Are Patent Filings Increasing or Decreasing?

by Dennis Crouch

The USPTO recently reported that in FY2011 and for the first time in history, more than 500,000 patent applications were filed during the fiscal year. 500,000 is a large number, but it turns out that the report of increased patent filings should not be seen as suggesting an increase in innovative activity. Rather, as the charts below demonstrate, the number of new patent filings has actually decreased over the past five years.

112211_1847_DecreasingP1

The dramatic increase in reported application filings shown by the chart above is entirely explained by the USPTO's odd accounting practice that counts the procedural "request for continued examination" (RCE) as a utility application filing. Under US patent procedures, a patent applicant faces a decision point after receiving a final rejection from the patent examiner. Generally, the applicant can (1) appeal the rejection to the administrative board, (2) abandon the application, or (3) file an RCE along with new material regarding patentability of the invention. Once an RCE is filed (along with the required fee), the same patent examiner is ordinarily required to again review the application and give it full consideration as to the patentability of the claimed invention.

As the chart below demonstrates, the number of RCEs filed annually has increased dramatically – almost doubling over the past five years. At the same time, original utility patent application filings have dropped slightly. I.e., patent filings are down. (To be clear, "original" applications as used here also include utility applications that claim priority to US provisional applications, international patent applications (PCTs), and foreign patent applications.)

112211_1847_DecreasingP2

What's the point: A rise in filings is helpful for the USPTO because it allows the agency to justify increased funding requests; to show its stature amongst world patent offices; and to demonstrate that the agency truly serves as a gatekeeper. Unfortunately, the report is not accurate. The positive side of these numbers is that the steady filing numbers should give the PTO breathing room to address the backlog of 1.2 million pending utility patent applications. 

75 thoughts on “Are Patent Filings Increasing or Decreasing?

  1. “Ned, for your edification, it was IPWatchdog that took offense at MaxDrei, who attempted to post in the “loose” style so familiar to the paper table pounders here. When called on that table to provide facts, MaxDrei descended to the typical vitriol that he finds so witty and was put in his place by a blog master that actually seeks gentlemanly discourse.”

    This does not sound like the MaxDrei I know. When I have asked him for some clarification on European law, he has always provided cites.

    Perhaps you could provide a link to the controversial posts you describe?

  2. “Is that your idea of ‘gentlemanly discourse’, shillywilly?”

    Let me add that my best friends in the whole wide world — 6, Ned, and MaxDrei — are what makes this board so special.

    Special — like a mental institution.

  3. The delusions run deep with the empty wagon crowd.

    the Shilling Group all belong to the same support system

    the grand Shilling Group are the ones usually chasing paper policy arguments without support of fact or law (if they even make it that far).

    Is that your idea of “gentlemanly discourse”, shillywilly?

    LOL.

  4. What possible reason, then, did this subject escape the recent legislative actions meant to actually improve the patent office performance?

  5. MM,

    Why is it that you seem hard to please?

    You almost topped the ten paragraph rant

    Either the collective sockie-trolls do not say anything, or they say too much. Are you jealous of these rants?

  6. The “sad” posting entities are those that I point out: clearly the Shilling Group all belong to the same support system, they each think of themselves as grand and hold each other (and the filth that eminates) in high regard and that all of the “problems” come from someone else.

    Funny it is then, that the grand Shilling Group are the ones usually chasing paper policy arguments without support of fact or law (if they even make it that far).

    Ned, for your edification, it was IPWatchdog that took offense at MaxDrei, who attempted to post in the “loose” style so familiar to the paper table pounders here. When called on that table to provide facts, MaxDrei descended to the typical vitriol that he finds so witty and was put in his place by a blog master that actually seeks gentlemanly discourse (the same gentleman that was repeatedly attacked without provocation by your “delight” Malcolm).

    Of course, you won’t get that from MaxDrei’s spin. But then again, 6 continues to think that he was banned because he had some nefarious dirt on Gene Quinn.

    The delusions run deep with the empty wagon crowd.

