I have been writing for some time about the problems with the United States patent system and my proposed solutions. As I have continued to write about various issues and work through them with assistance from readers who both send me private e-mails and post comments, I have been getting more and more comments and messages from people on the inside of the USPTO. I have been extremely encouraged to learn that there are many within the USPTO who are as concerned about the problems facing the patent system as I am. The communications I am receiving are offering substantive ideas and particularly defining the problems encountered on a daily basis by those who work as patent examiners and those who work in the appeals process within the Patent Office. I am extremely appreciative of the fact that those within the Patent Office are reading IPWatchdog.com, and I am grateful they are interested in trying to make a better patent system. Please keep your thoughts, e-mails and comments coming.
There have been a few comments lately that deserve more attention than just being left to languish in a long stream of comments. While the comments are always helpful, I want to make sure these comments do not get lost, and more importantly get properly indexed and findable. One such comment was made earlier this morning to the article titled Perspective of an Anonymous Patent Examiner. This comment was made by someone claiming the name “Old Examiner,” and is reproduced below:
As a GS15 examiner with over 30 years experience, I believe there are several reasons for the poor quality of examination currently existing within the Office.
First, the Office has rapidly expanded with a glut of applications in the last decade forcing a ridiculous number of new examiners to be hired. Such a large number necessarily dilutes the talent pool. Further, the newbies aren’t well trained. Prior to reaching their examining group, they spend months in a training academy attempting to learn all facets of the job and being supervised by examiners having no knowledge of their art area. In the past, examiners were placed in their art units after 2 weeks and received hands-on training by experienced examiners or their supervisor who were knowledgeable about their art. Later, they attended classes at regular intervals for further training.
When I started in the Office, supervisors had many years of experience. Currently, you see examiners appointed as supervisors one year after becoming a primary examiner. They barely know how to do the job themselves, let alone train other examiners. They are usually appointed in art areas they are unfamiliar with, hindering their ability to assist the junior examiners in searching and expediting the prosecution.
New examiners are also trained to write short stories on first action, never getting down to the crux of the inventive concept and wasting a great deal of time. The short form of the 1970s worked great, consolidating the issues for either a final rejection or allowance on the next action.
The Office has also failed to keep up with the classification system, breaking down subclasses for easier searching. They have forced examiners to only word search every case. Subclasses have grown so large that it is virtually impossible to comb through an art area.New examiners never learn the art and are never comfortable that they have the best art in the case. The published applications are no longer classified by examiners, causing numerous misclassifications. This causes examiners great trepidation when it comes to issuing a case fearing that Quality Review will bounce it, and they will be rated poorly. The SPEs also fret about QR since it will affect their rating as well. Therefore, examiners continually make new rejections, attorneys file RCEs rather than appeal, prolonging patent prosecution. Hence,the low allowance rate in the Office.
I, for one, don’t believe recent cases, such as KSR v. Teleflex, have forced the extended prosecution. Even before these cases, I always examined and trained with a common sense approach to obviousness. Some combinations are clearly logical, some simply don’t make sense. My allowance rate has always been around 67%.
Since I work at home, I don’t have as much contact with the younger examiners as in the past, but I do believe most examiners who choose to stay in the Office want to become a Primary Examiner, if not for pay than for no other reason that their decisions become their own. I just think that with the push in the Office for “quality”, it has become difficult for the above reasons, causing many talented hires to leave the Office and the remaining ones to flounder in many cases.
I think there is much that can be learned by listening to experienced and retired examiners. I have heard many stories from retired examiners about how the Office has changed over the years. My personal believe is that those with the experience of “Old Examiner” hold the solutions for the future. They lived through the Reagan years where pendency rose to an unacceptable level, and participated in achieving 18 month pendency by 1989. I was just told the other day by a friend of mine that Reagan had wanted 18 month pendency much earlier, but officials inside the USPTO explained that it was not practical because you could not hire enough people and properly train them to accomplish the task. This, of course, takes a leadership that understands patent prosecution and also has the guts to stand up and explain the realities to political leaders who know little or nothing about what a patent is, let alone what solutions the patent system requires.
I am working with some retired patent examiners and others to work through some thoughts I have and will continue to write on this path in the weeks and months to come. My goal is to define procedural changes to the way patent applications are examined, moving toward what I will call a collaborative examination where the patent examiner and the patent attorney or agent actually work to identify patentable subject matter and issue patents quickly, or at least in a technologically relevant time frame.