Patent Grants 2010

Over the past few weeks, I have been reporting on the dramatic rise in the number of patents being issued by the USPTO each week. That trend continues. In the past three weeks, the USPTO has granted more utility patents than in any three week period in history — at a rate more than 40% greater than in 2009.

Kyle Jensen of PriorSMart reports on an interesting phenom: For the first-time, the number of issued patents exceeds the number of published applications.

59 thoughts on “Patent Grants 2010

  1. Anyone know where I can find filing statistics in the US for 2006? I am looking for a list of the top 50 companies that filed the most patent applications in the US for 2006. I can find top granted but not top filed. Any help would be appreciated!

  2. re: “It is the Examiner’s BURDEN to PROVE that the teachings were “within the knowledge generally available” …”

    It is only a TRUE examiner burden if you pay $$$ and appeal. Until then, the examiners can do what ever they want, even post conclusions without proof (e.g., “It would be obvious to combine obvious elements, making it 103 obvious.” – how many times have I seen that?)

  3. till it all comes crashing down

    Didn’t Duell say that too?

    Mooney, I think its time to crawl out of mom’s basement for a while…get some fresh air.

  4. “Wait — you mean it wasn’t the great, improved taste of McDonald’s patented coffee blends and patented methods of preparing drinks that led to their success, but … advertising? Go figure.”

    Advertising had a part, but improved taste definitely played a part as well. Tasted objectively, McDonalds coffee now kicks the snot out of Starbucks coffee. It’s not even a contest.

  5. Yaaawn. Still the backlash from the new count system. A whole lotta patents issued on Tuesday that were allowed in Feb., right before the allowances lost 25% of their value toward fulfilling the examiner’s quota. A whole lotta those allowances from Feb. haven’t issued yet, too.

    What would be a better indicator would be # of allowances mailed by PTO, but those data are a lot harder to obtain.

  6. Granted IANAE has a wealth of knowledge which probably places him outside the every day flow of prosecution (hence his seemingly often misplaced views), but the statement “I find that very hard to believe. I’ve seen some conclusorily-worded rejections in my day, but that one would take the proverbial biscuit.” means that there is lots of biscuits to go with all that McDonalds coffee.

    The mere existence of that desire does not motivate any particular solution

    You know that. I know that. But you don’t seem to know that the examiners don’t know that. We be talking cut n paste thinking here and the “any” solution is simply the solution immediately offered in the application. It don’t matta if “unless that particular solution was already known to make similar things cheaper or faster or better” cause the thinkin don’t even make it that far. Plus, that line o yours isn’t in the cut n paste paragraph, so weza don’t know if the xaminer knows that – it aint part of the record.

  7. “advertising?”

    That’s a big part of it to be sure, but there’s also the big switch from charging a dollar and change for a proper cup of coffee to charging maybe five bucks for a cup of warm milk and foam, or ice granules and chemical thickeners.

  8. link to cnn.com

    McDonald’s coffee sales have increased every year since the company first introduced its McCafe line of premium coffee in 2006. In April, McDonald’s announced its U.S. comparable sales rose 3.8 percent, citing beverages, including the new McCafe offerings such as Frappes, as a top contributor to that growth.

    Despite all this, Starbucks CEO Schultz said the expanding marketplace might just be an advantage to all of its players.

    “The level of awareness that was created by McDonald’s’ tens of millions of dollars of advertising created more trial in the marketplace and differentiation.”

    Wait — you mean it wasn’t the great, improved taste of McDonald’s patented coffee blends and patented methods of preparing drinks that led to their success, but … advertising? Go figure.

  9. In the mean time, you better find some way to drown out your bitterness over those software patent attorneys getting rich with those craap patents.

    Until it all comes crashing down.

  10. “Yes, the increase in grants is having a huge effect on investor confidence, exactly as the teabuggers predicted. Oh wait …”

    Is your best response to identify some correlation (or lack thereo) between patent grants and the stock index? Sometimes its better to ignore a comment than to present a weakly-supported response … then again, common sense was never your forte.

    Take another hit … you’ve got several years to kill before the pendulum swings back. In the mean time, you better find some way to drown out your bitterness over those software patent attorneys getting rich with those craap patents.

  11. “I don’t think “it’s expensive” is a valid argument for the non-obviousness of a combination, where the combination yields exactly the result one skilled in the art would have expected.”

    No, if it yields the expected result I don’t think it rises to the level of deserving its own patent. However, if it’s expensive and it has an unexpected result, I don’t think it should be held obvious merely because it’s one of many materials that are known to work and therefore a routine modification for a person skilled in the art. I would hope that the expense would make it non-obvious for a person skilled in the art to “routinely” swap out the usual cheap material for a benefit he didn’t expect.

