By Dennis Crouch
Over the past decade, I have repeatedly written about the serious backlog problem facing the USPTO’s Board of Patent Trials and Appeals (Formerly BPAI, now PTAB). In 2006, there were fewer than 1,000 pending ex parte appeals at any given time. That figure steadily and rapidly ballooned to a seeming high-point of over 25,000 pending ex parte appeals. The PTAB has taken several steps address the backlog. The most important of these is its efforts in hiring a host of new administrative patent judges to decide cases. Although not conclusive, it also appears that the Board has also taken streamlining steps such as discouraging dissents and reducing opinion size. Despite those efforts, the backlog remains over 25,000 with the result that appeals are unduly delayed for years. The chart below comes from the files of 95 recently decided ex parte appeals – the median ex parte appeal now takes more than 3-years to decide.
Bombshell Report: Administration inspectors general have increasingly been embarrassing the Obama administration. The USPTO is no exception to this trend. Todd Zinser, Inspector General of the Department of Commerce has released a new report titled: Waste and Mismanagement at the Patent Trial and Appeal Board. The inspector general report highlights the tremendous rise in the backlog, the PTO’s failure to adjust its workforce to focus on the concern, and, most damning, the “misuse of federal resources totaling more than $5 million.” The Inspector General writes:
Our investigation uncovered waste in the PTAB that persisted for more than four years (2009-13) and resulted in the misuse of federal resources totaling more than $5 million. The bulk of the wasted resources related to PTAB’s paralegals, who had insufficient workloads and considerable idle time during those years. Paralegals told the OIG that they engaged in a variety of personal activities including watching television; surfing the internet; using Facebook and other social media; washing laundry and cleaning dishes; and shopping online while in an official pay status. PTAB managers, including its senior-most personnel, were aware of this problem but took little action to prevent such waste because they believed the problem would disappear once PTAB hired additional judges. We found that, by failing to report the significant waste incurred by the PTAB when Paralegal Specialists were being paid to not work, numerous PTAB employees appear to have violated certain regulations and Department of Commerce policies.
The report states that the abusive-practice began with former Chief Judge Mike Fleming (who left the PTO in 2010), but continued under current Chief Judge James Smith through 2013. Of course, the loose-telework options available to PTO employees also permit this activity to persist.
As an interesting back-story, Professor John Duffy is also a but-for cause of the problem. In particular back in 2008-2009, Chief Judge Fleming had the plan to hire a set of new administrative patent judges and support paralegals to address the growing backlog of cases. The year before, Professor Duffy had written his Patently-O essay outlining how the PTO’s practice of internally hiring Patent Judges was improper and that the U.S. Constitution required them to be appointed by the Secretary of Commerce (or the President). Following that article, the PTO changed its practice to require that the Patent Judges receive their commission from the Secretary of Commerce. The result was that paralegals became much easier to hire than judges and the agency was only able to hire the paralegals before the PTO instituted its hiring freeze. The OIG report states:
When asked why Paralegal Specialists had so much Other Time, Paralegal Specialists and their supervisors stated to the OIG that there was not enough work for the Paralegal Specialists. The evidence showed that, although Chief Judge [Fleming] hired 19 additional Paralegal Specialists in 2009, the PTAB was not able to hire the amount of judges desired before the hiring freeze was instituted that year. . . . Patent Specialists could not create their own work – they relied on others, and judges’ opinions were one main source of work. Paralegal Specialists completed the work that they were given, and then waited for their next assignments.
The practice of approving hours for non-working paralegals (“Other” time) continued after Judge Fleming retired and into the tenure of Chief Judge Smith.
Chief Judge [Smith] originally stated that he recalled having “discussions about other time and paralegal use of it” in 2013. Later in his interview, he stated that he first looked at Other Time when a Senior Manager informed him of some of the individuals’ or teams’ Other Time sometime between mid-2012 and when the OIG sent the PTAB the complaints in early 2013. However, e-mail evidence showed that he learned of the Other Time problem at least as early as September 15, 2011.
