Unexpected workload spikes cause backlog – overburdens the patent office, halting innovation and undermining growth
Li Liu ’24, March 18, Oxford Intellectual Property Research Centre, St. Catherine’s College, University of Oxford, Oxford, UK, “Patent Quality: A Critique of the State of the Discussion,” IIC – International Review of Intellectual Property and Competition Law, Volume 55, pages 499–529, (2024) accessed July 9, 2024, https://link.springer.com/article/10.1007/s40319-024-01444-w
Second, intensive examination is caught in a Mobius trap, highlighting the tension between the increased workload due to intensive examination and human resource constraints. Chen argues that the USPTO’s enhanced quality review initiative and productivity-promoting count system generated an unexpected rise in the number of continuing applications and ex parte appeals.Footnote 197 In addition, this combination led to increased examiner attrition due to unpaid overtime.Footnote 198 Such trends are held responsible for raising examiners’ workload and backlog.Footnote 199
Similar circumstances are also evident in the EPO, although one study finds that the EPO offers a better fee structure in comparison to the USPTO, and is therefore more likely to maintain a rigorous examination and high quality standard.Footnote 200 It is argued that the extensive “production pressure” imposed by the EPO’s policy prevents at least some examiners from thoroughly examining applications.Footnote 201 This is hardly surprising, as patent examination is a labor-intensive endeavor.Footnote 202
The conflict between productivity policy and quality control highlights an inherent Mobius trap for reforms intensifying examination. Strengthened examination requires more effort and time, exacerbating the workload and backlog. This backlog must be managed by the patent office, as it increases economic and legal uncertainty, suppresses innovation, and impedes investment in creative ideas.Footnote 203 This need has driven the USPTO and EPO to adopt productivity policies, which are alleged to diminish examination criteria.Footnote 204 As a result, patent offices seem to fall into a Mobius trap. In this trap, intensive examination consumes more time and effort, subsequently increasing the workload and backlog. The rise in workload and backlog leads to productivity policies that reduce the time and effort devoted to patent examination. Time constraints are found to result in a higher grant rate and the issuance of lower quality patents. Footnote 205 Consequently, the examination reforms are futile. This Mobius trap argument differs from the vicious circle hypothesis mentioned previously. This hypothesis posits a causal relationship between the decline in examination quality or the rise in patent quantity and the decline in patent quality, while the Mobius trap stresses the limitation of the policy for strengthening patent examination.