  12. I heard that the PTO has changed the review process and obtaining RCEs no longer count heavily in favor of examiners. Could the rise due to this reason?

  13. that would make for an interesting background section.

    Indeed. I don’t think “it’s expensive” is a valid argument for the non-obviousness of a combination, where the combination yields exactly the result one skilled in the art would have expected.

    Perhaps if the claims recited something about the cost of the invention … but of course they never do.

  14. “Even if the cheaper ones were patented?”

    Now, that would make for an interesting background section.

    Material X is known in the art for this purpose. However, material X is currently protected by US Patent No. X,XXX,123. Royalties cost money. Therefore, there is a need for unpatented alternatives to material X.

    I claim:

    1. The alternatives to material X.

  15. More patents = more money in my pocket, and that is all I hope for from our patent system.

  16. If the expensive one is (as far as anyone skilled in the art knows) just another option that would work, the person skilled in the art would always use the cheaper one.

    Really? Even if the cheaper ones were patented?

    Go on. This is interesting.

  17. A reason to prefer the more expensive material. If the expensive one is (as far as anyone skilled in the art knows) just another option that would work, the person skilled in the art would always use the cheaper one. Put another way, he has no motivation to use the more expensive one, because presumably your reason for using the more expensive one was not known in the art until you discovered it.

  18. It’s not obvious to use an expensive material in place of a cheap material unless you have a reason to prefer it.

    Huh? What does “it” refer to?

  19. “the invention was non-obvious because the material was so flipping expensive.”

    Well, yeah. It’s not obvious to use an expensive material in place of a cheap material unless you have a reason to prefer it.

    It’s generally obvious to use the cheap material in place of the expensive material if it so much as functions. But that’s because it’s cheaper, not because you “admitted” in your background that it’s better when things are cheaper.

  20. All those craap patents getting issued despite his rantings. Even worse, all those clients happy with their software patent attorneys for getting allowances and proceeding to provide their software patent attorneys with more work and billings.

    Let the good times roll ….

    Yes, the increase in grants is having a huge effect on investor confidence, exactly as the teabuggers predicted. Oh wait …

  21. IANAE It’s always a problem in every art that things are too expensive or could be done quicker. There’s always a desire in every art to make things cheaper and easier.

    But then there is that ridiculous fly-screen case where the invention was non-obvious because the material was so flipping expensive. LOLOLOLOL.

  22. Moonbeam (aka the hairy babooonarooski) must be ingesting more controlled substances these days.

    All those craap patents getting issued despite his rantings. Even worse, all those clients happy with their software patent attorneys for getting allowances and proceeding to provide their software patent attorneys with more work and billings.

    Let the good times roll ….

  23. “If you state that the problem as admitted prior art, then YOU ARE PROVIDING THE TEACHING SUGGESTION OR MOTIVATION and INSERTING it unnecessarily into the prior art.”

    Let me try my point again, then. You are wrong. The problem you state in your background already exists in the prior art. You’re not adding or creating or admitting it. It’s always a problem in every art that things are too expensive or could be done quicker. There’s always a desire in every art to make things cheaper and easier. The mere existence of that desire does not motivate any particular solution, unless that particular solution was already known to make similar things cheaper or faster or better, in which case you’re not entitled to your patent anyway.

  24. Further to your conclusory rubbish, I’ll say that TINLA’s boilerplate rejection is spot on.

    “It would have been obvious to one skilled in the art to modify [reference name] to perform [insert the function of the invention] in order to [insert stated benefit of invention].”

    Maybe it’s in the unofficial MPEP or the official template; all I know is that I see it every day.

  25. I tend to agree with the sentiment that the primary contribution to the difference is the revisions to the second pair of eyes program and to the quality assurance protocols, as many have stated; and i would further point to the count system revision as a contributing factor because the examining corps now recieves production credit for working on amendments, and it’s possible that the amendments are being given more thorough consideration relative to when they had no immediate rewards attached to them. As it’s been said, it’s a safe assumption that more thorough examination begets compact prosecution.

    However, I suspect there may be another somewhat undiscussed contribution to the allowance rate that results from the changes to the docketing system.

    (Disclaimer: the following is purely speculation, contains several assumptions, and has not been verified at any level.) It would be interesting to consider whether any changes in the rate of amendment consideration have occured and to consider whether any increase would affect the number of allowances per biweek. Speaking for myself, it seems like the rate of cases being docketed to my “regular amended” tab after the office’s docketing policy revisions has changed very little relative to the rate of cases being docketed to my “regular amended” tab prior to the revisions. If my perception on this point is correct, this would mean that the number of “regular amended” cases needing review each biweek has stayed the same despite the exclusion of RCE cases from this category.

