In Person Interview Capability with All Examiners 1
Thomas Franklin 2
Kilpatrick Townsend & Stockton LLP

The ability to meet with your decision maker when seeking to procure or protect your property (i.e., a patent grant) is a cornerstone of procedural due process guaranteed by the Constitution. As the examining corps is allowed and perhaps encouraged to work from home, that ability to meet face-to-face with the individual examining your application has become illusive. Under the Telework Enhancement Act Pilot Program (TEAPP), examiners are not required to come to the office or meet with their customers. I believe this is wholly unacceptable.

The original move to teleworking was driven by the inability to hire and retain examiners in the D.C. area. A decade ago, with an ever-increasing examination backlog in the single-office and applicant pool, attrition was pervasive despite a large inflow into the examining corps. To remedy this, I previously pushed to have satellite offices opened across the country to enable the Office to recruit and retain the brightest and best examiners from multiple applicant pools. Today that vision of a nationwide workforce has been achieved with USPTO offices opened or slated to open in Detroit, Denver, Dallas, and San Jose, in addition to the main campus in Alexandria. These five offices are distributed across the time zones and regions of our country to allow examiners to work at patent offices that geographically and culturally match their preferences.

An alternative to the multi-office approach has been the TEAPP hoteling program. I believe this pilot program should be shut down, as the problem it is meant to address has been adequately solved with the multiple offices. A “pilot” program by its very nature is meant to be an experiment. Should a pilot be successful, it might be made permanent. Here, the pilot has provided useful data on its failure and should be closed. Examiners are inaccessible to their customers today. I myself have frequently experienced problems in utilizing the Office’s virtual telepresence equipment. Others have expressed similar frustration. As examiners have less exposure to a physical office, quality has suffered and examiners have shown a general lack of engagement with customer innovators.

Although the TEAPP program should be shut down, I am not against all teleworking. Examiners demonstrating good customer service and high-quality substantive work should be given the privilege of working from home, so long as they can be accessed in person at one of the five patent offices if an applicant requests an in-person interview. With the geographic distribution of the five offices, an occasional trip to the office would not be inconvenient for examiners in the neighboring communities that provide ample housing price points and quality-of-life options.

The best examiners have been found to work diligently even if remote from the office. Conversely, the worst examiners have exhibited surliness toward applicants. They use the TEAPP program as an excuse to avoid meaningful engagement with their customers. There is currently no way for the Office to quantify the amount of interviews, whether phone, video conference, or in person, that are being denied to applicants. With production being the only measure of quality, inaccessible examiners producing uninspired examination can be very successful professionally. The hoteling program, with its failure to facilitate in-person meetings, exacerbates the issue.

The Office should learn from the TEAPP pilot’s failure and shut it down. Examiners who, under the pilot program, have moved far away from any office should simply move back or suffer the travel inconvenience. Given the infrequent requests for in-person interviews, an occasional long trip to a regional USPTO office is more than offset by the lack of a daily commute and the expense involved in the Beltway, for example. I would not be against the Office assisting in moving expenses for the less than one thousand examiners that would be affected by the discontinuation of the TEAPP pilot.

The patent system is the “carrot of capitalism” at the very heart of what makes this country great. As we move into the Information Age and knowledge economy, patents will play an even more important role as the currency of this new economy. To deny innovators access to decision makers is not acceptable customer service. The Office must provide a way for examiners to meet in person with innovators. Livelihoods, jobs, and companies may have their entire future hinge on the outcome of a patent deliberation. To impede sincere engagement with the most dedicated examiners during this process is unacceptable. The TEAPP pilot is a failure and is not necessary with five patent offices. The Office should shut it down and bring the examining corps back to the offices, at least on occasion, to provide the most sincere examination to our innovators.

  1. A prior version of this comment was submitted to the U.S. Patent and Trademark Office on May 7, 2015, in response to its Request for Comments on Enhancing Patent Quality, 80 Fed. Reg. 6475 (Feb. 5, 2015).
  2. This comment is attributable only to the author, and does not necessarily represent the opinions or beliefs of any other individuals, companies, firms, or organizations.