Regulatory Reform at the Patent Office

The new administration has created a task force on tackling regulations. See Executive Order 13777.  The USPTO has announced that it has established a "work group" as follows:

Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office (USPTO) Michelle Lee has assembled a Working Group on Regulatory Reform to consider, review, and recommend ways that USPTO regulations can be improved, revised, and streamlined

Patent practice is governed by many, many regulations. One suggestion to start with is simply modifying the regulations to be no more burdensome than the statute requires. For example, the USPTO can go with the most simple fix of simply following the statute to make restriction permissive rather than mandatory. 35 USC 121 states that "[i]f two or more independent and distinct inventions are claimed in one application, the Director may require the application to be restricted to one of the inventions." (emphasis added). However, the CFR needlessly over-regulates by making restrictions mandatory. 37 CFR 1.142(a) states that "[i]f two or more independent and distinct inventions are claimed in a single application, the examiner in an Office action will require the applicant in the reply to that action to elect an invention to which the claims will be restricted..." (emphasis added). 

Eliminating or modifying this regulation would save both the applicant and the Office significant wasted time, paperwork, and expense by avoiding significant excess processing if an Examiner does not feel a restriction is necessary.

Also with regard to restrictions, the Office could also try to follow the regulations rather than re-interpret them (thanks the Chevron deference) to mean something other than what they say. A long running issue has been the Office's insistence that although the statute permits restriction if inventions are both independent and distinct, the USPTO interprets this as being independent or distinct.  See MPEP Section 802.

This is just a start, as one could go on and on with ways to reduce over burdensome regulations at the USPTO.