USPTO Rising Allowance Rate

The USPTO issued more patents during the past two weeks than in any fortnight in history.  A primary driver of that upswing appears to be a dramatic rise in the allowance rate. This change is demonstrated in the chart below.

PatentlyO052

Methods: The chart is based on 4,400 patent applications that have either been abandoned or issued as patents – i.e., “disposed of.”  The allowance rate was calculated for each quarter based on the disposal date.  Only published applications were used.

The graph above is similar to the PTO allowance rate chart seen below through the end of FY2008. (As with the PTO pink line below, my chart does not count RCE filings as abandoned cases.)

PTOAllowanceRate

 

38 thoughts on “USPTO Rising Allowance Rate

  1. Is the new count system at work here or is this a result of a more patent-favourable patent office?

    Cinical people might say both are the same, but while the first just provides an incentive for the examiners, the latter emphasizes a moral stand point – people should be given patents for new and nonobvious inventions, without having to face bureaucratic obstacles.

  2. “You can’t lump in-house and outside attorneys in the same category, imo.”

    Amen to that.

  3. Kappos started out strong as maverick but now he is all talk and no action (a.k.a. Dudas). Instead of cutting costs he added another layer of management. On May 20, 2010 he announced another layer of directors bring the total directors to 29. Examiners once welcomed him with changes he made for compact prosecution and production. But, now most simply dismiss him which can be seen from reduced responses to his blogs and other initiatives. Don’t expect the allowance rate to continue. We will be back to the reject everything era sonner than later. I already notice the rise of policies similar to that of the Dudas/Doll era.

  4. 6 I guess you are a horse’s azz too for not understanding why there is actually no such thing as a “sxcky” application.

    Meanwhile:

    “HONOLULU (AP) — Republicans scored a midterm election victory Saturday when Honolulu City Councilman Charles Djou won a Democratic-held House seat in Hawaii in the district where President Obama grew up — the latest triumph for the GOP as it looks to take back control of Congress.”

    Note to Obama – keep the change.

  5. PING PONG
    Do you honestly think I don’t know the whole story? Your problem is Who’s on first, and Who to blame. and if you play that game…. I’m the Catcher.. AND…
    I say now this is a new game. It’s called the Egg Basket Game. And I have collected all the Eggs in my Basket…

  6. “Your general statement maligned the entire attorney bar. ”

    Sorry, I didn’t mean to malign the entire bar. Only the part o the bar that encourages such recklessness. I don’t recall having said all attorneys do it, and if it was so taken then excuse me.

    “You can’t lump in-house and outside attorneys in the same category, imo.”

    My eyes are rolling.

  7. You know, 1- allowance rate = abandon rate.

    I think we’ve covered why the allowance rate might be going up.

    How about if we consider why the abandon rate might be going down?

  8. So all Congress needs to do is allow it. If School Bus Companies can now allow Agencies to advertise on the Bus itself being State! Then why can’t a few months of setting up a boost to get this Country going again be allowed for the Federal!
    Desperate measures?

  9. 6,

    Your general statement maligned the entire attorney bar. 7 was trying to indicate that attorneys follow orders too (even from clients who are not attorneys). They are a wee bit sensitive.

    As for your lack of seeing – that’s not really a surprise now, is it?

  10. 6,
    I can not believe.. strike that I can… Filing a Patent Application is all about the idea. The way to bring it fruition. It’s value to the Patentee, and hopefully too society. Not about the ping pong. with the correct classes we won’t need the PING PONG.
    Point all Patentees to the Independant Inventors association… Maybe it is all about Kappos. And he really really knows who the Innovators truly are.
    No I’m not talking about the new Engine that can run on nothing. Or the new Battery that is as thin as a piece of paper. Most of those are already owned by the company that makes you sign an agreement.
    Come on Mr. Kappos … HOW ABOUT A COMMERCIAL. Asking all of us to consider the concept, the idea, the toy, the engine. the recipe for the greatest Icecream. What is it that you dream of? What can you do? And to coin a phrase. If you can can think it, you can do it. Come on America. And then Mr. Kappos give the Independent Inventor 2 nearly free entries/ USPTO passes into the world of Great Ideas. You want this country to start ticking again? Do that Mr. Kappos and watch it come alive.

  11. “So you’re telling me that it’s the in-house attorneys giving this advise? I don’t see how that is any different than what I just said.”

    You can’t lump in-house and outside attorneys in the same category, imo.

  12. “They often want these kinds of stab in the dark applications with no search, no matter how often we tell them this is really NOT the way to do it.”

    So you’re telling me that it’s the in-house attorneys giving this advise? I don’t see how that is any different than what I just said.

  13. As a former junior practitioner (laid-off) and now junior USPTO employee, I can attest that there is a refreshing focus in training on “go ahead and allow if you’ve fully searched and can’t find it, reject only if you have a plausible rejection, and for all other cases talk to your SPE/primary.”

