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!