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Putting the USPTO to Work for Independent Inventors
Blog by Under Secretary of Commerce for Intellectual Property and Director of the USPTO David Kappos
My first few months at the USPTO have been exciting and inspiring, and I feel privileged to be leading the USPTO at this critical time for the IP community, and the country as a whole. When I was sworn in 90 days ago, I came in with a clear mandate from Commerce Secretary Locke to fix our broken patent system and reduce the backlog that has hamstrung innovation and hindered job creation and economic growth. We have ambitious goals and, with your help, I feel confident that we can achieve them.
I want to take this opportunity to salute the hard work and dedication of the USPTO’s highly capable staff. As I've commented at various events the last several months, the USPTO team is every bit as smart, intense, thoughtful, passionate, and hard-working as any I have ever worked with in the private sector. And I want to thank the IP community for its valued input and support these past few months. In order to foster as active and open a dialogue as possible with our stakeholders, we are launching the Director's Forum public blog. I hope this will be a useful vehicle for sharing ideas and concerns on a regular basis.
This past week, I had a chance to participate in the 14th Annual Independent Inventors Conference here at the USPTO campus in Alexandria. This conference, which brought together almost 200 members of the independent inventor community from around the country, was an opportunity to rededicate ourselves to serving the independent inventor community in the ways we already do and to finding new ways to be of service. It was also an opportunity to reflect on what we have accomplished thus far, and to elaborate on some of our priorities from the standpoint of the independent inventor community.
Thousands of independent inventors and small businesses do critical R&D every day and produce innovative goods and services that benefit the public in so many critical areas. Surgeons invent new tools to save lives right there in the operating room, young people find new ways to write software in a school computer lab, and independent inventors create solar chargers – and a short while later that solar charger has created 900 good jobs here in America. Innovation generated by the independent inventor community will play an even more central role in the future of the American economy. To make sure that happens, we must provide you with the incentives and protections of an effective, modern patent system – and we must have a functioning patent system that unlocks funding for start-ups and small businesses.
How can we best accomplish that? We have already moved swiftly to implement much needed reforms in the patent examiner count system and have provided incentives that will improve the examination process and reduce pendency. We have rescinded the claims and continuations rules that would have penalized the innovation community. And we have just adopted an application exchange pilot program that is specifically designed for small entities. This program will allow independent inventors and qualifying entities to receive special status for one application in exchange for withdrawing another application that may no longer be needed. Since last year we have noticed a significant upturn in cases being abandoned after the first office action, without reply to the first office action. With this in mind, the program enables applicants to focus USPTO resources on what is important, rather than having examiners review applications that are no longer important to their owners. This allows our users to help us prioritize our workload and will help clear the backlog. It is a win-win, and we will be actively looking for other such opportunities.
In order to fully serve the needs of everyone in the innovation community, however, Congress must pass patent reform legislation. The legislation being drafted in Congress will ensure that the USPTO gets the funding it desperately needs to operate efficiently and to protect the intellectual property rights of all innovators. And it will give the USPTO the fee-setting authority it needs to do business.
I know that many independent inventors, like most segments of the IP community, have concerns about some of the provisions in the bill, and I had the opportunity to address some of these concerns at last week’s conference. The legislation is the product of a series of compromises in the eyes of virtually every segment of the IP community. But it is also a vast improvement over what we have now – and there is a strong consensus that the status quo is simply unsustainable. It is therefore gratifying to have had such an open, vigorous and fact-based discussion on areas of particular concern to this community – namely, the proposed revisions in the post-grant review process and in the priority filing system.
As I said last week, we’re working with Congress to ensure a fair and balanced approach to post-grant review. But it needs to be cost-effective and fast, and the bar has to be set high enough to protect against abuse and serial challenges. Non-meritorious requests should be summarily denied. And challenges should be quick and cost-effective, and ideally produce a virtually bullet-proof patent at the end of the process.
With regard to the patent-priority system, the bill’s proposal to move to a first inventor to file system really represents only a minimal change to the process we use now. The new system would not create a situation where someone could steal an idea and win a race to the patent office. That person would not be an inventor and would not be eligible for a patent in the first place. Keep in mind that there are stiff penalties in place to protect against that. So the real issue involves the case of simultaneous non-collaborative invention that is currently resolved through the interference system.
The truth is that only .01 percent of all patent applications could be affected by a change to first inventor to file. The interference system is already biased in favor of the first inventor to file and 70 percent of the extremely small number of cases that get into the interference process are decided in favor of the first inventor to file. For more on these and other issues, I would encourage you to read the text of the speech I gave at the Conference on our Web site.
In closing, I want to hear from you. All of us at the USPTO know that we benefit immensely from your input. We are here to serve all segments of the IP community better. And I am committed to doing what is good for every stakeholder group and every segment of the IP community. That is my pledge to all of you.
Thanks for reading, and I hope you’ll stay tuned.