The comment period for the USPTO’s proposed patent quality initiatives is open until May 6, 2015, and the Office of Inspector General for the Commerce Department has given stakeholders plenty to think about in its final report on the USPTO’s quality assurance program. The OIG identified four areas of concern and made four recommendations for addressing its findings. Will stakeholders come forward with additional ideas for addressing these problems?
The OIG’s final report highlights four areas of concern:
1. The USPTO’s performance appraisal plan and related policies are ineffective at measuring whether examiners are issuing high-quality patents.
2. The USPTO’s official quality metrics may underrepresent the true error rate.
3. The USPTO is not collecting data that could improve patent quality.
4. The USPTO’s response to patent mortgaging may not discourage abuse.
The OIG’s final report sets forth recommendations under each area of concern.
1. Refine supervisory guidance, processes, and performance appraisal plans to effectively measure patent examiner quality efforts and distinguish levels of performance—including taking steps to avoid disincentives for supervisors to charge errors to examiners when assessing performance under the requirements set forth in the examiner performance appraisal plans.
2. Strengthen OPQA’s (a) independent quality review procedures to ensure their consistent application, particularly with respect to the application of new case law and how errors are categorized, and (b) internal audit process, by minimizing the predictable nature of the audit steps and allowing for the identification of the informal practices followed by some OPQA reviewers.
3. Use available databases and systems to collect information on patent applications reviewed and errors found, to improve USPTO’s ability to identify quality trends.
4. Develop and document additional controls to better detect and monitor the practice of patent mortgaging and continue to ensure consistent application of USPTO disciplinary policies that address instances of it.
According to the report, the USPTO has been receptive to the OIG’s recommendations. The USPTO has created a new, full-time senior executive position, the Deputy Commissioner for Patent Quality (currently filled by Valencia Martin-Wallace), has announced an Enhanced Patent Quality Initiative and has requested public comments on enhancing patent quality.
The USPTO issued the following (excerpted) comments in response to the OIG’s specific recommendations:
While the OIG report reveals problems in the USPTO’s systems, it is important to remember that many examiners take pride in their work, issue high quality written decisions, and interact with applicants in a positive, professional manner. The task before the USPTO is to ensure that these examiners are rewarded while those responsible for the scathing headlines are coached, disciplined, or terminated.
If you have ideas for how the USPTO can improve patent quality and address any of the issues raised by the OIG, send your written comments by email to WorldClassPatentQuality@uspto.gov or by mail to:
Mail Stop Comments–Patents
Commissioner for Patents
P.O. Box 1450
Alexandria, Virginia 22313-1450
Attention: Michael Cygan, Senior Legal Advisor, Office of Patent Legal Administration
Office of the Deputy Commissioner for Patent Examination Policy