The United States Patent Office (“USPTO”) faces criticism from its users and legislators that the timeliness of the patent process and ultimate quality of issued patents are inadequate. In order to address this criticism Congress made several changes to the authorities of the USPTO in the last decade and considered more changes in 2009. Nevertheless, problems persist and some stakeholders argue that reorganizing the USPTO as a government corporation would best alleviate these problems by broadening its authorities even further and releasing it from external constraints.
The USPTO had a backlog of over one million patents at the end of 2008. Given the rapid pace at which technology currently evolves, demand for patents is only likely to increase. The average time to review and issue a patent is thirty-two months. The office is unable to keep adequately educated staff even as it hires 1,200 new employees every year. The attrition rate at the USPTO is over ten percent, significantly higher than any other agency. This is particularly burdensome because the USPTO requires three to five years to train new hires.
Among the many proposals to alleviate these problems is the proposal that Congress restructure the USPTO as a government corporation. Congress considered this proposal several times in the 1990’s and the National Academy of Public Administration (“NAPA”) released a report in support of this idea. Though H.R. 400 passed in the House in 1997, the Clinton Administration favored, and Congress passed, legislation establishing the USPTO as a performance-based organization (“PBO”) instead. Proponents of structuring the USPTO as a government corporation argue that the USPTO will be better able to serve the needs of its users and can more quickly adapt to changing markets. Opponents argue that structuring the USPTO gives it too much autonomy and that there is no need to make such a large change to the organization of this agency, which arguable privatizes the patent process.
This paper begins with a brief discussion of the problems that the USPTO currently faces. Next, it describes the proposal that the USPTO become a government corporation and how this proposal might alleviate the problems identified in section one. The third section describes the USPTO’s current status as a PBO and how this status both differs from a structure as a government corporation and is inadequate to fully solve the problems identified in section one. The fourth section presents and analyzes pending legislative changes to the USTPO, which might grant it similar authorities as a government corporation. The next section describes the specific structures some proponents propose for structure the USPTO as a government corporation and key legislative steps necessary to do so. Finally, the paper concludes with an analysis of the proposal.
I. Problems at the USPTO
Since the very first patent issued, the public’s demand for patent protection...