USPTO Patent Grants

The USPTO issued more utility patents in calendar year 2010 than in any year in history. The 2010 total – just shy of 220,000 issued patents – is a 31% increase over 2009. The previous record was set in 2006 with about 173,000 issued utility patents.  The dramatic rise in issuance rate is not tied directly to an increase in filings (although there has been a small increase in new application filings).  Rather, the increase appears to be the result of administrative changes instituted by USPTO Director David Kappos who took office mid-year 2009 after being nominated by President Barack Obama.

PatentlyO086

The high disposal rate appears likely to continue and perhaps increase in velocity. During the last three weeks (Dec 25, 2010 – Jan 14, 2011), the USPTO has issued more patents than in any three-week period on record.

The increased number of issuances raises some concern that the PTO has lowered its standard for patentability.  It is true, that a higher percentage of applications are resulting in issued patents. However, the PTO is also rejecting more applications than ever before. It is probably time for a quality study comparing patents issued late-2008 to those issued in late-2010.

37 thoughts on “USPTO Patent Grants

  1. So Maxi,

    Are you saying then, by inference, that the US has a better or worse infrastructure?

    I cant tell what you’re saying.

    (part one)

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  2. The trouble is Cy, I’m not sure when you are joking, with or without smileys. That last funny remark of yours about “world class” Europe, for example. I was expecting a smiley after that one too.

    As long term readers of this blog know, I think the substantive provisions of patent law in the European Patent Convention of 1973 are “world class”. The Examiners and the patent practitioners in Europe, by contrast, are (as ever) ordinary and very variable, just like in any other jurisdiction. It is the superior infrastructure which they have been given which explains their good performance.

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  3. limits on the number of allowances

    Hello Justice Department? You were inquiring as to illegal activities…?

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  4. In my experience, it is the removal of the arbitrary limits on the number of allowances in certain art units (up to 10% allowance rate) that at least partly accounts for the increase in numbers of grants. Now that these restrictions are done away with, examiner’s are more willing to discuss allowances as apposed to not even being able to consider them. I have not run into any instance where the current allowance would come without any regard to quality. As far as I am aware, the same safe guards are in place, i.e., the second pair of eyes, etc.

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  5. Would you then say that the quality of advocacy at the EPO has taken a dive, just recently? Your further shrewd insights, please.

    Max, I was joking, hence the poorly executed smiley face. I think the quality of advocacy at the EPO is world class. The quality of examination is pretty decent, too.

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  6. Maxie,

    If those shrewd insights include thoughts that NAL is behind all those claims – RUN!

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  7. Well done indeed, Cy Nical. But for your suggesting:

    “….these applicants merely have a lack of confidence in the advocacy skills of their representation before the EPO… :-)”

    I would never have come to the idea of that, as an explanation of the new-found pragmatic attitudes of American corporations petitioning the EPO. I prefer to explain it as a dawning realisation that all the advocacy skills in the world, to bamboozle EPO Examiners pre-issue, won’t help in inter Partes revocation proceedings post-issue. They are looking for claims that will strike those scrutinising them post-issue as resistant to attacks on their validity brought by their well-informed competitors.

    Would you then say that the quality of advocacy at the EPO has taken a dive, just recently? Your further shrewd insights, please.

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  8. state that your computer-readable medium is non-transitory

    Still waitin for someone to show me somethin that is not non-transitory.

    Nothin lasts forever peeps. Nothin. Which means everything is transitory.

    And once that question be answered, the next abouts findin where this “non-transitory” requirement be found in the law also still need ta be answered.

    7 – ya be bleedin the Office faulty trainin with that statement.

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  9. “Did Bilski unleash a let’s-stall-em in the business method and software-patent arts?”

    About 30% of my work is in the software arts. Bilski (as in, the SCOTUS Bilski decision) changed literally nothing about how the PTO treats software claims. Recite a processor, controller, or computer in your device and method claims, state that your computer-readable medium is non-transitory, and you will not receive a 101 rejection.

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  10. The important thisg is not quality but quantity of marketable invention and ensuring retention of intellectual materials in the absence of initial perfection. Clearly unless great inventors can recieve compensation for there ideas then the system will fail for lack of incentive to create. The reduction to practice can be done by many diferent persons but conception of the marketable cannot.

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  11. I assume it’s good for America as long as my side is winning.

    Darn tootin.

    And yeah, I get the intended joke, but hey, there be more truth in the winnin side than ya think there, my main man.

    And Sunshine – howza there be a record number of rejections if the standard be lowered – ya sayin that applications written sometimes years ago forsaw these changes and wrote differently?

    Keep chasin your windmills and watch out for those blades.

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  12. I don’t think there’s any working patent attorney out there who doubts that the standards have been lowered.

    Lowered to the historically normal level, I think you mean.

    I assume it’s good for America as long as my side is winning.

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  13. The increased number of issuances raises some concern that the PTO has lowered its standard for patentability.

    I don’t think there’s any working patent attorney out there who doubts that the standards have been lowered. It’s not like we can’t see what’s going on.

    Heckuva job, Kappos. Keep puffing on the bubble.

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  14. See the power of my observations.

    Ha – and people still pester me for mere answers. Take note all you disbelievers and learn (if ya can).

    And that includes you, schooled boy.

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  15. Uh oh, Electric Sasquatch, that sounds awfully NALish – you must be NAL too.

    After all, anyone who thinks differently than good ‘ol Cy must be NAL.

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  16. It looks to me like this statistic might bear some closer examining. Class 705 (business methods) issues are up by 82% from 2009 to 2010.

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  17. However, the PTO is also rejecting more applications than ever before.

    What?!

    I thought the reject-reject-reject era was over? Now we learns that the rejections are higher than ever before?

