes more than 120 peer reviewed journals and more than 300 annual conferences, behind which is an army of nearly 400,000 researchers pushing the boundaries of innovation in just the fields of electrical engineering and computer science. Behind these researchers are, in turn, armies of tech-transfer-office employees and patent attorneys who take care of the patent details with which the researchers do not want to concern themselves.
This hardly seems fair, and the USPTO, with all its problems, no doubt get my kudos. No matter how hard they try and how efficient they are, the only 6,000 examiners have little hope of keeping up.
Getting back on track
In the second article of this series, I mentioned some steps the agency has taken to combat examiner attrition and increase hiring of qualified experts. In a 2010, the Government Accountability Office notes that “[r]ecently, the USPTO management has also recognized the need for changes in its performance management system and additional training for its employees and manager.” The management has implemented new timing, control, and performance evaluation measures to help bring the system back into balance[Tack 1 enhanced timing control procedures.]. These measures, by my estimation more reactive than proactive, are now little more than damage control.
The Leahy-Smith America Invents Act also represents a significant shift in the American patent system which should eventually provide significant relief to many of the problems discussed in this series. Major stipulations include switching to a first-to-file system, which should reduce the difficulties posed by non-patent literature to patentability. The system does not change until march of next year, though, and another generation will pass before many of these patents expire--so in the shorter term the system still has significant difficulties to address in these domains.
One of the most significant changes is the announcement that the USPTO will open three satellite offices around the country. This not only expands the base of patent examiners but puts them in areas where innovation is actually happening. Opportunities for employment at the USPTO that are not confined to the D.C. area will facilitate the sort of courting of expert scientists and researchers necessary. The USPTO should consider further expansions in upcoming years to other intellectual centers around the country to start and bring the scientific community and the intellectual property community back together.
The USPTO still struggles to find its place in an innovation landscape that looks very different than it did twenty years ago. The patent system clearly no longer provides transparency and open sharing of information, straying significantly from its originally intended goals. Getting the agency back on track will be a bumpy road, and will require a multifaceted approach. System reform is an obvious solution, but won’t do the whole job. Education should also be a part of the process, enlightening both the scientific community and the public to the benefits afforded by the patent system. Further engagement with technological solutions will also be an important part of future strategies (for example, crowdsourcing to bring expert researcher knowledge back into the process quickly and inexpensively). Most importantly, the patent system should be ready for change, the USPTO agile enough to implement and experiment with new solutions beyond those we see today.