GOVERNMENT
Broad Changes Sweep Patent Office New Commissioner changes examining procedures, shifts personnel to speed up issuance of patents Edward J. Brenner, who took office as Commissioner o£ Patents just three months ago, has now made his first big move to attack the "Patent Office dilemma." The 40-year-old chemical engineer and attorney announced his plan early this month in a major statement of changes in goals, policy, and procedures (C&EN, June 15, page 19). In an unprecedented step, he sent a copy of the statement to every registered patent attorney and patent agent in the country. Along with the statement went a forthright letter enlisting the aid of all who are concerned with the U.S. patent system. The statement comes at a time when the Patent Office is under heavy pressure to cut down its backlog and speed up the issuance of patents. Speaking frankly of this situation, Commissioner Brenner points out that for the past three years the Patent Office each year received 10,000 more applications than it was able to dispose of. Thus, the patent backlog is growing at the rate of 10,000 applications per year. This rate will persist, he points out, "if we continue to operate substantially along present lines." The backlog is particularly severe in the Chemical and Electrical Operations of the Patent Office. For a chemical or electrical patent, the period of pendency (the time that elapses between the filing of an application and the gra/iting of a patent) is now about four years. Two years from now the pendency period "may approach as much as five years" if the backlog is not checked, Commissioner Brenner states. On the other hand, the pendency period in the other two operations of the Patent Office (General and Mechanical) is only about two and a half years. Also, the backlog in these operations has shown a relatively small increase. One feature of Commissioner Bren-
TIGHT QUARTERS. Patent examiners work in small, crowded offices. By 1970, they hope, the Patent Office will have a new, roomier home
ner's plan is intended to cut down the chemical and electrical backlog. Within the next year, he plans to increase the strength of the Chemical and Electrical Operations by about 75 examiners. At the same time, the strength of the General and Mechanical Operations will be reduced by about 50 examiners through normal attrition. As examiners leave these
operations, replacements will not be hired. Instead, the recruiting efforts will be directed toward hiring new examiners for the Chemical and Electrical Operations. Along with this shift in personnel, the Patent Office will institute some procedural changes which will take effect on July 1. These are: • Patent applications with the earliJUNE
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est filing dates will get priority. Previously, an examiner could begir work on a newly filed application even though an older one was on his desk and awaiting action. Under the new rule, an examiner will be required to work on the oldest application on his desk. This will make the older cases available as references against cases filed later and it should also help to improve the over-all validity record of patents. • Examiners will be encouraged to assist the applicant or his attorney or agent by pointing out those claims that are allowable or suggesting ways to make them allowable. Previously, examiners could simply reject claims without suggesting how they might be made acceptable. • Applicants will be required to respond to actions of the office within four months. In the past, they had six months to reply. • Second actions on the merits will be final in essentially every case. Under the old rules, there was no limit on the number of times that an applicant could rework a rejected claim and resubmit it. • Examiners will be authorized to grant an interview ft) applicants whose applications have had a final rejection. Commissioner Brenner believes that this will reduce the number of cases brought before the Patent Office Board of Appeals. These changes are sure to stir up some controversy among patent law practitioners. However, if these changes achieve what the Commissioner expects, the improvement will do much to smooth the ruffled feathers. These changes, along with other improvements in the Patent Office, Commissioner Brenner says, "should go a long way toward helping us meet our goal of handling an average of 100,000 applications per year during the next five-year period." The office now handles about 75,000 applications per year. Commissioner Brenner also hopes to cut the pendency time to one and a half years within the next five years. The Patent Office dilemma, as spelled out by Commissioner Brenner, is not new to the patent profession. For all too long, a staggering backlog has plagued the office. Since 1956, it has seldom slipped below 200,000 (Patent Office officials consider 145,000 as normal). And as 32
C & E N J U N E 22, 1964
far back as 1948 the backlog hit a record high of 233,174. Commissioner Brenner's moves should go a long way in solving this backlog problem. But lurking in the background is the basic cause of the backlog—a rapid turnover of patent examiners. About 200 of the roughly 1000 patent examiners leave each year. The chemical examining operation has been severely hit by the exodus. As of March of this year the Chemical Operation had a staff of about 271 examiners. However, Commissioner Brenner, in view of the chemical workload, plans to increase this staff to about 300. Some 50 to 60 chemical examiners leave the office each year. Thus, it will be necessary to recruit
