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16 
Earlier today I heard a rumor from an exceptionally reliable source regarding the United States Patent and Trademark Office efforts to reform patent quality review. Quality review, or QR for short, has become an anchor around the neck of patent examiners, and more than any other single issue has lead to the astronomical backlog of patent applications now facing the Patent Office. This is extremely good news if it is in fact true. I certainly do trust my source, but the information from my source was not specific enough to be able for me to report this is a done deal, or when any change may actually take place. Nevertheless, news of a revitalized quality review program that is actually focused on helping examiners achieve quality is a welcome breath of fresh air. I have been exceptionally critical of the Patent Office and senior management within the Patent Office for several years now, but when positive steps in the right direction occur it is only fair to congratulate the Patent Office and the senior level leaders of the Patent Office who ultimately are responsible for taking an important step forward. I don’t want to get ahead of myself, but excuse me for hoping that this might be the start of something big; perhaps even the dawning of a new day at the USPTO.
The length of time it takes to get a patent is out of control, and the budget crisis facing the PTO has forced the Office to stop hiring and work on figuring out solutions for the mounting problems facing the Office without a never-ending stream of rookie examiners. One particular problem that I have focused on in my writing for some time now is the fact that current quality review standards inside the Patent Office have provided examiners a significant disincentive to issue patents, as well as a disincentive to attempt to exceed their quota goals. Earlier this year, in an article titled Reform Suggestions for the Patent Office, I wrote: “Quality review needs to be a tool to foster improvement, not a sword to financially punish those who make mistakes.” I am happy to say that we may soon be approaching a time when quality review is a tool to improve quality, and dare I say even issue patents, rather than a financial disincentive to examiners.
Since President Reagan was in Office there have been bonuses for examiners who achieve 130%, 120% and 110% of production goals, but because quality review currently punishes errors few, if any, examiners have been trying to reach those levels. The reason for this is because if you reach those levels and quality review says you made errors then you wouldn’t get the bonus anyway, so why try to reach that level only to not get a bonus? This has been particularly upsetting to examiners because quality review was not conducted by those knowledgeable about the technical area they were reviewing, and many examiners believed quality review was flat out wrong in many cases when they second-guessed decisions made. So it became easier for some examiners to simply not issue patents because there was a perception that quality review didn’t care if you made a mistake and did not issue a patent, but rather only focused on the mistakes in issuances. Whether that is true or not is irrelevant, it was and is the perception.
All of this is potentially about to change though. From what I hear the Patent Office is going to redeploy between one-third (1/3) and two-thirds (2/3) of the current quality review staff. The quality review staff, who are made up of seasoned examiners, are going to be sent to the various technology centers to work within those centers. The focus of quality review will then become to work side-by-side with examiners in an effort to bring quality to the front line. Rather than focusing on mistakes made after the fact, these seasoned examiners will work with other examiners within their assigned technology center to achieve quality in the first instance. This is a brilliant idea! Rather than play the role of the omnipresent parental figure who is only too willing to say “you screwed up,” quality review will take on a partnership mentality with the goal of helping examiners achieve higher standards and actually issue patents! This is almost too good to be true!
One of the problems facing many examiners, particularly the newbies and rookies, is that they are not very good at conducting searches and finding things. I have heard over and over again from senior examiners and retired examiners that the youngsters just are not very good at searching and they rely too much on word searches. One of the best aspects of this new quality review regime is that those who have been working in quality review are master searchers. From what I have been told these examiners are among the best at searching and by bringing that skill set into the various technology centers there are high hopes that this will significantly help the junior examiners, make them better searchers and make them better examiners. On top of that, there is also talk about bringing back some retired examiners to work as mentors for the newbie examiners, thereby allowing senior examiners to really dig into the backlog. I have been advocating bringing back retirees for a very long time to either help with the backlog, or to train new examiners, so obviously I think that is a brilliant move! Maybe my writing and endless suggestions have not been in vein!
