Myths and Realities of the USPTO's 2007 Annual Report

Although the financial success of the USPTO is undisputed in its 2007 Annual Report, there is clearly more to the story. Professor Wegner has been quick to capture the patent community's imagination with his usually frank review in "The 2007 PTO Report: myths and realities" and "The 2007 PTO Report: myths and realities Part II: quality and pendency," where he notes that

• "While [some] have assured Congress that full funding and adding more examiners would shorten pendency and backlogs, in fact there is now a 400+ % increase in the backlog that has taken place in just the past ten years."
• "Any organization that can achieve a 96.5 % quality success rate based upon a workforce that includes more than 1000 in-training professionals [and where fully one-third of the new Examiners resign each year] has, indeed, achieved a remarkable and unbeatable achievement. . . . [But t]he 96.5 % success rate was not judged by real judges, but rather by personnel largely comprised of non-lawyers who are divorced from the real world of patent validity determinations. . . . If there were truly a 96.5 % quality rate in terms of the important metric of validity, then it must be pondered why there is such a high affirmance rate of rejections in reexamination proceedings."
• "The one best measure of patent quality is found in the results of reexamination, as the public provides prior art and arguments to assess the value of what the examining corps
  has achieved. . . . [However], the failure of the PTO to provide prompt and efficient resolution of patent reexaminations which do provide a means to second guess original examinations is legendary. . . . [O]ne of the most colossal failings of the PTO which is not mentioned in the 2007 PTO Report is the failure to promptly dispose of reexaminations, a totally unnecessary failure that is 100 % curable based upon a small reallocation of resources within the PTO."
• "[T]he PTO has [also] not been able to implement the important goal of “patent worksharing” that would permit reliance upon foreign search and examination results for U.S. examination of foreign-based applications (and permit Americans to gain foreign rights based upon a prompt U.S. examination)."
• "Another area for improvement is a better backloading of user fees, both in terms of final years maintenance fees and a backloaded split in search and examination fees as part of deferred examination. . . . . Europe has led the way with very high maintenance fees in the terminal years of a patent which has led to patentees themselves culling out patents of lesser importance. The failure of the United States to emulate this model leaves late stage, fallow patents ripe for the plucking by patent trolls, to the great detriment of society. . . . Japan successfully weeds out an enormous number of patent applications prior to examination through the split application fee system of a very small fee for filing a patent application followed by a heftier fee up to three years later to examine the application."
• "It is not the Dudas Administration that is to blame for the fiasco of false metrics, but rather AIPLA and IPOA that have so stridently opposed patent worksharing in terms of a blanket opposition to any deferred examination and any meaningful steps to patent worksharing. What worked in the 1980’s – a political mantra to get more funding for the PTO – is an out of date concept."

Can we really afford a patent system where all applications are treated equally? Perhaps these and other ideas can help us to begin focussing our resources on the patents that really matter.