The Patent Public Advisory Committee (PPAC) has released its 2017 annual report with a set of important recommendations for the Director:
- USPTO should remain independent of Department of Commerce, including control of HR and IT;
- USPTO should be given further fee-setting authority beyond the AIA’s 2018 sunset date;
- USPTO should continue to modernize its legacy IT systems
- Congressional legislation should support the Telework and Hoteling program at the PTO;
- PTAB should “remain vigilant in ensuring fair and transparent processes and proceedings in order to render wellgrounded decisions;”
- Current mid-level rank of USPTO IP Attachés should be increased by one level, which would give USPTO IP Attachés greater access to senior host government officials and Ambassadors.
- Regarding Section 101: the USPTO should (a) continue to update the stakeholder community and examiner corps on recent jurisprudence and where appropriate, continue to issue memoranda that describes the relevant court decision; (b) finalize the MPEP updates in Section 2106 directed to “Patent Eligible Subject Matter,” so the stakeholder community has one central repository on the USPTO’s website to receive the latest updates; and (c) should continue stakeholder outreach programs and workshops on Section 101 developments due to the critical nature of this area.
In addition to these recommendations, the PPAC also offered several Kudos to the PTO for:
- Reducing first-action pendency average from 28 months (2011) to 16 months (2017);
- Reducing overall total application pendency average from 34 months (2011) to 24 months (2017);
- Improvement in its quality initiatives, including the Quality Metrics Program, Clarity and Correctness Data Capture Program and the Clarity of the Record Pilot as well as in its on-going efforts to enhance patent quality.
I would guess that 95% of the drop in pendency since 2011 resulted from the 2010 change to the count system.
I think there waa a bit of a hiring surge in that period as well?
Great point. How much larger is the Examiner Corps since 2010?
6225 patent examiners at end of FY2010. 8224 patent examiners at start of FY2016.
Nice. So the 30% drop in total application pendency might be entirely explained by the 30% rise in head count.
But the 40% drop in first-action pendency might still be 33% explained by the change in the count system.
Still way less than 95%. I was wrong. 😛
Regardless of the outcome of Oil States, it is become quite apparent that the PTAB (and perhaps the T.T.A.B.) should be independent of the examining branches and independent of any political influence. They should be administered by the court system, its judges being magistrates under control of the judiciary, affording to all parties a completely neutral and unbiased administration of justice. No one who has ever experience an IPR from the patent owner’s point of view can ever believe that the PTAB is anything other than a biased and political organization.
May I politely (but yet again) remind you Ned that administrative agencies run the gamut of how close any one particular administrative agency “judicial” function is related to (or removed from influence of) “policy” functions and that – as widely known in admin law – the gamut is typically set in the particular agency’s founding legislation.
May I then politely (but yet again) remind you that the USPTO has one of the LOWEST level of separation between the “judicial” and “policy” functions.
This has always been the case.
I agree, Ned. I happen to agree with you that IPRs are unconstitutional, but even if one believes them to be constitutional (as I once did), one should still be able to acknowledge that it would be better if IPR proceedings were adjudicated in Art. III courts, with the structural protections against bias in the decision makers that are baked into Art. III.
Not, mind you, that I am agreeing that the PTAB has shown any evidence of bias in practice. The Art. III safeguards, however, are there to prevent the emergence of bias. Better to prevent an ill from ever happening than to wait until it emerges and try to correct it after-the-fact.
structural protections against bias in the decision makers that are baked into Art. III
What?
Once an Art. III judge is installed on the bench: (1) s/he can only be removed by impeachment; and (2) s/he can never see a diminution in salary. In other words, Art. III decision makers are shielded from punishment for making decisions that are politically unpopular.
By contrast, the ALJs on the PTAB serve at the pleasure of the Director (or the President), who may fire or transfer them at will. The Director can increase or diminish their salaries as well. This is not an ideal arrangement for someone who is supposed to be a neutral arbiter.
I do not see evident bias in the PTAB’s output so far. I have read a variety of IPR decisions (both institution decisions and final decisions), and mostly, the claims that they have declared unpatentable strike me as unpatentable and the claims that they consider patentable strike me as patentable. Obviously, then, I do not consider that the PTAB has appreciably succumbed to political pressure, but to say that it has not happened yet is not to say that it will not (especially with a tinpot Napoleon appointing the Director).
It would be better if Art. III style barriers against political influence of the decision makers were in place. The only way to achieve those Art. III style barriers is to move the operation over to the Art. III branch. Therefore, while it is not constitutionally necessary to run IPRs out of the Art. III courts, that would be the better way to do it.
Re: “ALJs [actually, APJs] on the PTAB serve at the pleasure of the Director (or the President), who may fire or transfer them at will.” ?
Like a political appointee? With no civil service protection? Unlike other PTO employees? Do you have a valid source for that?
OK, how will we get enough clerks technically trained working for Article III judges to competently handle complex patent disputes ???
Same way as anything else, time and money.
No one who has ever experience an IPR from the patent owner’s point of view can ever believe that the PTAB is anything other than a biased and political organization.
