Senators Tillis, a Republican, and Leahy, a Democrat, have introduced legislation in Congress designed to improve patent quality at the USPTO. The bipartisan nature of the legislation, hopefully, means it will be quickly adopted. [I am an optimist.] Senator Tillis’ press release states:
This legislation would evaluate prior and current initiatives
and pilot programs relating to the quality of patents. It would evaluate the
need for greater clarity in terms of what constitutes patent quality, the
setting of patent quality metrics, and how the quality of work product
performed by patent examiners is measured within the office. The bill would
evaluate the need for recording examiner interviews via audio files or
automated transcriptions, how the assignment of patent applications to
examiners is undertaken, and the creation of a group that looks at real-world
circumstances and uses that information to perform targeted review of certain
patent applications. Furthermore, the bill would also study any evidence of
fraud in the patent application process and suggest avenues to address such
fraud.
“If the United States is going to continue to be the world’s
leading innovation economy, then we have to first make sure our patent system
is strong and instills confidence,” said Senator Tillis. “We only
have strong patents when those patents are of the highest quality and meet all
the requirements of patentability. I’m proud to introduce this measure with my
good friend Senator Leahy to improve the quality of patent examinations and
ensure that the USPTO issues strong patents. This legislation is a
step further in continuing our work to strengthen our intellectual property
rights.”
“I am proud to cosponsor this commonsense legislation with
Ranking Member Tillis,” said Senator Leahy. “This bill follows up
on our hearing last year on patent quality, which put a spotlight on the fact
that many U.S. patents represent brilliant inventions and drive our
economy. Unfortunately though, some are issued by mistake and can cause
great expense for unsuspecting Americans and small businesses. I look
forward to advancing legislative solutions that will help make sure that the
patents that are issued are valid and to continuing my work supporting American
creators and innovators.”
Background:
For decades there has not been a major change to the time
afforded to patent examiners for the examination of patent application, yet the
nature of the technology from which these patent applications are derived and
the complexity of this technology have only increased. In addition, the
proliferation of prior art, which patent examiners must search for and review
in order to make patentability determinations, has only increased and it has
done so at a rapid pace. This complexity can and does lead to the necessity for
patent examiners to raise more complex prior art rejections. And because of
this patent examiners must be afforded the necessary amount of time so as to
generate quality work products.
This bill would require that not later than 1 year after the
date of enactment of this Act the Comptroller General of the U.S. submit to the
Senate Committee on the Judiciary and House the Committee on the Judiciary a
report detailing this evaluation on patent examination improvement. Not later
than 1 year after the date on which the Comptroller General of the U.S. submits
their report the USPTO Director shall develop guidance for patent examiners
focused on patent examination improvement. Finally, not later than 2 years
after the date of enactment of this Act the USPTO Director, after soliciting
public comment, shall submit to Congress a report that includes how the Office
will improve the technical training of patent examiners with respect to
emerging areas of technology, the status of office IT systems, a 5-year IT
modernization plan, an accounting of the use by the office of advanced data
science analytics and a 5-year modernization plan regarding advanced data
science analytics, and finally how the result of the application of advanced
data science analytics can be regularly shared with the public.
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