about 100 or more chemical examiners during the next year. The shift of examiners, which will also benefit the chemical examining corps, was in part forced by the Patent Office's budget restrictions. Neither in fiscal 1964 nor in fiscal 1965 did the budget allow for hiring additional examiners. This was not always the case, though. In the mid-fifties, the Patent Office received a shot in the arm with both money and manpower. From 1955 to 1957, the corps of patent examiners grew from 808 to 1169. During this same period the budget increased from $11.6 million to $17 million. The corps of examiners had slipped to 1113 by 1963, but the
CLOSE TOUCH. Commissioner Brenner (wearing glasses) keeps in close touch with other patent officials on progress of his new plans
budget continued to grow (to $27.5 million in 1963). Money and men had little effect on the backlog, however. The 1963 backlog of 209,131 was only slightly below the 1955 level of 221,872. This has left Congress disillusioned. The substantial increases voted by Congress in the past are now hard to come by and probably will remain so. Early this year before the House Appropriations Subcommittee, Patent Office officials had little success in justifying their fiscal 1965 budget in terms of the work the office has turned out. The subcommittee ended up paring $1.5 million from the $32 million requested. Any hopes that Congress would loosen the purse strings were further dashed early in May when the Senate Patents Subcommittee released its annual report. The subcommittee expressed "its concern at the current state of administration in the Patent Office" and concluded: "Larger budgets and more examiners are not feasible answers to the Patent Office dilemma." With this in mind, the subcommittee next year intends to take a close look at what changes in the patent laws may be needed. Any changes could possibly take the form of some European systems. Such systems involve rapid issuance of a patent by avoiding a search of the prior art. Any challenge as to the novelty of the invention is then left to the courts. One Washingtonbased patent attorney says that any such change in the U.S. system would simply switch the backlog from the Patent Office to the already overburdened courts and not solve the problem. Commissioner Brenner believes many of the problems must be solved by the Patent Office itself. His farreaching policy statement reflects this belief. To a great' extent this belief is correct and it represents the fresh approach to Patent Office problems that began with former Commissioner David L. Ladd. However, there are many who doubt that any Commissioner can resolve the problems of the Patent Office without the strong support of Congress in terms of men and money. While the "inside" approach has not so far led to dramatic results, some far-sighted programs started by former Commissioner Ladd are be-
ginning to bear fruit. Commissioner j Ladd, who resigned as Patent Commissioner in October of 1963, made a strong effort to solve the manpower problem. During his administration, a patent academy was set up to train j newly hired examiners (C&EN, Feb. 5, 1962, page 35) and a program (C&EN, Dec. 24, 1962, page 30) for training high school graduates to do clerical, nonprofessional work in the Patent Office got under way. Commissioner Brenner is now picking up where Commissioner Ladd left off. He has already put some of his own plans into action.
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These plans are aimed at placing greater emphasis on professionalism and individual responsibility in the Patent Office—both of which have been lacking in the past. One of the most crying needs, if the Patent Office is to lure new patent examiners and keep those that are already employed, is a new building. Commissioner Brenner is hopeful that by 1970 the Patent Office will have a new home. Both the House and Senate Public Works Committees have already approved suburban Maryland as a location (no specific site has been picked). However, the D.C. Patent Bar Association is against the proposed site in suburban Maryland. The association claims any site outside of Washington itself will be highly inconvenient to some 600 Washingtonbased patent attorneys. Money for planning the Patent Office's new quarters is likely to be included in the 1966 budget, which goes to Congress early next year. Its chances of getting through Congress are good. Hopefully, the potential
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• T h e quota system for evaluating the performance of examiners has been finally laid to rest and a task group has been formed to set up new criteria for evaluating performance. • P l a n s were laid to decentralize management by giving responsibility for promotions and increases to those persons who are best acquainted with the examiners' work. • A career development program is planned. It will involve rotational assignments for outstanding professionals within the office as well as to other bureaus in the Department of Commerce; increased emphasis on training courses; and greater participation by examiners in legal and scientific meetings.
