A little Patent Office history, for the younger ones, since we are so good at repeating it.

It was in the early 1990s, when Bill Clinton appointed Bruce Lehman as Patent Commissioner for non-patent reasons (to "thank" a special interest group in his constituency of which Lehman was a part) that the U.S. Patent System began falling apart. Commissioner Lehman, as you may know, had no significant experience with patents, yet he had quite a vision for the Patent Office. He often boasted of how he was the first appointee of his kind to have risen so high in government. Unfortunately for us, his heart was never with his work, or with the agency he was supposed to lead.

It was Lehman who marginalized the importance of prior art and the examiner's search at the USPTO. In 1994 and early 1995, he curtailed and then discontinued the internal classification and the search of newly issued foreign prior art by U.S. Examiners. (He also curtailed and almost stopped reclassification projects for U.S. patents.) What do you think that this did to the validity rate of U.S. patents issued from that time until the introduction of viable up-to-date U.S. and foreign art searching in EAST almost a decade later, to have such a hole in the foreign art that was readily searchable by U.S. Examiners? (We're not talking about fake allowance "quality" reports from the USPTO, but the true validity of patents asserted in industry but not necessarily litigated because of their determined questionable validity.)

It was Lehman whose vision for a USPTO "campus" led to the reallocation of resources away from patent, patent quality, and patent support activities to "move" activities. The stated impetus for the move was to have the examining corps in a single unified and "planned" location, rather than spread over the dozen or so buildings they were occupying in Crystal City. Today, about five years after the initial move, the USPTO has already outgrown its poorly planned location, and the USPTO is now even more spread out in both Crystal City and in Carlyle than it was initially!

It was Lehman (and/or his hand-picked successor) who authorized and implemented the plans to pull the plug on the Examiner's UNIX-based computerized search system called "APS/CSIR" in 1999 and replace it with a web-browser-based Windows search system called "WEST" that was orders of magnitude slower, unstable, and much less capable. The WEST system, which wasted some hundreds of millions of dollars of public funds and remains virtually unused by Examiners to this day, was described on November 19, 1999 by the Washington Post as "the computer system from hell". [Whereas, when APS was introduced to the corps in 1985 (and then upgraded to CSIR shortly thereafter), it was described to Examiners as the largest and most advanced information retrieval system in the world. And such it was, having been designed at the specification of people who understood patents and patent searching. To the contrary, the WEST contractors and SIRA folks hired by Lehman et al., when later confronted on the failings of the WEST system, admitted to having never studied or seen the APS system in operation.]

What do you think having a virtually unusable automated search system (WEST) did to the validity rate of U.S. Patents issued after the plug was pulled on APS/CSIR in 1999?

Commissioner Lehman eventually resigned for "personal" reasons, and the patent community had a little respite from the whims of political appointees while Q. Todd Dickinson, a patent attorney, was Commissioner. He reinstituted some reclassification of U.S. Patents and was generally looking to truly foster patent quality.

However, the respite felt by patent community ended when George W. Bush was elected President and appointed James Rogan as the head of the Patent Office. As you know, Rogan had no patent experience but was quite instrumental in the impeachment proceedings against President Clinton the year before. In fact, he had lost his California Senate seat as fallout from those same proceedings. Perhaps his appointment by Bush was a loyal Republican "thank you" to one of their own whose political career had itself become a casualty of party loyalty.

And so Rogan, with no significant professional background and experience in patent law, came up with his "Strategic Plan" to recreate the Patent Office. The plan was effectively an abdication by the agency from its Constitutional role. It shifted the burden of the prior art search and the question of prior art relevancy away from the agency, it said, to allow the agency to concentrate on its "core" objectives, whatever those were! It would then have had the agency cease to maintain its automated search systems (because the prior art would have all been provided to examiners) and it would have replaced the U.S. Classification System with an International Classification System that both the EPO and JPO examiners had already moved away from for daily use.

Meanwhile, the internal labor/management issues within the Patent Office were getting worse and worse by the year. Older examiners who understood the law and the legal process were left to struggle with improperly designed new automation tools that were frustrating even to the newer examiners. Many experienced examiners opted to leave the agency or retire, when they would have otherwise provided an invaluable resource to the agency in assisting the training of new examiner hires. And the attrition rate of new examiner hires began to skyrocket because of workplace conditions and the lack of training, and as a consequence the average experience level of patent examiners was dropping, even while new technologies were developing at an ever increasing (but wholly foreseeable) rate. In short, the expertise and professionalism that had developed within and had been the hallmark of the corps was disintegrating, and the personal one-on-one training within the corps that had for decades been the mainstay of USPTO operations (from which this writer benefited enormously) was becoming a thing of the past.

After being sued in his capacity as Director, Rogan eventually left the USPTO mid-term (perhaps the official reason given for his departure was to "write a book"), which left us with his Deputy Director, Jon Dudas, assuming the position of Director. Jon Dudas, like Rogan and Lehman had no significant professional background and experience in patent law (or trademark law, for that matter) when he came to the USPTO.

