The State of the RCE Backlog

Tackling the Application Backlog
When David Kappos took over as Director of the USPTO in August 2009, he was greeted by an overwhelming backlog of patent applications. By the following month, Mr. Kappos proposed changes to address the growing problem. These changes were directed at the USPTO’s docket management and examiner count systems. As a refresher, the examiner count system is one of the USPTO’s methods for influencing examiner productivity. As John Penny and Joshua Rudawitz of Nutter put it:

The examiner count system is the stick by which a patent examiner’s production is measured. Although the U.S. Patent and Trademark Office (USPTO) does set expected time limits for each task, examiners’ production goals are met by receiving ‘counts,’ which are accrued by completion of various tasks associated with the examination process.

Prior to Mr. Kappos’s changes, examiners received the same credit for each successive RCE as they did for new applications. Because RCEs typically required less effort on the part of examiners, new applications took a back seat. The resulting backlog spurred Mr. Kappos to action.

Trading One Backlog for Another

Mr. Kappos’s changes re-incentivized the review of new applications in two ways: (1) examiners were no longer required to respond to RCEs within two months; and (2) examiners received more credit for reviewing new applications. As intended, this system dis-incentivized RCEs. Thus, the USPTO essentially traded one backlog for another.

Hover over the graph to see specific data.

On January 1, 2010, there were 16,580 pending RCEs. Within six months, that number increased to 28,480. By March 18, 2013, the RCE backlog peaked at 112,785. Put another way, the number of pending RCEs increased by nearly 100,000 within a few years.

The effect of these changes is visible when comparing the number of opened RCEs with the number of closed RCEs. This can be seen in Figure Two, above. Up until 2010, the number of closed RCEs and the number of opened RCEs were relatively equal. However, after changes to the count system, the two lines diverged. This is consistent with an increase in the RCE backlog. So long as the number of opened RCEs exceeds the number of closed RCEs, the backlog will necessarily increase.

RCE Leveling Plan

Finally, after a period of public comment, the USPTO undertook a two-phase RCE leveling plan. Phase One, which took effect in March 2013, involved a temporary increase in credit for RCEs. Phase Two, which took effect in October 2013, included workflow modifications and long-term credit increases. The effect of these changes are evident in both figures herein. In Figure One, we see a tipping point at the implementation of Phase One.  In Figure Two, we see a clear uptick in the number of closed RCEs during the same month.

Some Examiners Didn’t Get the Memo

The USPTO’s plan to reduce the RCE backlog is clearly working. Nonetheless, it seems some examiners didn’t get the memo. These are the ten examiners with the most pending RCEs on December 31, 2014.

As of that date, Patent Examiner Lance Rider had 96 pending RCEs. Mr. Rider works primarily in Art Unit 1618 – drug, bio-affecting, and body treating compositions. Examiner David Shay of Art Unit 3769 had the second largest RCE backlog at 76. Art Unit 3769 covers surgery. Dante Ravetti closed out the list with 61 pending RCEs, primarily in Art Unit 3685 – data processing: financial, business practice, management, or cost/price determination. Four of the 10 examiners work in Technology Center 3700. Three hail from TC 1700, covering chemical and materials engineering.

What Now?

We will keep our eye on the RCE backlog in the months to come. The data suggests continued success in addressing the problem. In the meantime, readers can research these examiners further using Juristat’s free trial.