I have to tell you, when I received this call today I was extremely happy. Yes, I have written about this stuff for some time now and to think that maybe I played some role is nice, even if just a small role or just planting the seed of an idea or two. But whether I contributed to any of this at all pales in comparison to my hopes and desires that we might get back to having a Patent Granting Authority. If there is meaningful reform of quality review, where far less focus is placed on pointing out mistakes after the fact and far more emphasis is placed on helping examiners achieve, we might just be able to get those who have chosen not to issue anything back to issuing something. We might also get examiners to fear the quality review machine much less because they are being given assistance to succeed, and because far less after the fact review will take place. With less after the fact review, that means less fear of having it come back to snatch away your quota bonus, so maybe, just maybe, there will be incentive to dive into the backlog and use this time of lower application filing to make some real progress.
Assuming this is all true, hats off to the Patent Office, and to John Doll too!
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Join the Discussion
16 comments so far.
Dale B. Halling
July 22, 2009 04:06 pmThe second pair of eyes has been a complete disaster and the quality=rejection doctrine of Dudas has led to the USPTO’s budget crisis, deepening the US recession, and the outrageous backlog of patent applications. The first step in resolving this problem is to debunk the myth that numerous bad patents are being issued. A couple of excellent papers on this point are “Patent Grant rates at the United State Patent and Trademark Office” (http://jip.kentlaw.edu/art/volume%204/4%20Chi-Kent%20J%20Intell%20Prop%20108.pdf) and “Bad Science in Search of “Bad” Patents” (http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=rkatznelson).
My suggested reforms to reduce pendency include changing the “count” or “point” system for examiners – see http://hallingblog.com/2009/07/10/three-steps-to-reduce-patent-pendency-times/.
My suggested reforms for the patent system generally include regional offices for the USPTO. This would increase retention rates for examiners and increase the probability of being adequately funded. According to one UK patent attorney, when the UK patent office moved from London to Wales they saw a marked increase in the quality of the people the patent office was able to attract. For my other suggested reforms see http://hallingblog.com/2009/05/29/real-patent-reform/
Old Examiner
April 30, 2009 12:06 pmI don’t know how other examiners handle their responsibilty as a second pair of eyes, but I certainly take it seriously as I do all aspects of my job. When I review as a 2nd eyes, I don’t do a full reprosecution of the application, but I certainly look at the claims, as well as the rejections and arguments, to ensure that I believe the case has been properly allowed. When I detailed to QR a number of years ago, QR basically did the same thing. At QR, we basically did a cursory review of the cases. If a case warranted it, we would expand our review to the extent necessary. Every 7th case, we would redo it from scratch as if it hadn’t been acted upon. I don’t know how QR does things at the present time, nor do I know how other 2nd eyes function, but there are no absolutes concerning anything (except death and taxes).
Attorney
April 28, 2009 08:59 pmThe reason why Examiner’s did not allow is because of the performance plan (PAP) that the examiner must adhere to every year and the way errors are actually calculated and counted against the Examiner based on that plan. The number is based on the number of cases you do a first action on or allow vs. the number of errors. Therefore since by nature Examiner’s do more regular first actions, finals and after finals than allowances, the margin for error is extremely low, in some cases a single allowance error will get the Examiner in trouble.
I agree with the OPQA person, it’s really not really the reviewers’ fault (or the Examiners’), it’s the overall system and the way the numbers are calculated that has caused the current cultural climate at the office.
It’s disappointing though… An Examiner’s job is to protect the public, yet the Examiner has been feared into constantly rejecting, how does this benefit the public? And now I have heard that Examiner’s have been receiving word to allow and ease up because money is running out. Does anybody else feel that this is a conflict of interest?
Gene Quinn
April 28, 2009 08:40 pmOPQA person-
Thank you for your comments. I do not profess to know everything, but my information and what you suggest is in the works is not all that much different really. It seems we agree that there are going to be fewer cases reviewed and that OPQA reviewers are going to be doing some things to help out the TCs. I believe there are those within the PTO who are trying to figure out physically where there is space for OPQA reviewers in the TCs, so this may be more accelerated. I would not bet against my source being accurate with respect to what will happen. Only time will tell.
In terms of the error rate calculation, I will confess that I have never been able to get my hands on any satisfying information. Should you be able to provide me with some information I would love to know the details and how everything works, particularly the details surrounding the 130%, 120% and 110% production awards and bonuses. I have information, but nothing I feel comfortable relying upon.
