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Michelle LeeUnder Secretary of Commerce for Intellectual Property and Director of the USPTOUnited States Patent and Trademark Office (USPTO)
FY 16-17: Agency Priority Goal
Improve Patent Processing Time and Quality
Priority Goal
Goal Overview
American innovators and businesses rely on the legal rights associated with patents in order to reap the benefits of their innovations. Timely issuance of high-quality patents provides certainty in the market and allows businesses and innovators to make informed, timely decisions on product and service development. Processing patent applications in a quality and timely manner advances economic prosperity by using intellectual property (IP) as a tool to create a business environment that cultivates and protects new ideas, technologies, services and products.
Our dedicated employees have reduced the patent application backlog from a high of over 764,000 in January 2009 to 558,091 in October 2015, a 27 percent reduction. Between the end of fiscal year (FY) 2009 and the end of October 2015, first action pendency decreased by 8.8 months and total pendency by eight months. First action pendency measures the time from when an application is filed to the mailing date of the initial communication to the applicant from the patent examiner. The USPTO did not meet the first action pendency FY 16 goal. Given the lower-than-expected filings in FY 2015, at the beginning of FY 2016 the USPTO projected a 1 percent overall growth in UPR filings; however, actual growth was in excess of 5 percent, and consequently the first action pendency result was negatively impacted.
Total pendency measures the time from filing until an application is either issued as a patent or abandoned. The USPTO did meet its FY 2016 goal.
Additionally, from an all-time high of 111,924 in February 2013, the Request for Continued Examination (RCE) backlog was reduced to 27,394 in October 2015, a 75.5 percent reduction.
We want to continue to build on these successes, and the America Invents Act (AIA) legislation passed by Congress supports doing just that. The AIA allows us to set our fees and retain fees collected above our appropriated level. This means our financial health is more stable than in the past, giving us a unique opportunity to further expand our quality efforts throughout the entire process.
Patent quality is central to fulfilling a core mission of the USPTO, which as stated in the Constitution, is to “promote the Progress of Science and useful Arts.” It is critically important that the USPTO issue patents that are both correct and clear. Historically, our primary focus has been on correctness, but the evolving patent landscape has challenged us to increase our focus on clarity.
Patents of the highest quality can help to stimulate and promote efficient licensing, research and development, and future innovation, without resorting to high-cost court proceedings. Through correctness and clarity, such patents better enable potential users of patented technologies to make informed decisions on how to avoid infringement, whether to seek a license, and/or when to settle or litigate a patent dispute. Patent owners also benefit from having clear notice on the boundaries of their patent rights.
Strategies
The USPTO is committed to issuing patents that clearly define the scope of the rights therein, that are within the bounds of the patent statues as interpreted by the judiciary, and that provide certainty as to their validity to encourage investment in research, development, and commercialization. The USPTO recognizes that examiners are the fundamental resource essential to building and strengthening the examination process.
Our patent examiners are the key building block to the infrastructure and foundation needed to enhance and sustain quality. The USPTO is committed to taking the steps necessary to evaluate the needs of our examiners to ensure that they have the tools, resources, and training required to perform their jobs optimally and provide a superior work product.
Through the dedicated efforts of our employees over the last few years, the USPTO has significantly reduced the patent application backlog and patent pendency. As our business process improvements lead us toward our 10 month first action pendency and 20 month total pendency goals by 2019, the USPTO wants to build on its existing efforts to enhance patent quality and is committed to building a world-class IP system to meet 21st century business needs. In February 2015 the USPTO released a Federal Register Notice (FRN) seeking public input and guidance to direct its continued efforts toward enhancing patent quality. This notice was the first step in the USPTO’s comprehensive Enhanced Patent Quality Initiative (EPQI). Through an active and long-term partnership with the public, the USPTO seeks to ensure the issuance of the highest quality patents and provide the best customer service possible.
The USPTO EPQI targets three aspects of patent quality, termed the patent quality pillars. These pillars are:
(1) Excellence in work products, in the form of issued patents and Office actions
The USPTO is focusing on the quality of the work products provided at every stage of the patent process. This pillar includes both the quality of issued patents and the quality of all work products during the filing, examination, and issuance process. The USPTO is committed to issuing patents that clearly define the scope of the rights therein, that are within the bounds of the patent statutes as interpreted by the judiciary, and that provide certainty as to their validity to encourage investment in research, development, and commercialization.
