Patent Grants Continue to Rise

Two-weeks ago, I reported on the rising number of patent grants at the PTO. That trend has continued.  The chart below shows the average number of patents issued per week through May 11, 2010.  In the past three weeks, the USPTO issued an average of 4,517 patents per week. That figure is more than 40% above the 2009 weekly average. 

PatentlyO046

The USPTO issues new patents each Tuesday morning.  Of the weeks with the most patent grants, eight of the top-ten weeks are from this year (2010).  The other two high-grant weeks were in 1999 while Todd Dickinson was director.

 

39 thoughts on “Patent Grants Continue to Rise

  1. Question for the examiners: In an area like chemistry or polymers or textiles, how many patents does a typical examiner or primary examiner allow per year, in your experience?

  2. I’ve literally seen a Patent where a fake clock could move hands. And it is hung on the wall for a time you are to remember to give medicine to your child?
    A) write down the time to take the medicine.
    B) Set an alarm
    C) Don’t waste the PTO’s time
    D) Why would a Lawyer even applicate this?
    E) Tell the client to go home and think of a better idea.
    F) all of the above

  3. So you have heard counsel saying that they filed applications that were unworthy of patent protection. And I’m sure the same people wonder why PTO has a huge backlog.

    Two things:

    1) What they said was that they were cutting back on filing applications that would be more difficult to get allowed. Not necessarily unworthy of patent protection, but more expensive and with worse odds. That’s your standard business decision – first thing you cut is spending that is less likely to produce a return.

    2) It doesn’t matter what people are filing. The PTO needs to be able to deal with it. We all know most applicants won’t bother spending the money unless they think they have some chance of securing a patent, but as long as they believe they have some chance it’s up to the PTO to give them a prompt and reasonably diligent assessment of that chance.

  4. “Under the old obviousness standard, if an R&D team made a marginal improvement to a prior invention, the IP team would likely recommend filing.”

    Clearly, KSR has made changes to the landscape in regard to case law. Anyone who’s gotten back a decision from BPAI in the last 3 years or so knows this.

    The signers of the Constitution never intended to grant patents for “a marginal improvement to a prior invention.” That was my point. If the results are unexpected (i.e. different in kind rather than degree, as stated in In re Waymouth), then that’s a great reaason to file a patent application. However, too many attorneys filing apps for “marginal improvements” just to get “weak” patents are the whole reason the pendulum has swung. The courts and PTO both are flooded with the result of such filings.

  5. Chris – Yes, under the new obviousness standard some and possibly many draft applications and already filed applications were likely dropped.

    Before KSR, it was very difficult to prove something was “obvious”. Lot’s of hurdles for examiners and the courts. I think most litigators defending infringers would suggest settling if only defense was obviousness, unless the obviousness case was very strong. As a result, many patents were granted that likely looked “obvious” to most people.

    Under the old obviousness standard, if an R&D team made a marginal improvement to a prior invention, the IP team would likely recommend filing.

    KSR changed the obviousness standard. Some would say the pendulum as swung to far. In any event, the standard for patentability changed with KSR resulting in changes in the decision-making process for what inventions to file on.

  6. JB said:

    “I’ve spoke to several inhouse counsel. Many are cutting back on filing not only because of the economy, but because of KSR. That is, many “weak” applications that might have been filed a few years ago are no longer filed.”

    So you have heard counsel saying that they filed applications that were unworthy of patent protection. And I’m sure the same people wonder why PTO has a huge backlog.

  7. Yet, I am not sure that the claims aren’t obvious over a Western Union money order

    I’m not sure that claim one is novel over depositing money at an ATM and someone else withdrawing from the same account at another ATM (in the case of joint accounts or something).

    Still, I can see it being very handy when you don’t want to get too close to the “entertainer”, or even be looking in her direction, when you give the tip.

  8. Frip, that is an amusing patent, and I’m pretty sure there is something patentable.

    Yet, I am not sure that the claims aren’t obvious over a Western Union money order The word “tip” isn’t very distinguishing to me.

  9. >>Yes, Mooney can invalidate patents merely with >>his cynicism.

