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This is true even on an automobile assembly line. But the quota system in the Patent Office goes far beyond this. It is not merely a question of subordinating quality to quantity in order to meet a production goal. What is involved is a total obliteration of the concept that there can even be a requirement of quality, regardless of how low it may be, in the examination of patent applications. It is hardly any wonder that examiners refuse to become concerned with the quality of the examination they perform, when the result thereof will be punishment, not reward. How can such a system do anything but foster invalid patents?
Now, the first subsection is entitled, "The Numbers Game."
The quota system has produced many strange results. Examiner productivity is measured in terms of the number of cases he allows, the number of cases which become abandoned (these two together are considered disposals) and, strangely enough, the number of new cases he acts on. Abandonments can hardly be controlled. The prime factor in productivity is therefore allowances, because they are the easiest. The temptation for an examiner to allow a case, when he must meet a production goal, is almost unbearable. The validity of any patent issued under such circumstances is highly suspect. But there is even a greater evil involved. If an examiner allows a new case on the first action, he then gets double credit, i.e., one credit for acting on a new case and one credit for allowing the identical case. In other words, he need work only half as hard as any other examiner and attain the same production rating. If an examiner is not meeting his quota because he is low on allowances and low on abandonments, he can then resort to the expedient of making up the deficiency, at least temporarily, by acting on a sufficient number of new cases. Normally speaking, an action on a new case is the most time consuming one, involving an understanding of the specification and claims, searching the prior art, writing an Office action, et cetera. If an examiner resorts to this expedient in order to meet his production quota, the time he spends on each new case is severely curtailed and the quality of the examination thereof must inevitably be lowered.
And this next section I have entitled, “Superficial Treatment of the Most Complex Cases."
Another equally strange result of the quota system is that the most complex cases receive the least thorough prosecution, a practice which must inevitably result in the issuance of invalid patents. How could such an obviously destructive practice arise, and, even further, how can it be permitted to continue unabated? The answer to these questions is simple: it is the result of a quota system administered in a manner which borders on absurdity.
The key here is complexity: i.e., obviously some cases require more time for examination than others. But the simplest way to administer a quota system is to make the absurd assumption that all cases are of the same level of complexity. Thus, in any examining group, all cases are assumed to be of the same order of complexity, even if more than 50 examiners are involved. Cases involving nothing more, for example, than making a mixture of metals useful as an alloy, and this I have attached as exhibit A, which is two pages, are
deemed to be as complex as cases involving the production of synthetic diamonds, and this I put in the record as exhibit B. An example of other equally complex cases is the production of exotic boron containing compounds, which is exhibit C, which is 35 pages of text and claims compared to 1 or 2 for alloy patents. I might add parenthetically they are of the same order of complexity.
Now, if the officials of the Patent Office were to be questioned on this issue, they would undoubtedly answer that different arts have received different complexity factors. However, these factors appear to be purely mythical because no examiner has ever been told exactly what is the complexity factor for his particular docket. Even if such complexity factors did exist, they certainly did not arise as the result of any legitimate statistical study. It is not too well known, but they arose as the result of politics. The officials having the most influence got the best deal they could, i.e., and assignment of a complexity level as high as possible, for the examiners under them so that they (the officials) personally could benefit by having a lower case load assigned to them. In the not too far distant past all examiners (Officewide) were adjudged to have cases of exactly the same complexity, and their efficiency was measured by the number of Office actions they produced per week. There is nothing to lead me to believe that the present system really differs in essence from the former system.
The next section is titled, “Misuse of Computer Resources."
Perhaps the strangest result of the quota system is the use of extremely expensive computer time to keep production records on examiners which are complete to the nth degree. Production records show, for well over 1,000 examiners, such diverse factors as the number of new cases acted on, the number of allowances, the number of abandonments, et cetera. They also include such other strange items as balanced disposals, hours per balanced disposal, and so on, ad infinitum. What possible justification can there be for employing valuable computer time to compile this mountain of production records, essentially nothing but a mass of trivia, and not of the slightest consequence when pursuing a goal of processing patent applications to produce patents of the highest possible validity.