(2) Excellence in measuring patent quality, including appropriate quality metrics
The USPTO is focusing its measurement of quality to evaluate work products and customer interactions. Previously, the USPTO measured quality through its Patent Quality Composite Score. As part of the new quality initiative, the USPTO aims to increase the effectiveness, transparency, clarity, and simplicity of USPTO review, employ a system that measures both errors by commission and errors by omission, and obtain examination metrics that are specifically tied to procedures for improving performance based on identified trends. As part of the research and development process of validating existing and defining new quality metrics the USPTO will continue to monitor existing quality metrics.
(3) Excellence in customer service
The USPTO wants to ensure that customers are treated promptly, fairly, consistently, and professionally at all stages of the examination process. We are focused on maximizing the effectiveness and professionalism of all customer interactions, be it through examiner interviews, official USPTO communications, or call center exchanges.
In March 2015 the USPTO engaged in a productive exchange of ideas with the public on patent quality by holding an unprecedented event, a Patent Quality Summit at its headquarters in Alexandria, Virginia. More than 300 participants attended in person and more than 1,200 participated online over the two days.
The Patent Quality Summit provided a forum for a robust discussion and exchange of ideas where the public, experts from the USPTO, industry, and academia examined ways to enhance patent quality, based on consideration of six specific proposals. In particular, participants discussed whether applicants would use in-person interviews with examiners, and if so, what logistical arrangements would need to be made to enable those interviews, given the agency’s telework program. Additionally, the discussion focused on what steps patent examiners and applicants could take to clarify the prosecution history record and how the agency might better achieve compact prosecution. Further discussion centered on whether the agency should conduct an automated pre-examination search for all applications and what tools might be available to do so; and addressed how to best measure patent quality, and whether applicants should be able to request a quality review of selected actions during prosecution.
The EPQI represents an ongoing effort in quality improvement. The USPTO will continue to engage our employees and stakeholders through quality webinars, roadshows, and summits. We will continue to solicit input, encourage feedback, and identify additional ways we can enhance patent quality as defined by our patent quality pillars of excellence in work products, excellence in measuring patent quality, and excellence in customer service.
Furthermore, we will continue to develop and implement the Patents End-To-End Processing System (PE2E) and modernize our IT systems. The USPTO proposes to transition the patent application process to one in which the majority of applications are submitted, handled, and prosecuted electronically.
In March 2015 the USPTO launched a critical new tool for patent examiners, marking the beginning of the retirement of certain legacy IT tools, and furthering our commitment to sharpening operating efficiencies as we modernize IT systems. Released to the patent examining corps was Version 2.0 of the Docket and Application Viewer (DAV), a customizable, searchable tool to help examiners manage their workload and prioritize tasks. Since the March 2015, there have been quarterly releases of the DAV tool improving the performance and capabilities. This tool replaces the Desktop Application Navigator (eDAN) tool examiners were using.
This new tool, like others to come, will help the agency in the drive to increase patent quality. Once fully deployed, the USPTO’s PE2E system will provide examiners with an improved way of processing patent applications, integrate activities currently managed across separate systems into a central place, and leverage modern technology. Late in 2016 we expect to launch more releases critical to examiners, including Office Correspondence and Search tools. Between now and the end of 2016, there will be incremental software releases for a pilot group of examiners to use.
The USPTO will continue to enhance outreach efforts to educate, engage and interact with our stakeholders. We will continue to be responsive to internal and external stakeholder needs and concerns by incorporating additional metrics to the Patents Data Visualization Center.
Progress Update
The USPTO achieved its total pendency target; however, it missed its first action pendency target. Given the lower-than-expected filings in FY 2015, at the beginning of FY 2016 the USPTO projected a 1 percent overall growth in UPR filings; however, actual growth was in excess of 5 percent, and consequently the first action pendency result was negatively impacted. First action pendency measures the time from when an application is filed to the mailing date of the initial communication to the applicant from the patent examiner. Total pendency declined from 25.7 months in FY 16 Q3 to 25.3 months in FY 16 Q4. Total pendency measures the time from filing until an application is either issued as a patent or abandoned. The USPTO will continue to monitor incoming patent application filings and will make any necessary adjustments to long-term planning projections to ensure progress towards its pendency targets.
In December 2015, the USPTO announced the Topic Submission for Case Studies Pilot program through a Federal Register Notice. Of the many topics submitted in response to the notice, the USPTO selected six to be the subject of case studies for the pilot. These studies will help the USPTO identify quality issues and examples of best practices as well as improve patent work products and ascertain areas where further training may be required.
