Patent Term Adjustment (PTA) Statistics

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The chart above shows the perecent of patents that are awarded some patent term adjustment (PTA) at issue.  I have highlighted a recent apparent downward trend that began around October 2010.  Still, around 80% of recently issed patents have lengthened patent terms due to patent office delays that go beyond the statutory bounds outlined in 35 U.S.C. 154.

The chart below shows the average PTA award, again grouped by issue date. The break-point in early 2010 shows the impact of the Federal Circuit's Wyeth decision holding that the PTO had been under-calculating patent term. The average PTA award is now hovering around 600 days (20 months). 

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21 thoughts on “Patent Term Adjustment (PTA) Statistics

  1. First step: considering the loud teeth gnashing over patents in the open source community and how it is seen as a problem og epidemic proportions the first step is probably fulfilled. Attempting to backtrack on that in court is likely to look like one of the worse episodes of Ally McBeal.

    Second step: Debian is all about policies, agreements, votes and guidelines. Actions are not only deliberate but also carefully analysed by QA auditing. Is Ms. Flockhart returning to the role?

    The document is supposedly written by lawyers, interestingly no such names appear.

  2. The Supreme Court held that “willful blindness” can satisfy the knowledge requirement (using the Global-Tech v SEB case).

    First step:
    the defendant must subjectively believe that there is a high probability that a fact exists.” (emphasis added)

    Second step:
    the defendant must take deliberate actions to avoid learning of that fact.

    Clearly, the affirmative direction by Debian counsel to deliberately avoid learning anything from patents – as a general guideline because the facts in patents may expose the community to liability – and in direct and known disregard for the very avowed purpose of patents – can only be labeled as seeking to avoid civil liability by intentionally putting the community in a position where the members of the community will be unaware of facts which would render members of the community liable.

    This is more than stark. This is textbook.

  3. From Wikipedia:

    Willful blindness (sometimes called ignorance of law, willful ignorance or contrived ignorance or Nelsonian knowledge) is a term used in law to when an individual seeks to avoid civil or criminal liability for a wrongful act by intentionally putting himself in a position where he will be unaware of facts which would render him liable.

    A famous example of such a defence being denied occurred in In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003), in which the defendants argued that the file-swapping technology was designed in such a way that they had no way of monitoring the content of swapped files. They suggested that their inability to monitor the activities of users meant that they could not be contributing to copyright infringement by the users. The court held that this was willful blindness on the defendant’s part and would not constitute a defence to a claim of contributory infringement.

    The parallels are indeed stark.

  4. One shudders to think what the actual delay statistics would look like if RCE’s did not have the effect of stopping the count and were included for a true full view of Office lag.

    Of course, I am thinking not just any old RCE (to defuse the concern that simply repeated and no-way-ever-going-to-be-patented sinkhole applications may bloat the stats. I am thinking of those applications that issue after an RCE has been filed in a case of earnest advancement by the applicant.

    I am quite sure that any downward trend would be sharply reversed given the put-on-the-backburner-and-forget-about-them shell game in play right now.

  5. Nice approach to problems, there. If a Debian developer were to be caught up in an infringement case this patent policy is very likely to come up. Ignorance is one thing, wilful ignorance something else. And how will a judge react to ignorance as a policy?

  6. Self-fulfilling prophecy?

    Complaining that “software patents” do not advance the art and at the same time, from the website:

    Are you suggesting that it is better for developers and contributors not to read patents? If yes, why?

    Yes. Unfortunately, U.S. patent law creates disincentives for searching through patents, even though one of the main justifications given for the patent system is that the patent teaches the public how to practice an invention that might otherwise be secret. Willful infringement subjects the infringer to enhanced damages when they are aware of the patent and intend to infringe, and reading patents increases the probability that subsequent infringement will be found to be willful. Moreover, we find that developers often assume that the patents they discover are broader in scope than they actually are, and thus such developers become overly or needlessly worried. If, despite this, you do intend to conduct a patent search, you should seek legal advice first.

    and

    Are there any guidelines to limit our risk of patent infringement?

