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Highlights of the USPTO Patent Public Advisory Committee 2014 Annual Report

The Patent Public Advisory Committee (PPAC) recently released its 2014 Annual Report evaluating a variety of programs at the U.S. Patent and Trademark Office (USPTO) and recommending that the USPTO take certain actions with respect to those programs.  The following aspects of the PPAC’s eighty-four page report are particularly relevant.

IT Systems

The Patent Application Information Retrieval (PAIR) system on the U.S. Patent and Trademark Office’s website is notorious for crashing. It prompts jokes made out of frustration over how the USPTO’s own website cannot function while someone’s attempting to file a patent application directed to cutting-edge technology. Complaints even surface against the USPTO itself over its unreliable and bug-filled systems. However, it appears that the USPTO may get blamed unjustly.

One section of the PPAC Report is devoted entirely to the information technology (IT) challenges faced by the USPTO. For example, the main transaction-handling system for the USPTO is built on proprietary technology from the 1980s. With the recent government sequestration and budget cuts, IT development and investment at the USPTO has been severely restricted or stopped entirely. The USPTO recognizes the ongoing problems with its IT systems, which include PAIR, and the PPAC recommends putting a strong emphasis on increasing funding to IT and replacing legacy systems.

RCE and Appeal Backlog

The PPAC Report explores ways to reduce the exploding backlog of Request for Continued Examinations (RCEs), noting that the backlog of RCEs has gone from about 17,000 in October 2009 to over 110,000 in March 2013. Combined with reducing the RCE backlog is an interest in making the appeal process to the Patent Trial and Appeal Board (PTAB) more efficient. The PPAC Report recommends allowing patent applicants to participate in pre-appeal brief conferences with multiple primary examiners in addition to the examiner-of-record. Currently, pre-appeal brief conferences are closed-door meetings between three examiners, and no records of the meetings are provided to applicants other than the meeting’s ultimate conclusion as to whether rejections will be maintained or vacated. Allowing applicant involvement in such meetings would likely help advance prosecution by opening lines of communication. However helpful, it is probably unlikely to be implemented at least because it invites clashes with the USPTO’s long-standing policies related to examiner-applicant conferences in MPEP § 713.04 requiring written summaries of interviews to be made on the record and in MPEP § 713.09 granting only one interview after final action.

The PPAC Report also recommends allowing an applicant or third party to pay a fee to expedite review of a pending appeal before the PTAB. Such a program could be similar to the USPTO’s Track One prioritized examination program for expedited examination of newly-filed patent applications.

Finally, the PPAC Report encourages placing RCEs on an examiner’s amended docket to encourage faster consideration of RCEs or setting a goal of disposing RCEs within four months of filing. Interestingly, the PPAC Report goes so far as to suggest allowing the entry of two responses as a matter-of-right or being able to pay for the consideration of one more amendment after a final rejection without having to resort to an RCE or appeal, thus reducing the growing number of RCEs and appeals.

Patent Quality

The PPAC Report is interested in ways to increase patent quality.  The USPTO is currently exploring methods for the public to help examiners identify relevant prior art through the use of crowd sourcing in prior art searches. In addition to this approach, the PPAC Report suggests that examiners avoid having a patent application go to “final” status too quickly. To this end, the PPAC Report encourages increasing use of second non-final rejections, improving the quality of final rejections, and increasing consideration of after-final amendments.

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Christina Sperry is a Mintz patent attorney who drafts and prosecutes patents for clients in the electrical, mechanical, and electro-mechanical fields. She represents companies and academic institutions in the medical technology field and helps protect patent innovations for medical and surgical devices.