With respect to the review of allowances and no review of final rejections, this is something that I have heard and over time have backed away from it because it seems as if it is not cut and dry. What I can tell you with certainty is that there is a perception among examiners currently employed by the USPTO that this is the case, so whether it is true or not is not really the question. Perception influences reality and there are some examiners who believe they will not be downgraded by finally rejecting an allowable invention but would be downgraded by allowing something that should not have issued. Even what you write suggests that there is far more emphasis placed on allowances over final rejections (see “1 OPQA reviews about 1 allowance & 1 IPR (non-final or final) per examiner per fiscal year on average.”) What this says to me is that allowances are reviewed and sometimes a final and sometimes a non-final are reviewed.
We definitely agree that “second pair of eyes” is nonsense. It is not surprising that it was artificially put in place to lower allowances. That is straight up against the law. Patents are to be presumed and artificial efforts to keep allowances low is exactly how and why we have moved from a Patent Granting Authority to a Patent Denial Authority.
Glad to hear that there are many within the office who want more constructive criticism. More to come on that later this week.
I want to say loudly and clearly that I do not blame OPQA. I agree that it is far more of a 2 eyes review, but the OPQA have caused examiners to operate in fear. I am not suggesting it is the OPQA reviewers, but rather the PTO policies in place, distrust and deterioration in the skills of the examining corps. Things can be fixed and I am extremely happy to hear from folks like you and others who really care and want to make things better.
Finally, should you want to contact me to discuss these or any other issues please know I would hold our communications in the strictest of confidence. I think you will see from my writing I never disclose a source, and only proceed with information with the approval of my source(s). I am not trying to get anyone in trouble, just trying to play whatever part I can in making a better, more functional patent system.
Thanks.
-Gene
OPQA person
April 28, 2009 06:48 pmGene,
While I like reading your posts, I have to again disagree with you about your perception of OPQA, as well as the 2nd pair of eyes programs. Like pointed out by IPbloke & ODP, much of your info is incorrect.
A few facts & corrections 1st.
1 OPQA reviews about 1 allowance & 1 IPR (non-final or final) per examiner per fiscal year on average. These numbers of reviews have been DECREASING, not increasing, in recent years. In particular, the IPR reviews have been going down (I disagree with that, but do not make policy).
2 What OPQA does now is not much different that what it has been doing for the last few decades. What HAS changed is the number of reviews being performed. A decade ago, we had to do about 22-25 reviews each payperiod (averaging about 3.5 hours per review). Now, it is down to about 13-16 per year (the rest of our time is spent doing stuff like sitting in on sig. panels, helping out with the PTA classes, creating & giving training sessions in the respective TC, and reviews of PTA cases). So, contrary to popular belief, we HAVE already been doing a lot of other training, etc. rather than just reviews.
3 There are error rates for allowances and a separate error rate for IPRs. OPQA charges the error to the TC, not to the examiner. It is up to the TC directors & SPE to determine if the examiner should be charged with an error on their PAP or not.
3a As for your comments about awards & errors, that, also, is somewhat inaccurate. While errors (either from OPQA or found by the SPE in their reviews) can be held against an examiner on their PAP, a single error will not cost an examiner an (SAA or gainsharing) award. To have an award lowered an examiner would need to have their quality rating be fully successful or lower. Doing so would lower the award amount by 1 percentage point (e.g., 2% instead of 3% for doing 110% production). It would not eradicate it. Further, for IPR errors (which is all that non-primaries have) would need to be greater than 4.5% (If an examiner did only 100 total actions per year (most do a lot more) they would need at least FIVE IPR errors (5/100) to be fully successful & loose that 1%. For allowance errors (only primary examiners have this criteria), the error rate to be fully successful is greater than 2.5% error. So, if an examiner allows only 50 cases, that would be one error allowed. Most examiners allow a lot more than 50 (of course it depends on the art they work in as well). So, lower production & not getting awards because of fear of errors is, once again, not rational nor is it a realistic cause.
