Patenting Numbers

Two interesting statistics that came-out in today’s USPTO Roundtable on Patent Quality:

  • The number of examiner interviews have increased 60% over last year.
  • The action-per-disposal rate has fallen from about 2.9 actions-per-disposal to 2.3 actions-per-disposal as compared with last year.

54 thoughts on “Patenting Numbers

  1. Dream what you want to dream; go where you want to go; be what you want to be, because you have only one life and one chance to do all the things you want to do.

  2. 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!

  3. Huh? Are you saying a reduction in bad things is not good. That measuring the occurrence of bad things wouldn’t motivate someone to prevent those things from happening?

    No, I’m saying the occurrence of bad things is not what you’re really measuring.

  4. “Metrics that measure the wrong thing don’t work. Sure, they “can”, if the measured wrong things never happen, but that’s not a reasonable simplifying assumption. The metric does not correlate with what you’re trying to measure. It’s a bad metric.”

    Huh? Are you saying a reduction in bad things is not good. That measuring the occurrence of bad things wouldn’t motivate someone to prevent those things from happening?

    “If you want to measure bad rejections, measure nonfinals per disposal, or second nonfinals, or nonfinals per final, or something like that.”

    That is exactly what it would measure. ADP is a current measurement, but would need to be adjusted to more accurately measure the efficiency (a quality factor) of an examiner’s action taking.

    Got lots of work to do, so I can’t come back here for a while.

  5. If an examiner cannot formulate a proper basis for rejecting a claim, then after a certain number of tries, the examiner should be compelled to allow the claim, or that examiner should be replaced by someone who can do the job.

    How about replacing him with three people who can do the job?

    Stop thinking about how it wouldn’t work, but how it can!

    Metrics that measure the wrong thing don’t work. Sure, they “can”, if the measured wrong things never happen, but that’s not a reasonable simplifying assumption. The metric does not correlate with what you’re trying to measure. It’s a bad metric.

    If you want to measure bad rejections, measure nonfinals per disposal, or second nonfinals, or nonfinals per final, or something like that.

  6. What’s up and ianae, read my post above. Stop thinking about how it wouldn’t work, but how it can! (noting I said to exclude these types of actions)

  7. The metric for measuring quality is the number of second (and third, and fourth) non-final rejections on the merits.

    The APD is a terrible metric because it includes actions that have nothing to do with the examiner’s quality, such as final rejections, advisory actions, restrictions, and interview summaries.

    The only type of action from an examiner that indicates the examiner sucks is the number of second action non-final rejections. This is the metric that needs to be measured. The public is harmed by lousy rejections as much as it is harmed by allowing claims that should have been properly rejected. If an examiner cannot formulate a proper basis for rejecting a claim, then after a certain number of tries, the examiner should be compelled to allow the claim, or that examiner should be replaced by someone who can do the job.

  8. Actions per disposal may be an ok quality metric for the PTO or a TC as a whole, but it’s not a good metric for an individual examiner. Restrictions and advisories are part of normal examining procedure, and increase the actions per disposal. If you want to see whether an examiner is screwing around all you have to look at is the number of second non-finals, second finals, or reopens after appeal brief.

  9. (I guess theoretically it could be approaching 1.0).

    Aren’t your first actions in new applications non-final?

    Add to that the apparent recent trend toward aggressive restriction practice, and you’ve got two actions before the applicant even has a reasonable chance of disposal.

    Ideally the applicant only has to make a minor amendment/argument to get the case allowed, but otherwise you’re looking at a final and possibly an advisory before disposal.

    If a case is really bad, you might get to the point where an RCE is immediately followed by a final action and another RCE. That’s one action per disposal, right?

  10. APD is not a good indicator to put on the PAP because there is no optimal APD. Unless you think the perfect examiner would allow every application on the first action.

    Why again does the Office espouse compact prosecution?

