April 9, 2008
Budens On The Real Deal
Back in February, USPTO Director Jon Dudas testified before Congress as to the "progress" of the agency. The PTO press release offered up a mirage banquet of statistical successes. The April newsletter of POPA, the patent office union, dishes out the testimony of POPA president Robert Budens, who slices through Dudas's claimed "success." Ah, finally, some unbiased declarations.
From the POPA newsletter:
Members of Congress listened respectfully to testimony from the USPTO, POPA and others during a Feb. 27 hearing on USPTO operations. Then, during the question-and answer period, these congressional representatives grilled USPTO Director Jon Dudas on why the agency had not responded to the Government Accountability Office's recommendation to reevaluate examiner production goals. They also expressed serious concerns regarding the USPTO's attempt to roll back employee worklife gains with its recent patent employees' contract proposals.
When POPA spoke for front-line patent professionals, Congress listened.
POPA spoke, congress listened. But of course.
Jesting aside, Budens got one right with his remarks on quality over quantity:
POPA President Robert Budens suggested in his remarks to the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property, that Congress focus not on the speed of examination and pendency reduction, but on doing a quality job up front. "After years of trying to do the job faster and cheaper, the USPTO now finds itself facing the same criticism that any manufacturer faces when it cuts corners," stated Budens, "a perception by end-users that the product lacks the quality it needs to do the job it was supposed to do."
Budens then disputed Dudas's claims, calling his numbers nothing more than hogwash:
Budens refuted Director Dudas's assertion to Congress in a Dec. 2007 letter that examiner attrition has slowed since fiscal year 2005. The USPTO's own figures "show that about 30 to 44 percent of each year's new examiners leave the agency within three years," noted Budens.
In that letter, Director Dudas also told Congress that the USPTO's "strong work life quality program" is addressing attrition with "retention bonuses (primarily available to patent examiners)."
"POPA is unaware of any examiner receiving a 'retention bonus'", Budens testified, though the union repeatedly has encouraged such bonuses, would welcome proof that they exist and information on how examiners can attain them.
In fact, USPTO data indicate that 45 percent of examiners received no monetary award for their work in fiscal year 2006, the most recent data available. "In the same period, more than 80 percent of USPTO's patent managers received from $7,500 to $15,000 cash awards," Budens said, "a fact not lost on examiners as they work their unpaid overtime."
Budens went on to outline the true reason for high attrition rates:
While POPA works hard for greater employee compensation and worklife benefits, "More than any other factor, the reason examiners leave the USPTO is the unrelenting stress caused by the agency's outdated production system," Budens told Congress.
Budens cited a POPA survey that found that one-third of examiners work unpaid overtime just to keep their jobs. Another third of examiners work unpaid overtime to earn performance awards. He also cited a Sept. 2007 GAO report, which stated, "This extensive amount of unpaid overtime does not appear to be a concern to USPTO management, even though the agency has not been able to meet its productivity goals for the last four years."
Unpaid overtime that leads to performance awards? As to the other third of examiners who work unpaid overtime just to keep their jobs; maybe they shouldn't. Obviously, there are more than a handful of incompetent examiners, and there needs to be some sort of filtering mechanism in the pruning process, although one-third seems low. Unfortunately the link between sluggishness and competence may not be clear.
For some numbers of his own, Budens called upon patent statistic god, Dennis Crouch, and his size claims, to provide reason for examination time inadequacy:
The USPTO points to the electronic search and actionwriting software as time-saving and production-building tools for examiners, but Budens called the agency's rationale misleading. "Automation can accelerate processes such as searching large databases, but it cannot make the examiner read and understand the results of those searches any faster," Budens told the congressional representatives. He cited private sector studies that indicate "the size of issued patent specifications increased by 85 percent since 1987. The data also show significant increases in the number of independent claims and total claims."
A relatively simple way to retain experienced examiners, increase patent quality upfront and reduce pendency over time is for Congress to allocate an increased amount of examination time per patent case, Budens told Congress.
"Providing examiners with the additional time to do the job right the first time does not necessarily require an increase in pendency," said Budens. Additional time per application will improve retention; more retention means more experienced examiners moving more cases; and doing the job right the first time increases the likelihood that old or obvious ideas will be rejected, meaning "patent applicants will be less likely to expend the money and resources to file patent applications of little or questionable economic value," reasoned Budens.
Budens next approached AQS:
The USPTO is pushing the implementation of Applicant Quality Submissions (AQS), a proposal in the pending patent Reform Act that would ultimately damage the patent system, Budens testified.
The patent search forms the basis of determining U.S. property rights and should be performed by U.S. government employees who are free of any conflicts of interest, namely USPTO patent examiners, stated Budens.
In addition, the AQS will not improve the quality of the search. Applicants or their search contractors will likely search the same databases searched by patent examiners, but examiners give patent claims their broadest reasonable interpretation, which is not always apparent to applicants, who usually focus on the essence of their invention. For example, applicants would be unlikely "to find such obscure art as the prior art relied upon in the well-known RIM v. NTP Blackberry case," testified Budens. "Only millions of dollars and cadres of litigators are likely to uncover that type of prior art." Critical prior art in that case turned out to be some limited-circulation documents found in a Norwegian library.
Wait, so obscure art can be found by a patent examiner or by millions of dollars and cadres of litigators? Maybe examiners should be paid more...continuing on:
The real reason the agency wants to outsource the search via AQS, said Budens, is to "gain efficiency" by taking that search time from examiners and requiring them to examine more cases during the time theoretically saved, increasing production pressure on examiners even further.