4 The 2nd pair of eyes programs (which have been dropped in some TCs, thankfully – worst idea EVER) was an idea from Doll a few years (4?) back. Because the Allowance error rate was going to be way too high around May/June of that year he got all the directors together & told them to come up with some way to get a lower error rate for the 3rd & 4th quarters. The result was 2nd pair of eyes (2PE from here on) in most TCs. 2PE was implemented WITHIN the TC & separate from OPQA. 2PE has most or all allowances reviewed by a SPE or primary before OPQA gets a chance to review the cases. This resulted in a much lower morale (most primaries were rightfully offended to have their work be 2nd-guessed without any cause). A lot of cases were kicked back by the TC reviewer just telling the examiner that the claims were not allowable without any guidance as to how they should be properly rejected. Because of this, as well as a general reluctance by many SPEs to allow cases, many examiners just decided it was easier to just reject things than try to convince their SPE to allow a case or get it kicked back for no reason by the TC reviewer. An overall disaster.
5 When OPQA kicks back an allowance, we need to fully explain the proposed rejection (i.e., reference, citations, motivation, etc.) We can not just kick it back & say it wasn’t allowable. 2PE was different
All of the preceding are facts that can be easily checked for anyone with your connections. Please do so. Hopefully, this finally clears up what the distinctions are between OPQA & 2PE & some of what OPQA actually does.
As to changes with OQPA, you are right, to some extent, that there will be some changes. However, they will probably not be what you portray. The information we have been given came directly from (at various meetings) either the director of OPQA or the acting ADC in charge of OPQA (forget the long title).
1 We were told that 1000 fewer allowances (throughout the whole PTO) will be pulled for review than originally planned. No change in the # of IPR reviews.
2 Depending on TC reviewer workload, some OPQA reviewers “may” be doing things to help out the TC. What that may be, the respective TCs were supposed to let OPQA upper management know. They were “supposed to” let OPQA know a couple weeks ago. Last I heard ( a few days back) most (maybe all) TCs still hadn’t sent anything over as to what help they want. (What I & many others believe is that the TCs do not really want any help. They just wanted fewer allowance reviews so that they could push out more allowances. Just speculation, but…)
As for your suggestion about OPQA (or similar) reviewers doing a more “constructive criticism” review & doing it as a training process rather than as a error review, I & many others have suggested this over the last few years. I have seen some proposals that have been passed up the chain. Nothing has come of it & the impression I get (not confirmed) is that there is a reluctance from the TCs & POPA rather than anyone else.
Sorry for the long post, but I hope that it clarifies things. There are QAY too many misconceptions about OPQA & all too often what lawyers complain about (i.e., reluctance to allow and withdrawn allowances for no apparent good reason) is a result of 2PE & not OPQA.
I would like to explicitly point out that these comments are my own & in no way are to be interpreted as being official from OPQA or anyone else.
OPQA person
Gene Quinn
April 28, 2009 04:30 pmODP-
Thanks for your message. To start… do I really think I matter to the PTO? Well… yes… I do. I know for fact that top level officials read what I write and discuss it. My source for this information was actually quite excited to tell me because my source knows I have been writing on this and telling everyone who will listen for at least 12 months that this is a problem and that senior folks need to return to the PTO to stop the brain drain and play a supportive role in digging out. I think the number of policy and decision makers inside and outside the USPTO who read IPWatchdog would surprise most people.
The source for my information on this article has historically proven to be right 100% of the time. Does that mean the source is correct this time? I don’t know for sure, but if history is any indication of the future then I suspect it is correct. I asked if this was solid enough to go with, or if there was any need for it to remain secret, and I was encouraged to run with it.
In so far as whether I am portraying this as fact, I started the article saying “I heard a rumor.” I said that on purpose because I do not have corroboration on this. Typically before I write something like this I have multiple people corroborating the information. Nevertheless, this source has never been wrong. On top of that, if the USPTO were not already thinking about doing this, they should do it.
-Gene
ODP
April 28, 2009 03:57 pmLong time listener. First time caller.
I am a former examiner. I have checked and rechecked my sources at the PTO, including those in OPQA. My conclusion is the information you pass along so freely is (1) false regarding redeployment of QASs or (2) coming from two levels up the chain, such that my people don’t know about it (possible, but highly unlikely).