The law provides that the USPTO Director, Deputy Director, and Commissioner are all members of the PTAB. 35 U.S.C. § 6. However, the OIG found no evidence that those PTAB “outsiders” had any knowledge of the problem.
The particular issues here have seemingly been dealt with and are unlikely to occur within the PTAB – especially since the paralegals now have judge’s to provide work. However, the incident here is an important reminder of the importance of agency transparency.
= = = =
The Commerce OIG has several additional PTO reports, including:
[…] trial program with most cases now waiting more than three years for a decision from the Board. (Notice-of-Appeal to Board Decision). Rather than dealing with its poor statistics, the PTAB appears to have simply stopped […]
So, my other post that was pending moderation for 24 hours or so finally just evaporated?
It’s not as if it contained the forbidden name nniuQ eneG, or any form thereof.
Even as it has been noted, the ge + ne filter is one that is easy to be captured by words that start with ge and continue with ne+ – some common examples being:
neral
nerate
nesis
Would it help if the Board issued more Precedential Opinions?
Fish,
Why in the world would you think that that would help?
It would help to narrow the issues and give applicants and examiners more direction.
There is already direction – it is called the law.
We (the Royal We) just need to be following it.
What We do NOT need is (yet another) judicial – especially an Article I type – body trying to make “common law.”
anon:
sounds like you haven’t dealt much with the old “Board” or the PTAB. The old Board regularly reversed 103 rejections, unless there was a TSM in the prior art — even after KSR. The PTAB just reversed a 103, less than 3 months after the case was docketed. I much prefer them making patent law (with precedential opinions), to the Art. III judiciary doing it (given the highest tribunals hostility to patents, and the lower tribunal(s) being bound by the hostile decisions AND losing their direction along with their “Radar”).
Eric, to some extent, I hear you, especially if the examiner does not show all the elements in the prior art and simple does a medicine man dance a KSR-campfire to eliminate his need to prove a prima facie case.
From what I see the PTO, Fed. Cir., and SCOTUS want a ’cause test. They want to say we don’t like you or your patent application so NO. The SCOTUS has completely destroyed patent law. We were on a very good course of using objective tests that could be tightened and tightened by good management at the PTO. Now, everything is wishy washy and everyone wants a ’cause test.
TSM and machine or transformation were fine. Were either REALLY unconstitutional? Or were they not in conformance with the SCOTUS federal common law that predated the 1952 Patent Act?
Big picture: 600,000 a year doesn’t work with ’cause. The tests that were being created were custom made for an agency to get their job done. Now we are in the land of ’cause, ’cause, and more ’cause.
What are you talking about? The Supreme Court didn’t say TSM and MoT were unconstitutional. The Supreme Court doesn’t just review the constitutionality of laws.
Although, if I remember con law correctly (and I may not), I think Congress could limit the Supreme Court’s jurisdiction over patent cases to just where an issue of the constitution is at stake. Someone can try to add that in the next reform bill.
“Although, if I remember con law correctly (and I may not), I think Congress could limit the Supreme Court’s jurisdiction over patent cases to just where an issue of the constitution is at stake. Someone can try to add that in the next reform bill”
Me and some pals have been discussing this very thing!
Sharing policial fantasies over a large batch of the new cookies from Colorado? What planet were you all on when Congress passed all the patent legislation of the last 20 years with large bi-partisan majorities? What kind of Congressional support for such fantasies do you think there is? No one interested in reality here is interested.
There are reports of exactly the same sentiments having been voiced in the anti-patent 30’s and 40’s.
Then 1952 happened.
History repeats (and I would expect a true curmudgeon to know this).
There are reports of exactly the same sentiments having been voiced in the anti-patent 30′s and 40′s.
Then 1952 happened.
And then what, Billy?
There are reports of exactly the same sentiments having been voiced in the anti-patent 30′s and 40′s.
LOLOLOLOLOL.
Seems to me that a lot has changed since then, Billy.
On the political front, much (far too much) remains the same.
curmudgeon: It is highly unlikely that it would happen. But, you know, curmudgeon, had we real judges on the Fed. Cir. rather than Google shills some of them may have been strongly fighting back against the SCOTUS.
