As the Congress carefully considers creation of a post-grant review system, a critical question is whether Congress should put this new system under control of the PTO as per the current legislation. The alternative could be modifying the current Claims Court to an upgraded CCPA – a Court of Claims and Patent Appeals which would continue to have Special Masters, but now Special Patent Masters that could be situated in, for example, San Diego, San Jose, Boston and other high tech centers. For that matter, the judges of the CCPA could also ideally be dispersed throughout the United States; there is no compelling need to have them all housed just below the chambers of the Federal Circuit in an expensive Lafayette Square venue.

To be sure, PTO generated statistics paint a rosy picture of improvement in patent reexamination, and, indeed, the Dudas Administration's creation of a “supergroup” for patent reexamination is an important milestone.

Serious doubt exists whether a politically controlled PTO can guarantee the promise of the post-grant system that the patent community so desperately needs:

Whereas an “average” reexamination may be proceeding in better fashion than heretofore, anecdotal evidence demonstrates that there are severe problems for very important, commercial blockbuster cases. It remains a fact that the average pendency is on the order of magnitude of ten (10) years for a reexamination from the first filing of a reexamination or related reissue up through a reexamination certificate where that reexamination is important enough to go all the way through a Federal Circuit appeal.

The BlackBerryGate series of reexaminations points to the challenges of political interference. In a “gang that couldn’t shoot straight” comedy, years ago the adjudged infringer in the NTP litigation had brought in a Canadian Minister to intervene with the Secretary of Commerce to expedite this important set of reexaminations. That was years ago in cases apparently still pending at the PTO, long after the adjudged infringer paid more than a half-billion dollars to settle with the patentee.

The MedImmune case that reached the Supreme Court involves a patent that is still undergoing reexamination.

Where a final decision is delayed in reexamination by a year, this may result in a patent tax to consumers of a billion dollars or more. Thus, the value of a patent in some areas can be measured in terms of billions of dollars per year. For example, in the suggestion for rehearing en banc in Pfizer Inc. v. Apotex, Inc., 480 F.3d 1348(Fed. Cir. 2007)(a case not involving reexamination), the patentee asked the Court not to forget about its expired patent: “[T]he issue of the patent's validity is not moot. It remains critical to Pfizer's right to six months of … exclusivity[ ] having a value of over one billion dollars."

The rate of two billion dollars a year in the Pfizer case exceeds the budget of the PTO.

If the PTO with its $ 1.6 billion budget is unable to move the handful of commercially very important reexaminations to conclusion by allocating its resources, the patent community can hardly have confidence in a post-grant review system under the control of the PTO:

It may be time to seriously consider creating a new CCPA.