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New USPTO Director: “Patent quality does not equal rejection.”

August 25, 2009

It appears that the new USPTO Director (Kappos) is taking little time to change the direction of the USPTO from rejecting patent applications to actually granting patent applications (the USPTO allowance rate has recently dropped close to 42% from a previous average of 70%).  In a recent e-mail to Patent Examiners, Director Kappos stated the following which is welcome news to everyone involved with patents:

One key is to expeditiously identify and resolve issues of patentability—that is getting efficiently to the issues that matter to patentability in each case, and working with applicants to find the patentable subject matter and get it clearly expressed in claims that can be allowed. The examiner and the applicant share the responsibility for the success of this process.

On the subject of quality, there has been speculation in the IP community that examiners are being encouraged to reject applications because a lower allowance rate equals higher quality.  Let’s be clear: patent quality does not equal rejection. In some cases this requires us to reject all the claims when no patentable subject matter has been presented. It is our duty to be candid with the applicant and protect the interests of the public. In other cases this means granting broad claims when they present allowable subject matter. In all cases it means engaging with the applicant to get to the real issues efficiently—what we all know as compact prosecution.

When a claimed invention meets all patentability requirements, the application should be allowed expeditiously. … [B]y engaging with applicants early on, we certainly can get to the point more quickly, and efficiently allow those claims that are entitled to patent protection.

Only time will tell if the Patent Examiner’s actually follow the lead of the new Director.

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