Key Takeaways from the 2020 USPTO Performance and Accountability Report
Each year, the USPTO releases a Performance and Accountability Report that analyzes the agency’s performance and evaluates how well it met the goals of its five-year Strategic Plan. Here are the key takeaways from the 2020 report.
The USPTO’s current Strategic Plan began in 2018 and will conclude in 2023. For its 2020 patent operations, the agency set out to achieve one Strategic Goal, which was to be accomplished via four Objectives:
Strategic Goal: Optimize Patent Quality and Timeliness
- Objective 1: Optimize Patent Application Pendency
- Objective 2: Issue Highly Reliable Patents
- Objective 3: Foster Innovation through Business Effectiveness
- Objective 4: Enhance Operations of the PTAB
We will discuss the Strategic Goal and each Objective in more detail below. While it is difficult to independently evaluate the veracity of each of the USPTO’s claims due to its use of non-publicly available data, it appears that the agency met, or at least made progress on, its 2020 goals and objectives for its patent operations.
Strategic Goal: Optimize Patent Quality and Timeliness
The USPTO’s Strategic Goal for its patent operations in 2020 was to optimize patent quality and timeliness. Success was measured by using two Key Performance Indicators (KPIs): (1) average first action pendency (months), and (2) average total pendency (months). Its 2020 target was an average first action pendency of 15.0 months or less and an average total pendency of 23.7 months or less. See Figure 1 below for the results of how well the USPTO has met those KPIs over time.
While the USPTO met both of its KPIs for its 2020 patent operations, the KPIs it chose concern only the patent timeliness prong of its Strategic Goal. There are no KPIs for measuring patent quality — if a KPI for such a subjective goal even exists. The Report does not explain the absence of KPIs for patent quality, nor does it offer any theories as to how the KPIs it chose could be used to measure both timeliness and quality. It does, however, go into great narrative detail when explaining the various measures it took to achieve its second Objective (“Issue Highly Reliable Patents”).
Meeting the Strategic Goal: Objectives
Objective 1: Optimize Patent Application Pendency
Shortening Examination Timelines
The USPTO set out to accomplish its first objective partially by shortening examination timeframes. While it successfully reduced some aspects of application pendency (as shown above), the Report does not go into much detail as to how the agency accomplished this. It attributes its success in this area to “the efforts of our employees, at all levels, to dramatically improve analyses, streamline, processes, and clarify approaches that benefit currently filed patent applications, as well as future patent applications.”
Balancing Workload and Capacity
Another component of optimizing patent application pendency is aligning production capacity with incoming workloads. Each year, the agency performs an analysis to determine areas of high pendency and then places new examiner hires in those areas. Work from areas of high pendency are also routed to areas of low pendency when there are overlaps in examiner expertise. The agency evaluates the efficiency of the examination process by measuring total patent-related expenses USPTO-wide against patent production (i.e., lower expenses + higher output = greater efficiency), expressed as the total cost per patent production unit (see Figure 2).
Offering Alternative Prosecution Options
Examiner efficiency was further enhanced through a variety of programs, including Track One for Prioritized Examination, Quick Path Information Disclosure Statement (QPIDS), After Final Consideration Pilot 2.0 (AFCP 2.0), and Patents 4 Patients (the Cancer Immunotherapy Pilot Program). Early in the COVID-19 pandemic, the USPTO announced a pilot program to prioritize examination of patent applications filed by small and micro entities covering a product or process related to COVID-19, which aimed to provide a final disposition within 12 months. The 2020 Report does not include a preliminary report on the effectiveness of that program.
Objective 2: Issue Highly Reliable Patents
Refining Production Standards
In 2020, the USPTO implemented the first phase of a program designed to improve examiner production standards. This phase increased the minimum amount of time patent examiners are allotted to examine each application, as well as giving them additional time to examine applications with certain attributes (e.g., high number of claims, long length of specification, etc.). It plans to continue the second phase of this program in 2021 by implementing new examiner performance appraisal plans.
Streamlining Prior Art Searches
The agency continued to improve examiners’ ability to access prior art by deploying artificial intelligence (AI) and machine learning (ML) techniques into the search process. The new search system is a cloud-based “one-stop shop” system that uses AI capabilities to allow examiners to automatically retrieve prior art documents, review the documents more efficiently, and use suggested search areas to ensure complete searches. The system also captures feedback from examiners as they search to improve the ML models, and it is scalable to keep up with the ever-expanding universe of prior art.
