Intellectual Property: Patent Office Should Strengthen Its Efforts to Address Persistent Examination and Quality Challenges

Fast Facts

The American spirit of innovation drives inventors to develop new technologies. Patents help them protect their inventions. But patent examiners say they aren't given enough training, resources, or time to thoroughly review patent applications—especially for complicated new technology.

The U.S. Patent and Trademark Office has tried new ways to support patent examiners, but there's more to do. For example, the agency doesn't track if its changes made a difference.

Plus, we found some inconsistencies in how the agency measures how well patent examiners do their work.

Our recommendations address these issues and more.

Highlights

What GAO Found

GAO conducted focus groups with nearly 50 patent examiners from the United States Patent and Trademark Office (USPTO) where they told GAO that they prioritize examination output (i.e., the number of patent applications reviewed) over the quality of the review. The examiners said that the USPTO focuses more on the volume of work completed, which can affect the thoroughness of examinations. This focus on output has persisted since GAO's review in 2016. Examiners cited a variety of challenges in patent examination, including time pressures, and noted that patent applications have become more complex (see table). Challenges identified by examiners in GAO's focus groups were also reported in USPTO's bi-annual examiner surveys.

The USPTO has undertaken several initiatives to address examination challenges and improve patent quality, but it has generally not effectively planned or assessed these initiatives. For example, in fiscal year 2021, the USPTO changed patent examiner performance appraisals to put more emphasis on patent quality but did not evaluate whether this improved patent quality.

In addition, the USPTO uses pilot programs to develop and test changes to the examination process. However, the USPTO's implementation of pilot programs is inconsistent, and the agency is missing opportunities to inform future pilots. The agency lacks a formalized structure for the creation and oversight of these programs. GAO found that the USPTO's pilot programs do not consistently follow leading practices for effective pilot program design. For example, GAO found that seven of the 14 pilot programs did not evaluate outcomes to inform decisions about scalability and when to integrate the pilots into overall efforts.

The USPTO evaluates examiner performance in several ways, including supervisory quality reviews. GAO found that these reviews likely overstate examiners' true adherence to quality standards and may not encourage examiners to consistently perform high-quality examination. GAO identified several limitations in how the USPTO measures examiner performance:

• Supervisors are not required to use sound selection methods, such as random selection, for the work they review for quality.
• Supervisors can exclude some identified errors from examiner performance evaluations.
• Examiners can receive a passing quality score when all their reviewed work includes errors.

The USPTO measures compliance with each of the four statutory patentability requirements individually (see figure). However, the agency does not have a patent quality goal for the share of patents that should comply with all four requirements at once. According to data the USPTO presented for fiscal year 2023, compliance rates for each of the four statutory patentability requirements ranged from 92 percent to 98 percent, while the percentage of patents simultaneously compliant with all four requirements was 84 percent. By communicating an overall quality goal, the USPTO would provide stakeholders with a more accurate representation of patent quality.

USPTO Compliance Rates with Statutory Patentability Requirements

While the USPTO has several measures of patent quality and examination timeliness, it has not tracked or communicated indicators that measure the economic or scientific value of patents, despite having a strategic goal to measure innovation. GAO identified potentially relevant indicators of value in a review of the literature, including how often patents are cited by other patents. Assessing and adopting measures of the economic or scientific value of patents would better position the USPTO to educate and inform Congress, federal agencies, and stakeholders about key trends in innovation across various sectors of the economy, and act on meaningful changes.

Why GAO Did This Study

The U.S. patent system helps encourage innovation by allowing patent owners to generally exclude others from making or using a patented invention for up to 20 years. The USPTO employed 8,944 patent examiners at the end of fiscal year 2024 who review patent applications to determine if the inventions merit a patent. In fiscal year 2024, the USPTO received approximately 527,000 new patent applications and granted about 365,000 patents. Examiners search U.S. and foreign patents and scientific journals to determine if an application complies with statutory patentability requirements (eligible subject matter, novelty, nonobviousness, and clear disclosure). Pressure for examiners to review applications in a timely manner competes with pressure to issue quality patents that meet statutory patentability requirements.

Some researchers say that patent invalidation rates in the courts suggest that patent quality may be lower than what USPTO's quality metrics indicate. For example, according to one study, about 40 percent of litigated patents are found invalid, although these patents might not be representative of all patents. Patents that do not meet statutory patentability requirements can inhibit innovation or create costly legal disputes for patent owners and technology users.

GAO has previously reported on patent examination and quality challenges in GAO-16-490 and GAO-16-479.

GAO was asked to review issues related to patent examination and quality. This report (1) examines challenges that patent examiners face that could affect the quality of issued patents; (2) assesses initiatives the USPTO has taken to improve patent quality, including pilot programs, and the extent to which the agency has measured the effectiveness of those initiatives; (3) evaluates how the USPTO assesses patent quality and examiner performance regarding quality; and (4) assesses how the USPTO communicates patent quality externally.

To conduct this review, GAO

• interviewed agency officials and held six focus groups with nearly 50 randomly selected patent examiners representing nearly all technology areas;
• reviewed USPTO documentation on performance reviews and patent quality initiatives among other things;
• analyzed the USPTO’s Office of Patent Quality Assurance metrics, policies, and data;
• collected data and information on patent pilot programs;
• assessed USPTO pilot programs against leading practices for effective pilot programs; and
• examined USPTO’s patent metrics and literature on alternative indicators of patent value.

Recommendations

GAO is making eight recommendations to the USPTO, including that it

• take steps to evaluate ongoing initiatives related to patent examination challenges;
• formalize and document its approach for managing pilot programs;
• update guidance to address limitations in its supervisory quality reviews;
• establish and communicate an overall patent quality compliance goal; and
• assess and adopt alternative measures of the economic or scientific value of patents.

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Recommendations

GAO is making eight recommendations to the USPTO, including that it

• take steps to evaluate ongoing initiatives related to patent examination challenges;
• formalize and document its approach for managing pilot programs;
• update guidance to address limitations in its supervisory quality reviews;
• establish and communicate an overall patent quality compliance goal; and
• assess and adopt alternative measures of the economic or scientific value of patents.