Measuring Pendency and Allowance Rate – The Role of RCEs

I like the fact that the USPTO appears to be moving away from its fictional notion that a request for continued examination (RCE) should be counted as an abandoned and then re-filed patent application.  Over the past few years, the PTO's official statistics on pendency and allowance-rate both relied on RCE counts. As a consequence, both figures were artificially depressed.  In its new Patent Dashboard, the USPTO provides the traditional measures (counting an RCE as an abandonment) and the more relevant measures that treat an RCE filing as part of ordinary patent prosecution.

Data for August 2010

Allowance Rate (applications allowed divided by disposals)

Pendency (Filing date to disposal, not counting priority claims)

Traditional: RCE Filing treated as a Disposal and a New Application Filing.

45.0%

35.4 Months

Relevant: RCE filing treated as part of the prosecution of a single application.

60.2%

42.8 Months

Note, these figures include UPR applications (Utility, Plant, and Reissue). However, because of their small numbers, the plant and reissue applications do not impact the result.

19 thoughts on “Measuring Pendency and Allowance Rate – The Role of RCEs

  1. continuations are filed when there are claims (usually dependent claims) that the examiner has identified as allowable and the applicant believes the rejections of the remainder of the claims are wrong.

    Yes, but I’m going to consider those “continuations of an allowed application”, since that’s pretty much what they are after the requisite amendment to the parent.

    Reply
  2. IANAE -
    Contrary to all the related assertions above, continuations are filed when there are claims (usually dependent claims) that the examiner has identified as allowable and the applicant believes the rejections of the remainder of the claims are wrong.

    In that situation, some applicants may elect to place the allowed claims in independent form and allow the original application to issue as a patent, so that at least some protection is provided.

    A continuation is then filed, in an effort to get the full coverage to which the applicant believes the applicant is entitled.

    Reply
  3. I believe it is fact (certainly in my 13 years of experience) that the parent is most often abandoned without further prosecution by the applicant.

    In my experience, continuations of non-allowed parent applications are most commonly filed when there’s some irreparable defect in the parent, such as a new set of claims running afoul of a constructive election. The continuation will be directed to a completely different invention, and it’s fair to consider that abandonment as a disposal of the parent. If the defect in the parent can be fixed, applicants tend to be better served by filing an RCE.

    As an examiner, could you say what appears to provoke most of these continuations and abandonments?

    I only rarely encounter such cases, though. I see far more continuations of allowed cases than of soon-to-be-abandoned cases.

    Reply
  4. “Tell us you’re being sardonic.”

    That’s a mighty big word there IBP, are you sure that anyone else on the board will understand what it means?

    “You are Dudas-spawn, and your attitude exemplifies everything that the current USPTO administration is trying to fix.”

    Ya got trolled son, get over it.

    You guys are so hilariously easy to bait. Even the barest hint of an evil examiner lurking in the shadows is enough to make you run screaming to mommy.

    Reply
  5. Dennis -

    When you calculate something, such as the allowance rate, what dates are you using.

    for example is it

    allowances in Q1 2010/Disposals in Q1 2010 or is it

    Allowances of application filed in Q1 2006/ Disposals of applications filed in Q1 2006

    or is it something other combination of dates?

    Thanks

    Reply
  6. Anon: Ever the valiant defender of the Office, even in times of blatant incompetence.

    Yeesh. All I ever said was that there’s incompetence on both sides. Some of the attorneys on this board are even proud of theirs. Which brings me to my next point.

    Anon: when one considers the timing of Office pronouncements of “quality”,

    Agents and attorneys have been proclaiming the “quality” of their own work for far longer, and far more consistently. And they don’t even bother to measure anything. All they do is blame PTO incompetence for every rejection, and insist they were actually right every single time. Wow, 100% quality. Where do I sign up?

    Anon: stated tactics of not stopping legality get in the way,

    I … wait, is that even a sentence?

    Anon: fails your weak attempt of shifting the blame from where it rightfully lies.

    Oh, I see. You’ve figured out that there are no incompetent agents by staring at the PTO this whole time. Great. Now, stare at your feet and tell me what color the sky is.

    6: The USPTO can punish anyone we see fit to. I don’t know what makes you think that we cannot. There are plenty of perfectly legal ways to punish people. Applicants are easier targets than your avg joe on the street since they want something from us.

    To paraphrase, you’re better off being civil to your examiner than making an enemy of him, since he’s the one in charge of deciding whether you get what you want. Well, what your clients want. What you want is probably more billable hours and someone outside your firm to blame for them in your reporting letter.

    Reply
  7. On one aspect of the great allowance rate debate, I wonder if the first and second action allowance rates, and RCE rates, in applications handled by newer non-signatory examiners [who need SPE approvals] are significantly lower than from from examiners with signature authority?