  11. Wrong and right sc. There can be a cutoff value, over which it is considered unacceptable efficiency. And yes, there is no practical optimal ADP value (I guess theoretically it could be approaching 1.0).

    A lower ADP would be indicative an examiner’s ability to efficiently work towards a concluding event (appeal, abandonment and allowance). It wold easily signal out those who perform multiple non-final actions post first action. If an examiner cant reach finality that sticks (resulting in abandonment, RCE etc.) or allowance, that examiner did something wrong. There are a few exceptions where three (or more) actions are required or appear proper, and these can be excused from the calculation.

    Increasing allowance review slightly would help stem what I used to call allowance hounds (those who allowed without adequate examination).

  12. APD is not a good indicator to put on the PAP because there is no optimal APD. Unless you think the perfect examiner would allow every application on the first action. The correct type of action depends on the application and the current claims. But it would be reasonable to review examiners that have an unusually high APD.

  13. We still get 1 hour of other time per interview, but now that hour is available for examiner-initiated interviews (where previously we only got other time for applicant-initiated interviews, which doesn’t make much sense). Another reason for the increased # of allowances recently is the increase in the maximum permitted overtime per biweek, from 10 to 32 hours.

  14. “According to my production report, I’m at about 1.6 actions per disposal for the FY, but a lot of that is because the rate of abandonment after first action has been unusually high lately.”

    That is good! Abandonment after first action? Come on, that means you probably are finding relevant art! It may also mean something else (from the client’s end), but for the most part I’d bet you are doing good searches. Why are you guys shying away from this measure? I thoroughly thought this through some years ago just after leaving the PTO. I am dead on right about this.

    Believe me, it is better to see a relevant reference in the front end of the examining process and end early after first action than to receive the same art after an RCE (or two – and another $5-10k – and the emotional cost that sometimes goes with bad actions).

  15. When an attorney pretends that they understand the invention but actually doesn’t.

    Very interesting comment.

    From your perspective, what does “understanding an invention” mean?

  16. ..or perhaps the attorney doesn’t understand the invention in the same way as the examiner…

    I’d buy that all day long.

  17. Mark: I won’t clog up the comments with a long list, since there are other examiners who can answer as well, but one thing that bugs me on a fairly regular basis is when an attorney pretends that they understand the invention but actually doesn’t. (Amusing, yes, because a lot of you attorneys say the same thing about us….)

  18. After they reach steady state, a baseline APD value

    You mean those that have not left for greener pastures (those who cannot leave because they cannot find pastures)?

  19. because the rate of abandonment after first action has been unusually high lately

    suspected causes…?

  20. “NOPE! Examiners still only get 1 hour per interview, ”

    This has been a problem. If interviews are productive, then more time per interviews should lead to lower RCE rates as issues are incrementally resolved at each interview.

  21. “Examiners are initiating more interviews, as instructed from above.”

    Indeed, I started instructing them to do so a few years back. Glad to see my hard work payed off.

  22. Paul

    There are many reasons why claims may be identical after an RCE. Including New arguments, New 1.132 or 1.131 declaration, and an IDS submittable.

  23. If an RCE is filed that truely has claims identical to the previously rejected claims [self-evidently just delaying the proceedings], the attorney should be turned by the examiner or his Group Director to the Office of Discipline and Enrollment to investigate for a possible violations of 37 CRF 10.18(i), etc.

    But of course, that almost never happens because examiners complain about bad attorneys but do not do the one thing that would change their practices, so they continue.

  24. JohnG: According to my production report, I’m at about 1.6 actions per disposal for the FY, but a lot of that is because the rate of abandonment after first action has been unusually high lately.

  25. Bad RCE’s make the examiner’s job easy, and hurt the applicant (by filing substandard work). It is not the examiner’s fault, and if the examiner performs his duties correctly, he will keep his APD low.

    Incidentally, your FY2010 numbers look good with respect to APD.

