No Time for New Technology
GAO Report Says Root of Backlog at the Patent Office Is Lack of Human Resources
SOURCE: flickr.com/dailydog
While patent reform legislation sits in Congress, the biggest hurdle to protecting intellectual property may simply be the lack of satisfied, qualified examiners at the U.S. Patent Office who can deal with the backlog of applications.
Print
The Government Accountability Office released a report earlier this week criticizing the U.S. Patent and Trademark Office for implementing hiring practices that have done little to reduce the current patent application backlog. The report’s findings come amid highly contentious debate over the Patent Reform Act of 2007, which now sits in the Senate and includes amendments that would help curb the amount of junk patents accepted by the PTO. But the GAO believes greater institutional problems are the main factors contributing to the backlog.
In its report, the GAO concludes that the PTO’s efforts to “hire” its way out of the backlog will be futile:
Even with its increased hiring estimates of 1,200 patent examiners each year for the next 5 years, PTO’s patent application backlog is expected to increase to over 1.3 million at the end of fiscal year 2011. The agency has also estimated that if it were able to hire 2,000 patent examiners per year in fiscal year 2007 and each of the next 5 years, the backlog would continue to increase by about 260,000 applications, to 953,643 at the end of fiscal year 2011.
Why isn’t hiring enough? The answer: attrition. According to the report, between 2002 and 2006, one patent examiner left the PTO for every two hired, and of those leaving, 70 percent had been with the agency for less than five years and 33 percent had been there less than a year. This sort of turnover means fewer examiners are available to initiate the application review process; the Patent Office loses time and money spent on training examiners; and experienced examiners must devote more time to supervising.
In addition, the GAO discovered that the high turnover results in a smaller pool of candidates for supervisor positions, producing a catch-22 by hindering the agency’s ability to hire new examiners due to the lack of supervisory capacity.
Why are examiners leaving the USPTO in droves? The report finds that management and examiners differ on the reasons. Agency officials attribute the turnover to personal reasons. Examiners may simply work at the USPTO to build their resume. Or they may leave on account of the work environment, a lack of graduate school opportunities, or the high cost of living in the Washington D.C. metro area. Union officials, who represent the examiners, believe it is more a function of the unrealistic and outdated production goals of the USPTO which have created a “sweat shop culture.” The GAO report found that:
Patent examiners who participated in our survey generally agreed with union officials. Specifically, approximately 67 percent of patent examiners, regardless of their tenure with the agency, said that the agency’s production goals were among the primary reasons they would consider leaving USPTO.
The current production goals, which were introduced in 1976, have not been adjusted to reflect the changes in science and technology. Examiners surveyed by the GAO complained that many of the technologies for which they evaluate patents did not even exist at the time the production goals were established. These new technologies require more time for evaluation, which means examiners are forced to work unpaid overtime and use paid annual leave to meet production quotas.
Even under such conditions, from 2002 to 2006, the USPTO has failed to meet its production goals four out of five years. Of surveyed examiners, 59 percent said the production goals should be reevaluated to allow for more time to review patents.
To combat these attrition issues, the USPTO began introducing new retention incentives in 2002. The report highlights special pay rates, bonuses for meeting production goals, and the ability to work from home as the most effective incentives. While surveyed examiners say these incentives were important reasons in considering staying at the agency, the agency has still faced great difficulty in retaining examiners the past five years, and will likely need to reexamine its production goals if it hopes to tackle the patent application backlog.
To help cope with that growing backlog, the government has turned to the Internet in hopes of tapping into the collaborative potential of cyberspace. In June of 2007, the Patent Office, in conjunction with the New York University’s Institute of Information Law and Policy, launched a pilot program to allow the online community to participate in the patent review process. Called Peer-to-Patent, the wiki-style web portal allows users to upload and tag “prior art,” information about existing products and inventions that is useful in making informed decisions about a patent application. Other users then evaluate and rank the prior art, creating a virtual “top-ten” list of references which then go to the examiner for final evaluation.
The project hopes to alleviate the pressures on the patent examiners by providing some of the essential research for them. It also aims to help participating applicants improve the quality of their patent applications through community review and research, saving examiners’ time on the backend by reducing the need to research overly broad applications. Currently, applicants seeking patents in computer architecture, software, and information security can voluntarily submit their application to the program, which is planned to run for one year, but could be extended under PTO discretion if successful. According to the Peer-to-Patent blog, since the project’s launch, 1,932 people have signed up to be reviewers and 170 references to prior art have been cited on 35 applications.
Comments on this article