    Don’t forget that Mooney has his aunt who can replace any computer and can answer any question posed to her by Mooney.

  10. “SPEs are still afraid of having allowances kicked back from quality review.”

    Name one.

  11. It’s my understanding the PTO has hired more patent examiners to help more the backlog. I understand they were hiring former examiner who can hit the ground running so would likely have a solid impact on the backlog.

    Moreover, the PTO had that program to accelerate prosecution for small business if the business dropped a number of pending cases. The likely result would be unimportant and/or likely applications determined to be possible unpatentable dropped in favor of applications believed to be important and also estimated to be patentable (after having been pending for a few years and no new art being found most applicants have a better idea of which to pursue).

    Moreover, the PTO has increased quality control I believe all allowed applications are reviewed (at least the ones I’ve worked have been).

    I’ve spoke to several inhouse counsel. Many are cutting back on filing not only because of the economy, but because of KSR. That is, many “weak” applications that might have been filed a few years ago are no longer filed.

    Are there still questionable patents being granted? Sure, it’s a gov’t entity with limited resources. Moreover, I’ve spoke to several litigators who are now using reexamination more frequently (very rare just a few years ago). We likely need to make challenging patents easier.

    However, it everyone wants to decrease “sham” patent litigations, the lowest fruit on the tree is to re-visit declaratory actions and inequitable contact. We need to adjust the standards to encourage parties to engage in open discussions that could result in a license. If the parties don’t agree but act in good faith, it’s as if nothing happened. We will likely see more “file complaint first, talk later” unless these issues are addressed.

  12. It’s still black and white. Either you have a SPE that has gotten the message that it’s ok to allow, or you don’t. What is interesting is that the mixture of cases that the “quality control” people look at has changed. The “random” review use to be heavily weighted toward allowances (like a ratio of 85 to 95 allowances for every non-allowance reviewed). From what I’ve heard they’ve actually moved to a random mix of office actions.

    P.S. There is no pressure to allow. SPEs are still afraid of having allowances kicked back from quality review.

  13. “The people with spes that never allow anything may very well just not be showing their spes what they want to see in their presentation thereto.”

    I don’t think that’s true. There are some AUs that just don’t want to allow. If you want to check it out, try punching in the last names of the people who started with you in the academy into EAST (lastname.xa.) and compare the number of patents versus the art units they’re in. At least when I did it, the results were enlightening. As in, ~40 allowances for most of the examiners versus ~2 for the examiners in one art unit.

  14. “Perhaps it’s time to do the old experiment where I pull up a bunch of freshly issued patents and destroy half of them in ten minutes. Who knows? Maybe things have changed in the past year or two. But I doubt it.”

    Where you use sarcastic hindsight reconstruction, without providing actual references, to invalidate claims?

    LOLOLOLOLOLOL

  15. Does the PTO do studies of examiners within the same AU who have very high allowance rates and figure out why?

    Same with very low allowance rates?

  16. “I see probationary examiners with ~20 RCEs in their dockets and get jealous.”

    I hear you about the jealousy thing. I’ve been allowing more than ever.

    And no, to the person way above, no pressure to not allow. Except on every case. Every case it’s the same old routine. I take the case to the spe, tell him what I had and why the claim is different. We discuss possible ways to invalidate the claim based on art I have or could likely easily find, or 112 etc. and then if none seem viable then we allow it. That’s it. That’s all the pressure there is outside the academy. Either you show that you did your job pretty well or you might have an issue getting something allowed.

    The people with spes that never allow anything may very well just not be showing their spes what they want to see in their presentation thereto.

  17. This time last fiscal year I had 12 allowances. So far this FY I have 25.

    I’m more likely the exception than the rule. My friend (same AU, also 3+ years at PTO) has five total.

    If anything I feel the need to reject more. I see probationary examiners with ~20 RCEs in their dockets and get jealous.

  18. “Perhaps it’s time to do the old experiment where I pull up a bunch of freshly issued patents and destroy half of them in ten minutes”

    Yes, Mooney can invalidate patents merely with his cynicism. His armchair technological prowess is second to none. In short, he is the most tiresome person in the world.

