Although there have been some improvements made in the USPTO regarding patent pendency and backlog, there remains much to be desired regarding examination efficiency. Total patent pendency hovers around 33 months and there are over 620,000 pending patent applications still awaiting their First Office Action. These are certainly not comforting statistics for those desiring quick allowance of their applications.
Established by the Leahy-Smith America Invents Act (AIA), the USTPO recently launched a program allowing third parties to assist in the examination of any given pending application. Codified under 35 USC §122(e), this new rule states:
Any third party may submit for consideration and inclusion in the record of a patent application, any patent, published patent application, or other printed publication of potential relevance to the examination of the application, if such submission is made in writing before the earlier of
(A) the date a notice of allowance under section 151 is given or mailed in the application for patent; or
(B) the later of
(i) 6 months after the date on which the application for patent is first published under section 122 by the Office, or
(ii) the date of the first rejection under section 132 of any claim by the examiner during the examination of the application for patent.
In a partnership with Stack Exchange, the USPTO now offers an online social network dubbed “Ask Patents” wherein third parties can submit relevant prior art to assist Examiners. Individuals can also use the platform to answer patent-related questions posted by other users.
So will this crowdsourcing initiative make any meaningful contribution to patent examination in the USPTO? Will it serve as a means for disgruntled entities to bog down examination for their competitors? How will the USPTO filter out irrelevant submissions and prevent abuse? It’s too early to say, but from my initial assessment of Ask Patents, it appears that most postings and questions have received at least a few replies and dozens, if not hundreds, of views.
For now, I think most would agree that having more (qualified) eyes involved in the examination process is a step in the right direction towards shorter pendency and higher patent quality.