The fact is the SCOTUS is probably not behaving as they should towards the Fed. Cir.
“The fact is the SCOTUS is probably not behaving as they should towards the Fed. Cir.”
As I have noted, the CAFC is but a proxy for the Congress in the battle of branches of the Government.
The interesting point here is that it is within Congresses constitutional rights to limit the jurisdiction of the Supreme Court, in certain key respects.
Anonymous I didn’t say they were unconstitutional. My point was —I guess I did a poor job of conveying my point—that they are not unconstitutional.
They were found to be counter to federal common law of the SCOTUS. I think as a matter of statutory construction that both are fine. Both are constitutional. So, the problem is that the SCOTUS asserted their common law on patents.
My point is that this has been a disaster. That the Fed. Cir. was trying to set up practical tests that would work for 600k applications a year as apposed to the 3 or 4 cases the SCOTUS looks at a year.
I think that Alice is another example of an untenable test for 600K applications a year.
Clearly we need a statutory deadline for deciding an appeal. I would recommend 1 year from the date the appeal is docketed.
If the appeal is not decided by that date, the examiner should be deemed reversed and the application remanded with the patentability of the claims on appeal confirmed.
Obviously, congress in passing such a law should also provide for the PTAB resources necessary to keep up and some time to ramp up.
Seems like the other time isn’t so bad. Basically, they knew they were ramping up with more judges and just couldn’t use the paralegals yet. The alternative was to lay off the paralegals and then have to re-hire probably different paralegals in a couple of years. So, not terrible, but perhaps they could have found something else for them to do. Maybe help out the examiners?
Ned, the problem with that is it would put a burden on the examiner that isn’t really fair.
Night, the deadline is on the PTAB. I don’t see how that places any burden on the examiner.
As I suggest a phase in, the PTO should be able to ramp up the number of judges deciding cases so that the goal is achievable.
On that score, the PTO alternatively should allow temporary appointments of senior examiners to serve as judges simply to get the backlog down. This would be akin to having temporary military officers who might not even be officers in the regular army or navy. I believe my dad was like that. He was a Sgt. in the regular army before WWII. After the war started, he was made an officer, eventually commanding a company. At the end of the war, however, his regular army rank was 1st Lieutenant.
The Sec. Commerce or a Director should be able to make the necessary temporary appointments.
Well, the problem with your plan is that it mixing admin law with real law and potentially causing problems that would have to be sorted by dist. courts.
Moreover, I can see that the examiners would then be in a position of having their rejection over-ruled (by the one year limit) but not being allowed to let the application be issued. So, I can see the SPE saying find more art and reject it again there is no way that is going to be a patent in my art unit.
Night, if the claims on appeal are confirmed as patentable, the examiner would have to issue a notice of allowance.
Not necessarily Ned – tell me you have never had a re-opening after appeal with all-of-a-sudden, new art found…
Have you been active on the prosecution side of the house lately?
anon, I presume the system I propose would require a statute. That statute could say that by law, the prosecution was closed.
Gotcha – this is part of your registration-plus world.
Plus Ned are you serious? I mean what about the presumption of validity? That is now going to be based on an appeal taking too long? I would like to read the dist. j’s view on that one.
Night, the presumption of validity would still require clear and convincing evidence. However, the applicant will not have the benefit of having the patentability of the claims confirmed over particular prior art forming the basis of the rejections.
Plus how is a time running out counting as “examination” as required by the statute?
Clearly, Ned’s idea of grant without examination would require a vastly different system than the one we have now – and would require a different statute.
In some sense, I see in Ned’s “idea” a possible registration only system (which would sure clear up the multi-BILLION dollar inventor-funded currently inadequate examination system) perhaps coupled with a new court level for any validity challenges if such registration-only patents were to be enforced.
The new court level would be (could be) a hybrid Article I/Article III animal.
The problem of course is that the downsides to such a system most likely outweigh the upsides.
In today’s world, completely unexamined applications would likely be worse than the worst dreck of unexamined provisional applications (the “throw the lawn-clippings in a bag and file it” stuff that I abhor). All you would be doing is shifting the actual examination – the new court evaluation – downstream.
