IP Law Daily, PATENT NEWS: GAO report sets forth recommendations for USPTO to improve patent quality and patent examiner performance, (May 8, 2025)

By Robert Margolis, J.D.

Report criticizes USPTO’s prior efforts to address issues, including challenges faced by patent examiners, how the USPTO measures the effectiveness of prior initiatives, how it assesses patent quality and examiner performance.

After conducting focus groups with nearly 50 patent examiners, the United States Government Accountability Office (“GAO”) has issued a report criticizing the United States Patent and Trademark Office’s prior efforts to address what GAO referred to as “persistent examination and quality challenges,” which have been found to negatively impact examiner performance to the detriment of patent quality. The Report, titled, Patent Office Should Strengthen Its Efforts to Address Persistent Examination and Quality Challenges (GAO-25-107218), describes several other areas where improvement is necessary in the USPTO, the previously identified issues the USPTO has not adequately addressed, the shortcomings of the USPTO’s efforts to address those issues, and several recommendations to improve patent examiner performance and other processes so as to improve patent quality.

The U.S. Senate Judiciary Committee’s Subcommittee on Intellectual Property asked the GAO to review issues related to patent examination and quality. GAO took several steps to conduct its review, including: (1) interviewing agency officials; (2) holding focus groups with nearly 50 patent examiners selected at random and representing nearly all technology areas; (3) reviewing USPTO documentation in such areas as performance reviews and patent quality initiatives; (4) analyzing USPTO Office of Quality Assurance metrics, policies, and data; (5) collecting data and other information about pilot programs previously undertaken; (6) assessing those pilot programs against leading practices for effective pilot programs; and (7) examining USPTO’s patent metrics and literature on other ways of indicating patent value.

Misdirected focus. Among the findings set forth in the Report. is that the patent examiners GAO met with told GAO that the USPTO prioritizes examination output (meaning the number of patent applications reviewed) over the quality of the review. As the examiners noted, the focus on volume of work can come at the expense of thoroughness of examination, and this misdirected focus has been a problem since GAO’s review in 2016. The examiners noted the combination of the added complexity in patent applications with increased time pressures has created challenges in maintaining quality in application review, thus affecting patent quality.

Along those lines, examiners cited having not enough time to review applications, difficulty in obtaining additional time to conduct an examination when necessary, and that they sometimes use unpaid personal time just to meet output expectations. These time limitations, when combined with the increased complexity of applications due in part to new technology and the evolution of legal requirements, negatively impact the quality of reviews. The examiners also noted that they seek trainings that are more targeted to their particular technology areas, and sometimes find themselves assigned to review applications outside their areas of expertise due to issues with the classification and routing system.

Prior initiatives. The Report describes prior initiatives the USPTO has undertaken to address examination challenges and improve patent quality. However, these initiatives have not had the desired impact due to ineffective planning and assessment. One example given is that in 2021, the USPTO revised the appraisals of patent examiner performance with the goal of emphasizing patent quality, but did not review the results of these changes to determine if they actually accomplished that goal.

Likewise, several pilot programs have been used to develop, test, and assess changes to the patent process. The Report concludes, however, that USPTO’s implementation of these pilot programs has been inconsistent, which causes missed opportunities to inform future pilots. One cause cited in the Report is the USPTO lacks a formalized structure for the creation and oversight of pilot programs. In addition, USPTO does not consistently follow best practices when designing pilot programs. The Report found that of fourteen pilot programs, seven did not evaluate outcomes to inform decisions about scalability and when to integrate the pilots into the USPTO’s overall work.

Examiner review problems. The Report also addresses how USPTO evaluates examiner performance, including supervisor quality reviews, and found several problems. GAO found that the examiner reviews likely overstate the examiners’ adherence to quality standards, and may fail to encourage examiners to consistently perform high-quality examinations. Among the limitations in the measurements of examiner performance are: (1) supervisors are not required to use sound selection methods, such as random selection, in their quality reviews; (2) examiner performance evaluations can exclude from consideration some identified errors in performance; and (3) examiners may receive passing scores even when all of their reviewed work contains errors.

Patent quality indicators. The USPTO measures compliance with each of the four statutory patentability requirements individually: subject matter eligibility, novelty, nonobviousness, and disclosure. GAO pointed out that there is no goal, however, for the share of patents that should comply with all four requirements at once. USPTO data for 2023 shows compliance rates for each of the four requirements ranging from 92 percent to 98 percent, while the number of patents that simultaneously comply with all four requirements down to 84 percent. Communicating an overall quality goal would provide stakeholders with a more accurate representation of patent quality, GAO indicated.

While USPTO has measurements for tracking patent quality and examination timelines, it either has not tracked or communicated indicators that measure the economic or scientific value of patents. This despite having a strategic goal to measure innovation. GAO identified potentially relevant indicators of value cited in literature, including how often patents are cited in other patents. If proper assessment and measurement of the economic or scientific value of patents were adopted, USPTO could better educate and inform Congress, federal agencies, and stakeholders about innovation trends across various economic sectors, so they can respond to meaningful changes.

Costs of inadequacies. As GAO noted, in 2024 the USPTO received approximately 527,000 new patent applications and granted about 365,000 patents, so volume of applications is quite high and patent examiners face the dual pressures of having to perform the exacting task of reviewing applications in a timely manner while also issuing quality patents meeting statutory patentability requirements. According to GAO, some researchers have found that patent invalidation rates point to patent quality being lower than what USPTO’s quality metrics may indicate. One study found that approximately 40 percent of litigated patents are invalidated (though the patents subject to litigation might not be representative of all patents). Patents that fail to meet statutory patentability requirements can inhibit innovation or divert resources to legal disputes.

Recommendations. The Report provides eight recommendations to the USPTO. These are that USPTO: (1) take steps to evaluate ongoing initiatives concerning patent examination challentes; (2) formalize and document its approach for managing pilot programs; (3) update guidance to address limitations in supervisory quality reviews; (4) implement policies to improve documentation and transparency of changes made to random quality review outcomes from data provided by the Office of Patent Quality Assessment (“OPQA”); (5) ensure OPQA updates its processes for data integrity reviews; (6) establish and communicate a goal for overall patent quality compliance; (7) examine and communicate externally about factors leading to patents being overturned in trials before the Patent Trial and Appeal Board; and (8) assess and adopt alternative measures of the economic or scientific value of patents.

MainStory: TopStory Patent USPTO GCNNews