Now, backtracking a little in time for the moment. After the Lehman fiasco, Congress realized that the United States Patent and Trademark Office was a too specialized and important agency to be helmed by mere political appointees, and 35 USC 3 was amended to clearly lay out the qualifications for the Director and the Deputy Director:

"The Director [and the Deputy Director] shall be a person who has a professional background and experience in patent or trademark law".

Both Director Rogan and his Deputy Director Dudas were apparently appointed to their respective positions in violation of law, and during their tenures the American patent system has unsurprisingly reaped a plenteous harvest from the lawlessness that was sown.

Unfortunately, little did we know that the two or so years that Jon Dudas spent as Deputy Director under Rogan would qualify him (or so would be alleged before Congress) with the professional background and experience (required under 35 USC 3) to serve as a Director of the United States Patent and Trademark Office. This was akin to making an Assistant Examiner the head of the agency, or worse! (And should we now be surprised when the agency and the patent system is in disarray? It seems rather brash that we or Congress or anyone else could possibly think that a man with only "on the job training" in the field could possibly be the best and most qualified person, or even simply plain qualified, for such an important job.)

Today, the downward spiral at the top of the USPTO continues to intensify. On May 8, 2007, Secretary of Commerce Carlos M. Gutierrez appointed Margaret J.A. Peterlin to serve as Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO. Like so many before her since the USPTO leadership was politicized by President Clinton in 1993, Deputy Director Peterlin apparently has no substantial professional background and experience in patent or trademark law, but instead her qualification seems to lie in that she is a member of the Federalist Society.

When will this madness stop? When will our elected officials understand that the current distress in the U.S. Patent System is not being caused by misbehaving patent applicants or attorneys who are "abusing" the patent system, but rather by the unqualified and floundering leadership of the USPTO which is causing the agency to become less and less capable of examining patents and fulfilling its Constitutional mandate with each passing day?

Recently, a posting on the patent law blog Patently-O poignantly asked when Congress is going to wake up and understand that punishing the "meritorious many" of patent applicants for the misdeeds of the "egregious few" is not a proper response to the problems of the patent system? Indeed, if Congress weakens intellectual property (IP) protection and the U.S. Patent System by the Patent Reform Act simply because the USPTO due to its own mismanagement has been issuing bad patents, then isn't that nothing less than a slap in the face to the millions of hard-working American inventors who have had no part in the politicizing of the USPTO and continue to be the strength and the economic backbone of this country? (And isn't Congress, by so acting, sending a clear signal to the USPTO that it need not get its act together, and that status quo at the agency is fully and completely acceptable?) American inventors constitute the sole natural resource that truly gives the United States a competitive advantage in the world economy! And would Congress and the USPTO now weaken U.S. IP protection so as to hand over that competitive advantage to our foreign competition in China, India, Korea, and Japan without even a struggle? The leaders and citizens of those nations would just love to obtain all the knowledge of American innovation for free, and then have Americans import the resulting products those countries make from it. And sadly, most unbiased and knowledgable people in the IP community believe that the Patent Reform Act as passed by the House would make it easier for foreign countries to do exactly that.

We are not denying that the USPTO has heretofore issued many bad patents. The truth of this proposition goes without saying for everyone who has any professional background or experience in patent law. But the cause of this problem lies not with inventors or patent applicants who have brought their patent applications to the USPTO for examination and patentability determination. The inventor invents and the Patent Office determines patentability. This is the way it always has been and should be the regarding the shared responsibility between citizen and government for promoting the progress of science and the useful arts. The problem with the patent system today does not lie with the inventors - they are still inventing! The problem lies singularly and solely with the USPTO which, due to mismanagement and weak foresight since 1993, has become less and less capable of performing proper examination and patentability determination and of performing its Constitutionally mandated (and publicly funded) function.

Why today, we ask, in an age when information search and retrieval is easier and more readily accomplished than at any other time in the history of the world, has the USPTO now begun to need the inventors' help in determining patentability, and why does it further now need to put limits the protections (claims) which rightful inventors can afford themselves of and the efforts (continuations) through which those protections can be pursued? Is the information explosion occurring too fast for the USPTO but not too fast for the inventors? Have the inventors or the inventions they create changed significantly in the last 15 years? Or is the USPTO just becoming less and less capable of performing its Constitutionally mandated function? If the answer to the problem lies in the latter, then perhaps it is time for Congress start considering setting up an optional registration system for patent applicants which relies less on USPTO involvement and impediments.

The problems that have arisen in the U.S. Patent System, together with the immediate political processes which have been initiated by the current unqualified USPTO leadership, threaten to make American ingenuity a hostage to agency mismanagement at the same time that the political appointees at the top of the USPTO continue by their presence to exercise a suffocating stranglehold on USPTO operations. And by their presence, the current USPTO leadership also denies the citizens of the United States our right to proper leadership and solutions for this very important but ailing agency.