  19. We have a lot of gall condemning the Turks for doing the same thing to the Armenians that Jackson did to the Cherokee.

    It’s one thing to say we should have some perspective about what we condemn or condone, but surely the Turk/Armenian thing is just as worthy of condemnation no matter what any American has done.

    I’m going to give you the benefit of the doubt and assume you didn’t realize “condemn both” was an option.

    Remember, he who is innocent cast the first stone.

    Famous last words. I bet his mom beaned him right in the head with that first stone.

  20. Ask any Cherokee how they feel about Andrew Jackson. They won at the Supreme Court, but he stole their land anyway, forcing them to the trail of tears where thousands died.

    And now, his ghost rides again, and again he defies the Supreme Court. This is not going to sit well with the American people.

    We have a lot of gall condemning the Turks for doing the same thing to the Armenians that Jackson did to the Cherokee. Remember, he who is innocent cast the first stone.

  21. Maybe things have changed in the past year or two. But I doubt it.

    That don’t make sense. If you apply the same test and get the same results even when the allowance rate changes dramatically, that just means that the dramatic increase has nothing to do with your test.

    Are you sure that you wanted to say that?

  22. Man I ha_te the ha_te filter.

    TINLA IANYL,

    You cannot add the year over year percentage increase of 35-40 % to the all time low patent grant rate just because they are both percentages. They measure different things. Not even the same ballpark.

    Let’s keep your fuzzy math skills away from Ned’s fuzzy reading skills, lest the progeny doom us all.

  23. I really have to wonder what your experience has been to have caused you to form such negative assumptions regarding the average patent application.

    Perhaps it’s time to do the old experiment where I pull up a bunch of freshly issued patents and destroy half of them in ten minutes. Who knows? Maybe things have changed in the past year or two. But I doubt it.

    microwaves, cell phones, cordless phones, the internet, computers…

    A typical invention now is “A method of using a wireless handheld device for cooking, wherein said device receives an input, wherein said input corresponds to a size and weight of an edible substance, and wherein said input is transmitted to a remote computer, wherein said computer determines a microwave cooking time, wherein said cooking time is transmitted to said device, wherein said device displays says cooking time.”

  24. Hint: man was not made the image of my god.

    Gods are made in man’s image.

    If triangles had a god, their god would have three sides. And of course their god would always be right.

  25. These numbers most likely primarily reflect the ongoing economic recovery, as large entities stop strategically letting low-priority applications go abandoned and instead pursue them to allowance.

  26. I just heard that the ghost of Andrew Jackson, famous as the only president who defied the Supreme Court and lived to tell about it, tore down the Mojave Desert war memorial cross. That Andrew Jackson 2, Supreme Court 0.

  27. TINLA, it’s simple. Mooney thinks that everything that there was to invent has already been invented.

    Of course, someone already said that a few million patents ago, before microwaves, cell phones, cordless phones, the internet, computers….

  28. Moonpie,

    IDK why you think that grant rate is too high. Most people don’t waste the time and money trying to get a patent unless they really do have something good. Sure, the ideas that get trotted in by the inexperienced are knocked out by a patent search about half the time, but we really are encouraging those guys to get a search done and, as a reult, preventing those filings from taking place. Meanwhile, the professional R&D guys, who generate patents for living, basically never miss. I recall one client whose patents I used to write and prosecute had filed about 400 patents through us, and we had a 100% grant rate for that client. I really have to wonder what your experience has been to have caused you to form such negative assumptions regarding the average patent application.

  29. I don’t think they’re pressured to allow, it’s that I think they’re now no longer pressured to NOT allow.

  30. 6,

    I am curious if you or other examiners that you know have been pressured under the new leadership to issue more notices of allowance.

  31. I believe the 70% rate is arrived at by countng applications that eventually issue through one or more refilings as a single application.

    The “normal” application allowance rate has been around 50%.

  32. If I recall correctly, grant rate dropped from about 70% to about 35% under Dudas. So an increase of 40% on that 35% level (if you follow my fuzzy math) would put us back up around a 50% grant rate, which remains far short of what I consider normal (the original 70% rate). Still a long way to go.

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