Christmas is coming early for inventors, innovative companies, patent attorneys and anyone in the technology/innovation industry that relies upon patent protection. Faced with a growing backlog and long patent pendency periods in a difficult fiscal environment, the United States Patent and Trademark Office (USPTO) is reaching out to former patent examiners, inviting them to return to the agency. According to David Kappos, the Director of the USPTO and Undersecretary of Commerce for Intellectual Property: “Because of their prior experience, returning examiners will need little training and will be able to hit the ground running. These examiners can have an immediate impact on the patent examination backlog and reducing the backlog is our top priority.” In the past I have written over and over again that the USPTO should bring back former patent examiners, precisely for the reasons stated by Kappos (e.g., 5th paragraph and 5th paragraph). I am not about to claim that the USPTO listened to me, but whether they listened to me or came up with this idea on their own it is something I have thought made a lot of sense for a long time. So, not surprisingly, I think this is a wonderful idea!
Former examiners who have passed their probationary requirement and who have resigned less than three years ago or have more than three years experience examining patents are invited to apply. The USPTO estimates that a few hundred former examiners are eligible to be rehired, and of that number less than 100 are expected to accept the offer. Vacancy announcements for the positions have been posted at USAJobs.gov. The openings are for GS-9 through GS-14. Bob Stoll, Commissioner for Patents, told me that he hopes the USPTO “can attract as many former examiners back as possible. On an operational level, we would like to deploy them to the technology areas with the biggest backlog that best fit their skills and expertise.”
According to the USPTO, the initiative to rehire examiners will not increase the size of the agency’s workforce, but it will hopefully help the agency keep pace with the attrition rate, at least over the near term. Currently 30 to 40 examiners per month leave the USPTO, and because of budgetary restrictions there has been a hiring freeze for about 8 months.
Most in the industry know that I have been a constant critic of the United States Patent Office for years, but that I have been changing my tune recently. It seems that my optimism has been unwelcome in some industry corners, and some even consider me naive. I have been told that I am “cheerleading” and should stop saying what the Patent Office is doing is positive unless and until there is proof. I believe there is plenty of proof that what the Patent Office under Kappos is doing is positive, and in fact the direction of the Patent Office has been positive since at least March 2009, incrementally improving as much as possible under the interim guidance of career PTO officials and employees.
The positive USPTO direction accelerated when Nick Godici was brought back temporarily as a special consultant, and has even more so accelerated since Kappos was sworn in at the Office in August. During the last several months, the USPTO has revamped the patent examiner count system to improve the examination process. It has also expanded the petition to make special option to green technologies and applicants who agree to abandon applications they deem less important, which will speed up examination, issuance and get patents out into the economy to spur investment and economic growth. There is little doubt that the Patent Office is heading in the right direction, but cynics will undoubtedly find a reason to complain and say this is too little and won’t matter. To that I say — GET A GRIP!
I am reminded of the story of the boy walking along the beach throwing starfish back into the ocean, which is told and retold in slightly different ways all over the Internet. Essentially, a man walks up to him and ask, “what are you doing?” The boy explains that he is throwing starfish back into the ocean so that they will not die. The man then says “don’t you realize there are mile after mile of beach and many hundreds of starfish? You can’t possibly make a difference!” To this the boy smiled, bent down and picked up another starfish and threw it into the ocean. He then turned to the man and said “I made a difference to that one.”
Of course this is only a drop in the bucket, with 6,000 plus patent examiners, over 1 million pending patent applications, with 30 to 40 patent examiners leaving the Office every month through natural attrition, the rehiring of 100 former patent examiners is akin to picking up a starfish and throwing it back into the ocean. It won’t matter to anyone unaffected, but it will matter a great deal to those who are affected, and if you have a patent application that gets a quicker action, which leads to a quicker issuance than it would absent the rehiring of former patent examiners then it matters to you and your clients. Simply stated, the rehire initiative is another example of the USPTO’s efforts recently to implement creative approaches to addressing the backlog and pendency.
I am not a fan of all the nonsense in Washington, DC. At some point I have to think that Democrats need to stop blaming everything on President Bush. We had economic growth from 2001 through December 2007, and while there were certainly mistakes all around that lead to this economic disaster it is revisionist to say that Republicans were to blame and Democrats were blameless. Democrats controlled Congress, they encouraged lending to people without means to repay and regulators in the Executive branch were asleep. Everyone on both sides of the aisle have plenty of blame rightly placed on them. For crying out loud, President Obama even supported the Bush Stimulus Plan, also known as TARP.
Having said this, it is not low-rent political bickering to acknowledge that the Patent Office was run into the ground between 2005 and 2009. Kappos and company were left with a mess. They have an enormous backlog of patent applications, less money coming in thanks to eroding maintenance fee payments that will continue to erode over the next few years due to an artificially depressed allowance rate between 2005 and 2009. Much of what the USPTO has been doing is behind the scenes stuff that will lead to marginal improvements in efficiency, and the quicker issuance of patents that are commercially relevant, but when you layer them on top of each other things are clearly getting better and heading in the right direction. The rehiring of former patent examiners is just another piece of evidence that Kappos is doing whatever he can do.
We all know that what Kappos and company can do is extremely limited. He doesn’t have the authority to raise fees even a modest amount to hire a few more people or get better IT systems that would further streamline PTO processes. He needs to deal with increasing applications and work (FY 2009 had the second most filings in the history of the USPTO) while losing patent examiners through natural attrition. Now, at a time that Congress is trying to spend us into hyperinflation they are freezing the USPTO budget and preparing to siphon off additional fees collected by the Office over and above the frozen in time budget Congress is locking the USPTO into. His hands are largely tied, so excuse me for cheering and noticing that anything he can do that is in any way positive is an achievement that should be applauded. It also gives us an opportunity to encourage more of the same, support the Office moving in a positive direction and to lobby Congress and the White House to do the right thing! Funding the US Patent Office is a no-brainer and will organically kick-start the US economy.
Soon the blaming of the Dudas era will need to stop and we will have to squarely place the blame on Congress and the White House. President Obama has someone at the USPTO who is a patent attorney and understands the patent process and the power of patents. After all, what is IBM without patents? President Obama also has someone heading the Commerce Department who seems to understand patents as well. I am constantly amazed that all of Secretary Locke’s statements make sense and show extremely strong support for the patent system. I doubt he gets it all on the level of a patent attorney, but he clearly seems to have surrounded himself with talented people, takes advice and has a vision. He appears to be an excellent CEO type, which is exactly what we need at Commerce.
With all of these pieces in place if the problems of the past linger due to lack of funding a very different story will need to be told. We cannot blame Dudas, Doll or President Bush for the failure of the 111th Congress not providing adequate funding and resources to the USPTO.