Kappos Sets Goal of 650,000 Backlog by End of FY 2011

Director Kappos speaks at IPO PTO Day luncheon.

Yesterday the Intellectual Property Owners Association held their 21st annual PTO Day at the The Ronald Reagan Building & International Trade Center in Washington, DC. The luncheon speaker was David Kappos, who is Under Secretary of Commerce for Intellectual Property and the Director of the United States Patent and Trademark Office. Those familiar with Director Kappos know that he generally has prepared remarks, which he delivers, or an outline and then speaks contemporaneously but directed from his outline. Yesterday Director Kappos deviated a bit from his routine and utilized a powerpoint presentation, which was titled: “The USPTO by the Numbers: Progress and Reform at Our Nation’s Innovation Agency.” While some of the slides tell what appears to be a remarkable turn around story, the real news to come out of Director Kappos’ presentation is that he is challenging the Patent Office to get down to a patent application backlog of 650,000 by the end of fiscal year 2011. To paraphrase Sam Cooke: what a wonderful world it would be!

For more coverage of the IPO’s 21st Annual PTO Day please see: PTO Lays Out Ambitions 2011 Agenda at IPO Conference, where I discuss the morning presentation given by Bob Stoll (Commissioner for Patents), Peggy Focarino (Deputy Commissioner for Patents) and John Owens (Chief Information Officer).

We all know that over the years the patent application backlog has been out of control, and at least a dent was put into the ever escalating backlog by team Kappos during fiscal year 2010, but the agency did not achieve the lofty goal of bringing the patent backlog down below 700,000 applications as was the target. Kappos explained that the goal of getting below 700,000 unexamined and untouched applications in FY 2010 was known as “Project 699.” Kappos said that while the goal was not made, significant progress was made (see powerpoint slide below), and that he predicted a backlog of well below 700,000 by the end of FY 2011.  In fact, Kappos has set the goal for 650,000 patent applications in the backlog by the end of FY 2011, despite the fact that applications will be up.

Another very telling powerpoint slide was the one that tracked production units, first actions on the merits and disposals (shown below).  The yellow line labeled production units is actually an average between the green (FAOM) and purple (disposals).  What is particularly telling and an extremely good sign is that for FY 2010 the number of disposals outpaced the number of FAOMs, which is an indicator that the Patent Office is indeed getting a handle on the backlog problem.  Kappos explained that the “major driver was the count system” being revamped, and indicated that as a result “behavior changes, which over time will be a very good thing.”

Kappos was also extremely proud, and rightfully so, that during FY 2010 the Office was able to squeeze out an entire extra month of productivity when compared with FY 2009.  Kappos said:

Despite having fewer examiners… we got an additional month of productivity… and that is unambiguously very positive… How do you do that?  Actions per disposal… another thing that is unambiguously good.

Kappos pointed out that as a result of reducing the actions per disposal 20% capacity has freed up.  They did not get as low as they had hoped, the target being set at 2.1 actions per disposal (see blue dotted line on powerpoint slide below), but are at 2.4 actions per disposal, which is a good start.  Lately the trend is slightly up, which Kappos acknowledged, although he said there are a variety of reasons why and he and his team are going to do what they can to continue to put downward pressure on actions per disposal.

Director Kappos was also quite pleased with the fact that examiners moving more quickly has not reduced quality, which has actually increased since the initiative to give examiners an extra hour of time to handle cases was implemented in February 2010.  While I am cognizant of the fact that quality measures have been cooked by the Patent Office in the past, and that you get what you measure, it is fair to say that the USPTO is happy with where quality is, seems dedicated to striving for increasing quality, and like any other quality review mechanism they will get what they measure.  I haven’t done any kind of independent review of quality, my anecdotal review and what I hear does suggest that quality is in fact higher than previously.

Perhaps the two most interesting slide were saved for later in the presentation.  The next slide shows the number of hours examiners spent doing interviews over the last several years.  In FY 2010 examiner interview hours increased by 40%, which lead Kappos to quip that he wouldn’t have thought it possible to change anything in government in a positive way by 40% in a single year.  So it seems that examiners are getting the message from the 10th floor of the Madison Building — interviews are good and we want you doing more of those.  Kappos thanked the patent bar for going along with him and indeed working to raise the rate of interviews, which he has always contend facilitate the positive resolution of a pending case perhaps better than anything else.

Finally, the slide that caught my attention the most was the one relating to the Patent Prosecution Highway (PPH).  The PPH has long been hardly used really, and during FY 2010 Kappos set a goal of trying to get 4,000 applications into the PPH, which the Office succeeded in doing, which represented a doubling of the PPH input for all previous years.  Kappos acknowledged that at the time he set the goal no one knew how it could be done, but worked collectively to get it done. The goal for FY 2011 is 8,000 applications.  This seems quite likely as Kappos and his team continue to sing the praises of the PPH.  The largest selling point, you ask?  The overall allowance rate during FY 2010 was about 46%, but was over 90% for applications on the PPH.  The second largest selling point, you ask?  The number of actions per disposal in FY 2010 was about 2.4, but the average number of disposals per PPH case in FY 2010 was 1.8.  So it seems that the PPH sells itself, particularly when you can enter the PPH using “Toronto Pronto,” as Kappos refers to the Canadian path to a quicker US issued patent through the PPH.

