On February 05, 2015, the Federal Register included a notice requesting the submission of comments about how the USPTO can improve patent quality. Consistent with my last few posts on this topic, I have prepared and submitted a set of comments to the USPTO with the following theme.
The USPTO’s efforts to promote “patent quality” have been ineffective to date for four reasons:
- The USPTO has no control over the content of issuing patents, and lacks the legal authority to create or adjust substantive requirements. Rather, the USPTO’s most direct contribution to patent quality is the quality of patent examination.
- The USPTO operates on the incorrect presumption that examination quality is inherently subjective (e.g., by basing all of its quality metrics on subjective reviews and a reference-free “1 to 5” scale).
- The USPTO’s focus on examination quality overemphasizes incorrect allowances, and underemphasizes incorrect rejections, without appreciating that these incidents are interrelated.
- The USPTO’s view of examination quality overemphasizes the outcome of examination, and underemphasizes the quality of its actual work product: the contents of office actions.
To this end, three proposals are submitted:
- Promoting a cultural shift in the USPTO’s internal perception of “examination quality” as not just reaching a correct outcome, but presenting a persuasive argument in the office action.
- Reorienting the production count system to emphasize productive activities and persuasive office actions, and to reduce factors that incentivize production volume and “churn” at the expense of examination quality.
- Replacing the opinion-based assessment of examination “quality” with data mining techniques that generate objective metrics of specific quality-related behaviors over the examiner’s entire work product.
The full text of my submission is available here.
(This concludes my series of posts about patent quality. The next entries will shift to the topics of prosecution strategy, and observations about USPTO process and infrastructure.)