The USPTO has launched a Clarity of the Record Pilot, which is focused on improving the clarity of claim constructions, reasons for allowance, and interview summaries. The USPTO invited randomly selected examiners to participate in the pilot, and approximately 130 ultimately accepted the invitation. The pilot participants participated in training and examined cases under the pilot guidelines. The USPTO is currently using the information collected during the pilot to identify best examiner practices for enhancing the clarity of the record.
The USPTO has launched Clarity of the Record Training - Improving Clarity and Reasoning in Office Actions Training emphasizing how and why to make the record clear. The Agency has provided examiners with training on functional claiming, how to clarify the record with respect to 35 U.S.C. 112(f) limitations, drafting reasons for allowance, assessing a fully described invention under 35 U.S.C. 112(a), writing rejections under 35 U.S.C. 101, and best practices for explaining indefiniteness rejections under 35 U.S.C. 112(b).
As part of the Clarity and Correctness Data Capture (CCDC) Program, the USPTO developed an improved data capture system that enables all reviewers, from both the Office of Patent Quality Assurance (OPQA) and supervisors in the Technology Centers (TCs), to consistently document and access quality review data in one place. This customizable data capture system, referred to as the Master Review Form (MRF), comprises a library of standardized questions pertaining to both correctness and clarity assessments of Office actions. Reviewers in OPQA and supervisors in the TCs are currently using the MRF.
Related to the CCDC program, the USPTO is evaluating its Quality Metrics. On March 25, 2016, the USPTO published a Federal Register Notice outlining a proposal to replace its Quality Composite Score with individual metrics in view of stakeholder feedback that the Quality Composite Score did not adequately reflect quality. The Federal Register Notice also sought comments on the MRF. By the close of the comment period, the USPTO had received 32 comments, and it will use these comments when finalizing a set of quality metrics for fiscal year 2017.
On July 11, 2016, the USPTO launched the Post-Prosecution Pilot (P3) program through a Federal Register Notice. The P3 program combines effective features of the existing After Final Consideration Pilot (AFCP) 2.0 program and the Pre-Appeal Brief Conference Pilot program as well as new, applicant-requested features, such as providing applicants with an opportunity to present arguments to a panel at a conference. The Federal Register Notice also solicits comments on ways to improve after final practice.
As part of the on-going Post-Grant Outcomes Pilot, examiners are notified if they are examining a patent application that is related to an issued patent undergoing an America Invents Act (AIA) Trial proceeding before the Patent Trial and Appeal Board. The pilot gives examiners streamlined access to the contents of AIA Trial proceedings, and the Agency will use the results of the pilot to determine best practices for evaluating AIA Trial information that is relevant to currently pending applications.
Next Steps
FY 2017
Q1 - The USPTO will define and introduce revised quality metrics based on stakeholder input.
Q1 – Completion of Clarity of the Record Training.
Q2 - Completion of the Post-Prosecution Pilot, unless 1,600 requests have been accepted into the Pilot previously.
Q3 - Completion of all of the case studies from the Topic Submission for Case Studies pilot
Q4 – Completion of 18,000 MRF reviews by OPQA
Major Information Technology (IT) Milestones:
FY 2017
Q1 - Complete Patent Application and Location Management (PALM) peripheral enhancements; deploy two sets of functionality enhancements to the Docket Application Viewer (DAV). [Completed]
Q1 - Choose design for a future patent application portal to include the required framework, technology, and design artifacts by September 2016.
These IT enhancements will provide examiners with an improved way of processing patent applications, integrate activities currently managed across separate systems into a central place, leverage modern technology and improve patent quality.
Q2 - Official Correspondence (OC) tool will be rolled out to the Patent Corps improving and stabilizing the capabilities for the patent examiner to communicate office actions to the applicants.
PE2E Search will be released in large scale to the Patent Corps. These scalable and integrated solutions with OC and DAV will give the examiner a modern solution to improve their work.
Q3 – Training of the new OC and Search tools to the Patent Corps.
Q4 – Subsequent enhancements to the OC and Search tools to address user feedback.
Expand All
Performance Indicators
First Action Pendency
Total Pendency
Other Indicators
Monthly patent applications received
Monthly patent applications that have received a first office action
Contributing Programs & Other Factors
Patent Business Unit
Patent Public Advisory Committee (PPAC)
No Data Available
