[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4704 Introduced in Senate (IS)]

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117th CONGRESS
  2d Session
                                S. 4704

  To require the Comptroller General of the United States to submit a 
report regarding ways to improve the patent examination process at the 
   United States Patent and Trademark Office, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             August 2, 2022

 Mr. Tillis (for himself and Mr. Leahy) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
  To require the Comptroller General of the United States to submit a 
report regarding ways to improve the patent examination process at the 
   United States Patent and Trademark Office, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Patent Examination and Quality 
Improvement Act of 2022''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Advanced data science analytics.--The term ``advanced 
        data science analytics'' means techniques, such as artificial 
        intelligence, machine learning, and other methods of analyzing 
        large data sets, that may be used to make or implement policy 
        recommendations.
            (2) Director.--The term ``Director'' means the Under 
        Secretary of Commerce for Intellectual Property and Director of 
        the Office.
            (3) Office.--The term ``Office'' means the United States 
        Patent and Trademark Office.

SEC. 3. FINDINGS; SENSE OF CONGRESS.

    (a) Findings.--Congress finds the following:
            (1) Patents and other forms of intellectual property are 
        important engines of innovation, invention, and economic 
        growth.
            (2) All people of the United States depend on clear patent 
        rights to--
                    (A) secure protection of their own innovations; and
                    (B) enable them to avoid appropriating innovations 
                that others have patented.
            (3) Recent studies--
                    (A) indicate that many patents that the Office has 
                issued do not satisfy the patentability requirements of 
                title 35, United States Code; and
                    (B) have shown that--
                            (i) the Office has limited resources; and
                            (ii) the resource limitation described in 
                        clause (i) negatively affects the ability of 
                        the Office to conduct thorough and complete 
                        patent examinations.
    (b) Sense of Congress.--It is the sense of Congress that Congress 
must do more to enable the Office to improve--
            (1) the quality of patents issued by the Office; and
            (2) the patent examination process at the Office.

SEC. 4. GAO REPORT ON PATENT EXAMINATION IMPROVEMENT.

    Not later than 1 year after the date of enactment of this Act, the 
Comptroller General of the United States shall submit to the Committee 
on the Judiciary of the Senate and the Committee on the Judiciary of 
the House of Representatives a report--
            (1) regarding how to improve the patent examination process 
        at, and the overall quality of patents issued by, the Office;
            (2) that shall--
                    (A) place a particular emphasis on improving the 
                process described in paragraph (1)--
                            (i) with respect to the application of the 
                        conditions and requirements of sections 101, 
                        102, 103, and 112 of title 35, United States 
                        Code, including avoiding repetitive and unduly 
                        multiplied claims; and
                            (ii) by more clearly defining what 
                        constitutes a clear and thorough search by a 
                        patent examiner throughout the entire patent 
                        examination process at the Office;
                    (B) in part, rigorously evaluate previous and 
                current (as of the date on which the report is 
                submitted) initiatives and pilot programs of the Office 
                relating to the quality of patents issued by the 
                Office, which shall include analysis of--
                            (i) the reasons those pilot programs--
                                    (I) were successful;
                                    (II) would have been successful 
                                with modifications; or
                                    (III) had irremediable flaws; and
                            (ii) ways to use those pilot programs to 
                        beneficial effect in the future;
                    (C) evaluate whether the Office needs to--
                            (i) establish--
                                    (I) clear standards regarding what 
                                constitutes patent quality; and
                                    (II) patent quality metrics that--
                                            (aa) the Office can 
                                        support; and
                                            (bb) patent applicants and 
                                        the public can verify;
                            (ii) provide additional time for patent 
                        examiners to examine patents;
                            (iii) align non-compliance and clear errors 
                        with respect to the review of the work product 
                        of patent examiners;
                            (iv) record examiner interviews and place 
                        those interviews in the record, either through 
                        audio files or automated transcriptions;
                            (v) assign patent applications to examiners 
                        who are most qualified to examine those 
                        applications based on--
                                    (I) the technical background of the 
                                examiners; and
                                    (II) the number of applications 
                                that a particular examiner has already 
                                reviewed in a similar technical area; 
                                and
                            (vi) establish a group that--
                                    (I) analyzes real-world 
                                circumstances, such as practices at 
                                other agencies and in the broader 
                                scientific community; and
                                    (II) uses information collected 
                                under subclause (I) to perform targeted 
                                reviews of certain patent applications, 
                                such as patent applications from 
                                applicants who have had scientific 
                                papers retracted; and
                    (D) study evidence of fraud in the patent 
                application process, which shall include suggestions to 
                address any such fraud, such as a task force that is 
                similar to the task force of the Office investigating 
                suspicious activities with respect to trademark 
                applications; and
            (3) that contains recommendations regarding ways to improve 
        the training of patent examiners at the Office, with a 
        particular emphasis on improving that training with respect 
        to--
                    (A) the application of the conditions and 
                requirements of sections 101, 102, 103, and 112 of 
                title 35, United States Code, including avoiding 
                repetitive and unduly multiplied claims;
                    (B) searches performed throughout the patent 
                examination process to ensure that the Office issues 
                fewer unclear and invalid patent claims; and
                    (C) examination fields affected by emerging and 
                complex technologies, including advanced data science 
                analytics, to ensure that examiners are fully equipped 
                to understand the applications of those technologies.