    One explanation for this is related to how the cases are moved from the “rejected” tab to the “regular amended” tab through the actions of the LIE’s who manage the examiner’s rejected dockets. I think the LIE’s try to limit the number of amended cases moved to the amended tab each biweek to some manageable number, which is definitely true for some examiners on a formal program and I suspect may also be true for other examiners on an informal basis. Assuming there is an informally accepted protocol for managing the number of cases expected to be docketed, it’s possible that such a protocol didn’t change with the new docketing system.

    Regardless of why it occurs, if we can assume at any point that the rate of cases being assigned to the “regular amended” tab is relatively the same as the pre-revision rate, this would indicate an increase in the relative percentage of the biweekly caseload which constitutes responses to amendments after an FAOM relative to FAOM cases for either new or special new cases.

    Dennis, do you know any figures that express the number of allowances coming from cases which are allowed in response to amendments/req for reconsideration issued after any FAOM relative to allowances given on the FAOM of both new cases and RCE cases? If I’m right that more amendments are being processed per biweek and if i’m right that allowances are more likely to issue in response to amendments/req for reconsideration after any FAOM (any offce action excluding FAOM’s for new and RCE cases), then it would be logical to conclude that there would be a contribution to the increase in the number of allowances.

    (Wow, that was a lot of assuming.) Anyway, at the very least, I reiterate that it might be interesting to look at whether there has been any relative increase in the relative rate of response to amendments.

  26. IANAE, I’m going to type slower this time. If you state that the problem as admitted prior art, then YOU ARE PROVIDING THE TEACHING SUGGESTION OR MOTIVATION and INSERTING it unnecessarily into the prior art.

    You can now quit leading others astray with this “we need longer, more explanatory backgrounds” bit. It’s RIDDLED with peril, and anyone who does it is either misled or simply nuts.

  27. “I have reproduced the most loathedly erroneous section of the MPEP for you below.”

    Yeah, thanks so much. I was hoping you’d narrow it down a little.

    You’re basically telling me the PTO’s position is that “Office personnel must articulate … a finding that there was some … motivation, …” is satisfied by a bare statement that “I find that there is some motivation” and not even a hint of what that motivation is.

    I find that very hard to believe. I’ve seen some conclusorily-worded rejections in my day, but that one would take the proverbial biscuit.

  28. “It’s not hindsight if the identification of the problem to be solved or the benefits of the invention are in the background, because the background is admitted prior art.”

    There’s a big difference between the problem being prior art and the solution being prior art.

    Anyway, most problems identified in background sections are along the lines of “there oughta be a quicker/cheaper/easier/better way to do this”. Do you think that would invalidate any quicker/cheaper/easier/better way, including those filed in later applications against which yours is citable?

    Sounds like you’re having the same problem as TINLA. I personally blame KSR, but only because I want to be popular.

  29. “Is there any part of that section of the MPEP that you find particularly objectionable?”

    I have reproduced the most loathedly erroneous section of the MPEP for you below. I have had Exmianer’s quote portions of it to me on multiple occasions to establish why they don’t have to find the missing element. Notice it says they only have to say there is a finding of “some … motivation … in the knowledge generally available to one of ordinary skill in the art, to modify the reference …” That’s all they think they have to do. Maybe it’s just the art unit(s) I practice before, but I see it all the time. I challenge anyone to find for me anywhere in KSR or anyother CAFC or Supreme Court case that anything about motivation to modify, as opposed to combine.

    MPEP 2143 Examples of Basic Requirements of a Prima Facie Case of Obviousness …

    (G) Some Teaching, Suggestion, or Motivation in the Prior Art That Would Have Led One of Ordinary Skill To Modify the Prior Art Reference or To Combine Prior Art Reference Teachings To Arrive at the Claimed Invention
    To reject a claim based on this rationale, Office personnel must resolve the Graham factual inquiries. Then, Office personnel must articulate the following:

    (1) a finding that there was some teaching, suggestion, or motivation, either in the references themselves or in the knowledge generally available to one of ordinary skill in the art, to modify the reference or to combine reference teachings;

    (2) a finding that there was reasonable expectation of success; and

    (3) whatever additional findings based on the Graham factual inquiries may be necessary, in view of the facts of the case under consideration, to explain a conclusion of obviousness.