    Yes. This document is meant to educate about patent risk, and while it is difficult to give advice regarding every reader’s specific situation, there are a few guidelines that may be extracted.

    Reading patents, especially when researching how to design a contribution to your free software project, may expose communities to liability that they would not otherwise have.

  7. Is there any statistics relating to the arts?

    It appears that lawyers at the Software Freedom Law Center (SFLC) at the request of the Debian project have written a Community Distribution Patent Policy FAQ, making several interesting statements.
    link to debian.org

    One that is relevant here is this:”Patents may have their terms extended by the issuing office or a court, but this rarely happens for patents on software.”

    True?

  8. I vote for the PTA to be hidden in a top secret file inside the PTO so that no one knows when a patent expires. Putting in on the front of the patent is too sporting.

  9. Longest is 3877 days (7729302), which oddly is longer than the span from filing date to issue date (just over 3300 days).

  10. Should the PTA be published on the first page of the patent together with the patent expiration date?

  11. Paul,

    You are assuming that no made such challenges.

    The Petition practice at the Office is known to be a blackhole – the gravity of the situation being so immense as to prevent anything – light or information to escape.

  12. Because it wasn’t a mistake. The court just pulled some finangling to support a patent protectionist policy and the office didn’t mind that much.

  13. If this “mistake” [in interpretation] of the [confusingly complicated] 11/29/99 term extension statute was that obvious to anyone other than that Fed. Cir. panel, why did it take so many years for someone to even legally challenge the PTO’s interpretation? [Especially from the pharmecutical industry, where patent term extentions are worth billions?]

  14. Everyone’s gotta lulz @ the big break.

    “Rather than “recalculate” in an effort to meet the court’s nebulous order, USPTO seems to just give everyone 600 days, so no one has anything to complain about. I mean, who presently is gonna complain that the USPTO is giving too many PTA days? Such complaints would come in 15+ years from now, when the patents are about to expire and a competitor (likely a generic drug manufacturer) says the patent got too many PTA days. Politically, that’s smart!”

    And then lulz again.

    Courts, fkin up patents since they were founded.

    “the judiciary gives the USPTO agency the business in Wyeth V. Kappos (Wyeth patent term adjustment), telling ‘em they gotta redo their calculations ’cause THEY WERE WRONG!”

    Aka the court didn’t understand the statute so it should probably be remedied in patent reform. Which of course it probably isn’t due to the nature of this patent reform.

  15. January 2010 – the judiciary gives the USPTO agency the business in Wyeth V. Kappos (Wyeth patent term adjustment), telling ‘em they gotta redo their calculations ’cause THEY WERE WRONG!

    Post Jan 2010 – Rather than “recalculate” in an effort to meet the court’s nebulous order, USPTO seems to just give everyone 600 days, so no one has anything to complain about. I mean, who presently is gonna complain that the USPTO is giving too many PTA days? Such complaints would come in 15+ years from now, when the patents are about to expire and a competitor (likely a generic drug manufacturer) says the patent got too many PTA days. Politically, that’s smart!

    October 2010 – downward trend in USPTO awarding some patent term adjustment (PTA) at issue. Either the USPTO is getting better, or they just are working on reducing the number of people who can complain.

  16. Close to two hundred days on average “stolen by the Office for all those pre-Wyeth patents…

    I say “on average,” as I recognize the global nature of the statement may not fit any particular individual example.

    However, this clearly indicates that a large quantity of valuable term has been denied patent holders through a clear mistake of the Office.

    To me, the right thing to do would to allow any patent holder to apply for a correction – and not just the group that fit the narrow window that was afforded shortly after the Wyeth decision came out.

    What possible argument can there be to prevent the correction of the Office mistake? How would any such argument do justice, especially as we are talking about the Office violating its duty under the law?

    Those Patent applicants who cannot get the proper term get raped twce – first in the delay itself and then in the refusal to correct the delay (beyond the artifical narrow window that was offered).

    Where is the justice?

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