Patent Quality is Here to Stay

The following post was originally published in Law360

When I stepped into the role as head of the United States Patent and Trademark Office a couple of years ago, one of the frequent things I told audiences of stakeholders around the country was that I looked forward to working together to further strengthen our patent system. And that effort had to include a harder look at the issue of patent quality.

Thanks to the America Invents Act signed into law in 2011, we were in a unique position to do just that. With a stable funding source, a shrinking backlog of unexamined patent applications (a 30% reduction since the beginning of the Administration), and the lowest pendencies in more than a decade, the Agency was able to focus, in an unprecedented manner, on new ways of improving patent quality from every angle and considering all options--big and small and before, during, and after examination.

Our stakeholders share my belief, and that of my USPTO colleagues, that there is a cost to society when this agency issues a patent that should not issue, just as there is a cost to society when we do not issue a patent that should. With patents that are overly broad or vague, we create inefficiencies and opportunities for abuse in our innovation ecosystem. With patents that are unduly narrow or uncertain, we risk undermining the incentive to innovate embodied in the Progress Clause of our nation's Constitution. The USPTO must issue patents accurately, according to the law; clearly, so there is public notice of the boundaries of patent rights; and consistently across our talented corps of patent examiners.

And so we launched the Enhanced Patent Quality Initiative in early 2015 to provide greater certainty of patent owners' rights and clearer boundaries to innovators and courts so they can make better informed decisions. We held our first-ever public Patent Quality Summit in March 2015, followed a year later by a Patent Quality Symposium, and a Patent Quality Conference earlier this week. We also held a variety of public roundtables and patent quality chats over the last two years and published numerous requests for comment in the Federal Register, soliciting an unprecedented amount of public feedback throughout.

That feedback helped us craft about a dozen valuable initiatives to enhance patent quality from clarifying the patent record, to getting the most relevant prior art before our examiners as early as possible, to comprehensively reviewing the amount of time we give our examiners to do their work, to updating how we measure patent quality, and more. For more information about our Enhanced Patent Quality Initiative, please visit www.uspto.gov/patent/initiatives/enhanced-patent-quality-initiative-0.

The results to date have been encouraging. For example, the goal of our clarity of the record pilot was to develop best practices on how much detail to include in certain key parts of the prosecution record, such as interview summaries, reasons for allowance, or claim constructions. After the clarity of the record pilot concluded we measured 22 data points focused on clarity in interview summaries and found an average of 15% improvement in clarity between the pilot examiners and a control group. And we found a 25% improvement in the clarity of reasons for allowance between the pilot examiners and a control group.

We were pleased to see a statistically significant improvement in clarity when examiners used the best practices we have identified through our training on interview summaries, reasons for allowance, and claim interpretations. Perhaps the most telling indicator of training success is that when the pilot examiners were examining applications not included in the pilot program, they continued to apply the pilot's best practices.

And while we continue to tackle the challenge of patent quality before patents issue, our Patent Trial and Appeal Board's mission is addressing patent quality after they issue. To that end, the post-grant proceedings created by the America Invents Act have significantly changed the patent landscape by providing, as Congress intended, a faster, more cost-efficient quality check on the patents in the system.

With extensive input from stakeholders throughout the IP community, we have worked hard to implement and conduct these proceedings as fairly and efficiently as possible. That is why I asked my team to engage the public in a series of listening tours that led to a set of "quick fixes" in 2015 and more substantive revised rules last April. It is also why we took it upon ourselves to assess the frequency of motions to amend and the reasons for their grants or denial. And the agency remains committed to further strengthening these proceedings, as needed and based upon experience and public input, to ensure they are as effective and fair as possible within our Congressional mandate.

Of course, patent quality also means applying the law accurately and clearly even in areas of the law that are evolving, including, for example, the 101 jurisprudence on what is patent eligible subject matter. We've spent a fair amount of effort on 101 matters in recent years. Following major court rulings we have repeatedly revised our examination guidance with input from our stakeholders and trained our examiners on the new guidance. Based on public input, we also introduced training focused on clearly drafting 101 rejections and subsequent responses.

And we just held two public roundtables focused exclusively on the topic of patent eligible subject matter, including potential updates to our examination guidance, the impact of the current 101 jurisprudence on innovation, what changes might be considered to further support innovation, and whether such changes are best achieved legislatively, judicially, or administratively. We knew it would be helpful to advance the public discussion by creating a record of where there is agreement or disagreement and what, if any, actions should be taken.

Each of these initiatives ensures that our patent system continues to incentivize the innovation that defines who we are, as a people, and that drives our country's continued economic growth. The USPTO team is committed to working together, with all of you, on this important and worthy effort.