How to Really Improve the U.S. Patent System: Support USPTO Employees
“Quality starts with employees. This is true for manufacturing cars and examining patents. A belief in the agency mission, having meaningful input and enough time to perform a quality job are important.”
Our patent system has been relentlessly attacked for the better part of the last 20 years. Patents have been blamed for everything from the creation of patent litigation abuse to high prescription drug costs. There is scant evidence of an actual causal relationship, yet the attacks continue.
Knowing that it would be impossible to outright ban patents, the popular argument is that poor quality patents that should not have issued are responsible for a majority of litigation issues and drug prices. In response, Congress created the Patent Trial and Appeal Board (PTAB) at the United States Patent and Trademark Office (USPTO) in 2011 to make it easier to invalidate “low quality” patents without the need for federal district court litigation. Yet, after more than 10 years of invalidating issued patents through the PTAB, the criticism of our patent system has not abated.
These patent critics have called for new policies to change the behavior of inventors. The USPTO recently announced substantial fee increases and new “rules” that many argue actually amount to legislation to force behavior changes and decrease the number of patent applications that have historically been available to inventors. If implemented, these changes will significantly increase the cost and complexity of obtaining patents, but they will not address the perceived deficiencies in the patent system. Improving the operations of the USPTO, however, is the best opportunity to improve the patent system.
An Alarming Trend
Recent workplace rankings by USPTO employees in the Best Places to Work in the Federal Government, a little-known survey outside of the government, should be a red flag for supporters of our patent system. Twenty years ago, the USPTO’s overall survey result was very poor but improved dramatically until the USPTO reached the top place for employee satisfaction in 2013. The improvement was the result of focused efforts by leadership to improve the agency.
In the last 10 years, the USPTO’s overall survey score has steadily decreased. While the current state is not back to the lows of decades ago (the USPTO ranked 236 out of 459 subcomponent agencies), the downward trend is alarming. I had the pleasure of being a leader of the USPTO and working with exceptional patent and trademark examiners. Examiners have scientific degrees; many are attorneys, and they perform a detailed study of technical documents every day. It should not be a surprise that their workplace satisfaction is reflected in the USPTO work product. Quality starts with employees. This is true for manufacturing cars and examining patents. A belief in the agency mission, having meaningful input and enough time to perform a quality job are important.
The USPTO reports to the Commerce Department and Secretary of Commerce Raimondo has received well deserved accolades for her leadership of Commerce policies. Among her top achievements are working to get affordable, reliable high-speed Internet service to everyone in America, revitalizing the U.S. semiconductor industry, and building a climate-ready nation. In addition to these important achievements, the Commerce Department has been a top ranked place to work among large federal places to work. But, for some reason, those leadership achievements haven’t extended to the USPTO.
Looking Ahead
The next administration faces a difficult situation. The drop in the USPTO ranking continues under President Biden and reversing that in a second term will require changes in both policy and leadership. Neither is easy to achieve in a second term. Likewise, a second Trump administration would return to the Republican platform of shrinking government and a hostility toward government labor unions. This is not a recipe for improving federal employee engagement.
Improving America’s patent system starts with supporting the front-line employees of the USPTO. Given the right support, tools, and leadership, the agency can attract the best talent to carefully examine and issue the world’s best patents and trademarks.
Image Source: Deposit Photos
Author: alexmillos
Image ID: 31664529
Russell Slifer
Russ Slifer is a Principal at Schwegman Lundberg & Woesner, where his practice has focused on intellectual property law since 1994, helping a wide variety of clients build patent portfolios to help […see more]
