Even before President Obama announces his selection for Undersecretary of Commerce for Intellectual Property, a post known by those in the industry as the Director of the Patent Office, senior level management Officials inside the Patent Office are beginning to take real and concrete steps to address the enormous backlog of cases that was allowed to build under the stewardship of James Rogan and Jon Dudas, the last two political appointees to hold the Position of Director of the PTO. Acting Commissioner for Patents Peggy Focarino has told me that examiners will begin holding interviews with applications and their representatives earlier in the application process so as to identify allowable matter so that patents can actually issue. This alone is good news because it suggests that the Patent Office understands that the allowance rate is too low. One has to assume this is being done with the approval of the White House, particularly given that Obama Chief of Staff Rahm Emmanuel informed all agencies to stand down on initiatives and rules until political appointments were made, unless of course the initiatives and rules were essential.
I have also learned that the so-called “second pair of eyes” review, which was started to address concerns over business method patents, was extended throughout the Office. According to Commissioner Focarino, this Office wide second review of every patent application that held allowable material was simply to resource intense and will not be done moving forward. There will still be meaningful, and I believe better, quality review moving forward, but it is clear that now that the USPTO is without political leadership and is being run by career officers, important initiatives are beginning. With early interviews, less second pair of eyes reviews, and quality review becoming focused on helping examiners rather than punishing examiners for mistakes, it seems likely that the allowance rate will substantially pick up and average pendency of patent applications will decrease.
The positive turn of events within the Patent Office show what can happen when problems are identified and those with patent specific knowledge are allowed to pursue solutions. Unfortunately, it has been at least since Q. Todd Dickinson was leading the agency that the PTO leader had any relevant experience. Recall that Q. Todd Dickinson became the Acting Director of the USPTO on January 1, 1999, and later that year was nominated by President Clinton to remain in that post, a post he held until 2001. Following Dickinson was James Rogan, who was a two term Congressman from California who did not get reelected during the 2000 election cycle. Rogan was appointed by President George Bush, and according to many this lead to a tremendous hit to the morale of Patent Office employees because Rogan had no patent experience, and no experience of any kind within the broader area of intellectual property. Thus, Rogan’s appointment was seen as a statement by some that experience was not required and the head of the Patent Office was a purely political appointment. Following Rogan was Jon Dudas, who had served as a deputy under Rogan between 2002 and 2004. Dudas took control of the Patent Office in 2004 and held this post until he resigned shortly before President Obama was sworn into Office in January 2009. Prior to becoming a chief deputy in the USPTO, Dudas had only marginal experience with intellectual property issues while an attorney for the House of Representatives.
As you can see from the chart below, which shows the growth in the number of pending patent applications at the end of each fiscal year since 1988, the number of applications pending at the end of the fiscal year started to grow beginning in 1998, so an argument could be made that Dickinson, Rogan and Dudas all played a role in where we are presently.
When you look at the average pendency of a patent application, what you see is that during the tenure of Q. Todd Dickinson the average time a patent application remained pending stopped growing and started to dip, but then when Rogan and Dudas took control the average pendency started back up. So despite the growing number of patent applications pending during Dickinson’s reign, the Office was addressing the growing pendency problem, which is what matters most to applicants. But during the Rogan and Dudas reigns both the number of pending applications grew out of control, and the average pendency increased to dramatic levels. So it is not a stretch to observe that during the Bush Administration the problems of the Patent Office were felt by more and more applicants. In fact, the steady increase in pendency has remained at the same extraordinarily high levels ever since second pair of eyes review became mandated throughout the Patent Office.
We are presently waiting word on who President Obama will nominate to be the next Director of the USPTO, but many, including myself, suspect that it will be David Kappos. While Mr. Kappos will no doubt bring with him great understanding of the patent system, some wonder whether his ties to IBM and the tech industry will make him lean to heavily in favor of that segment of the market. In any event, it is refreshing to see that President Obama has on his short list individuals who have substantial patent experience, which will be a refreshing change. If for some reason Kappos or whoever the President has settled on does not make it through the vetting process perhaps the President should consider Commissioner Focarino. As a result of my conversation with her I believe she gets the issues, the problems and is prepared to roll up her sleeves and get to work. I have also heard wonderful things about her from others with experience within the walls of the PTO who know her personally. Just something to think about in the event of another problematic vetting process.