    The rationale to support a conclusion that the claim would have been obvious is that “a person of ordinary skill in the art would have been motivated to combine the prior art to achieve the claimed invention and that there would have been a rea sonable expectation of success.” DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1360, 80 USPQ2d 1641, 1645 (Fed. Cir. 2006). If any of these findings cannot be made, then this rationale cannot be used to support a conclusion that the claim would have been obvious to one of ordinary skill in the art.

    The Courts have made clear that the teaching, suggestion, or motivation test is flexible and an explicit suggestion to combine the prior art is not necessary. The motivation to combine may be implicit and may be found in the knowledge of one of ordinary skill in the art, or, in some cases, from the nature of the problem to be solved. Id. at 1366, 80 USPQ2d at 1649. “[A]n implicit motivation to combine exists not only when a suggestion may be gleaned from the prior art as a whole, but when the ‘improvement’ is technology-independent and the combination of references results in a product or process that is more desirable, for example because it is stronger, cheaper, cleaner, faster, lighter, smaller, more durable, or more efficient. Because the desire to enhance commercial opportunities by improving a product or process is universal-and even common-sensical-we have held that there exists in these situations a motivation to combine prior art references even absent any hint of suggestion in the references themselves. In such situations, the proper question is whether the ordinary artisan possesses knowledge and skills rendering him capable of combining the prior art references.” Id. at 1368, 80 USPQ2d at 1651.<

  30. IANAE, aren’t you one of the ones arguing for longer backgrounds?

    It’s not hindsight if the identification of the problem to be solved or the benefits of the invention are in the background, because the background is admitted prior art.

  31. People are still whining about KSR?

    Wow.

    TINLA we need the CAFC to start interpreting and applying KSR narrowly if we are ever going to return to a prolific patent system. We’re not there yet.

    Your clients may need that to get a claim granted on their crxppy “invention” but “we” certainly don’t need the CAFC to apply KSR narrowly. Why do “we” need more broad claims issued to protect obvious “inventions”? It’s a rhetorical question.

    Perhaps you were referring to these Japanese underwear patents issued this past Tuesday:

    7,721,355
    7,721,356

    Or the “toilet with improved fragrance delivery” (7,721,358)

    1. A toilet device having a delayed fragrance burst comprising:
    an air moving part for mounting inside a toilet tank;
    an air treatment portion, positioned outside the toilet tank, which is in communication with the air moving part; and
    a delay valve connecting the air moving part and the air treatment portion;
    wherein the delay valve restricts air flow from the air treatment portion towards the air moving part.

    And of course there’s endless examples of crxp like this (7,725,947):

    1. A method for processing an electronic data structure by using one or more processes running in a computer system of a first party, comprising:
    selecting benchmark information stored in a resource or database;
    selecting identification information for controlling access to the benchmark information;
    storing the selected benchmark information, an entity associated with the selected benchmark information, and the selected identification information in said electronic data structure, wherein the selected identification information comprises data specifying a parent entity having access to the selected benchmark information associated with the entity and wherein the entity is a child entity of the parent entity;
    receiving a request to access the selected benchmark information, the request including identification information of a second party; and
    granting access to the selected benchmark information to the second party when the identification information of the second party matches the selected identification information included in the electronic data structure.

    “B-b-but, Examiner, our m-m-method processes b-b-benchmark inform-m-mation!”

    There’s another one about a virtual “sandbox” that is even more pathetic. Someday some schmuck is going to claim a virtual cat door and then I’m going to have some fun: link to patentlyo.com

  32. “The category in the MPEP that says that motivation to modify is suffiecient is defectively written, and misconstrues the teachings of KSR.”

    Is there any part of that section of the MPEP that you find particularly objectionable?

  33. Actually, KSR does say that Exmainer’s can look to the Applican’t own application to find the suggestion or motivation, and that the Exmianer can use common sense to find the suggestion or motivation. However, KSR never says that all you need is a suggestion or motivation to modify the teachings. What you need is a suggestion or motivation to combine teachings. Or you can go to one of the other categories for an obvious modification, such as one of a finite range of readily identifiable solutions. The category in the MPEP that says that motivation to modify is suffiecient is defectively written, and misconstrues the teachings of KSR.

    You can try the “hindsight reasoning” response, but expect to have to appeal it, and then appeal it again to the CAFC. In my experience, most clients will just abandon the application. I mean, they are abanodoning applications and even issued patents left and right becasue they are desperate for money. Why go the expense of an appeal?

