Director of the USPTO Michelle K. Lee continues to focus on the topic of patent quality:
"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 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
needless 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. After successfully
reducing the backlog of unexamined patent applications, our agency is
redoubling its focus on quality.
We asked for your help on how we can best improve quality—and you responded.
Since announcing the Enhanced Patent Quality Initiative earlier this year, we
received over 1,200 comments and extensive feedback during our first-ever
Patent Quality Summit and roadshows, as well as invaluable direct feedback from
our examining corps. This feedback has been tremendously helpful in shaping the
direction of our efforts. And with this background, I’m pleased to highlight some
of our initial programs under the Enhanced Patent Quality Initiative.
First, we are preparing to launch a Clarity of the Record Pilot under which examiners will include as part
of the prosecution record definitions of key terms, important claim constructions,
and more detailed reasons for the allowance and rejection of claims. Based on
the information we learn from this pilot, we plan to develop best examiner and
applicant practices for enhancing the clarity of the record. We also will be
launching a new wave of in the coming months emphasizing the
benefits and importance of making the record clear and how to achieve greater
clarity. Recently, we provided examiners with training on functional claiming
and putting statements in the record when the examiner invokes 35 U.S.C.
112(f), which interprets claims under the broadest reasonable interpretation
standard and secures a complete and enabled disclosure for a claimed invention.
Training for the upcoming year includes an assessment of a fully described
invention under 35 U.S.C. 112(a) and best practices for explaining
indefiniteness rejections under 35 U.S.C. 112(b).
Second, we are Transforming Our Review Data Capture Process to ensure that reviews of an
examiner’s work product by someone in the USPTO will follow the same process
and access the same facets of examination. Historically, we have had many
different types of quality reviews including supervisory patent examiner
reviews of junior examiners and quality assurance team reviews of randomly
selected examiner work product. Sometimes the factors reviewed by each
differed, and the degree to which the review results were recorded. With only a
portion of these review results recorded and different criteria captured in those
recordings, the data gathered was not as complete, useful, or voluminous as it
could have been. As a result, the USPTO has been able to identify statistically
significant trends only on a corps-wide basis, but not at the technology
center, art unit, or examiner levels. We are working to unify the review
process for all reviewers and systematically record the same
review results through an online form, called the “master review form,” which
we intend to share with the public.
What are the implications of this new process and new form? This new process
will give us the ability to collect and analyze a much greater volume of data
from reviews that we were already doing, but that were not previously captured
in a centralized, unified way. As we roll out this new review process the
amount of data we collect will significantly increase anywhere from three to
five times. This will allow us to use big data analytic techniques to identify
more detailed trends across the agency based upon statistically significant
data including at the technology center, art unit, and even examiner levels.
Also, this new process will give us better insight into not just whether the
law was applied correctly, but whether the reasons for an examiner’s actions
were spelled out in the record clearly and whether there is an omission of a
certain type of rejection. For example, for an obvious rejection we are
considering not only whether a proper obvious rejection was made, but whether
the elements identified in the prior art were mapped onto the claims, whether
there are statements in the record explaining the rejection, and whether those
statements are clear.
The end results will be the (1) ability to provide more targeted and relevant
training to our examiners with much greater precision, (2) increased
consistency in work product across the entire examination corps, and (3)
greater transparency in how the USPTO evaluates examiners’ work product. You
can read more about these and our many other initiatives, such as our pilot and Post Grant
Outcomes, which incorporates insight from our Patent Trial and
Appeal Board and other proceedings back into the examination process on our new
Patent Quality Initiativepage on our website.
Finally, let me close by emphasizing that our Enhanced Patent Quality
Initiative is not a “one-and-done” effort. Coming from the private sector, I
know that any company that produces a truly top quality product has focused on
quality for years, if not decades. The USPTO is committed to no less. The
programs presented here are just a start. My goal in establishing a brand new
department within the USPTO was to focus exclusively on patent quality and the
newly created executive level position of Deputy Commissioner for Patent
Quality will ensure enhanced quality now, and into the future. With your input
we intend to 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.
To that end, we will continue our stakeholder outreach and feedback collection
efforts in various ways, such as our monthly. The next
Patent Quality Chat webinar on November 10 will focus on the programs presented in
this blog and our other quality initiatives. I encourage you to join in regularly to our Patent Quality Chats and visit the
Enhanced Patent Quality Initiative page on our website for more information. The
website provides recordings of previous Quality Chats as well as upcoming
topics for discussion. We are eager to hear from you about our Enhanced Patent
Quality Initiative, so please continue to provide your feedback to WorldClassPatentQuality@uspto.gov.
Thank you for collaborating with us on this exciting and important initiative!"
Copyright © 2015 Robert Moll. All rights reserved.