It comes down to basics: do the Fn job (of examination) right the first time. There just is no easy way around it. The Office must do the job. As we both notice though, the current way that the Office is attempting to do the job just is not cutting it.
BTW, I have previously made suggestions as to how to re-engineer that job for a more efficient performance (something that Malcolm only too conveniently ignores in his usual diatribes). First step is to STOP the widget treatment of applications.
Anon, what makes you believe that the patent office cannot staff adequately to provide decisions on appeals from examiners from one year of docketing?
History.
If they could do it right the first time around, you would know it.
Night, the requirement that IPRs take no more than one year imposes limits on the patent office. I see no problems whatsoever and requiring the patent office to provide a decision on appeal within one year of docketing. As I said, there is a current backlog. But then be addressed by adding temporary judges from senior examiners until the backlog is addressed.
Ned,
Your eyes are very much closed.
What you are not seeing is the moving of deck chairs on the good ship Titanic.
Seriously dude, read some of the recent reports – like the d@mming RCE report.
I have only been noting this effect like forever…
Anon, all you are saying is that the patent office the seriously understaffed across-the-board. You’re not really making any case that the time for an appeal to be decided should not be limited by statute. Obviously, if Congress were to pass such a statute they would have to to make sure that the patent office had the resources to carry out the statutory mandate.
“all you are saying is”
Actually Ned, you need to pay attention to what I am saying – “understaffed” is NOT the message that you should be taking away.
See posts starting at link to patentlyo.com
You do not fix a systems problem by clogging the system with more – you fix the broken system so as to be able to do more with less (not do less with more).
I cannot help but add the musing tease lead-in of one Hal Wegner (in part channeling the CAFC) as it bears directly on the point of Ned’s wrong-looking “just add resources”:
“Eloquent words can mask much mischief. [We are] rearranging the deck chairs on the Titanic – the orchestra is playing as if nothing is amiss, but the ship is still heading for Davey Jones’ locker.” Phillips v. AWH Corp., 415 F.3d 1303, 1334-35 (Fed. Cir. 2005)(en banc)(Mayer, J., joined by Newman, J., dissenting).”
2005 – 2014
History repeats.
Yeah that’s just arbitrary Ned.
…and the 3 month shortened period and the 6 month statutory periods are not arbitrary?
Arbitrarily long. I’m all for tightening those up Les.
also, all initial Office Actions should be required to issue within 18 months
Congress is allowed to be arbitrary (to a very large degree) – they are the ones with the authority from the Constitution.
6, well the ITC has a deadline, the PTAB does in IPRs, why not appeals from he examiner?
The problem I see is that delays caused by the PTAB normally extend patent term. They cost the public and are not in the public interest.
We need a deadline.
And we need temporary appointment of senior examiners to tackle the backlog.
I’d go with the last part but idk if we “need” a deadline anymore than we “need” a deadline for FOAM. Esp. of a year. Maybe 2 yrs.
If we’re going to put a deadline on the board, may as well put on on FOAMs as well. May I suggest a deadline of a month?
If not a deadline, how about a “guarantee”…
😉
I see at least the good professor got the nuanced post of guarantees.
I think we might push 50,000 pending appeals with these Alice rejections.
Dennis: In 2006, there were fewer than 1,000 pending ex parte appeals at any given time. That figure steadily and rapidly ballooned to a seeming high-point of over 25,000 pending ex parte appeals. The PTAB has taken several steps address the backlog. The most important of these is its efforts in hiring a host of new administrative patent judges to decide cases…
Of course more examiners and more administrative patent judges are needed. More are needed right now. Everybody would benefit from the hiring of more APJ’s, and the hiring of additional people to oversee those APJ’s and the hiring of paralegals/attorneys to assist those APJ’s. If we assume that this backlog and delay is a real problem, what other solution makes more sense than this?
We all know what the patent T-bagrs scheme is: object to any efforts to hire more people, create a big mess at the PTO by flooding it with crxp and digging in their heels at every turn, then complain about the big mess and blame “bad examination” of their crxp claims in the hopes that the overwhelmed PTO starts using its rubber stamp out of desperation. Who benefits from that “solution”? Why, the patent T-bagrs, of course, at every else’s expense.
