New GAO Patent Studies

The Government Accountability Office released two new reports on the PTO today: one on search capabilities and examiner monitoring, one on patent quality and clarity. They also released the underlying data from examiner surveys.

I think the survey data is more interesting than the conclusions; examiners were asked questions including how much time they spend on different parts of examination, how useful they found PTO training, how often they searched for/used different types of prior art, what factors make prior art searching/examination difficult, how much uncompensated overtime they worked to meet production goals, how confident they were that they found the most relevant prior art, what they think of PTO quality initiatives, etc. Lots of rich data here!

Here are the concluding recommendations from each report, for which the GAO will track the PTO's responses on their website. (I believe the PTO is already working on quite a number of these.)

Patent Office Should Strengthen Search Capabilities and Better Monitor Examiners' Work

1. Work with the EPO to identify a target level of consistency in classifications and develop a plan to monitor consistency.
2. Develop and periodically update a documented strategy to identify key sources of nonpatent literature.
3. Develop written guidance on what constitutes a thorough prior art search within each technology field.
4. Ensure that sufficient information is collected in reviews of prior art searches to assess the quality of searches.
5. Use the audits and supervisory reviews to monitor the thoroughness of examiners' prior art searches and improvements over time.
6. Specifically assess the time examiners need to conduct a thorough prior art search for different technologies.
7. Assess whether the technical competencies of examiners in each technology center match those necessary; develop strategies to address any gaps identified, such as a technical training strategy; and establish measures to monitor progress toward closing any gaps.

Patent Office Should Define Quality, Reassess Incentives, and Improve Clarity

1. Develop a consistent definition of patent quality, and clearly articulate this definition in agency documents and other guidance.
2. Develop measurable, quantifiable goals and performance indicators related to patent quality as part of the agency's strategic plan.
3. Analyze the time examiners need to perform a thorough patent examination.
4. Analyze how current performance incentives affect the extent to which examiners perform thorough examinations of patent applications.
5. Establish a process to provide data on the results of the Patent Trial and Appeal Board (PTAB) proceedings to managers and staff in the USPTO's Technology Centers, and analyze PTAB data for trends in patent quality issues to identify whether additional training, guidance, or other actions are needed to address trends.
6. Evaluate the effects of compact prosecution and other agency application and examination policies on patent quality.
7. Consider whether to require patent applicants to include claim clarity tools—such as a glossary of terms, a check box to signal functional claim language, or claim charts—in each patent application.