Specifically, we learned that the USPTO projects an average first action pendency of 23 months by the end of fiscal 2011, that participating in the First Action Interview Pilot Program more than doubles the likelihood of getting a first action allowance, that Track 1 rules are imminent with rules for Tracks 2 and 3 to follow and during FY 2010 nearly 6,000 USPTO employees worked from home at least a portion of their work week. We also heard an ominous and declarative statement from Kappos, who told the House Subcommittee on Intellectual Property that the diversion of fees will cause the patent backlog to rise.
Commerce Secretary Gary Locke announced that the first Regional Patent Office would be located in Detroit, Michigan and will open at some point during 2011, employing some 100 patent examiners with some additional support staff. Locke explained that as a part of the nationwide workforce initiative of the Obama Administration high paying jobs would be coming to the USPTO Detroit Satellite Office. Locke said that while 100 patent examiners is an appropriate level of staffing initially that number could expand over time if the Regional Patent Office model proves successful. Secretary Locke also explained that the Detroit Satellite Patent Office will be “the first of several Patent Offices we hope to establish around the country.” When pressed during the question and answer phase of the call, Secretary Locke said that perhaps two additional Satellite Patent Offices might open “within the year after Detroit.”
At lunch Director Kappos explained that the goal for fiscal year 2010, which ended on September 30, 2010, was to get the backlog down to 699,000 — dubbed “project 699.” The Office was not successful, but Kappos says they will get well below 700,000 for fiscal year 2011, perhaps as low as a backlog of 650,000. Kappos’ immediate follow-up: “I say that as Commissioner Stoll starts to choke at me saying that.” Indeed, there are ambitious goals at the USPTO for FY 2011, including a move to unity of invention.
As the evening moves forward it is increasingly apparent that the Republicans are having an excellent night, and exactly what the vast majority of pundits have predicted seems to be coming true. Not withstanding the potentially historic nature of this election, there will be plenty of time to consider what the election results mean in general, for business and for a variety of issues important to families; the so-called kitchen-table issues. But for tonight I will reserve my commentary to what the election results mean for patent reform. Those following my recent articles might find themselves surprised. In order to discuss the impact of patent reform we first need to define what is meant by “patent reform.” I am going to divide patent reform into two categories: (1) pending patent reform that might get consideration in the lame duck session; and (2) patent reform that we desperately need the next Congress to take up.
In this third installment things get interesting, perhaps even a bit explosive. The former Chief of the Federal Circuit pulls no punches and talks openly and honestly about Congress, laying the blame for the decline of the Patent Office squarely on the feet of Congress who has since 1992 siphoned off at least $750 million thanks to fee diversion. This has left the Patent Office short on resources to do what needs to be done. The Judge also makes the case for regional Patent Offices and getting involved in the patent reform debate so that a handful of companies can’t dominate the discussions to their sole benefit. He talks about perhaps setting up a think tank to promote a pro-patent and innovation agenda, and how it is a “travesty” that patent rights cannot be enforced in a relevant time frame through litigation because of backlogs in the federal court system. I think it is fair to say that Congress was in the cross-hairs during this segment of our interview and some of what Chief Judge Michel tells me was surprisingly forceful, direct and extremely critical. Having said that, I think practically everyone in the industry will agree with him. I know I sure do!