Note that if the Federal Circuit does the right things and follows the Supreme Court’s lead in putting a bullet through the zombie head of most (or all) of the functionally claimed computer-implemented crxp that’s out there, then a lot of the the worst applicants and their accompanying b. s. will disappear (at least, they won’t be involved in the US patent system — but they’ll definitely find some other way to grift, however, because that’s all they know how to do).
Dennis — just for grins, how about selecting 10-20 appeals at random so we can all get a better sense of what’s really going on?
From the inspector ge neral report: PTAB managers, including its senior-most personnel, were aware of this problem but took little action to prevent such waste because they believed the problem would disappear once PTAB hired additional judges.
That was a reasonable belief. Was it reasonable to expect that the Republicans would kneecap the government in the middle of the Great Recession?? I suppose it is reasonable once you accept that the modern Republican party is run by l00natics who couldn’t care less about the suffering of ordinary people. That probably wasn’t as clear to some people as it should have been prior to shutdown.
Was it reasonable to conflate the sequester of 2013 with the timeframes of the events captured in this investigation?
Oops.
“We all know what the patent T-bagrs scheme is: object to”
Except for the material misrepresentation of the fact that those whom he likes to label as patent T-bagrs have no such scheme….
Intellectual Honesty – give it a try.
those whom he likes to label as patent T-bagrs have no such scheme….
You wish, Billy.
Intellectual Honesty
It’s always funny when Billy pretends he’s in a position to judge other people for their “intellectual honesty.”
Tell everyone, Billy: if you are a patentee interested in obtaining broad functionally claimed computer-implemented j nk that you can wave around at various deep pocketed companies to extract money from them, do you want a PTO that is deeply staffed with very well-trained and experienced examiners who have the time to tank your claims with well-reasoned arguments like those that regularly win in the courts? Or do you want your patent to be “examined” by a burned out overworked rubber stamper overwhelmed with reams of j nk like yours?
If you wish, please go right ahead and pretend that their aren’t reams of applicants out there pursuing functionally claimed computer implemented j nk.
“ Or do you want your patent to be “examined” by a burned out overworked rubber stamper overwhelmed with reams of j nk like yours?”
1) you assume
2) already asked and answered – in the opposite of your assumption
3) kind of the point of my post at 19.2 – Is the English a little too difficult for you?
Billy, the modus operandi of the patent T-bagrs is transparent and has been years.
Go ahead and advocate strongly here for the hiring of more Examiners and more APJ’s so applications can be examined more rigorously without lengthy delays, and so that everyone who reviews the applications has time to do it right and is compensated very well for it (like the attorneys who are paid to prosecute the same applications).
Or you can just continue to prove my point and rag, rag, rag about how the rejections of your j nky innundations aren’t being made in the manner that you would like them to be made.
By the way, can you defend this j nk Billy?
7. A method of processing [data] comprising:
receiving [data] from a first source;
correlating the first [data] with [data] available from a second source; and
using the [second data] with which the first [data] is correlated to enhance the first [data].
Just one of thousands of examples of pure unadulterated computer-implemented cr xp that has been flowing out of the PTO for many years. And there’s more being pumped out every week and even more being filed upon.
That’s what this “appeal backlog” is about. And that’s all it’s about, really.
Your diatribes from your short script are not convincing.
At all.
Finally, a way to enhance my first data using correlated second data.!
Do you know where I can purchase software that implements this claimed method? I have a long held and deep felt need for such data enhancement. Seriously, who holds this patent?
MM, as opposed to your claims of using “smelly chemical” to do X which is just so much more difficult and clever than an information processing method performing a function.
A j unk mind is MM’s.
We all know what the patent T-bagrs scheme is: object to any efforts to hire more people, create a big mess at the PTO by flooding it with crxp and digging in their heels at every turn, then complain about the big mess and blame “bad examination” of their crxp claims in the hopes that the overwhelmed PTO starts using its rubber stamp out of desperation. Who benefits from that “solution”? Why, the patent T-bagrs, of course, at every else’s expense.