    Reply
  8. “The USPTO can punish anyone we see fit to. I don’t know what makes you think that we cannot. There are plenty of perfectly legal ways to punish people. Applicants are easier targets than your avg joe on the street since they want something from us.”

    For anybody to even think about the USPTO being able to “punish” anyone we see fit, none-the-less write it, evidences that you are both unprofessional, classless, and unworthy of serving the public. For comments like that, you should be fired immediately.

    You are Dudas-spawn, and your attitude exemplifies everything that the current USPTO administration is trying to fix.

    Reply
  9. “Ever the empty boasts”

    I don’t see me boasting anywhere in this thread. Threatening maybe.

    ” let such illegality ”

    What illegality?

    “how exactly do you propose “that’s where you’re wrong”?”

    The USPTO can punish anyone we see fit to. I don’t know what makes you think that we cannot. There are plenty of perfectly legal ways to punish people. Applicants are easier targets than your avg joe on the street since they want something from us.

    Besides, no matter how we end up digging our way out applicants are likely to be punished no matter if it is intentional or not.

    Reply
  10. I am not surprised either with the content or authorship of the first two responses – both of which, content and authorship, are inconsequential.

    IANAE,
    Ever the valiant defender of the Office, even in times of blatant incompetence. Your litany of excuses seeking to blame the applicant fails when one considers the timing of Office pronouncements of “quality”, stated tactics of not stopping legality get in the way, and the precipitous drop in allowance rate without any indication in the change of applicant’s writing and filing habits. Likewise, when the Office edict of “Reject does not equal quality” sounds forth, the timing of the return to historical allowance rates – again with such timing largely precluding action on the part of applicants, fails your weak attempt of shifting the blame from where it rightfully lies.

    6,
    Ever the empty boasts – did you not learn anything from Tafas? There are people who care far too much to let such illegality skate by unchallenged. Given the res judicata of the Claims result, and given the splendid detail of the demise of the Appeals attempted subversion, how exactly do you propose “that’s where you’re wrong“?

    Reply
  11. “and cannot penalize the applicant community in digging its way out of it.”

    Well now see, that’s where you’re wrong.

    Reply
  12. That era was real.

    60% of applications ended in allowance. That’s good. I wouldn’t expect much better even if the PTO were trying very hard to allow patents, because applicants seem to never do prior art searches and agents have the devil’s own time putting specific language into their claims.

    Fully 50% of marriages end in divorce, and people are still pretty keen on that.

    That era has directly spawned the backlog of RCE’s and Appeal Cases.

    Well, that and applicants filing way more applications and RCEs and appeals. With all the talk here about agents who are unwilling or unable to file a clear and unambiguous claim that says what they mean it to say, I find it hard to lay the entire blame at the feet of the PTO.

    Reply
  13. Looks like people have been bitching and moaning over the 45% number for awhile now when really it doesn’t matter that much since they’re getting their patent 60% of the time anyway.

    You have to take the data in context. I have seen the infamous cliff dive USPTO allowance picture with two data sets – one corresponding to each of “traditional” and “relevant”.

    They mirror each other almost exactly. The historical average is a “relevant” view is simply 20 percentage points higher.

    Commentators like 6 and IANAE who may try to downplay the Reject-Reject-Reject era are trying in vain. That era was real. That era has directly spawned the backlog of RCE’s and Appeal Cases. David Boundy is perfectly correct in pointing this out in his Appeal letter to the USPTO and is also perfectly correct in that the USPTO must acknowledge its own actions in creating this mess and cannot penalize the applicant community in digging its way out of it.

    Reply
  14. Gravy,

    I think the robbing is time/money not patents.

    Traditional: 100 apps with 33 RCEs turn into 60 patents. 60/133 = 45% allowance.

    Relevant: 100 apps (not counting RCEs) turn into 60 patents. 6/100 = 60% allowance.

    Reply
  15. Does this mean that the RCE gravy train has been robbing Actual Inventors of 15% of patents (or rather, robbing them of the additional fees/time associated with the RCE process)?

    Reply
  16. they’re getting their patent 60% of the time anyway.

    Yet another sign of the PTO’s reject-reject-reject-allow-allow-allow-allow-allow mentality.

    Reply
  17. 60.2% allowance rate. Seems pretty high to me. Looks like people have been bitching and moaning over the 45% number for awhile now when really it doesn’t matter that much since they’re getting their patent 60% of the time anyway.

    Reply
  18. Another way to illustrate development of the patent backlog and progress against it would be to provide plots of filing date versus issuance date. Here is an example for insurance patents link to bit.ly This is an open google doc. Let me know if it can be viewed OK.

    Reply

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>