"Ideally, I'd like the examiners to do a better job of writing the office actions so that when the applications come to appeal, the examiner's position is correct. Then we wouldn't have to reverse ourselves so many times and this pilot program wouldn't even be necessary," Doll continued.

The patent office's candid admissions are be lauded as a rarity: a government agency that admits mistakes and proactively does something to correct. "We've acknowledged to the public that we have a problem and we're training examiners one-on-one to correct it," Doll said.

More than 1,400 applicants have already take advantage of the pre-appeal pilot program, and have been thankful for it. A regular appeal can cost on average $3,000 to $5,000. In the more sophisticated technologies, such as biotech and computers, appeals can cost up to $15,000.

Candidates for the pre-appeal oops fall into two categories: examiner rejections based on an error in appreciation of the facts (applications that should have been accepted), and applicant's failure to recognize the facts (and so clearly merit rejection).

Then there's the semi-related issue of an appellant being perfect. 60% of the 9,000 appeals filed in 2004 were rejected before ever reaching the board. Part of that problem is the persnickety requirements of filing an appeal. Beyond adding hurdles to what it takes to file an appeal, the patent office has significantly tightened its insistence that applicants dot the 'i's and cross the 't's just so in the past few years. This is somewhat an orthogonal issue to the pre-appeal program, except that the oops program may save an applicant a lot of work in being rejected. A pre-appeal brief is limited to five pages.

Another advantage is lack of pendency: while full appeals can take up to six months, a pre-appeal ruling can be had in 45 days or less.

The catch is that an oops pre-appeal has very limited applicability: the dispute cannot involve questions of facts, or interpretation of prior art. Sort of like summary judgment motions in litigation: the only way to get one is if someone's clearly missed the boat.

Here's Peter Zura on this.