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October 1, 2007

Past Time

Incompetence takes two basic forms. One is lacking skill to implement: a lack of craftsmanship. Implementation incompetence is, at best, low aptitude. The other is inability to conceptualize: a lack of comprehension. You can't clue the clueless. Incompetence thrives at the top tier of the USPTO, and it is damaging our country.

The impetus for patent reform was from behemoth computer corporations sick of being caught infringing small-fry patents. But within every lie lies a grain of truth. The patent office was lax in its examination throughout the 1990s.

The resultant stir shone a spotlight on the patent office, particularly its abysmal management, and created a political mandate for internal USPTO reform. The natural response of good management would have been to create a stronger examination regime, and better examiner corp. Good management would have strove to made the patent office a good place to work, a place where one could, conceivably, enjoy a meaningful career.

The PTO is the only government agency to make a profit entirely from its services, and it has latitude to adjust its fee structure. The swineherd called Congress siphoned off funds from the patent office until the outcry for patent "reform" made them back off and let the agency keep its fees - just a couple of years ago. Still, all along, the money, and potential for humane management, have been there to retain employees.

To understate, labor relations with the examiner corps have been strained for years. There is an incentive system, recently changed for the worst, that strives to make patent examination an assembly-line process in the spirit of the post office at a time when the phrase "going postal" arose: driving workers until they went crazy. Intendance should have moved towards accommodation and cooperation with its work force. Patent examiners are well educated, and potentially dedicated, if properly motivated. But PTO management has been stingy with pay, and cracking the whip its management style. Attrition is atrocious at the the patent office. The patent agency recognized, and even publicly acknowledged, its inability to hire enough examiners to meet the burgeoning flow of applications. The word has been out for quite some time that the USPTO is a shitty place to work.

Let's back up to stating what should be the obvious - the mission of the patent office: to provide equitable examination of potential inventions to a quality that permits enforcement of granted rights. The customers of the agency are intellectual property applicants. But, in this case, the customer is not always right: the grant isn't always made, because it isn't deserved. The equity is in providing a reasonable process for all involved, so that grants are denied, not on technicalities, but on merit; and that grants are made with reasonable assurance that the presumption of validity is an appropriate presumption.

So, faced with rising pendency, the agency's response should have been introspection, to turn the PTO into a competitive workplace with quality output. Instead, the response has been to limit examination, to make patent applicants jump through a lot more hoops - to turn patenting into as odious a process as can be gotten away with; create disincentives to patenting in an attempt to lessen the workload on the patent examiners. "Do some work for us" became director Jon Dudas' motto for the patent agency. The new limits on examination basically outlaw complex invention. But they also, as the agency has already acknowledged, have a built-in backfire: more appeals; more controversy; more animosity. The cycle of negativity associated with the USPTO spirals; that's the dynamic of incompetence in action.

A fundamental mandate of article one of the Constitution: "promote the progress of science and useful arts" has been, and continues to be, abrogated by current USPTO supervision.

The Soviet-style management of Jon Dudas and John Doll must stop before more damage is done to the inventors' constitutional rights, and to the U.S. economy at large, from stifling the ability to profit from invention.

Posted by Patent Hawk at October 1, 2007 12:49 AM | The Patent Office

Comments

"Do some work for us"

The inventor invents and the Patent Office determines patentability; that is the way it always has been and should be regarding the shared responsibility between citizen and government for the progress of science and the useful arts. The problem with the patent system today does not lie with the inventors; they are still inventing! The problem lies singularly and solely with the USPTO which, due to mismanagement and weak foresight since 1993, has become less and less capable of proper examination and patentability determination under the law and of performing its Constitutional (and funded) function.

Posted by: NIPRA anonymous at October 1, 2007 2:38 AM

I had a get-together yesterday that included some old examiner friends of mine. We were discussing this very same concept. A recurring theme was France under Louis XVI, and that people can only take so much before they force radical corrective action.

Posted by: Marie Antoinette at October 1, 2007 8:11 AM

I am a patent agent.

Firts, I think that in the 1990's the PTO was not "lax" in grantingt patents - many worthy patents were denied - but it had a large examiner core taht was clueless about the field. I dealt with examiners that came from avried fields of art, and had no clue about software.

Than the management started 'fixing' the situation by hiring many examiners that even less competent, including trhose that could not read or speak English, but that had a computer degree. Many of those taht are still clueless are supervisors nowadays.

To Dudas/Doll benefit, those of us that deal with the youngest examiner, we often find professionals. But as you mentioned, their work conditions are attrocious.

Additionally, the Office practically rejected all the solutions proposed to it to reduce the load. Reading the rule package it is clear that many offered good sugestions that would have eased the backlog. Instead, Dudas elected to go with 'you do our work, just send us the money' approach.

However, unless they her from the public, they have no reason to change the way they do bnusiness. I already wrote to him myself, and suggested that asked my legislators to take any steps needed to curb abck the PTO, including de-funding and going to registration only system. Did others?

Even the PTO can not be oblivious to public outcry. Eventually they need to go to Congress and ask for something. If the response will be negative, they would not like it.

But if people do not write their legislators, and not write the PTO to complain, they have no reason not to believe that people will eat whatever gets stuffed down their troats.

So write to your Senators and to the PTO.

Posted by: Shalom at October 1, 2007 10:15 AM

Hey Marie,

Did the examiners give you any reason why we're not hearing much from POPA on this that you can share? I spoke to a couple examiners shortly after Aug. 21, and they just said they had given up on management and were just trying to do their work without being bothered. Though I wonder if the less-qualified or less-noble-minded examiners might like the new rules because it makes "examination" in quotes easier despite what it does to the country.

Posted by: NIPRA anonymous at October 1, 2007 11:05 AM

NIPRA anonymous, three out the four of us "old examiners" have been on the outside for some time now. The one guy still examining is near retirement, but he was the one that brought up the chop-chop talk :) He's a smart guy who understands the big picture.

However, I believe most examiners don't care, as long as they get paid and their workload does not increase. Also, I believe POPA would look bad politically if they opposed a rule that, on its face, appears to make conditions better. But, I think the examiners have not yet thought this through. There are a multitude of extra things they must review and perform. POPA dropped the ball on this one.

Shalom is right about the fees. The PTO wants all (and more) money, but without performing the hard work. Sooner or later, a lot of the newer examiners will be fired, so they don't give a damn about longevity. Management is effectively fattening them up for the kill. Chop-chop.

Posted by: Marie Antoinette at October 1, 2007 11:31 AM

Thanks, Marie. Yes, I saw in new Rule 104 that Examiners will have to not only render a "complete examination" with respect to applicable "statutes and rules" as is currently required, but come Nov. 1 they will have to render a complete examination with respect to whatever "other requirements" management might deem necessary (like the FAQs, doh!) As if following the laws and rules wasn't enough for Examiners to follow, or sufficient.

Of course, in keeping with current USPTO management policy, the only Examiners who will feel the burden of the new 1.104 are the good ones. The bad ones can sail right through it, ignoring the other requirements like they do the statutes and rules.

Which just may increase the proportion of bad Examiners. Sigh. (P.S. You may be right about POPA dropping the ball - sometimes they seem to me to be more interested in laptops. Double sigh.)

Posted by: NIPRA anonymous at October 1, 2007 1:13 PM

A little USPTO history:

http://www.nipra.org/politics.html

Posted by: NIPRA anonymous at October 2, 2007 4:06 AM