Kappos's Proposed Changes to the PTO Count System: the First Step

When I first read on Patentlyo.com about Kappos's changes to the Count System which essentially creates an incentive scheme for PTO Examiners ( http://www.patentlyo.com/patent/2009/10/changing-the-uspto-count-system-incrementally.html ), I was pretty impressed. He proposes a system that stymies the incentive for the Examiner to get counts for RCE's. His proposal is a first step to reforming the count system, but if something is not done to INCREASE THE COUNTS proportional to the AMOUNT OF TIME it takes an Examiner to dispose of a case quality will suffer.

Under "proposed package" he breaks down exactly how the count system would be revised, even breaking down the amount of counts to less than whole numbers. This is a great sign as it shows that Kappos is willing to give RCE's, first office actions on the merits, and final rejections different counts according to the amount of weight they deserve. The proper weighting of count to action is so precise that a first office action on the merits would get not 1 count, but 1.25 counts. More precision in accounting for incentives that an Examiner may or may not have is a GOOD THING.


But it only goes half way. The system proposed does a good job of properly creating incentives for each case as a whole, but leaves out any count adjustment proportional to the amount of time it takes to examine each INDIVIDUAL CASE. While a weighting of 1.25 counts for a first office action on the merits may be proper for a case with 3 independent claims and 25 total claims, to alot 1.25 counts for a case that has 100 independent claims and 300 total claims creates a disjunction. This disjunction would create an incentive for the Examiner to spend less time on the case with 400 claims.

Its worth introducing a new rule into the lexicon of patent parlance that may assist in correcting the above disjunction.

Definition - The Rule of Count-Hour proportionality: The amount of time an Examiner spends on a case should be directly proportional to the amount of counts an Examiner gets for that case.

Essentially, the counts scale with the number hours and therefore an Examiner, who is actively looking to increase his or her counts (by design), would look spend more time on a complicated case and get more counts from it. This is one of the biggest remaining problems at the PTO, and if fixed, could help increase the quality of patents.