SEC. 5. USPTO GUIDANCE ON PATENT EXAMINATION IMPROVEMENT.

    Not later than 1 year after the date on which the Comptroller 
General of the United States submits the report required under section 
4 (referred to in this section as the ``covered report''), the Director 
shall develop guidance for patent examiners at the Office--
            (1) regarding how to improve the patent examination process 
        at, and the overall quality of patents issued by, the Office; 
        and
            (2) that shall--
                    (A) place a particular emphasis on improving the 
                process described in paragraph (1)--
                            (i) with respect to the application of the 
                        conditions and requirements of sections 101, 
                        102, 103, and 112 of title 35, United States 
                        Code, including avoiding repetitive and unduly 
                        multiplied claims; and
                            (ii) by more clearly defining what 
                        constitutes a clear and thorough search by a 
                        patent examiner throughout the entire patent 
                        examination process at the Office; and
                    (B) take into consideration the findings and 
                recommendations in the covered report.

SEC. 6. REPORT.

    Not later than 2 years after the date of enactment of this Act, the 
Director, after soliciting public comment, shall submit to Congress a 
report that includes--
            (1) an explanation of how the Office will improve the 
        technical training of patent examiners at the Office with 
        respect to emerging areas of technology;
            (2) the status of the capabilities of the information 
        technology systems of the Office with respect to--
                    (A) the examination of patents and trademarks;
                    (B) proceedings conducted before--
                            (i) the Patent Trial and Appeal Board of 
                        the Office; and
                            (ii) the Trademark Trial and Appeal Board 
                        of the Office; and
                    (C) the recordation of patent assignments;
            (3) a 5-year plan for further modernization of the 
        information technology systems described in paragraph (2); and
            (4) an accounting of the use by the Office of advanced data 
        science analytics, including from commercially available 
        sources, to improve the patent examination process where 
        appropriate, including--
                    (A) a description of how the Office uses advanced 
                data science analytics with respect to the examination 
                of patents to--
                            (i) ensure that patent claims have adequate 
                        support in the specifications with respect to 
                        those claims;
                            (ii) improve clarity, quality, and 
                        consistency;
                            (iii) detect common sources of error;
                            (iv) improve productivity; and
                            (v) ensure assignment of patent 
                        applications to the examiner best qualified to 
                        examine that application;
                    (B) a 5-year plan for further development of 
                advanced data science analytics for the uses described 
                in subparagraph (A); and
                    (C) a description of how the findings made as a 
                result of the uses of advanced data science analytics 
                under subparagraph (A) shall be made available to the 
                public on a regular basis.
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