The patent backlog and all of the associated problems that go along with it, such as the increasing length of time it takes to obtain a patent, is the largest single problem facing the United States Patent and Trademark Office. In fact, this problem is not unique to the US Patent Office. Other Patent Offices around the world are also plagued with growing demand as the global economy continues to transition into an information and technology based economy. In the US the reason for our backlog getting out of control over at least the last 5 years is well documented, and largely related to the top level political appointees not having any patent experience. That has changed under President Obama and there remains a lot of optimism with respect to where the Office is heading, although to really get to the bottom of the problem Congress will need to cooperate and fund the Patent Office rather than viewing it as a revenue generator for other government programs.
I am not naive, so I realize getting Congress to do anything relating to patents is nearly impossible and getting them to do anything that is actually helpful seems almost akin to believing in the tooth fairy. So the Patent Office is going to have to come up with incremental solutions on their own. From time to time I will offer solutions that will help, to one extent or another. Today I suggest that the Patent Office immediately suspend prosecution on any and all patent applications in which a Bilski patentable subject matter rejection has been or could be made. Redeploy patent examiners to other areas and dig into the backlog.
Allow me to explain…
First, lets set the table and take a look at the problem, at least in terms of raw numbers. As you can see from the chart below for the last 4 years more than 1 million patent applications remained pending at the end of each fiscal year, which ends for the Patent Office on September 30 each year. For the last 2 years more than 1.2 million patent applications remained pending. I have every reason to believe that the number of patent applications filed during fiscal year 2010 will set an all time record. While large companies are slowing down, small businesses, independent inventors and start-ups are becoming far more active, which is what you would expect in a recession and the aftermath. There are also trillions of dollars in the pockets of investors who are getting tired of how long the recession has dragged on, economic activity seems to be increasing except perhaps with respect to building new homes, and head hunters I know in the patent world are telling me that given the workload at firms many will need to start hiring by mid 2010, and should have been already but are nervous and want to make sure the economy really is moving upward. So 2010 should be a banner year for the USPTO, and a definite upswing for the technology, innovation and patent communities. That is my prediction and I am sticking with it!
What this means is that David Kappos and his team of administrators need to continue to figure out innovative ways to do more with less. I realize that shouldn’t be the case, but life isn’t fair, so we need to get over it for now, roll up our sleeves and continue to press Congress for a solution. In the meantime works needs to be done, and it is ridiculous for the Patent Office to continue to do any work on any application that has or will have a Bilski rejection. Simply put, spending even one minute on a patent application with Bilski subject matter is a complete and utter waste of time; akin to raking leaves in a wind storm. You can spend all day raking leaves only to accomplish nothing and need to start all over once the wind stops.
The United States Supreme Court typically takes cases where there is a split among the Regional Circuits on important and fundamental legal issues. In their own unique and strange way the Supreme Court seeks to bring clarity to these areas, or at least that is the operative theory. When they take a patent case, however, there is no split among the Regional Circuits because only one Circuit, the Federal Circuit, has the jurisdiction to hear patent related appeals. So when the Supreme Court takes a patent case it is not to give guidance to make the law more uniform across the country among and between the Regional Circuits. Rather, the Supreme Court takes a patent case to reverse the Federal Circuit. The Supreme Court does not take a patent case, at least not in recent history, to tell the Federal Circuit “you got it right.”
We know with certainty that the Supreme Court will reverse the Federal Circuit Bilski decision, so acting like it is the law is just recklessly irresponsible. The Supreme Court will not ratify the Bilski decision. If they were going to do that they would have denied cert and not heard the case. So things are either going to be much better for patent applicants and easier to patent and keep valid claims (which I think is likely) or it is going to get much worse. The Supreme Court decision will be different enough from the Federal Circuit Bilski decision that it will be impossible to view the resulting test as a minor tweak. There will be quite a bit of substantive distance between the decisions, which seemed rather clear by Justice Sotomayor constantly referring to the CAFC decision as “extreme”, Justice Breyer being troubled by how far “the Circuit” went and by Justice Kennedy seeming to want to ensure the State Street invention remains patentable.
By spending any time on Bilski the Patent Office is just wasting time, and will have to eventually double back and redo all that work. So rather than putting precious resources into action and bringing them to bear on settled areas of invention massive amounts of examiner hours will be spent dealing with an area that will change substantially within 6 months. Imagine what would happen if the Patent Office devoted those resources to other applications, cleared out backlogs in other areas and then the Supreme Court issues its decision that says everything is patentable or nothing is patentable. In either scenario the Patent Office could quickly plow through the applications, either issuing or denying once and for all. Following this course in 2010 could result in a massive decrease in the backlog by the end of the fiscal year.
Not only should the Patent Office stand down, but district courts should just delay making any rules for the 3 to 6 months we will have to wait for the Supreme Court to issue a decision. Doing anything else is just a waste of time and a missed opportunity.