Providing Clear Examination Guidance for Subject Matter Eligibility
In 2019, we reported that the USPTO issued revised patent subject matter eligibility guidance, which was intended to simplify the Mayo/Myriad/Alice framework for examiners and make its application more consistent from examiner to examiner. The USPTO’s 2020 Report claims that the 2019 guidance resulted in a 25% decrease in the likelihood that an application in Alice-heavy art units would receive a first office action with a § 101 rejection. It also claims that uncertainty about determinations of subject matter eligibility for the relevant technologies decreased by 44%. The Report seemed particularly proud of these developments, noting that the 2019 guidance “has marked a significant step in moving beyond the recent years of confusion and unpredictability on subject matter eligibility.”
Improving Examiner Education
Finally, the USPTO implemented several examiner education programs in 2020. The Refresher Training Program and Master Class Program are designed to keep examiners current on or improve their knowledge, skills, and abilities related to procedures, legal matters, communication, and automation that are evolving in their fields of specialty. The Virtual Instructor-Led Training program focused on updates to examination practices and procedures for more experienced examiners. The Patent Examiner Technical Training Program provided a forum for experts from various industries to cover technological advances in the state of the art, recent innovations, and emerging trends in their fields.
Objective 3: Foster Innovation through Business Effectiveness
Using Data to Improve Patent Quality
The USPTO evaluates patent quality with the assistance of quality assurance specialists from the Office of Patent Quality Assurance (OPQA) to ensure compliance with the requirements of Title 35 of the United States Code. In 2020, OPQA completed 12,000 reviews to determine the “correctness” of office actions (the Report does not define what “correctness” means). The results of OPQA’s results are shown below in Figure 3.
The USPTO also uses annual surveys to gauge external perceptions of its operations. The survey is sent to approximately 3,000 randomly selected, frequent-filing customers. In 2020, the survey showed that, for every “Poor” or “Very Poor” response, there were 11 “Good” or “Excellent” responses, the highest satisfaction since 2006. The Report notes that the increase in satisfaction was due to a spike in satisfied customers after implementation of the 2019 patent subject matter eligibility guidance.
Providing Pro Se Assistance
The Pro Se Assistance Program helps under-resourced inventors and small businesses file patent applications without the assistance of a patent attorney. Its goal is to make the patent system more transparent and reduce obstacles for underrepresented patent applicants through walk-in-meetings, one-on-one assistance, and educational programs. In 2020, the program received 6,936 phone inquiries, 798 email inquiries, 101 in-person visits, and 11 virtual assistance appointments. Examiners in the Pro Se Art Unit granted patents in over 1,175 applications, for an allowance rate of 35%.
Objective 4: Enhance Operations of the Patent Trial and Appeal Board
Meeting Challenges and Deadlines
Despite the challenges of 2020 — i.e., transitioning all employees to remote work with little to no notice and conducting all hearings virtually for the first time — the PTAB held onto its title as the busiest forum for patent challenges nationwide. From March 16 to September 30 (the beginning of the COVID-19 pandemic through the end of the USPTO’s fiscal year), the PTAB conducted 430 ex parte appeal hearings, 256 AIA trial hearings, and 15 reexamination hearings. Under the provisions of the CARES Act, the PTAB processed 107 extensions of time for parties in both ex parte appeals and AIA trial proceedings.
The PTAB also continued to meet its goals for the timeliness of its proceedings, including proceedings for which statutory deadlines apply. See Figure 4 for the average pendency of ex parte appeals and Figure 5 for the average pendency of AIA trial proceedings.
In 2020, the PTAB designated eight decisions as precedential and 16 as informative, touching on topics such as discretionary denial of institution, live testimony at oral hearings, and submission of new evidence at the rehearing stage.
With these annual USPTO reports, we are reminded that the patent landscape is constantly shifting and that the future will always bring a different set of challenges. Don’t be caught off guard when the industry changes. Using an analytics tool like Juristat can help you see how industry changes are impacting examiner behavior, response strategies, and more. Request a demo of Juristat today.