Budens asked that Congress delete the AQS requirement from the proposed patent reform legislation.
Budens then pleaded for fee-fencing:
Almost the entire patent community supports designating all patent-user fees for exclusive USPTO use, and POPA is no different. However the union went one step further and asked the subcommittee members to "put a fence around the patent filing fees and directly allocate these fees to provide time for examiners to examine patent applications," testified Budens.
"Fencing off USPTO fees for particular purposes is not without precedent," said Budens. "Such a fence currently exists around USPTO fees collected for trademark applications." As POPA's testimony explained, such an allocation for increased examination time per case will directly improve patent quality and reduce pendency over time.
And further demanded adequate search tools for examiners:
Not so long ago, when examiners used paper search files, they could physically leave notes in the files to help other searchers or themselves the next time they looked at the file. That ability to aid the next searcher's work was lost in the move to electronic files, but the technology exists to allow it.
"Putting in place tools that allow reference annotation and providing examiners with the time to do so, will allow today's examiners to share their wisdom and experience with the examiners of tomorrow," Budens told Congress.
Automation also left behind a valuable search tool, the U.S. Patent Classification System. Maintenance of the classified patent search files was discontinued long ago, yet classification speeded the prior art search and would do the same today. "The USPTO needs to reverse its previous policy of neglect, restore full funding to the U.S. classification system," testified Budens, "and develop automated tools to allow examiners to classify and add foreign and non-patent references to USPTO databases."
Posted by Mr. Platinum at April 9, 2008 8:28 AM | The Patent Office
No truer words have been spoken. But far be it from PTO management to listen to the maniacal ruminations of one who's obviously worked within the system for many years. I hope someone in Congress was listening. But even the mention of the word "union" will have about 49 senators turning off their hearing aids.
Posted by: bierbelly at April 9, 2008 10:22 AM
For example, applicants would be unlikely "to find such obscure art as the prior art relied upon in the well-known RIM v. NTP Blackberry case," testified Budens. "Only millions of dollars and cadres of litigators are likely to uncover that type of prior art." Critical prior art in that case turned out to be some limited-circulation documents found in a Norwegian library.
Mr. Budens is wrong on both counts. The Norwegian reference was not found during prosectuion/examination of NTP's patents, nor was it found during the NTP v. RIM litigation. It's "discovery" was the result of an "anonymous tip." And NTP has a very compelling argument that it isn't even prior art.
Mr. Dudas routinely claims, and is never challenged on it, that applicants are in the best position to know/find the best prior art. (He has clearly never, ever drafted a patent application in his life, or actually met an inventor.)
POPA, e.g. Mr. Budens, routinely claims that having applicants conduct the prior art search is like having the fox guard the hen house, and routinely insinuate, if not out right accuse, that applicants and/or practitioners are all sleaze balls who would deliberately withhold or hide prior art.
Both are wrong.
The "patent system" would be better off without both of them.
Posted by: JD at April 9, 2008 10:54 AM
"POPA, e.g. Mr. Budens, routinely claims that having applicants conduct the prior art search is like having the fox guard the hen house, and routinely insinuate, if not out right accuse, that applicants and/or practitioners are all sleaze balls who would deliberately withhold or hide prior art."
No, that's Ex#6K.
I just finished reading Budens' entire testimony, and I think for the most part, he hits the nail on the head. What he didn't address is PTO management's efforts at further reducing patent grants by the extra set of eyes initiatives. Even primaries can't issue patents on their own anymore. How is that efficient?
Posted by: bierbelly at April 9, 2008 11:01 AM
"Even primaries can't issue patents on their own anymore. How is that efficient?"
That's it in a nutshell. There are NO professionals at the PTO. Now look at everything else from this perspective.
Posted by: johng at April 9, 2008 12:31 PM
"Mr. Dudas routinely claims, and is never challenged on it, that applicants are in the best position to know/find the best prior art."
This assertion was, to my knowledge, first made by Director Rogan in the 21st Century Strategic Plan (2003) - which would have had the USPTO rely on applicant searches and cease to maintain its automated search systems. (The then POPA president Ron Stern at that time made the comment about the fox guarding the hen house, I believe.) Under the Plan, once the USPTO had shifted the burden of the patent search to the applicants, its expressed desire was to "shift the funds for maintaining and improving the automated search systems [to] other uses such as staffing, training, etc."
Posted by: NIPRA anonymous at April 10, 2008 3:12 AM
Mr. Rogan probably was the first to make that ridiculous, unfounded, and untrue assertion. Mr. Dudas parrots it quite well though. My point was maybe somebody should ask him, "Mr. Dudas, how do you know that applicants are in the best position to determine the best prior art?" I'm sure his answer would be quite enlightening. /sarcasm off/
Mr. Stern did use the old hen house analogy. He was another one who had no idea what he was talking about. Unfortunately, POPA's position hasn't changed much, if any, since his departure.
What is desperately needed at the PTO is the perspective of those who have actually represented applicants and practiced. Stop promoting primaries whose only expertise is gaming the production system to SPE. Stop promoting SPE's who create squadrons of RCE gravy train riders to TC Director. And stop promoting TC Directors whose only qualification is that they are next in line to Associate Deputy Dog Commissioner. There are way too many people failing upward at the PTO. Haven't we had enough of that?
And no more Capitol Hill committee staff flunkies as Director and sidekick. We've definitely had enough of that.
Posted by: JD at April 10, 2008 6:05 AM