Your handlers don’t like you getting off script much — despite those that you allege are “patent T-bagrs” have gone on record supporting increased hiring, increased training, increased time for examination as well as many other initiatives that would improve examination. Never let the facts get in the way of a good rant — the hallmark of a paid, blogging troll.
in the hopes that the overwhelmed PTO starts using its rubber stamp out of desperation
I see you are totality out of touch with reality. The PTO is far more concerned with criticism of issuing “bad patents” than criticism of undue delays. For this reason, there are a lot of crxp rejections that are clogging the system in the hope that applicant will run out of money and give up — even some of the very deep pocketed clients I have give up on good applications because of intransigent examiners.
follows the Supreme Court’s lead
LOL … I see you haven’t taken the time to read CLS Bank. If you did, you would note the conspicuous absence of the term “software” anywhere in the decision. Given that many amicus begged SCOTUS to shoot that bullet and “software” was the target to which many fingers were pointed, I’m not seeing the “lead” being taking by SCOTUS on that front. I try not to use over-the-top descriptions when referring to people (not my style), but you are truly delusional.
From the Inspector General report: PTAB managers, including its senior-most personnel, were aware of this problem but took little action to prevent such waste because they believed the problem would disappear once PTAB hired additional judges.
That was a reasonable belief. Was it reasonable to expect that the Republicans would shut down the government in the middle of the Great Recession?? I suppose it’s not reasonable if you accept that the modern Republican party is run by lu natics who couldn’t care less about the suffering of ordinary people.
Dennis: In 2006, there were fewer than 1,000 pending ex parte appeals at any given time. That figure steadily and rapidly ballooned to a seeming high-point of over 25,000 pending ex parte appeals. The PTAB has taken several steps address the backlog. The most important of these is its efforts in hiring a host of new administrative patent judges to decide cases…
Of course more examiners and more administrative patent judges are needed. More are needed right now. Everybody would benefit from the hiring of more APJ’s, and the hiring of additional people to oversee those APJ’s and the hiring of paralegals/attorneys to assist those APJ’s. If we assume that this backlog and delay is a real problem, what other solution makes more sense than this?
We all know what the patent t–b-ggers’ scheme is: object to any efforts to hire more people, create a big mess at the PTO by flooding it with j nk and digging in their heels at every turn, then complain about the big mess and blame “bad examination” of their j nk claims in the hopes that the overwhelmed PTO starts using its rubber stamp out of desperation. Who benefits from that “solution”? Why, the patent t–b-ggers, of course, at every else’s expense.
Of course, if the Federal Circuit does the right things and follows the Supreme Court’s lead in putting a bullet through the zombie head of most (or all) of the functionally claimed computer-implemented j nk that’s out there, then a lot of the the worst applicants and their accompanying b.s. will disappear (at least, they won’t be involved in the US patent system — they’ll definitely find some other way to grift, however, because that’s all they know how to do).
Dennis — just for grins, how about selecting 10-20 appeals at random so we can get a better sense of what’s really going on.
Since it has not been noted in other comments, one important reason for the continuing large backlog of ex parte appeals at the PTAB is that the PTAB is getting more than 1000 IPRs per year to process (plus CBMs and reexamination appeals). These take much more time, have statutory deadline priority over ex parte appeals, and are usually far more important [on patents in actual patent litigation, which only a small percentage of the applications in ex parte appeals will ever be].
[The Board should also be assigning and processing reissue applications and “submarine” applications pending for decades in high priority order, but I am not at all sure if they are? Arranging that might be a good job for those paralegals?]
paul,
it has been noted in other comments, but thanks.
The backlog is caused by BAD REJECTIONS. No one wastes time and money appealing a good rejection. THAT is the issue. Not that they hired some paralegals in anticipation of Judges that never arrived.
Les – a somewhat rare occasion in which I agree with you completely.
Well, almost.
I am sure that there is some minuscule fraction (perhaps on the order of .0001%) of applicants who will waste time and money appealing no matter what the quality of a rejection is.
But the point remains is that the real issue is sure to have dust kicked all over it.
This has been going on only like forever.