    My current problem is that my signing primary thinks there’s always a plausible 112 and 103, with BRI.

  14. “If you’re just making a blind stab in the dark, meh, that app’s kinda suc ky. What never ceases to amaze me is how many people are willing to file apps in this fashion. But, I suppose they do so mainly at an attorney’s suggestion.”

    And you would be wrong. You don’t seem to understand that most apps are filed on behalf of large corporations with in-house patent counsel. The in-house patent counsel directs us outside counsel. We essentially have to do what they say if we would like to continue getting the work. They often want these kinds of stab in the dark applications with no search, no matter how often we tell them this is really NOT the way to do it.

    Blame in-house counsel for being extremely reactionary, being afraid of even looking at prior art, being afraid to use the word “invention” in an application, etc.

    I do things very differently for small clients who actually take my advice.

  15. The thing about quality is that the more money/more eyes throw at it the more mistakes you are going to find. I suggest Dennis to take a look at PTO’s budget being spent on quality (man power) to have a clearer picture.

    Someone told me about examiners in Quality Review (called QR) spending more time training new examiner than reviewing cases for quality.

  16. yapex, yes I am a primary. Agreed that junior’s allowance rate is influenced by who signs his/her cases. Some examiners are more willing to call up the atty and get the case allowed sooner, others would rather drag it out and not budge until the applicant amends. It’s partly a personality thing.

  17. Clearly the process is very subjective.

    Another sign the system is out of whack. As my pal IANAAE says – the prior art is the prior art – and so it should be for everyone. This should be a minimalistically subjective process.

  18. “My standards for allowability have not changed, in my own eyes.”

    You must be a primary examiner, or have not worked with different SPEs. A junior examiner’s allowance rate greatly depends on who signs the cases. Clearly the process is very subjective.

    A more experienced, independent examiner maybe more willing to call up the applicant to propose amendment to place the claims in condition for allowance, to quickly close prosecution and get the counts. The less experienced, junior examiner’s work is at the mercy of his SPE.

  19. “I’m not going to explain it either since you are such a horse’s azz.”

    I will though. Obviously the application isn’t suc ky because RWA gets paid boatloads to prosecute it through abandonment/worthless allowance! Come on MM, you knew that already, stop playing coy!

  20. “your application is pretty sxcky, by definition”

    If you don’t understand why this is a bogus statement Mooney, you can crawl back into the dark hole in your mom’s basement.

    I’m not going to explain it either since you are such a horse’s azz.

    Mooney

  21. “Not really. In many years of PTO practice it never ceased to amaze me what many examiners would suggest to change in the claims to make them allowable in their view. [Hence also the value of interviews, which I see are desireably increasing.] ”

    Going off of the avg examiner’s suggestions that I’ve heard what I would have said in place of what you did is: “it never ceases to amuse me what…”

    Nevertheless, I concur with the statement you were responding to. If you’re just making a blind stab in the dark, meh, that app’s kinda suc ky. What never ceases to amaze me is how many people are willing to file apps in this fashion. But, I suppose they do so mainly at an attorney’s suggestion.

  22. Re: “If you don’t know if you have allowable subject [matter] in your application, and you need an Examiner to tell you if there is any, your application is pretty sxcky, by definition.”

    Not really. In many years of PTO practice it never ceased to amaze me what many examiners would suggest to change in the claims to make them allowable in their view. [Hence also the value of interviews, which I see are desireably increasing.]

  23. If you don’t know if you have allowable subject in your application, and you need an Examiner to tell you if there is any, your application is pretty sxcky, by definition.

  24. I agree with XMNR above. Having been here about 6 years, I can more quickly recognize patentable subject matter and offer it to applicants. Sometimes they will take it, sometimes not, we recognize that may well be a business decision (would rather fight for something broader than take what is indicated as allowable). Nevertheless experience at the job has increased my allowance rate. I looked through my docket reports and I am at 41% allowance rate (calculated as allowances / total disposals, where total disposals = (RCE+Abandonment+Allowance+Examiner Answer + Interference Declared) so far this fiscal year. Last FY 38%. FY 2008:22% FY 2007: 33%.

    My standards for allowability have not changed, in my own eyes. That is, I don’t think I am relaxing my standards as compared to 2 yrs ago. I do agree that applicants seem to be amending more quickly, and I also agree they are encouraging us to identify allowable subject matter early in prosecution. It’s not that this was discouraged previously, it just was not explicitly encouraged.

    Just my 2 cents.

  25. Herbert, that is really useful info. Thanks.

    My theory is that Examiners are now encouraged to work with the applicant to determine what is allowable. Before we got no real information back. The first office action looked like a keyword search mixed into a boiler plate stew. The final would say “the applicants arguments have been considered but are not persuasive,” and repeat the boilerplate stew. So we’d be guessing and trying to glean something from telephone interviews and throwing in affidavits until something stuck. Even if the exact same claims were eventually allowed, it would take far longer to get there with the old system.