În view of the urgent necessity of finding some way to employ computers to aid an examiner in the examination of patent applications, the spectacle of employing a computer for nothing more useful than the compilation of infinitely detailed production records is almost ludicrous. Admittedly, no one has yet demonstrated how to successfully employ a computer to completely search all patent applications. But progress has been made in employing computers for search purposes, particularly in the area of the chemical arts and particularly by the British Patent Office. If the U.S. Patent Office is not aware of this, then there is no excuse therefor. Further, all domestic patents in a recently revised chemical class (class 423) are completely coded at least as to process conditions employed. All that remains to be done is to place this information into an information retrieval system, e.g., a computer. Three years at least have gone by since this coding project was completed, and nothing has been done with it. And during all of this period computer time
available to the U.S. Patent Office has been employed for nothing more useful than the creation of examiner production records. There certainly appears to a complete misunderstanding here of exactly what projects should receive priority with respect to the use of computer time.
Now the last paragraph I have on the quota system is entitled, "The Bounty System."
Any quota system must inevitably lower the quality of the product which is produced under it. Just taken by itself the devastating effects it produces are cause enough for alarm. But the U.S. Patent Office has succeeded in adding even one more refinement which serves to lower the quality of the product produced under its quota system still further. This is the bounty system, i.e., an extra reward for exceeding an assigned quota which by itself leads to a lower quality product.
The system employed here is very simple. If an examiner succeeds in exceeding his assigned quota by 10 percent, he then receives a bounty of $350. The total number of hours he spends per annum in examination of applications is still the same, so that the end result must be less time spent on examining each case. The resultant quality of the product is thus lowered even more. This is not a trivial issue. According to one published report this bounty system was the cause of much wrangling between the former Commissioner of Patents, Gottschalk, who wanted to abolish this system, and the former Assistant Commissioner Wahl, who favored it. Chemical Week, August 1, 1973, page 13. [Exhibit D.]
Now I spent quite a bit of time on that. I will try to summarize a little bit more.
Senator Hart. The five specific topicsMr. WEISSMAN. Well, do you want me to just briefly summarize! There are other issues here on what else the Office is doing, which I consider pretty bad in harming the system and causing them to issue invalid patents.
Senator HART. All right. Proceed. I have been following your testimony and the positions you have taken on the five specific items as mentioned in your testimony, and while I have interrupted you, let me see if I can summarize at least that part.
Turning to page 24, is it correct that as an individual you believe that the opposition proceeding as suggested in the bill is desirable ?
Mr. WEISSMAN. Yes.
Senator Hart. That the deferred examination, provided there is a prompt issuance of a report of patentability, you suggest is desirable?
Mr. WEISSMAN. Correct.
Senator Hart. And on the maintenance fee, you believe the proposal is desirable ?
Mr. WEISSMAN. Yes.
Senator Hart. And on the independent agency, you believe it is desirable ?
Mr. WEISSMAN. Yes, I spelled that out in quite some detail.
Senator HART. The one I haven't finished reading, so I will ask you briefly to tell us before you turn back to the rest of the statement, is the public counsel section.
Mr. WEISSMAN. Well, I went into points of detail there and the reason I like it is because the Office gets the blame for a lot of invalid patents, that is, as they are invalidated in the courts, on grounds which the Patent Office presently can't review. In other words, supposing somebody has publicly used an invention, that would be grounds for invalidating a claim and it can be invalidated in a court, but the Office has no way to.
I go into other things. I go into a detail we have, Senator, a rule for public use proceedings, but it is never used, or is rarely used.
And what I tried to explain, there are certain aspects of Office practice, such as this public use, where, if we had a public counsel with the proper powers, this issue could be disposed of right in the Office. And that is not the only one, there are others.
In other words, what I would like to see is the Office go into all issues that could invalidate a patent and not leave it to some court, and thereby give us a black eye on something which we don't have any power to investigate right now.
Senator Hart. Well, I wanted to make sure we got your position as an individual on those items. Now you can proceed as you desire.