  7. First, I often fail, but I do try to hold to the rule “Don’t feed the troll”. Second, I must say MM, “shillywilly” is a very funny name for the sad posting entity that is determined that the shilling SHALL continue. Third, thanks Ned. Don’t be concerned: what went on at Watchdog is of no importance at all. I just took offence, that’s all.

  8. Max, I have no idea what went on at IP Watchdog, but I can say I have always, but always found you entirely reliable. I look forward to your posts, always.

    I also share your opinion of Malcolm. I find him a delight.

  9. You almost topped the ten

    Oh, that’s right – “all” of us that speak out against “you” must be a single person…

    (what was that phrase? Med Check?)

    Did I reference St. Raygun’s crotchnozzle five years ago, or merely four?

    Rather sad then, that that was the highlight of your posting career (but notice that the crass factor is something you still aim to achieve).

    Anything else, MM-Malcolm-sockie-troll-what-ev?

  10. Wow, that’s pretty impressive, shillywilly. You almost topped the ten paragraph rant you posted about Ned on Thanksgiving Day.

    Malcolm suggesting oral s_ex with dead presidents

    Did I reference St. Raygun’s crotchnozzle five years ago, or merely four? Seems like yesterday (at least to some people, apparently).

  11. Midwest Guy,

    You might find the following links of interest.

    In the midst of the greatest buildup of backlog in the Office (ever), affecting the queues in unlooked at applications, looked at applications, RCE backlog and Appeals backlog, the Office has trumpted its “record breaking qualilty” performance year after year after year.

    The fist step towards any solution has to overcome the denial factor of poor examination.

    link to patentdocs.org

    link to patentdocs.org

    link to patentdocs.org

    One can easily see that the Office “solution” of reject-reject-reject has spawned the nightmare the Office faces today.

    If you provide a crrppy rejection, most likely it will be fought. If you do not have the time to do a quality examination in the first instance, when will you find the time?

  12. point out that I was banned from the Watchdog blog. I wasn’t. Rather, in disappointment, I walked away from it.

    Little difference as the reason you walked away was because you were warned to play fair and straight up with the law and with others, which you would rather not do.

    Oh so tough for you to behave – no wonder you (amongst so few) enjoy the “intelligent and ascerbic” wit of Malcolm suggesting oral s_ex with dead presidents or insulting new posters suffering from cancer, the highlights of MM’s intellignet and ascerbic wit.

    You think that the threads are degenerating now? You think that any of Malcolm’s posts ever brought anything forward (other than bile)? The only “degeneration” is the string of hundred plus threads where certain “old-school” (as in fornt of the room disrupters) are constantly being schooled by those d_amm upstarts. Svcks to see your idols pushed around as they used to push others, huh?

    Debate includes give and take – includes recognizing when the other side has made a valid point. Do you see any of that with the “empty wagon” crowd? Rather not. Rather it is just an endless repetition of stale arguments and policy positions without facts and law to back those positions up. Real debate cannot be had, because Malcolm et al run when pressed to give some substance to their positions. It is no fun to see your idols run away, is it?

    You yourself when faced with a point you didn’t like simply said you didn’t care and that you would just keep on posting your silly views.

    There was no intelligence or wit there.

    You are free to walk away from here too, if the attemtps to hold people (“regular” pseudonymed or real named) actually accountable makes you feel degenerated. My bet is that you will not walk away precisely becuase there is no content-control here!

    The only thing going on is that the mindless vitriol is being challenged and exposed for what it is. It is no surprise that you don’t like it. Just like it is no surprise to hear from others who want censorship, but only their type of censorship (the moment that content-correctness is mentioned, out comes the “intelligent and ascerbic” putdowns).

    Will someone do something about the disrupters in the back of the class? They are ruining what the disrupters in the front of the class are doing.

    And if you want to compare crassness, no one is more crass than your idol Malcolm. As to ‘reputation”, it is not clear what you are on about there. Perhaps it is a good thing that the institution loses that reputation.

  13. Dennis it used to be a pleasure reading the threads but it isn’t any more. Much of the pleasure was in reading intelligent and ascerbic postings, Malcolm Mooney’s chief amongst them (even when I was the one he was scolding).