Now for some pictures of the luncheon, which was an excellent chicken over rice with what seemed to be a red curry reduction.

As one who speaks with his hands, I am not poking fun at the Director here, but merely noticing how animated Director Kappos was. Perhaps it was due to his working form a powerpoint presentation, I don't know, but it seemed he was at ease and in his element as he conducted his presentation.

Left: Prior to lunch Kappos speaks with IPO Executive Director Herb Wamsley. Center: Prior to lunch Kappos listens intently to Herbert Hart of event co-sponsor McAndrews, Held & Malloy. Right: Two largely behind the scenes folks on the 10th floor - Dana Colarulli (legislative affairs) and Peter Pappas (Chief Communications Officer).

Left: Deputy Commissioner for Patents Peggy Focarino listens intently to Kappos' presentation. Middle: Director to Director, Q. Todd Dickinson and Kappos share a laugh. Right: IPO Executive Director Herb Wamsley, Commissioner for Patents Bob Stoll and Bill Smith, of co-event sponsor Woodcock Washburn at the head table.


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Join the Discussion

10 comments so far.

  • [Avatar for patent litigation]
    patent litigation
    December 14, 2010 02:09 pm

    Measuring patent quality does, indeed, present difficulties which could readily be fudged or glossed over. At least it’s encouraging to know that Kappos has expressly pledged a dedication to maintaining high standards. Hopefully, the increased number of examiner hours in both interviews and document review will make some difference as to quality and appease a few patent detractors on that issue.

  • [Avatar for Gene Quinn]
    Gene Quinn
    December 8, 2010 09:27 pm


    Thanks for your comment. I approved it on the other thread, and removed the text above an provided the direct link. I prefer not to double post big chunks of text so as to not upset the Google gods who sometimes like to punish duplicative identical content, but definitely wanted your comment relating to the backlog and Project 699 to be findable on this thread.


  • [Avatar for Gene Quinn]
    Gene Quinn
    December 8, 2010 09:19 pm

    Patent Leather-

    I’m not sure the goal is to completely do away with the backlog, but rather to get it where it needs to be. The first big milestone, if you ask me, is to get the backlog to be less than the number of new utility patent applications filed. It will be no small feat, but until the backlog gets below that number that would mean that average first action pendency would remain over a year. Realistically I think 9 to 10 months for a first action is where the Office needs to be. It would be better to get it lower, but with a first action average of 9 to 10 months that should coincide with a total average pendency of about 18 months, saving of course RCEs, which the Office is working to convince examiners are not to be forced.

    Stay tuned!


  • [Avatar for Gene Quinn]
    Gene Quinn
    December 8, 2010 04:57 pm

    From what I am hearing, Yet Another Examiner hit the nail on the head. There is a confluence of events/changes. Everyone seems to agree that greater use of interviews and the extra hour are responsible. The change in philosophy of many to go back to allowing something if there is something that can be allowed is also helping. Rather than simply saying “no soup for you” it seems like a growing number of examiners are getting the message from the 10th floor that it is greatly preferred to say “no soup for you on that claim, but I could…” This moves the dialogue forward to get something issued rather than mired in an entrenched battle over broad claims.


  • [Avatar for Yet Another Examiner]
    Yet Another Examiner
    December 8, 2010 04:37 pm

    “Not that I don’t appreciate a rundown of all those numbers, but what would be more interesting is an explanation of HOW the USPTO has acheived these results.”

    I’d say it’s due to several factors: SPEs being a bit more willing to allow earlier in the prosecution, increasing use of interviews on both sides, and giving examiners that extra bit of time to do first actions.

  • [Avatar for david]
    December 8, 2010 02:06 pm

    The new way that RCE’s are classified also has a direct impact!!

  • [Avatar for Just visiting]
    Just visiting
    December 8, 2010 11:03 am

    Not that I don’t appreciate a rundown of all those numbers, but what would be more interesting is an explanation of HOW the USPTO has acheived these results.

    Did Examiners suddenly find the best prior art quicker and the issues came to a head much quicker? Did Applicants all of a sudden start drafting better claims? Are these results sustainable or has the USPTO picked some low-hanging fruit?

    Also, the “backlog” number doesn’t tell the whole story — it just refers to the number of applications without a first action on the merits (FAOM). What we are talking about is the applications that are in the queue, waiting to get examined, and not the total number of applications awaiting a final disposal (i.e., the backlog + applications that have already received a FAOM).

    Don’t get me wrong, Kappos is a 1000% better than who we had before, but there is still a lot of work that needs to be done to overcome years of neglect at the USPTO.

  • [Avatar for patent leather]
    patent leather
    December 8, 2010 10:06 am

    If the USPTO now agressively hires new examiners, I think the backlog could be gone by 2015!

  • [Avatar for Mark Nowotarski]
    Mark Nowotarski
    December 7, 2010 10:20 pm

    Is there a list of patent applications that have been through or currently going through pph?