Patent Baristas

According to a report from the Government Accountability Office, the time it takes to examine and allow patent applications has increased due to “increases in the volume and complexity of patent applications.”

In FY 2007, USPTO’s patent examiners:

• Examined 362,227 applications – the highest number in history.
• Quality compliance was 96.5 percent – equaling last year’s results, the best in a quarter century.
• Patent examiner decisions were upheld by the USPTO’s patent appeals board 69 percent of the time, up from 51 percent in 2005.

The government also issued more than 184,000 patents, up slightly from more than 183,000 last year. But the backlog of applications just collecting dust waiting to be acted on hit 761,924 in 2007, up from 701,147 in 2006, bringing the whole pile to a whopping 1,112,517 applications. That’s some serious reading material.

Of particular note is how proud the USPTO is that they granted far fewer patents. In 2000, a record high of 72 percent of all patent applications became patents. In contrast, 51 percent of patent applications were granted in FY 2007.

It took an average of more than 25.3 months for applicants to get a first response with total pendency at 31.9 months (the highest was Unit 2600, Communications, now at 43.1 months).

While the Office likes to blame the applicants for the backlog, its not hard to find the cause. Since the USPTO cannot run a budget deficit in maintaining the Office, the USPTO sets its hiring based on the availability of funding and not on the expected workload or the (growing) backlog.

The GAO found that from 2002 through 2006, one patent examiner left for nearly every two the agency hired. Not only that, “70 percent of those who left had been at the agency for less than 5 years and new patent examiners are primarily responsible for the actions that remove applications from the backlog.” The office currently has between 5,400 and 5,500 examiners.

So why do new hires leave at a greater rate than experienced staff? The answer depends on who you ask. When the GAO asked the management of the USPTO, the answer was that examiners leave “primarily for personal reasons, such as the job not being a good fit or family reasons.” But, when the GAO asked the examiners themselves, they found that 67% of patent examiners identified the agency’s production goals as “one of the primary reasons examiners may choose to leave USPTO.”

“These production goals are based on the number of applications patent examiners must complete biweekly and have not been adjusted to reflect the complexity of patent applications since 1976,” the GAO reported.

Management says it has tried “a variety of retention flexibilities such as a special pay rate, performance bonuses, flexible work schedules, and a telework program to encourage patent examiners to stay with the agency.” Let’s hope they can find something that works.

See the whole report here.