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squabble over a site will not prolong the use of the Patent Office's present quarters. The current home of the Patent Office presents a depressing picture. Examiners, confronted with a demanding task that takes great concentration, are crowded into small offices—two and sometimes three men to a room. The environment is noisy, dusty, dingy, and, in the summertime, steamy. Taken separately, these factors would be trivial. Together, they amount to a formidable obstacle to reducing the Patent Office's personnel turnover. Patent Office officials have already carried out clean-up, paint-up campaigns and air-conditioners are being installed as quickly as possible. However, none of these campaigns can really substitute for a new building. Despite these conditions, one official says, "We do have some good men who are making the Patent Office their career. Here, they are on the forefront of technological development and they can become experts in a given technical area." A new patent examiner progresses rapidly up the salary scale. His starting salary will be somewhere in the range of $5650 to $6770, depending on experience or college grades. Within four to five years, his salary could rise to $11,725. However, from this point on promotion is not so rapid and patent examiners then begin to look beyond the Patent Office for their future. Among the many patent law firms in Washington there are always some who are looking for experienced patent men. These firms offer more opportunities at the higher salary range than the Patent Office does. Couple this with the fact that about two thirds of the Patent Office's examining corps either have or are working toward a law degree, and the result is a rapid turnover. Turnover, however, is not the only factor behind the 'increasing backlog of the Patent Office. The complexity of today's patents is another factor. This complexity puts an added burden on the examiner and tends to reduce his output. In 1935, a patent examiner handled an average of 160 applications a year. Partly because of added complexity, the average today is only 80. One old hand at examining chemical patents says that much of the chemical knowledge needed to become an expert chemical patent examiner is not even taught in the schools today. 34
C & E N J U N E 22, 1964
Rep. Craig Hosmer (R.-Calif.) Wants law passed promptly
AEC Chairman Glenn T. Seaborg Wants more flexibility than bills give
Private Ownership of Atomic Fuel Backed But spokesmen for various groups disagree on details of the switch from government ownership Legislation should be enacted imimmediately to require private ownervnership of nuclear fuel. This was5 the testimony of all witnesses at hearings irings before the Joint Committee on Atomic tomic Energy's Subcommittee on Legislagislation, headed by Rep. Chet Holifield lifield (D.-Calif.). The committee is conconsidering two identical bills (S. 1160 and H.R. 5035) which would make private ownership of nuclear fuel manmandatory; under present law the Governvernment owns all of this material. However, there was considerable rable difference of opinion on the details ils of how the switchover in ownership rship should be handled. For example,i, the Atomic Energy Commission wants vants more flexibility to deal with future uture problems than is provided in the bills. Uranium miners and processors want stronger protection from potential 3ntial competition from uranium imports. ports. Utility companies disagree with AEC on the time at which private ownership rship should become mandatory. There are differences of opinion inion within the committee, too. Rep. Craig 3raig Hosmer (R.-Calif.) believes thatt the legislation should be passed promptly. iptly. In his opinion, the original sharp> differences of opinion within the industry ustry on private ownership of fuel have
b been essentially resolved. "If we postp pone action for a long period, say five y years or more, present procedures may b become so set that the opportunity to c convert the atomic power industry to a private enterprise operation may be lc lost," he says. On the other hand, Rep. Holifield is n not ready to approve the legislation ir immediately. He believes that the joint c committee can write legislative guideli lines for transfer of fuel ownership b he thinks that more time should be but d devoted to studying the impact of vario segments of the legislation on the ous aatomic power industry. Despite differences of opinion on ti timing, the committee seems to agree tl that a change from government to p private ownership of nuclear fuel is n necessary for the proper growth of the aatomic power industry. However, fi further study of the problems of makir ing the switchover may force the comn mittee to postpone action on the prop posal until next year, AEC Plans. The bills would pern private ownership of nuclear fuels mit ir immediately and would require all h to be privately owned by June 30, fuel 11973. In addition, they would authori2 ize AEC to enrich privately owned u uranium for a fee (toll enrichment)
