Yesterday I wrote about how the growing backlog of applications at the United States Patent and Trademark Office has caused the average time a patent application remains pending to rise to ridiculous levels. Some have contacted me to suggest that I am dead wrong to imply that the problem is getting worse given that the number of patent application is decreasing this year. If only that were true! Even if we have the anticipated 5% decline in the number of applications this year that would mean there will be 470,340 applications filed in fiscal year 2009, which is still more applications than were filed in fiscal year 2007!
Ever since the Reagan Administration bonuses have been available for examiners who achieve 130%, 120% and 110% of production goals. The introduction of this bonus program was how the leaders of the Reagan USPTO were able to incentivize the examiners into rectifying the inordinate backlog created during the Carter Administration. It has remained ever since, but because quality review punishes errors, and errors take away from any bonus that would be due, few if any examiners are trying to reach those levels. Why would they or should they if you reach those levels only to have quality review say you made errors that will prevent you from getting a bonus? So work, work, work and still not get a bonus?
It is easy to understand the backlog when you understand quality review, the bonus program and the human relations problems plaguing the Patent Office. What is particularly disturbing is that so-called quality review is not even conducted by those knowledgeable about the technical area relating to the invention. Add this to the fact that the USPTO is facing an enormous budget crisis and cannot hire any new examiners, but are still losing examiners to retirement and other forms of attrition, and it is easy to see that a single year dip of 25,000 applications will have no affect on the backlog, or pendency. In fact, we can expect it to only get worse when FY 2009 results are announced.
What all of this means is that patent attorneys and patent agents must come up with strategies to force the Patent Office to expedite applications within their own rules? The Patent Office would prefer that we rely on the Accelerated Examination program, but in virtually all instances that is not going to result in satisfactory results. In some cases it might work, but the requirements are just too onerous to be an across the board strategy. Nevertheless, we need some kind of strategy because a patent portfolio held hostage by the Patent Office is worth far less than a patent family that has at least a single patent already issued. The ability to get at least one patent issued quickly is critical for independent inventors, entrepreneurs, small business and start-ups who rely on investors to infuse capital. To get the influx of capital assets need to be obtained, and to be useful they must be obtained before the underlying technology is obsolete, otherwise you are always playing catch-up, racing to create a new technology or industry and then held hostage while the Patent Office sits without granting a patent and creating an asset until the technology is no longer viable. This is simply madness!
What I propose is called the 65 Year Old Integrated Radio Strategy. There are two situations in which you can accelerate a patent application out of order without having to provide the Patent Office with an onerous Examination Support Document (ESD). If the inventor is ill and there is reason to believe he or she will not be able to participate in the prosecution unless it occurs rapidly the application is advanced out of turn to the front of the line. The other situation is when the applicant is over 65 years old. So what every small business or start-up needs is at least one employee who is 65 years or older. This senior employee will need to be an inventor on each and every patent application you or your company files. But how can one single employee contribute to the conception of at least one claim on all applications? Just instruct this senior employee to always suggest that a claim covering the invention plus an integrated radio be included in the application. Then petition to advance the application out of order and to the front of the line.
But what is the magic of an integrated radio? None as far as I can tell, but over the years the United States Patent Office has issued numerous patents where the invention is some ordinary, everyday object plus an integrated radio. Therefore, there are all kinds of precedent (i.e., already issued patents) that conclusively prove that the integration of a radio into some object that has nothing to do with a radio is in fact an inventive contribution that can be covered by a patent application. For 10 examples of such issued patents see the list below.
- Invention of folding chair with portable stereo system
- Beach chair with integral audio player
- Beach chair with integral audio player
- Hairbrush with integral radio receiver
- Hand-held hair dryer having housed radio receiver
- Radio equipped umbrella
- Pillow radio apparatus
- Audio pillow with sun shield
- Pillow radio apparatus
- Stereo sound pillow and method of use
If you try this strategy, which I have run by a few patent attorneys and some former patent examiners, you are likely going to get a restriction from the patent examiner, who will force you to split the underlying invention from the invention + integrated radio. By the time this happens, if it does happen, both applications will be in prosecution, having already been picked up by an examiner. With both applications having the same specification the patent examiner is likely to advance them forward simultaneously, thereby receiving credit for two applications for the time spent on one. This is good for the examiner and good for you as the applicant because you will get the application considered by the examiner quicker and probably issued quicker. So everyone wins, except the Patent Office.
To be perfectly honest, I am not really worried about what will happen to the Patent Office if everyone follows the 65 year old integrated radio strategy. If they get overwhelmed by everyone having a right to be advanced out of turn, then good! The political leaders within the Patent Office have practically destroyed our patent system and it is about time that we force it to be fixed. In the meantime, if we can help some clients get quicker patents and actually get some funding in order to be able to hire American workers for American jobs, then all the better!