Prioritization: Addressing the Patent Application Backlog at the United States Patent and Trademark Office

Abstract

The United States Patent and Trademark Office (USPTO) faces a backlog of over 700,000 patent applications that are examined in the order of their effective U.S. filing dates. Currently, a patent examiner begins work on a backlogged application approximately 2p-3 years after the filing date. Total pendency averages around 3-4 years. Since USPTO Director David Kappos took his position in 2009, he has sought to address the backlog by implementing work sharing and acceleration programs with foreign patent offices and adopting new procedures to encourage applicants to abandon unimportant applications. Kappos also created an Internet website, the Data Visualization Center (Patent Dashboard), to increase transparency at the USPTO by making backlog statistics publicly available. In his newly formed public blog, he reported that the USPTO reduced the backlog from greater than 750,000 applications in 2009 to approximately 725,000 in 2010 with the ultimate goal of reducing the backlog to fewer than 700,000 applications by the end of 2010. The USPTO has adopted several administrative procedures to address the backlog issue, but none have yet succeeded. Consequently, in June 2010, Director Kappos announced a proposal designed to provide applicants greater control over the speed with which their applications are examined and promote greater efficiency in the patent examination process. The proposal would allow patent applicants to choose among three tracks - prioritized (Track I), traditional (Track II), and delayed (Track III) - for examination of new patent applications filed first in the United States. The only requirement for Track I prioritized examination is payment of an additional fee for a faster examination. This way, the applicants will help the USPTO sort through the 700,000 backlogged applications and identify and examine the most time-sensitive applications first. This Note describes the current prioritization procedures at the USPTO and evaluates the Three-Track Proposal. Part I describes how the current backlog frustrates the goal of the patent system. Part II provides an overview of the past and current USPTO procedures for prioritizing applications. Part III describes the Three-Track Proposal in detail and proposes reforms to the proposal to better achieve the goal of the patent system described in Part I.