Mr. Weissman. Yes; well, briefly, what I did, I went into quite great detail in trying to show the way the Office operates. Although I am not going to say it is all at fault, but because of the way they operate, they just turn out a product that isn't too good, and this next section I entitle, “Lack of a Meaningful File Wrapper Record.” Now, do you want me to just summarize it?
Senator Hart. If you would, please.
Mr. WEISSMAN. Well, when you get into court, the validity of the patent is based almost solely on its file wrapper and the purpose of this section is to point out that the way the Office is presently operating tends to lower the value of this file wrapper history. In other words, we have what we call a PO-1142, a first action form, which is so brief that it doesn't really explain anything. There is no chance to develop the issues properly. If a patent gets into court and a judge sees this first PO-1142 form, he is not going to be impressed by it very much because it doesn't say very much. And unfortunately, if a case goes out like that, there has just never been any development of the prior art or of the issues involved.
The second section is entitled, "The Insistence of the Patent Office on Shortening Prosecution Time.” This is very interesting because there has been quite a bit of testimony to the panel on the shortening of prosecution time. The present goal is to get the patent issued in 18 months.
Now, what is done there, there are certain ways of shortening the prosecution time in the Office. You try to move up the time as fast as possible to where you act on a new case as quickly as possible, that is, as soon after it is filed as you can. Second, the Office likes to see a second action in a case within 2 months time of the time that the first amendment comes back, and they also would like to see that second action made final. Now, this is very nice. It shortens the prosecution time. But what I try to do here is point out that when you do that, when you do shorten the prosecution time that much, then there are certain undesirable results which follow. You won't be able to research the chemical literature in chemical cases. It is unlikely you will be able to get recent foreign patents. In other words, with
patents having a very short prosecution time, well, there is just no way to search the records properly. You have left out those two very important sources of prior art.
I could try to clarify that a little bit further.
Senator Hart. I think you have spelled it out understandably in here. I am following it.
Mr. WEISSMAN. Well, in chemical cases, for instance, we rely on chemical abstracts to do the searching in the chemical literature. In other words, suppose a case is allowed to go out to patent in 18 months. Now presently the indexes which we use to search the chemical literature, those indexes come out a year to a year and one-half later. The abstract itself is of no value. You can't consider that. You must have the index. In other words, we will just barely get the index by the time the patent is issued so there is no way to search that.
Now on the foreign patents, it just takes a little time until they are shipped over and until somebody looks them over—especially if they are not in English because you have to translate—and it takes time because you have to get them up to the examiners and they have to put them into the files. It all takes time. It is very haphazard, and with this shortened prosecution time we almost have a guarantee we will never see recent foreign patents. So the greatest evil of shortened prosecution time is it totally eliminates very important areas of prior art.
Now I will just briefly summarize these other sections. There are certain things the Office does. We have a manual on patent examination procedures. We have a rule of practice that says for instance, when it comes to an interview, that after the interview, a complete written record is supposed too be placed in the file wrapper so anybody can see what transpired. But yet we have what we call an office form POL-327 and I quote: “All of the claims being allowable, prosecution on the merits is closed in this application and the Notice of Allowance or other appropriate communication will be sent in due course, in view of” and then it lists the following: "telephone interview” and “personal interview.”
Now, when that letter goes out, when that 327 goes out, the case is allowed so the attorney couldn't even get the written record in, or there is no necessity to get that written record in of what transpired as a result of that telephone interview even though the rules of practice definitely require that.
Of course what is even worse is that if it gets into a court contest and a judge sees that, then I don't think he is going to like the idea at all that happened. In other words, as a result of that telephone interview a case could be allowed, and yet the record would be totally devoid of the slightest indication of why it was allowed.
The next section I will just briefly go over. I feel that the Office just isn't using its personnel in the best possible manner. I think they could be a little bit more, well, I think they could be a little bit more efficient in the way they use that personnel. I will just leave it at that.
We went into the five sections that you had discussed previously. Senator Hart. Yes.