Ridiculous on its face but consider the source.
So, Malcom, have you experienced an IPR from the patent owner’s point of view?
I have experienced IPRs from both sides and agree with MM. If anything, I have seen a shift where the Board is very hard on petitioners, almost requiring that it have foreseen every little issue in the petition (which I believe is contrary to Federal Circuit precedent). Overall, the APJs are professional and really know their stuff.
Anyone who has argued say a Markman in front of an Article III Judge and an IPR in front of APJs would understand the desirability of the Board.
One.
It’s great that PTO quality metrics for 102/103 rejections continue to show 90%+ compliance rates while IPR petitions have resulted in institution in 3850 cases out of 5607 institution decisions (68%), and 81% of IPRs reaching final decision find at least one claim unpatentable (with 65% finding all instituted claims unpatentable).
Maybe petitions are only being filed for the 10% of cases in which patent quality wasn’t sufficiently ensured?
If the 5607 cases came from the last decade, 0.2% of grants resulted in an IPR institution.
If 0.2% of grants are resulting in IPR institutions, the “scary” boogeyman of “b a d patents” is seriously blown out of proportion.
Much like the fallacy of “Tr011s” wreaking such devastating havoc that IPRs are needed in the first place.
You cannot have it both ways – there either IS a problem (and the post to which you are responding to is correct), or there is NOT a problem (and the false rhetoric is nothing more than a sham put in place to denigrate that “good quality” work that the Office says it is doing).
Chose one or the other.
“If 0.2% of grants are resulting in IPR institutions, the “scary” boogeyman of “b a d patents” is seriously blown out of proportion.”
I’m not sure why you think that an arbitrarily low rate of defects is necessarily not a problem. That determination should flow from the cost of the defects.
The determination should flow from the Overall Process picture – and most definitely not the “cost of the defects” as you so indicate.
This is because the “cost of the defects” must be viewed in relative terms to the overall process.
Your statement at 2.1.1.1 only leads to the Kool-Aid-stained flea-on-the-tail-of-the-dog-wagging-the-dog Efficient Infringer position.
Again – you cannot have it both ways.
Chose one or the other.
Your insistence that the two positions are mutually exclusive is flawed. A small number of bad patents can cause a great deal of damage. If the cost of a program to get rid of those small number of bad patents is less that the damage caused by those patents, then the program is worth it.
Squirrel, I see you have see Star Ship Troopers where, IIRC, the alleged murderer is arrested at midnight, “fairly” tried at dawn and is publicly executed a 3. I am sure that such swift “justice” also is cost effective.
“ If the cost of a program to get rid of those small number of bad patents is less that the damage caused by those patents, then the program is worth it.”
You want to talk about flaws….
If 0.2% of grants are resulting in IPR institutions, the “scary” boogeyman of “b a d patents” is seriously blown out of proportion.
No, that’s not how it works.
Good grief, can we have some smarter tr 0lls please.
Good grief that is exactly how it works.
Propaganda – you should try to recognize the word since you engage in it so much.
80% of all IPRs are filed in direct response to patent suits, and most of the other 20% are in response to threats of suit. But only about 1/4 of all patent suits result in IPR petitions. And, as noted, 32% of IPR petitions are denied – failing the threshold test and leaving the claims intact.
So yes, IPR petition filing is highly selective, and comparison to the vastly larger total number of issued patents never sued on is not meaningful as a quality indicator, nor is the above 10% figure.
“is not meaningful as a quality indicator”
You too cannot have it both ways.
If this is not “meaningful as a quality indicator” then one has to wonder why We (the royal “we”) were sold on having “such a need” for the IPR process in the first place.
It is ONLY if we take the numbers as (somehow) being “meaningful as a quality indicator” that we should bother at all with having IPRs in the first place.
Paul, one can also say that the only patent involved an IPR are important patents.
one can also say that the only patent involved an IPR are important patents.
“Important” is a meaningless term in this context.
You can say that they are “important enough” to merit the IPR filing.
But that goes without saying.
Paul,
Obviously the 10% figure isn’t actually meaningful, and my post wasn’t really fair. Examiners have a hard job. The Patent Office has a hard job. I just wish more emphasis was placed on looking at ways to improve examination quality.
So do I JCD, and not rewarding examiners with very high allowance rates because they give flaky 101 rejections and then withdraw them, instead of more thorough prior art searchs, would be a good place to start.
Or they could make far better 101 rejections.
That isn’t hard either, at least in the logic arts.
The problem with measuring “quality” of examination or issued patents is the high degree of subjectivity in the determination. Most examiners would agree that there are some cases that are clearly allowable, some that are clearly never going to be allowable, and the rest fall somewhere in the middle, where it is a balance of the strength of the prior art and the rebuttal by the attorneys – basically a weighing of the evidence. Examiners, being human, will give different weight to different factors unique to each case. So OPQA (quality office at the PTO) can really only give “clear” errors, meaning that those grey areas where most cases fall won’t have “clear” errors, even if reasonable minds may differ and some feel that there was an error.
