In an effort to enhance the quality of patent prosecution in the United States, the PTO launched the Enhanced Patent Quality Initiative (EPQI) in February 2015 with a notice and request for comments in the Federal Register.1 The comment period closed in May 2015. According to PTO Director Michelle K. Lee, “[p]atents of the highest quality can help to stimulate and promote efficient licensing, research and development, and future innovation without resorting to needless high-cost court proceedings. Through correctness and clarity, such patents better enable potential users of patented technologies to make informed decisions on how to avoid infringement, whether to seek a license, and/or when to settle or litigate a patent dispute.”2
The goals of the EPQI are threefold:
- Build more confidence in the patent system by enhancing patent quality;
- Make the system understandable and usable by all inventors; and
- Ensure customers are treated fairly and professionally throughout the patent application process.
The PTO hosted numerous events in 2015 to promote discussion about the EPQI and solicit feedback,3 and on November 6, the PTO Director blogged about the positive response to the Federal Register Notice and the various events. According to the Director, “[p]atent quality is central to fulfilling a core mission of the USPTO, which as stated in the Constitution, is to ‘promote the Progress of Science and useful Arts.’ It is critically important that the USPTO issue patents that are both correct and clear. Historically, our primary focus has been on correctness, but the evolving patent landscape has challenged us to increase our focus on clarity.”4
On the blog, the Director announced two of the initial programs that will take place as a result of numerous comments and extensive feedback the USPTO has received since announcing the EPQI.
First, the PTO will be launching a Clarity of the Record Pilot. Under this pilot program, Examiners will include definitions of key terms, pertinent claim constructions, and more detailed reasons for allowance or rejections of claims as part of the patent prosecution record. Information gleaned from this pilot will lead to the development of best practices for enhancing clarity of the prosecution record.
Second, the PTO is transforming their Review Data Capture Process, which is meant to unify their internal review process by ensuring that any review of a patent examiner’s work product will follow the same process. All reviewers will be systematically recording their review results through an online form, the “master review form,” which will be shared with the public. Data collected from this process and form will allow the PTO to identify reviewing trends across the agency, including at the technology center, art unit, and examiner levels. Additionally, this will allow the PTO to determine “whether the reasons for an examiner’s actions were spelled out in the record clearly and whether there is an omission of a certain type of rejection.”5
The Director stated that the end results of these pilots programs will be the “(1) ability to provide more targeted and relevant training to our examiners with much greater precision, (2) increased consistency in work product across the entire examination corps, and (3) greater transparency in how the USPTO evaluates examiners’ work product.”6