    But now the threads are degenerating into a stream of mindless vitriol, from jealous, blinkered and frustrated persons who lack the charity, open-mindedness, intelligence or the wit to debate patent law in a way that brings us any further forward.

    Even when I first started posting, some years ago, other attorneys told me they read your blog but never bothered with the threads because they contained little that was interesting. Until recently, they have been wrong. But the disrupters at the back of the class are getting ever more crassly and gleefully disruptive. Teacher, you might have to do something soon, or see the institution lose its reputation.

    In response to this, I expect at least one contributer to point out that I was banned from the Watchdog blog. I wasn’t. Rather, in disappointment, I walked away from it.

  14. I also care that sockpuppetry belongs to me and me alone.
    I believe with every fiber of my being than anyone daring to use the name “MM” must be banned from posting because that is the most egregious offense that anyone can commit on this board [Did you hear that Dennis!!!!!]
    I believe there is no such thing as a computer readable medium because computers run on magic.
    Finally, I believe that puppies and kittens are evil.

  15. the courage to express your views using your real name, like Gene does.

    I have to assume this is parody. Keep the laughs coming.

  16. Dennis, how about a few more numbers of more immediate interest to some of us in the trenches? Specifically, how do these numbers translate into number of original applications per active registration number available to do patent work? Or number of patent examiners/original patent filings per year? And how have these numbers varied over the last ten years?

  17. shillywilly it is Malcolm that calls for “monitoring” when others return the attacks against him.

    Another fabulous l i e from most notorious hypocrite among all the commenters here.

    You can “attack” me all you want, shillywilly. I could care less. I do care about the namestealing and the incessant sockpuppetry, however, for reasons that I’ve already provided to you.

    I’ve also suggested to Dennis that one or two painless banishments of the worst offenders would probably improve the comments quite a bit. If he chooses to ignore me, so be it.

    [shrugs]

  18. A

    t u r d

    is as a

    t u r d

    does.

    There is no correlation between using your real name and being a

    t u r d

  19. Full 180,
    I have come to understand that if the Genius that discovered DNA, did in fact discover it, the sequencing of it needs to be an acceptable Invention… So maybe if we glorify “His Discovery” in that light, we can accept sequencing as a new discovery with the Court. So I suggest we get on with it. Edison, Franklin,etc. can not even come close to what he has done. And I am ashamed not to know His name.

  20. Some day you may have the courage to express your views using your real name, like Gene does. Until then, Mooney, you’re just another anonymous internet t u r d.

  21. IPWatchdog monitors for content

    LOL. Shillywilly, you’re the best. Give Gene a big, fat, wet kiss for me. I know I don’t have to tell you to do that, but do it anyway.

  22. The patent office misleads for its own self-edification

    Not sure “edification” is the word you are looking for…

  23. The continued practice of including RCEs in the total number of patent applications filed is and has always been misleading. If they were a publicly traded company and tried to list these as such, they would probably be in violation of numerous SEC and accounting rules. RCE’s are not applications filed, but are merely a request to continue examination of a current application after receiving a second and often “final” office action, and the applicant is being required to essentially buy more examiner time to process an existing previously filed application, or enter claim amendments after final. The patent office misleads for its own self-edification. Applicants, such as IBM, don’t list RCE’s as new applications and neither do their lawyers. With Kappos’ background, I am surprised he hasn’t corrected this ruse.

  24. Yes Anon1 – but the question of how to monitor still lingers.

    IPWatchdog monitors for content, that is,those who post with irresponsible and false postings of law are warned, then curtailed. If that standard were to be adopted here, the postings would drop by 90%.

    Not. Going. To. Happen.

    Also note that the most egregious violator of personal (and unprofessional) attacks is Malcolm, who even attacks Gene Quinn (without provocation). Yet it is Malcolm that calls for “monitoring” when others return the attacks against him.

    He justs wants the playground (and the bullypulpit) to himself.

  25. Even without requests – so far in most cases I have the Examiner’s still seem to be operating under the previous guidelines. Likely because it is more efficient for them to keep it moving vs. letting it languish in the back of the queue… Just a guess though (and limited data points – admittedly).