  34. Who wants to suggest to his/her Congressman that this amendment to section 103 be added to teh Patent Reform bill:

    § 103. Conditions for patentability; non-obvious subject matter
    (a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made. Differences between the subject matter sought to be patented and the prior would only have been obvious to a person having ordinary skill in the art if the prior art and/or the knowledge of the person having ordinary skill in the art would have taught, suggested or motivated the making of the subject matter sought to be patented.

  35. Still, you’d think this sort of thing could be resolved with a phone call or, at worst, a tactfully-worded written response explaining that the motivation can’t be based on hindsight from the applicant’s spec, and would you please give that “prima facie case” thing another go?

    LOL – oh you crack me up IANAE.

  36. Maybe it’s due to the 1000′s of examiners hired in approximately the last 5 years. They get promoted, produce more, their dockets mature, and more cases get resolved. No wait, those were the Dudas years, and nothing good could possibly ever come out of that time… there goes that theory. I guess we’re back where we started, then.

  37. the Dudas administration wrote the MPEP to tell Examiners that all they have to do to establish a Prima Facie case is say that there is a motivation to modify.

    It doesn’t say they have to say what that motivation actually is?

    That’s pretty surprising. Still, you’d think this sort of thing could be resolved with a phone call or, at worst, a tactfully-worded written response explaining that the motivation can’t be based on hindsight from the applicant’s spec, and would you please give that “prima facie case” thing another go?

    In other words, exactly the same way you’d have handled that rejection before KSR.

  38. IANAE, the problem we are having is that Examiners think they can just say that it would be within the skill of one of ordinary skill in the art to modify the reference by creating the new element that solves the problem addressed by the invention, and that one skilled in the art would be motivated to do so in order to solve the same problem that the inventor was trying to solve. We know that KSR does not say that, but the Dudas administration wrote the MPEP to tell Examiners that all they have to do to establish a Prima Facie case is say that there is a motivation to modify.

    Now that the BPAI is allegedly just rubber stamping appealed rejections, I think Dudas may be trying to generate a case that will clarify this issue. The PTO has complete control over which cases actually can go to the CAFC, and it seems that it previously gamed the sytem to prevent such a set of facts from going before the Court. So in affirming those rejections, I think the BPAI is actually doing us a favor.

  39. “If the examiner has a plausible reason …” “…ask the examiner to substantiate…”

    It is the Examiner’s BURDEN to PROVE that the teachings were “within the knowledge generally available” …

    It’s precisely this kind of loosey goosey thinking both in the patent bar and in the Examiner Corps and the Office that has led to a decline in quality. What is so hard to understand about the requirement for the PTO to prove their assertions?

  40. Imho, KSR stands for the proposition that the PHOSITA would COMBINE references, not add elements to them which are not taught or suggested within the references.

    The person skilled in the art may draw on his general knowledge in addition to the specific teachings of references.

    The real question here is what rationale or motivation the examiner is giving for adding the element he can’t find in the art. Is he actually saying “obvious over A – A doesn’t teach X but KSR therefore your claim is invalid”?

    If the examiner has a plausible reason why a person skilled in the art would add that element, KSR is not your problem. You might care to ask the examiner to at least substantiate the existence in the prior art of the element he’s adding, but if it’s a known use of a known element you shouldn’t expect to get a patent on it.

  41. Excellent comment, TINLA – I am incredibly frustrated that Examiners are using KSR as a basis for a PHOSITA adding an element not found in the art. Imho, KSR stands for the proposition that the PHOSITA would COMBINE references, not add elements to them which are not taught or suggested within the references.

    Too bad that clarifying that point will require a good set of facts being appealed to the CAFC.

  42. Given that the population of the earth is greater than ever before, and continues to grow, then I ordinarily would expect to see the number of patents granted each week to generally increase, and frequently be greater than the number of patents ever before issued.

    The increase of 40% over last year is encouraging, but I remain unconvinced that we are back to the pre-Dudas grant rate or claim scope. And I don’t think we can get back to that place with KSR as an obstacle.

    We won’t even get close in the near future unless the CAFC makes it clear that the suggestion or motivation only goes toward combining teachings of references, and not towards rendering obvious the new element that the Examiner can’t find in the art, except for the very narrow and rare circumstances in which that new element is a location for attaching a known something to another known something, and that location is one of a few readily identifiable options.

    In other words, we need the CAFC to start interpreting and applying KSR narrowly if we are ever going to return to a prolific patent system. We’re not there yet.

  43. If memory serves, we’re right around the point where applications currently being published would have been filed right around the time of the ’08 market/economy crash. It’s not entirely surprising to see other metrics increase relative to publications.

    Still, it’s nice to see an indication that, for whatever reason, disposals are outnumbering new filings.

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