!20020709 An examiner complains about proposed PTO clasification changes
Dear Greg,
While there are several abhorrent aspects to the 21st Century Strategic
Bombing Plan [from the PTO], I would like to concentrate on classification,
since I imagine it will get the least attention from your readers.
The classification system organizes the PTO, facilitating two of its
core functions: it divides the prior art for more effective searching,
and it divides patent applications into narrow bands of technology for
assignment to patent examiners by expertise. Classification is not
merely "organizing patents within PTO", classification *is* PTO
organization. Rogan's bombing plan proposes nothing less than "PTO will
relinquish control over our organization". In another time or place,
this would be mind-boggling. Given the current set of facts on the
ground at PTO, including the current leadership, this proposal fails to
surprise.
Bruce Lehman put classification under siege in the mid-1990s. Having
no experience with patent practice, he failed to grasp that PTO can't be
organized by key words. He apparently believed that classification was a
luxury, not the principle basis of PTO organization. Given all the money
spent on an automated text search system, PTO needed to cut classification
to the bone. Lehman viewed it as a superfluous, antiquated search tool.
He ratcheted up the neglect level on this already neglected system. As
technology changed and evolved, PTO failed to create new classes and
subclasses in which examiners could specialize. It forced examiners to
rely more heavily on key word searching, since subclasses for the newest
technology did not exist. The numbers of patents continually dumped into
catch-all subclasses for active technology swelled their size until they
became unsearchable in the time given. In effect, Lehman's beliefs about
classification became a reality, not because they were inherently true,
but because he controlled PTO.
Todd Dickinson's efforts to revive classification improved the situation
greatly, but unfortunately, Dickinson, in his comparatively short tenure,
could not undo all of Lehman's damage. After that, the drifting PTO
experienced between Dickinson and Rogan worsened the situation. The
revival of classification requires a captain at the helm issuing a "full
steam ahead" order, not "let's drift while we wait for the new captain".
Now, Rogan appears poised to deliver a fatal blow to PTO organization.
The proposal gives Rogan the discretion to choose between relinquishing
control to either Europe or to contractors. Adopting the European
Classification System means either giving Europe complete control, or
that everything is done by multinational committee. Using multinational
committees complicates an already complicated process. Squabbles and turf
battles that have sometimes hurt PTO efforts to update the classification
system will be multiplied by multinationalism. The system will fall behind
technological innovation even further, and the PTO will water down examiner
expertise by discipline even more.
Wholly relinquishing control to the Europeans means losing control of
PTO's organizing principles. It also means that numerous examiners will
have to be retrained, since many classifications in the US patent
classification system do not exist in the EPO system. Moreover, the
divisions and groupings in the EPO system will require a major
restructuring at USPTO so that it may organize along the lines of the
new system. If the PTO does not undertake this restructuring, assignment
of patent applications will become a serious problem. If the PTO does
restructure, it will do so amid generalized chaos derived from the
strategic bombs falling on other principles of the office.
Should PTO opt for contracting out classification, two questions will
eventually be answered: "will it be cheaper?", and "will it be better?".
Many people prognosticate the answers to be NO and NO. The PTO has already
demonstrated its inabilities in letting contracts. Faxes that take four
days to arrive, and monitors leased for a year at a rate above the
purchase price come to mind. 12 PC workstations installed in examiner's
homes at a cost of over a million dollars comes to mind.
Does PTO management know how to write a contract specifying a high
quality subclass? Does management know what a high quality subclass is?
If management can't manage to produce a high quality classification
system using workers that it directly controls, and who have a stake in
the outcome (examiners who have to use the results to accomplish their
jobs), how can it manage to produce a high quality system with little
control over the workers, who have no stake in the outcome? None of
these questions bode well for outsourcing.
Classification is what separates x-ray machines from holographic
cameras. It produces examiners knowledgeable in x-rays and examiners
knowledgeable with holograms. Done right, it can produce expert
examiners in sub-fields within x-rays and holograms. Done wrong, it
produces examiners vaguely familiar with various electrical, chemical,
and mechanical devices, unable to reliably find and understand the most
relevant prior art. Rogan's plan treats classification like a
second-class citizen. He has been guided by fools.
Greg Aharonian
Internet Patent News Service
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