From your description of a QAS, it does not sound as if you’re as tuned in as you ought to be. I don’t mean this as criticism, considering most practitioners probably have little clue as to the function of each job title at the PTO. However, if you are speaking with authority, as you seem to be, you should get more information on the subject of which you speak. Otherwise, your opinions begin to mix with and resemble facts, and everything gets blurred.
Finally, regarding your remark, “Yes, I have written about this stuff for some time now and to think that maybe I played some role is nice, even if just a small role or just planting the seed of an idea or two.”
Do you really think you matter to the PTO? Now, that is rich.
6
April 28, 2009 01:17 pm“I have to tell you, when I received this call today I was extremely happy. Yes, I have written about this stuff for some time now and to think that maybe I played some role is nice, even if just a small role or just planting the seed of an idea or two. ”
Now we see that Gene actually does believe that the seniors are interested in ideas, in contrast to his earlier posting that they are not and that I must be low on the totem pole (which actually is true in either event).
“As I understand it this would be a redeployment of OPQA personnel. My personal belief is that the “second set of eyes” needs revision as well, but from what I hear that is not a part of this redeployment. I think for senior level examiners who have had signatory authority and are intimately familiar with the art it doesn’t make sense to have a second review. That is basically taking senior level folks and making them Assistant Examiners without signatory authority. That is also hurting morale, but any steps in the right direction are a positive sign.”
In that case this isn’t even news. That’s just OPQA actually finally doing it’s job instead of just giving presentations etc. Though the presentations are sometimes helpful.
Gene Quinn
April 28, 2009 11:44 amMark-
A drop in the number of appeals would be good, as would more allowances. Time will tell, but this is a step in the right direction. I hope it is followed up with other things that will make this a part of a meaningful strategy moving forward.
-Gene
Gene Quinn
April 28, 2009 11:42 amIPBloke-
Your points are well taken. We will have to see what happens, but if we go back to having stupid office actions but patents actually get issued that would be a step in the right direction. Nothing is served by having examiners who refuse to issue patents and quality examiners having no incentive to produce. Until the USPTO fixes the quota system there will always be abuses. I just think this is a step in the right direction, but many more are admittedly necessary.
-Gene
IPBloke
April 28, 2009 11:33 am2nd pair of eyes is what needs revision, when it started recently all the problems started. QR has been around for about many years. Lets hope the 30 QR examiners can transform the 7000 examiners….but don’t hold your breath. Once the examiners find out there is no QR I am sure all the crappy office actions will go away, right? I suppose under that thinking if we make more speed limit signs and make them bigger and take all the cops off the road there will be no speeding. Be careful what you wish for as you just may get it.
Mark Malek
April 28, 2009 09:33 amGreat post Gene. Although I believe this redeployment will no doubt enhance patent quality, and possibly lead to somewhat higher allowance rates, I think it is just one minor step to helping reduce the backlog. I would be interested to track the number of appeals filed within one year after the redeployment happens. I’ll bet there will be a significant drop in the number of appeals.
Gene Quinn
April 28, 2009 09:24 amJackie-
I agree with you, and many of the retired examiners I talk to say the same thing. We can only hope this is the start of positive changes, but I would say this is a very good sign.
-Gene
Gene Quinn
April 28, 2009 09:23 amAnon-
As I understand it this would be a redeployment of OPQA personnel. My personal belief is that the “second set of eyes” needs revision as well, but from what I hear that is not a part of this redeployment. I think for senior level examiners who have had signatory authority and are intimately familiar with the art it doesn’t make sense to have a second review. That is basically taking senior level folks and making them Assistant Examiners without signatory authority. That is also hurting morale, but any steps in the right direction are a positive sign.
-Gene
anon
April 28, 2009 09:18 amGood post Gene. Quick question. There are two types of quality reviewers at the PTO: those within the TCs (the “second eye” TQAS) and those outside the TCs (at the Office of Patent Quality Assurance.) Is this a redeployment of TQAS or OPQA personnel?
Jackie Hutter
April 28, 2009 07:22 amGreat news! As someone who has practiced for 15 or so years, I am nostalgic for the time when new examiners had to toil under the watchful eye of a supervisory examiner for some time before they got to sign a paper that came to me. Let’s hope this isn’t the only change coming in the near future.