I wrote a few days ago about the problems and criticisms facing the USPTO today. I identified two of the two major problems facing the Office, namely quality and timeliness. Today, I would like to explain (if it isn't immediately obvious) why these two goals are mutually exclusive.
A hundred years ago (back when the Commisioner of the Office was
alledged to have said, "Everything that can be invented has been invented."), it was fairly straightforward to search a patent. An examiner would go into a basketball court-sized room, find the cabinet containing all of the patents in a given field, and look at them, one by one, until he found something useful. If he reached the end of the search and didn't find anything, he would be able to say with reasonable certainty that the invention was patentable.
Things aren't that simple today. There are over 7,000,000 issued patents and an art could easily have thousands of patents worthy of consideration. In addition, the ever-increasing breadth and detail of technology means that finding that needle in the haystack is sometimes a matter of luck. Gone are the days of paper files; today everything is digital. Although examiners are given a good set of search tools, finding prior art is now a matter of crafting good search string and flipping through abstracts for hundreds of hits. Patent examining today is much closer to Googling than it is to indexing.
What then, if we were to expect absolute quality from prior art searches? If a skilled person can skim 1,000 patents a day (I'm sure that there are old statistics floating out there somewhere, but just go with it here), it could easily take weeks for one person to search a patent. But, a typical workload for an examiner is 3-10 applications every two weeks. Even an experienced examiner who was familiar with commonly cited patents could only compose two or three office actions (see
Step 3) every biweek.
So, then, absolute quality is impractical or even impossible. What, then, about increasing the pace of work (timeliness)? Obviously, there is an inverse relationship between the time to complete a task and the quality of the resulting work. However, another important relationship is the direct correlation between the amount of time allotted and the number of critical errors. This would mean that with less time to examine, more low-quality patents (in the eyes of critics -- I make no claim as to the quality or patentability of issued patents) will be issued, and the public perception of the PTO will decrease.
What, then, can be done to improve the situation at the Patent Office? The obvious solution is to hire more examiners. In all likelihood, this is the only viable option short of drastic patent reform (which, if you're lucky, I'll address later). By doubling the size of the patent corp., it could reasonably be expected to start cutting down on the backlog after four years. Why four years, you ask? Well, that's typically the amount of time before an examiner reaches his maximum productivity and begins to make up for the time spent by other examiners during the training process. Also, such growth at the bottom rungs of the ladder will require additional managers and executive staff. These aren't positions that can be filled overnight.
That is how we come to the PTO's current long-term strategy. Over the next 10 years, the PTO anticipates hiring 1,000 new examiners every year. After attrition (another major problem in a field as hot as IP law), this will probably double the number of examiners to around 14,000. Assuming there isn't a spike in filed applications, the PTO is in a position to begin processing more applications than are filed within 8 years. The additional two years of new hires will begin cutting into the backlog. How long it will take to eliminate the backlog is anyone's guess. How realistic the idea of doubling the workforce is rests with Congress. In the end, that means it's up to voters.
The moral of the story? Study engineering.
