by Dennis Crouch
I am generally in favor of additional Congressional oversight of the U.S. Patent & Trademark Office – this is especially true because members of the House and Senate Judiciary Committees tend to be smart, well informed, and act with intention to improve the patent system.* Although partisan politics do come into play, much of the focus tends to be on real issues and real solutions. The oversight process forces additional USPTO transparency and is the standard mechanism for getting information from Executive Agencies. On this point, I will note that the information exchange is often done in the background lead-up to the actual hearing — thus, although a hearing might not be too exciting or informative, the associated deadlines force the new communications.
The House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet has set its next oversight hearing for Tuesday, September 13 at 1:00 pm E.T. Michelle Lee is expected to testify both about general USPTO operations as well as the recent Inspector General’s review of potential time and attendance fraud. Although the subcommittee chair – Rep Darryl Issa – is a bit combative and divisive, he is also always well informed and practically minded. The hearing is also expected to address USPTO’s implementation of the America Invents Act (AIA); abusive patent litigation; and patent quality — all within the context of promoting innovation and creating American jobs.
USPTO Director Michelle Lee will testify at the hearing. No other witnesses have been released (and it is likely that none-others will be present).
On the issue of the Inspector General’s report, I substantially agree with Matt Levy’s Washington Post Letter titled “Cries of ‘fraud’ at the patent office are overblown.” Working out the numbers, Levy finds the average unaccounted-for hours are 6-minutes per day. I would additionally add that most of us in the patent law industry are focused more on whether patent examiners are doing quality work in a timely manner — that was happening, but the examiners were essentially a bit too efficient as judged by the parallel time and examination-quota requirements. My largest caveat is that the unaccounted-for hours were not evenly distributed as implied by Levy’s letter. Rather, the IG report highlights the fact that a relatively small number of examiners claimed a large percentage of the total unaccounted-for hours (based purely on a computer database analysis). I would think that those particular examiners should be reviewed to ensure that there was no actual fraud. The IG report suggested (but did not actually state) that such a review would be improper under the law, and I expect that one aspect of the hearing will focus on that question.
Levy’s also makes the important point that the fraud charges in the media are likely to shift attention away from the patent quality improvements that should be the agency’s major focus.
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* My position may well change if major control shifted to, for instance, the Energy & Commerce Committee.