NAPA Report Recommends USPTO Incorporation and More

On August 25, 2005 the National Academy of Public Administration released its report entitled "U.S. Patent and Trademark Office: Transforming to Meet the Challenges of the 21st Century" (PDF, HTML) recommending that

1. Congress create the U.S. Patent and Trademark Corporation (USPTC) as a wholly owned government corporation under the policy direction of the Secretary of Commerce, with the appropriate authority to borrow, set fees (within parameters Congress would set), and issue its own regulations
2. Congress take steps to ensure that all fees USPTO collects during future fiscal years are available for its use without fiscal year limitation
3. USPTO examine the potential to outsource the search function to a federally funded research and development center that would work exclusively for USPTO
4. Congress amend patent law by establishing a specific maximum number of continuations that will be allowed for any patent application
5. USPTO monitor the results of quality reviews to (1) ensure that their implementation does not result in denying or seriously delaying patents to deserving inventors, and (2) identify the appropriate number of reviews needed to sustain quality without adversely affecting pendency.
6. Congress amend patent law to allow post-grant review that provides for (1) administrative patent judges conducting the process and (2) an appeals option to the Court of Appeals of the Federal Circuit. With regard to the other elements of a post-grant review process:

The grounds for a challenge be limited to patentability and not
enforceability.

Discovery be limited to cross examination on matters relevant to the grounds for review.

Estoppel from further litigation be limited to those issues raised and
resolved in the proceeding.

The patent owner be permitted a single narrowing of any claims, with the addition of dependent claims on good cause shown

Wiuth regard to Examiner workforce availability and skills, the Panel also recommended that the USPTO

1. Develop strategies to make theirs a more positive, collaborative organizational culture
2. Work with Congress and OPM to develop an impasse resolution system that permits prompt renegotiation of work processes and pay rates
3. Systematically determine why patent examiners are likely to leave within their first three years with the office and determine if it can make accommodations to retain them
4. Develop competitive recruitment programs (a “patent scholars program”) to raise USPTO visibility on campuses and attract more of the best graduates
5. Use more of the hiring flexibilities now permitted under its status as a performance-based organization and general federal personnel regulations

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