The RCE problem is due in the main to Examiners finally rejecting claims that should either: 1) be allowed or 2) be given nonfinal rejections.
The current system of measuring performance by which Examiners get a point for a disposal, encourages Examiners to move cases to final rejection or allowance as early in the prosecution of the application as possible. They get credit for allowance, but fewer questions are asked if they reject the application. Plus, they then get a credit for examining the RCE without as much effort on the search.
Meanwhile, we practitioners have learned to play the game and we know that if we file an RCE, we are more likely to get the case allowed as the Examiner will get max credits for disposals.
Hence, the PTO should do these things to reduce the RCE backlog:
1) change the credit formula so that Examiner's are encouraged to examine applications in good faith (as opposed to the current 'rejection' oriented focus). For example, the formula could: i) average disposals but also take into account total number of actions required; ii) offer reduced credit as prosecution extends into continuations and appeals and/or iii) implement negative credit for cases where the Examiner loses on Appeal.
2) train and encourage the Examiner's to give the Applicant more guidance as to what might be allowable other than ridiculously narrow claims currently offered on occasion; and
3) conduct psychological examination of new examiner prospects before hiring, and counsel those that have been hired, to identify those that see their jobs as examiners to be about rejecting applications as opposed to rejecting those that should be rejected and allowing those that should be allowed.
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