5) (fair and transparent) is a joke with its “continuing” implication, given that when the spotlight was shown on the SAWS program, the Office volunteered that SAWS was only one of a handful of such NONtransparent internal only Office mechanisms.
…and (coincidentally) in line with my post vis a vis “transparency,” that “other blog” runs a story today about a lack of transparency:
link to ipwatchdog.com
“The Sensitive Application Warning System (SAWS) program is one of many practical, internal efforts that the USPTO has in place to ensure that only the highest quality patents are issued by the Agency.”
link to uspto.gov
So, anon’s logic goes…
1. The PTO has multiple quality programs.
2. SAWS is a non-transparant PTO quality program.
Therefore, the PTO has other non-transparent quality programs.
Readers may draw their own conclusions.
Ben,
You beg too much.
In your link is this quote: “ Any such programs developed as part of the Quality Initiative will be disclosed to the public before implementation”
Why would this distinction be made for programs going forward – and why is this phrase not being applied to the “other like programs”…?
Also from your link is this falsehood: “An application flagged for such a quality assurance check undergoes the same types of examination procedures as any other patent application, and is held to the same substantive patentability standards.”
On it face, this cannot be true, as if it indeed were true, then there would be NO NEED AT ALL for SAWS. IN other words, this has the making of a “great L I E” as it contains a kernel of truth, but omits important additional aspects of the story. A half-truth is still a L I E.
FURTHER, your “recapture” of my logic omits the fact that these internal programs are nowhere captured for public view or evaluation.
You rather gloss over this lack of public view and forget that the “issue” of SAWS itself came about only through an accidental “leak” to the public that such a program even existed.
It would be quite a different matter if the USPTO OPENLY listed all of its quality programs, how those quality programs are run and when (or even if) ANY particular application is being subject to any particular “quality program.”
As it is, ALL of this is in the shadows.
And remains so.
Quite in distinction to 37 CFR 1.2 (emphasis added):
1.2 Business to be transacted in writing.
All business with the Patent and Trademark Office should be transacted in writing. The personal attendance of applicants or their attorneys or agents at the Patent and Trademark Office is unnecessary. The action of the Patent and Trademark Office will be based exclusively on the written record in the Office. No attention will be paid to any alleged oral promise, stipulation, or understanding in relation to which there is disagreement or doubt.
You have a serious process problem when you have shadow “quality” programs going on of which ARE NOT IN WRITING and are not being shared with the applicant.
Yes, “Readers may draw their own conclusions.” – and to anyone capable of critical thinking, those conclusions will align with mine and be opposite of yours.
Thanks for the post anon. I think you summed up your side very nicely. I find it particularly enlightening how your ‘evidence’ is supposed hints that the Office dropped while ending SAWS. Those sly devils, eh?
Nothing “sly” about any of this, Ben.
As you stated: “Readers may draw their own conclusions.”
And as I stated: ” – and to anyone capable of critical thinking, those conclusions will align with mine and be opposite of yours.”
And yes, I noticed that you provided NO counterpoints at all to my post at 1.2.1.
None.
We both know why, eh?
Indeed. Because you have no evidence whatsoever, and it is impossible to provide a counterpoint to vague suggestions and winks.
By the way, have you tried to apply a FOIA for these SAWS-like programs? Have you done anything to reveal and end these hypothetical programs which you believe exist and thus may be harming your clients?
You seek “evidence” while logic stares you in the face.
You as well – offer no evidence.
You also have no logic.
But please, “draw your own conclusions”
It is your assertion that the PTO has secret SAWS-like programs. It’s your burden to support it.
Should we take your silence regarding your efforts to expose the SAWS-like programs as an acknowledgement that you haven’t done anything?
I have met my burden: The Office has admitted to MANY such programs as SAWS.
How many of those MANY are in the public, with their details known, and with applicants appraised as to when their applications are being scrutinized under any one of them?
That’s right: zero.
But please, “draw your own conclusions.”
So you’re back to:
1. The PTO has multiple quality programs.
2. SAWS is a PTO quality program.
Therefore, the PTO has other SAWs-like quality programs.
If you can’t find the logical error in that, you should retire immediately.
“How many of those MANY are in the public, with their details known”
I think there are over 10 quality programs described on the EPQI website. Of course YOU won’t acknowledge that these are quality programs because they are not SAWS-like. But the original publication did not say there were other SAWS-like programs! You are fooling no one but yourself.
Do you advise your clients on how you believe there is a secret program harming them, or do you keep that belief to yourself?
I am not “back to” anything, Ben.
My logic and statements have been front and center all along.
I see though that you engage in the very thing you accuse me of (innuendo), and yet have NOT answered a single substantive point put to you.
I also notice that your offering of “EPQI” ONLY addresses the new programs moving forward and there is STILL NOT A WORD on any of the pre-existing programs.
Perhaps you would be so kind as to address the requirement of 37 CFR 1.2, as well as the fact that applicants ARE NOT MADE AWARE of whether or not their applications are IN any of these fine programs (shadows or otherwise).
Your silence on the important elements screams so loud that your whining is drowned out.
But hey, “please, “draw your own conclusions”
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