    How much higher? Iza wants to see a graph like above for this here record rejections. Are these concentrated in a particular art unit? Are the art unit with highest rejections correlated with art units with highest issues? Did Bilski unleash a let’s-stall-em in the business method and software-patent arts?

    Inquiring minds (and inquiring mind(s)-less) wants to know

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  18. Quality is extremely difficult to define in any organization, and merely looking at stats in an effort to do so bears caution.

    Something to keep in mind is that the USPTO has been examining more applications than previously due to changes in process, and administrative emphasis, by Director Kappos. One must be very careful in how a subjective metric, such as quality, is defined. An example of an ill-conceived measure to bear in mind is the “quality review” and the reject culture under Dudas. This did not achieve improved quality through its artificially contrived low allowance rate. Rather, Examiners were nervous that claims would arbitrarily be rejected in quality review for being “too short”, and other such frivolous considerations. Good patents were rejected along with the bad.

    Although difficult, it may eventually be possible to develop quantitative metrics that closely approximate quality. However, a good proposal for such a system, in my opinion, has never been presented. While patent quality is certainly important, this needs to be implemented through good training and emphasis at the Examiner-level. Other measures that have been tried have been little more than a bureaucratic farce.

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  19. “The USPTO issued more utility patents…”

    Does “issued” here mean Notice of Allowance being sent out, or patent document being published?

    “During the last three weeks…”

    Why the three-week granularity? Examiners report on a biweekly basis.

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  20. Phillies: You’re correct – that’s a possibility as well which, it seems to me, should likewise be investigated if a full understanding of the reasons for the change in allowance rate is to be achieved.

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  21. American corporate applicants at the EPO are taking a pragmatic view of objections, and settling early for what they can get. (And until now I thought this was down to the ever more consistent robust line maintained by the EPO.)

    Or maybe these applicants merely have a lack of confidence in the advocacy skills of their representation before the EPO… :-)

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  22. I don’t understand how one would measure patent “quality,” particularly on a large scale.

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  23. I also suspect that Fish and Chips point is a strong one. American corporate applicants at the EPO are taking a pragmatic view of objections, and settling early for what they can get.
    (And until now I thought this was down to the ever more consistent robust line maintained by the EPO.) It seems though that this behaviour can be explained by economic pressure on corporate in house patent departments. Whatever, it certainly makes a big difference to the numbers going quickly through to issue.

    I have the feeling that cases rise faster to the top of an EPO Examiner’s in-tray when the applicant/attorney of record is known to take a pragmatic view. So, there might be a “Snowball” effect on allowance rates.

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  24. Thresher, the choice to abandon doesn’t necessarily correlate with a lower likelihood of allowance. It may also be that in view of the bad economy, a company decided to abandon a particular line of business or development, making the related patent applications superfluous from the company’s perspective.

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  25. “Fish and chips” raises a good point: a lot of chaff was separated from the wheat in 2009, as many applications (more than normal) went abandoned in the face of the bad economy. If those applications were already less likely to reach allowance, it would have an impact on the allowance rate of the remaining applications in 2010. At the very least, that effect should be factored out.

    Similarly, a full study of the current allowance rate should also take into consideration changes in performance metrics that strongly favored disposal of applications before the changes went into effect.

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  26. With client money being tight, clients are more willing to compromise, to speed the process with fewer time extensions and to quickly abandon the weaker applications.

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  27. “the PTO is also rejecting more applications than ever before” — a study of the quality of the rejections is needed.

    for each art unit, study the rejections of those examiners with the highest rejection rates

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  28. Ralph,

    This is a blog. Clearly, some articles are meant to instigate a discussion by being one-sided.

    This is one of them.

    But even though this is just a blog, this topic has been flamed before. Just because you are new here, does not mean that the blog itself should be re-treading old, already-flamed story lines.

    On top of that, your attention to my post in such a critical manner means that you are not paying attention to the message, and have, rather, fixated on the messenger.

    I would suggest that to keep your job, you learn how to focus on the critical elements. Here, the critical element is the story not being told, rather than the flaming invitation that is being extended.

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  29. Anon, this is a blog. Not every post is meant to be a definitive scholarly article on every possible aspect of new information. Do you think the writer has nothing to do but provide all of the information you would like to see? Feel free to put your money where your mouth (or keyboard) is and volunteer to supplement every post before publication. Hopefully you will still have time for your current job…

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  30. The obvious bias in this story is appalling.

    Relax, DM. Everything is going to be OK.

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  31. This story could have been portrayed in a better context that would have been the increased throughput under the Kappos regime, and as mentioned, a return to the historical normal on the issue rate.

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  32. Quality should be all there is. Patents should not turn out as quick and as fast. They should be strong. Very few should lose in Court. Go after the people that take what isn’t theirs, that should keep the Courts busy.

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  33. The tone of this article smacks of pure trolling.

    Yes indeed, Kappos has come in and mandated that the examiners get to work actually examining and to stop the reject-reject-reject abuse.

    By reporting here on only the one side (issues), this appears to be an attempt to invite flames on this so-called “lowered standard”. An objective article would have included the increase in overall processing including the increase in rejections as well as the increase in issues and the historical view on issue percentage – which would show that this “record” issue rate falls perfectly in line with historical averages and any “raising the alarm” stories are pure sensationalism. That historical chart clearly shows the cliff created by the Office in its efforts to equate rejection with quality. The obvious bias in this story is appalling.

    This is not the first time such an article has appeared. In fact, one such instance even makes the point that I just shared.

    Dennis – we deserve better.

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  34. Kappos, his team, and indeed the entire PTO deserve a big thanks for all their hard work.

    What a wonderful change from how things were under the previous patent leadership.

    Reply

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