In September of 2015 I posted a blog article celebrating some exciting news about PPH petitions. In that article (“Unexpectedly fast PCT-PPH decisions at USPTO“) I noted that we had gotten some cases onto the Patent Prosecution Highway a mere three weeks after filing the PCT-PPH petition. This was very good news given that previously it was taking anywhere from four to seven months for the Office of Patent Petitions to get around to examining PPH petitions. The letters communicating the three-week grants of Highway status came from a different part of the USPTO (not the Office of Patent Petitions) namely the Office of International Patent Legal Administration (the former Office of PCT Legal Administration).
At our firm we use PPH a lot. We try to track our PPH cases pretty closely. When we saw this good news in September of 2015, we figured USPTO had gotten a clue and had changed its workflow so that PCT-PPH petitions were going to OIPLA instead of going to OPP. And OIPLA was deciding such petitions fairly promptly after filing.
Well, it turns out I was wrong about this.
Back in September when I started receiving these PCT-PPH grant letters from OIPLA, I made inquiry to a person I knew at the USPTO. I hoped to get an opportunity to say “thank you” and to find out just what the business process rule was for sending PPH petitions to OIPLA instead of to OPP. Was the decision where to send the petition tied to whether the application was 371 or 111a? Was it tied to whether the work product being used to gain highway status was PCT or non-PCT work product? Or was it tied to the document description indexing term selected by the filer (“PCT-PPH” or just “PPH”)?
Weeks passed and I heard back nothing from my contact person. A colleague at another firm made inquiry to a different person at the USPTO. No response.
Eventually I heard back from my contact person. The answer was, the prompt processing of our PCT-PPH petitions, the ones that got decided in three weeks instead of seven months, was a mistake. Yes, OIPLA was helping out OPP with its petition backlog. But, I was told, it was not intended that some petitions would get decided faster than others. It was intended that the petitions (whether decided by OPP people or OIPLA people) be taken up strictly according to the dates that they were filed.
So for the past couple of months, we have been back to the bad old situation in which it takes anywhere from four to seven months for the USPTO to decide a PPH or PCT-PPH petition.
There’s one other odd thing about this. It seems that some time in the past month or so, USPTO has quietly eliminated the document description of “PCT-PPH petition”. Now the only PPH-related document description available in EFS-Web is the “PPH petition” document description that does not mention “PCT”.
The USPTO has a petitions dashboard that supposedly shows how bad the backlog is for the ten most common types of patent petitions. As of today the dashboard claims the backlog for PPH petitions is 136 days or just over four months.
It used to be that the person examining a PPH petition had to carry out detailed checks of the file to figure out whether or not to grant the petition. But about a year ago the USPTO revised the wording of the petition documents so that nearly all petition requirements are self-certified by the petitioner. In other words there is almost no work to do for the petition examiner. The result of this revision should have been a reduction of the backlog given that less work was required. It is such a disappointment that what has happened instead is the delay getting bigger instead of smaller.