USPTO Joint Labor-Management Task Force Proposes Significant Changes to Examiner Count System

WASHINGTON —Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO) David Kappos has unveiled a series of proposals to bring significant change to the examiner “count system” – the methodology for determining the time a patent examiner has to complete a patent examination and how much credit is given for each stage of an examination. The proposal was developed by a task force comprised of senior managers in the Patents organization and leadership of the Patent Office Professional Association (POPA), the union that represents patent examiners.

“Secretary Locke directed us to adopt an ambitious agenda to address the significant challenges at USPTO and that’s what we’re doing,” Kappos said. “We’ve worked closely with labor representatives to propose a long-overdue transformation of the count system. We hope to move expeditiously toward adoption of these changes that will benefit examiners, the agency and the IP community as a whole.”The full proposal is available on the USPTO Web site (

The proposed changes are designed to:

* Set the foundation for long-term pendency improvements.
* Increase customer satisfaction by incentivizing quality work at the beginning of the examination process.
* Encourage examiners to identify allowable subject matter earlier in the examination process.
* Rebalance incentives both internally and externally to decrease rework.
* Increase examiner morale and reduce attrition.

The proposed changes represent what would be the most significant changes to the count system in more than 30 years. The count system was created in the mid-1960s and hasn’t been revised since 1976.

The proposal addresses the following areas of change:

* Improved working conditions: While the proposal increases the time examiners have overall, it provides incentives to encourage examiners to do a high-quality first action, and shifts resources from a focus on examiner recertification to front-end quality improvements. This change in incentives will ultimately encourage examiners to dispose of applications more quickly.
* More time for examiners: The proposed changes will give examiners more time overall, more time for a first action on the merits, and time for examiner-initiated interviews, while decreasing credits on requests for continued examination (RCEs)* and providing consistent credits for transferred or inherited amendments.
* Process changes: These changes will increase work credit certainty for examiners, increase fairness to applicants, and balance the load on IT systems.

“These proposed changes will lead to earlier identification of patentable subject matter, which will benefit both the USPTO and applicants,” Deputy Commissioner for Patents Peggy Focarino said. “Over the long term, we believe these changes will promote quality examination and set a foundation for pendency improvements.”

POPA President Robert Budens also expressed support for the proposed changes.

“The count system is sorely in need of re-tooling and we feel this proposal is a necessary first step toward giving examiners the time they need to do a quality examination,” Budens said. “We are pleased to have been involved in developing this proposal and we are hopeful it is one that our members will support.”
The task force expects the improvements in overall efficiency caused by getting to examination more quickly will offset the increased time provided for examination. And, importantly, they expect improved quality by providing examiners with more time up front in the first office action to do a thorough search and examination. The task force is prepared to propose adjustments as warranted should the changes not yield the anticipated results.

This proposal is intended to be part of an iterative process of improvements to the count system. The task force will measure the effects of these changes and gather internal and public feedback, and will meet on a regular basis to monitor progress and consider additional changes.