  26. “Kappos incentivized interviews for examiners with more time credit for the interviews and decreasing counts for multiple RCEs. Examiners are calling us now”

    NOPE! Examiners still only get 1 hour per interview, which doesn’t cover the time needed to prepare before, conduct the interview, and write up the summary form. You’re getting calls from examiners with negotiating authority because of the decreased counts for multiple RCEs. However, we’re receiving a lot more applicant initiated interviews and they still result in a net loss in time to exam for the examiner.

  27. I had one friend (junior examiner under different SPE) ask me to look through his docket to help him find cases to try to allow. Approximately 50% of his 20 or so RCEs had claims that were identical or 99.9% identical to the pre-final claims.

    If so many attorneys didn’t reward bad quality then maybe APD would be a reliable tool.

  28. Obviously, newer examiners should have a graduated “acceptable” rate because they are mostly doing first actions with no disposals. After they reach steady state, a baseline APD value can be used.

  29. The decrease in actions per disposal is probably not due to an increase in quality.

    FY2007 I had 1 disposal and 42 total actions.
    So far FY2010 I have 53 disposals and 110 total actions.

    With hiring cut there are much fewer examiners out there having years like my FY2007. Likewise, junior examiners have probably worked their dockets closer to my FY2010.

  30. JohnG: Any metric which allows the attorney to mess with an examiner’s numbers is a bad metric. In this case, an attorney could submit several consecutive after final amendments to drive the examiner’s actions-per-disposal metric up.

    “Even if you exclude advisories from the count, attorneys could still drive up the actions-per-disposal metric by categorically refusing to go along with any examiner’s amendments.”

    Although I agree things like advisories and restrictions should not be included in a calculation, your other statement is not true. An examiner can and should make the second action final if the applicant refuses to add something patentable to the claims (assuming the rejection is good!!!)

    “Besides that, between production and workflow, examiners are already sufficiently constrained (if not overconstrained) in terms of performance evaluation. Adding another metric to the mix would make performance unmanageable.”

    PTO “Workflow” statistics do not measure quality. APD can.

    Believe me, I am right.

  31. JohnG: Any metric which allows the attorney to mess with an examiner’s numbers is a bad metric. In this case, an attorney could submit several consecutive after final amendments to drive the examiner’s actions-per-disposal metric up.

    Even if you exclude advisories from the count, attorneys could still drive up the actions-per-disposal metric by categorically refusing to go along with any examiner’s amendments.

    Besides that, between production and workflow, examiners are already sufficiently constrained (if not overconstrained) in terms of performance evaluation. Adding another metric to the mix would make performance unmanageable.

  32. I have also been having many more productive interviews, though I can only think of one case where an Examiner called me to suggest patentable subject matter. It is certainly more pleasant and productive for me, and I’d guess for Examiners as well.

  33. Wow, actions per disposal (APD) sounds like an excellent tracking statistic that should be included in an examiner’s PAP review. Compact prosecution tracker that is easy to monitor and self driving. Examiner’s would be working to do it right the first time.

  34. For those of you wondering . . .

    “Disposal” means Abandonment, Allowance, RCE or answer to appeal brief. Each of those counts as 1 “action,” as also does a restriction or advisory. So 2.3 Actions per disposal means that for every 100 disposals (abandonment, allowance, RCE or examiner answer), there were 130 other actions (final rejection, non-final, restriction, advisory).

  35. 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?

  36. > roughly indicating 30% of cases receive a second action nonfinal.

    This is erroneous. I’d like to retract this statement.

  37. 2.3 Actions Per Disposal is not terrible, roughly indicating 30% of cases receive a second action nonfinal.

    I’m guessing the 60% more interviews blip is largely due to examiners being encouraged to call the attorneys and suggest allowable subject matter.

  38. Kappos incentivized interviews for examiners with more time credit for the interviews and decreasing counts for multiple RCEs. Examiners are calling us now.

  39. Talking communicates better than writing. Good on the agents who are taking advantage of interviews.

    Maybe this is partly responsible for the increase in grants over last year?

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