Former patent officials say backlog should become a top priority

Reducing the Patent and Trademark Office's growing backlog of applications should be one of the highest priorities for the agency in the Obama administration, several former high-level PTO officials agreed Thursday.

An array of proposals for streamlining the office have been floated in legislation introduced in recent sessions of Congress and by intellectual property stakeholders, but Gerald Mossinghoff -- who ran the office under the late President Ronald Reagan -- believes none of them will be successful until the estimated 1.2 million applications are reduced.

The PTO has maintained there is a 700,000-application backlog, which does not include applications that are currently being examined. Mossinghoff, who serves as special counsel at Oblon Spivak, called the problem "horrendous" and criticized PTO Director Jon Dudas of setting annual "soft, stair-step goals" rather than projecting where the agency will stand in four and eight years.

"They achieve their goals but don't cut into backlog," he said.

Nick Godici, who ran the PTO from 2001 until 2005, argued the backlog is stifling innovation because companies allocate more money and resources to move applications through the system. Innovations cannot be finalized as swiftly as they had before, he said, adding that the PTO is "becoming sand in the gears of this progress."

Bruce Lehman, who had the PTO's top spot for much of the Clinton administration, said the PTO currently measures success by reducing how many patents win approval. The allowance rate, he said, is the lowest it has been in many years but that inherently drives up patent pendency and the amount of time examiners work on applications.

While some believe that a higher allowance rate equates to letting bad patents pass, Lehman argued there has not been a difference in the rate of judicial patent approvals since a time when the allowance rate was higher. "That's the ultimate determinant of quality," he said at a Capitol Hill roundtable sponsored by the Computing Technology Industry Association.

A spokeswoman for the PTO said the allowance rate is "a number we report, but there is no goal [or] target allowance rate nor do we use that rate as a measure or indication of quality."

One of the PTO's key quality measurements is the percentage of reviewed applications that did not have any errors. That number improved from 94.7 percent in fiscal 2004 to 96.3 percent in fiscal 2008.

Mossinghoff, who recently co-authored a report for the Obama transition team on how to overhaul the PTO, recommended making the office a government corporation like the Corporation for Public Broadcasting.

The National Academy of Public Administration made a similar proposal in 2005, but lawmakers toyed with the idea of incorporating the agency years before that. In 1997, Rep. Howard Coble, R-N.C., introduced legislation but the measure was included in a larger bill that was defeated. The proposal was not included in patent legislation that won House passage in September 2007 but stalled in the Senate this year.

Meanwhile, the U.S. Chamber of Commerce will soon unveil its PTO recommendations. According to a draft report obtained by CongressDaily, the Chamber will urge the agency to overhaul the patent examiner production system; make administrative actions timelier; strengthen the PTO's relationship with the user community; enhance organizational management; and permit applicants to defer examination.