  26. I have to agree with TheBobs, Herbert and xmnr (who is neither me nor my little brother).

    My anecdotal experience is that since the downturn, applicants are MUCH more likely to make a substantial amendment, which often leads to an allowance.

    Also, my level of knowledge of my art–I’ve been here for about 5 years–has risen to the point that I am better able to recognize unclaimed patentable subject matter, search it, and offer it as an examiner’s amendment. The fact that the Office now gives me an hour to conduct an examiner initiated interview to suggest the amendment doesn’t hurt either.

  27. “RCEs aren’t worth what they once were”

    That is a step in the right direction – too many bad/premature finals were coming out in anticipation of the RCE and the applicants were acquiescing. Bring back the CPE if the applicant WANTS more examination.

  28. the new count system is decidedly imperfect

    The count system will always be imperfect. Some applications need to be rejected, other different applications need to be allowed. The best that can be done is to balance the counts so that the examiner is rewarded about the same for getting the file off his desk whether it is allowed or rejected, and trust the examiner to make the right call.

    Cue the crazy people deriding my implication that examiners can be trusted to make decisions.

  29. It’s the new count system. RCEs aren’t worth what they once were… *wipes tear from eye*.

    Although the new count system is decidedly imperfect (e.g., Examiner Answers should be worth far more than half a count to encourage thorough analysis), it does encourage Examiners to allow cases earlier (and discourages the unsavory tactic of drawing out RCEs before allowance).

  30. I see it as like having a bad case of constipation, and all of a sudden, all ___ breaks loose.

  31. tend to allow more, partly to keep up with the higher production requirements

    That just sounds wrong – so things are being allowed based on a function of the examiner irrespective of the merits of the case itself before the examiner?

    That’s a whack system.

  32. Another factor: Examiners are becoming more experienced, especially without any hiring. The more experienced examiners (e.g., primary examiners) tend to allow more, partly to keep up with the higher production requirements.

  33. Herbert is spot on, but I’d like to add that during the 2009 economic dive, the quality of responses to office actions rose dramatically. Prior to the downturn, I could reliably count on half my amended docket cases falling into the categories of failing to read the references, arguing nonsense, trivial amendments, etc. After the downturn, responses almost always included substantive amendments or well-reasoned arguments which greatly speed up the process of getting to allowance.

    TheTwoBobs hit an important point on “2. The new regime is letting a lot of cases issue that it should not.” I’ve seen 2 recent allowances which were improper just this morning.

  34. From my anecdotal experience, I would posit that the uptick is due to a confluence of factors:
    1. Examiners are more willing to allow. We aren’t being forced to allow, or even encouraged to allow, but we know there aren’t going to be two or three people looking at and second guessing every allowance anymore.
    2. Abandonments were probably abnormally high throughout 2009 due to the economy. In the first half of 2009, it seemed like nothing was getting responded to. That would skew the numbers downwards wouldn’t it?
    3. When applicants started responding again in the second half of 2009, they were throwing everything and the kitchen sink into the claim amendments. Huge amendments and almost no argument (again probably due to economic reasons). These kind of amendments are much more likely to get allowed although the applicant is probably giving up some claim scope that they might be entitled to.
    4. Changes to the count system are probably having an effect of slightly increased allowances.

    So I would guess it’s due to a combination of PTO and applicant behavior. Responses from applicants have of late returned to what they were like pre-2009. Incremental amendments, more arguments. I would expect the rate of the allowance rise to peter out.

  35. quality of invention dramatically rose

    that one made me spill my coffee – specially since things have been laying about the Office for a few years now. That woulda mean that the rise in quality actually happened on its own before Kappos became King and issued the “quality does not equal reject” mandate.

  36. This appears to be similar to the “official USPTO allowance graph – except the dramatic nosedive is washed out.

    Why the difference?

    One supposition would be that the record rise is not all that alarming if it is viewed in context of a system being allowed to return to its natural state after a period of time of forced non-allowance.

  37. Hey Mooney the democrat,
    Your democratic buddies are allowing patents like a drunk sailor, the way the Clinton administration did.
    Miss him yet ?????

  38. Dennis, how would you rank the following factors in accounting for this change?
    1. The PTO was being improperly hard-nosed in refusing to allow cases last year.
    2. The new regime is letting a lot of cases issue that it should not.
    3. The quality of invention dramatically rose during the relevant period to justify the increase.
    4. The scope of claim coverage requested has fallen, making it easier for examiners to allow cases.
    5. The Bilski Effect. (I have no idea how this would fit into any explanation of the data, I just thought I’d toss it in as the hours tick down on the pre-Bilski world.)

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