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MSM Noticing That Patent Gridlock Stunts Innovation

mavenguy Re:Patents generate great value (233 comments)

While you make some good points I must comment on some of them to give some perspective from my view as a former patent examiner who started back in the 1970s and, after a hiatus, is back on the "other side" as a patent agent.

The essence of my complaint with your comment is the tone that posits the poor, poor PTO against the greedy and corrupt politicians and applicants. While I agree that, at least as that applies thoroughly to the politicians there is plenty of blame to laid at the feet of the self perpetuating PTO management, the so-called permanent bureaucracy, who survive and select their successors from political administration to political adminstration, from Congress to Congress.

The production system, set up in 1960s as "goals" and given real teeth with the introduction of the Performance Appraisal Plan formulated in response to Carter's Civil Service Reform effort assigns an average "expectancy" in each art area against which examiners are measured (anything less than 90% is unsatisfactory; falling below that generates first an oral warning to get it above by three months; failing that a written warning with another thre months; failing that, being fired) the achievement is an average; examiners are not measured on an individual application basis, so an examiner is free to allocate his/her production requirment as he/she sees fit. Obviously if more time is spent on more difficult cases, less time must be spent on other cases, simple or not. Examiners get credit toward their production for each first action on the merits (FOAMs) and each action in the nature of a disposal (allowance, abandonment, examiner's answer for an appeal). Examiner's can write off some time for specified tasks, but all remaining time is "examining time") and is figured in calculating production. And, if the applicant appeals, the examiner writes an examiner's answer to the applciant's appeal brief and gets a disposal count. The case goes up to the board and returns after decision; if reversed or affirmed in part the examiner passed the case to issue but gets no further count; if affirmed it just gets noted and sent to abandoned files (court appeal is possible but that is very rare).

Because measuring things like search adequacy, rejection/allowance judgement are somewhat subjective but metrics sucha s production, workflow standards are objective and that meeting or exceeding the latter contribute to the "good" of reduced pendency management of the patent examining corps has be, at a fundamental level, been based on these metrics. Any issues with quality primarily arise from outside pressure, which management responds with all kinds of initiatives such as "quality review" or "second pair of eyes" but nothing to do with really improving search effectiveness or giving more average time pre case so that the best prior art is likely to have been developed in most of the applications.

Currently outside quality criticism (cat pointer, swinging on swing) have lead to a reject,reject, reject mantra, which has had the effect of lots of crap rejections being cranked out; lots of cases have been pending even longer because lots of non-final rejections comming from newbies who are not finding good art and just keep sending out easily refuted rejections after being goaded by supervisors to get better art and to keep making new (yet still junk) rejections. Management is in a trap of their own making from decades ago and now they can't even dig themselves out of it despite an unprecedented hiring orgy which scoops up lots of low production newbies, many of whom don't last more than two or three years. And, in any case, most managers doen't realize this, and just insist that examiners are lazy, incompetant dolts who (with the rare exception of those promoted into management) can't meet their simple, common-sense demand to just crank out thoroughly search and argued actions in the time allotted, preferably less so as to reach the Office goals for reducing pendency. Although all top civil service managers came from the examaning corps most quickly forget the pressure to make production, were in easy arts, or just did once over lightly actions that didn't attract negative attention as they piled up production awards on their route to management positions.

Until this management culture is changed (and I have little hope that substantive change will be forthcomming from Congress), the Office will be mired in the quality/quantity quandry in which it's been roiling for some time into the future.

more than 6 years ago


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