Saturday, April 11, 2009

New push for allowances at the USPTO?

Under a post at PatentHawk on changed overtime policies at the USPTO, one finds the following comments:

I believe that the allowance rate is artificially low, although not due to least not exactly.

I am a current examiner. Under Dudas, the PTO pursued a policy of "increased patent quality". The way that the PTO enforced this quality initiative was by reviewing office actions. Not reviewing all office actions, mind you, but only reviewing allowances.

Unfortunately, the PTO failed to see the problem that they were setting up. An examiner is then left with two choices:

1) An examiner could generate rejections without ever incurring quality review, or
2) An examiner could generate an allowance that would be scrutinized by quality review and possibly find themselves assessed a quality review error.

So, it has been safer for an examiner to always least until very recently. There has been some loosening of the allowance quality review rules in recent weeks as it appears that "reduced pendency" is the new key motivation under Obama.


As for's elimination appears to be working against the expressed motivations at the PTO to reduce the backlog and reduce pendency.

Posted by: Examiner B at April 10, 2009 4:41 PM

Examiner B - thank you for your comment. The churning does not produce the artificially low allowance rate - rather, the opposite occurs: the artificially low allowance rate produces the churning and the increased pendency (reject, reject, RCE, churn, reject, reject, RCE, churn, reject, reject, RCE, churn, allow in 60 months, instead of reject, allow in 20 months or reject, reject, appeal, decision in 26 months).

The endless churning/RCEa is somewhat necessary in some arts, though: only with "easy counts" (RCEs, continuations) can an Examiner make his outdated hrs/BD numbers. The churning has actually enabled the PTO not to revise/revisit the count system: it is a stop-gap phenomenon that makes working at the PTO with the outdated count system bearable.


I've been told that the real agency money is made on allowances and maintenance fees...which is why there has been a new push for allowances.

I agree the count system is totally outdated and needs to be revised...unfortunately, the PTO works at the speed of government.

And just so no one in the outside world misunderstands, overtime pay is not time-and-a-half at the PTO but just additional hours at an examiner's base rate.

IPBiz notes an irony. In [wrongly] arguing there was a patent "quality" problem based on a flawed analysis of patent grant rate, Quillen and Webster motivated the USPTO to cut back on allowances, creating a bigger problem. Among other things, the situation falls into the realm of unintended, bad consequences. The patent law academics bought into the bad analysis, without ever performing a rigorous analysis of what Quillen and Webster were saying.

UPDATE. Comment on Patently-O:

You can't blame the economic downturn for the entire drop in filings. Many of my clients have gotten fed up with the incessant flood of bad rejections and art units where it is almost impossible to get an allowance. Thus, they have dropped their filings, even though they could still afford their previous levels if they really wanted.

This is the result of Mr. Doll's "quality assurance" program which checks all allowances for "bad allowances" whereby the examiner gets penalized, but bad rejections are essentially unchecked.

Now due to a lack of maintenance fees and new filing fees, the USPTO has a hiring freeze and thus for every examiner that leaves he will not be replaced.

Great work on the backlog problem there, Mr. Doll.


Financial Woes Continue to Deepen at the USPTO predicting the new USPTO director will be picked from among 1) Q. Todd Dickinson, (2) Jim Pooley and (3) David Kappos.

IPWatchDog says "Announcement Nears on New Patent Office Director "


Blogger Blankout said...

i'm a Chinese undergarduate, your blog is very interesting and helpful.since i can not find your email ,i have to use the "comment" to ask some questions about edison's patent here,i am sorry but still hope that you can help,you may find them veey childish even ridiculous, first: edison got the 223,898 patent Jan,1880 and then the patent was ruled invalid in 1883,right? then he got around six years in litigation and finally got the patent valid 1889,right? Second, suppose i got them all right above, can a patent in litigation be used to against others? the edison company sued some other companies in 1885 and one of the claimed infinged patents was 223,898,but then the patent was invalid ,how can they do that Third, this may fall out of your expertise,but what exactly 223,898 patented? the improvememt on the process of making Filment or a whole new filment . Fourth: Chiese students have long been taught that Edison invented "electric light", i know he was actually improved that ,but are there any differences between "electric light " and "electric incandescent light" or " incandescent light" when we talking about edison's inventions?

8:09 PM  

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