“On the one hand, [DOGE’s] current primary tools… need some accommodation to grasp the unique aspects of the USPTO. On the other hand…[it] has stimulated some real thinking and activity to improve efficiency in both examination practices and patent enforcement.”
In recent weeks I have frequently been asked for my thoughts on the interaction between the new Department of Government Efficiency (DOGE) and the U.S. Patent and Trademark Office (USPTO). My answer is always that I am a bit concerned about the impact of DOGE on the Agency. It seems to me that a user-funded agency falls into a slightly different category with respect to government efficiency measures on the use of funds. Of course, those (steadily-rising) user fees are a form of “taxation” on the U.S. innovation system and should be part of a real drive to improve government-wide efficiency.
In addition, the USPTO could use some genuine incentives to improve its performance. The backlog problem has been perpetual throughout the many decades that I have participated in the patent system. Indeed, the standard response for decades (hire more examiners) has not really made a lot of progress. Maybe some outside “influence” could stimulate some new thinking about ways to reduce the problem. Of course, I “get it” that USPTO will face real challenges to reduce its backlog if many examiners take an “early retirement” offered by the Trump Administration. Maybe some special rewards for examiner efficiency and diversion of some resources toward backlog reduction would help? And I also “get it” that the “return to work” program may pose another challenge to improvements in examiner efficiency. Maybe a hybrid system that requires some “office days” every week and more productive monitoring of remote work would help?
The DOGE Mandate Presents an Opportunity for New Solutions
It is my profound hope that the Trump Administration inspires some new thoughts about solutions, not complications, to the backlog problem. At the same time, I would urge the USPTO to recognize better that the patent system is really an international system and our work and cooperation with the other primary IP nations (the IP 5 in particular, which should probably now expand to include India and Israel) is essential to make the patent examination and enforcement systems more efficient. Insightful patent practitioners have worked together on that approach for years.
I have often thought that examination could be better shared and harmonized amongst the major patent nations and thus make each nation and the entire system more efficient. Of course, the PPH (patent prosecution highway) is a baby-step in the right direction, but like other past solutions, it has not solved much. Maybe a system that truly shared prior art and allocated examination to one patent nation that other patent nations would honor would help? I am not oblivious to the harmonization challenges (primarily eligibility standards, grace periods, and objective considerations of non-obviousness) that must be met to make a genuine international patent examination system work. Maybe the intervention of a President who might demand that the U.S. Congress and Judiciary get domestic eligibility rules into the mainstream of international norms and who might threaten reprisals if the EU did not adopt a grace period might help? President Xi routinely demands that the Chinese IP systems meet state policies and goals. A similar directive from President Trump might really make a difference to “MAKE U.S. PATENTS GREAT AGAIN.” I hope that kind of thinking gets a more prominent “look” at DOGE and the USPTO.
In sum, I find myself somewhat of two minds on DOGE and USPTO. On the one hand, its current primary tools—early retirements and return to work— need some accommodation to grasp the unique aspects of the USPTO. On the other hand, I appreciate that the DOGE focus on all U.S. agencies, including the USPTO, has stimulated some real thinking and activity to improve efficiency in both examination practices and patent enforcement.
The Real Way Forward
For me, the real key to DOGE/USPTO interactions may be the actions of a new Trump-appointed Director at USPTO. I hope that he or she harnesses the impetus for change to really improve efficiency at the USPTO, which has not really done much different or made much progress for decades. And I will not really even start to comment on the uneven and disruptive doctrines at the U.S. Court of Appeals for the Federal Circuit that have made the United States an outlier in international patent enforcement norms.
As I suggest, the DOGE inquiries have at least supplied some impetus to review the efficiency of the U.S. patent prosecution and enforcement systems. The “way forward” to ensure greater efficiency in both areas will likely require some legislative changes (like the PERA initiative in Congress) and executive branch changes (like more international harmonization and improvements of the U.S. system to find genuine advancements). The DOGE inquiry may well be the stimulus that achieves some genuine improvement at the USPTO. In sum, I welcome genuine and fine-tuned attention to making IP systems more efficient: MAKE U.S. PATENTS GREAT AGAIN!
Image Source: Deposit Photos
Author: iqoncept
Image ID: 777397626