  26. Oh please… Expose or don’t expose – who cares. This (crazy, spammy post that triggered this string) is one of many examples of why comments should probably be monitored – but the semi-anonymous very personal (and very unprofessional) attacks are a stronger reason.

  27. If the issues are presented in a straightforward manner, there is no rule preventing an Examiner from picking up a fresh RCE and sending out a Notice of Allowance.

    This is true. But in a more practical sense, a lot of examiners don’t bother to open up a newly docketed RCE to even check whether it might be an easy allowance, especially in art areas where allowances aren’t so common.

    Also, the recently implemented docket management incentives don’t provide any benefit to working on cases out of turn. Such cases aren’t counted in the docket management calculations at all, so an examiner is generally better off waiting for easy cases to come up on their own. Docket management and production are two different performance measurements, though, so if an examiner really needs the production counts, they might take an RCE out of turn for that reason.

  28. Tell us, Dale: why is an increase in the annual rate of original US patent filings — on pace to break the all-time record within the next couple of years — a “bad sign” for “the economy”?

  29. Ditto on the downside – add into that a certain hesitancy due to impending patent reform, and remove any nefarious claptrap.

  30. The new docket rules require examiners to work on the oldest RCE every 28 days.

    That’s nice. If the issues are presented in a straightforward manner, there is no rule preventing an Examiner from picking up a fresh RCE and sending out a Notice of Allowance.

  31. I know the secret identity. It’s right in front of you, but you have to read between the lines. I could tell you all, but it’s just so much fun to watch!

  32. On average, not to exceed 56 days in any one oldest case, and mixed in with continuations and divisionals as of their effective filing dates.

  33. I think she does jet ski fenders (see e.g. US Patents 5560312 or 5832857). Her cryptic messages seem to be a way to let off steam over some betrayal from a very long time ago.

    ! ! ! Bilski 14 ! ! !

  34. The small uptick in applications is the improvement in the economy. My clients have a slightly bigger budget for IP now than they did in 2008. With a little luck the trend will continue. But looking at the numbers without taking the economy into account is kind of misleading.

  35. It would be interesting to see the a line on your chart of the new filings by US inventors. My guess, it would be going down.

  36. It was reduced to 6 months in 1927.

    As amended Mar. 2, 1927, ch. 273, 1, 44 Stat. 1335
    That section 4894 of the Revised Statutes of the United States be amended by striking out the words ”one year”
    wherever they appear and substituting therefor the words ”six months.”

    link to ipmall.info

  37. It was reduced to one year from two in 1897. See the link.

    I think this might have had something to do with Selden.

    SEC. 4.
    That section forty-eight hundred and ninety-four of the Revised Statutes be, and the same hereby is, amended by
    striking out the words ”two years” in every place where they occur and substituting in lieu thereof the words ”one year,”
    so that the section so amended will read as follows:
    ”SEC. 4894. All applications for patents shall be completed and prepared for examination within one year after the
    filing of the application, and in default thereof, or upon failure of the applicant to prosecute the same within one year
    after any action therein, of which notice shall have been given to the applicant, they shall be regarded as abandoned by
    the parties thereto, unless it be shown to the satisfaction of the Commissioner of Patents that such delay was
    unavoidable.”

    link to ipmall.info

  38. Are you trying to say that I do not represent the whole of the body politic at issue? Because if so, you’re wrong, I am, in fact, the whole of the body politic at issue given form inside of a series of tubes that is connected to your computing machine.

    Besides, logical reasoning is an ez part.

  39. everyone know that you are an office hack

    LOL. Enjoy your fantasy, shillywilly. Dennis knows otherwise and so does “everyone” else.

  40. Yeah, quick, but it whether Congress (or the PTO) was reacting to Selden really depends on when the change from two years was made.  

    Let's see if anyone actually knows when the change was made.

  41. On the rare occasions when I have filed an RCE

    FALSE – everyone know that you are an office hack and you do not “file RCE’s.” At least not in the sense that most advocates think. You migh tbe thinking of literally ‘filing’ the paperwork as you push your cart around delivering the mail at the Office.

  42. I wouldn’t be surprised if Congress reacted by imposing a shortened statutory period to respond in response to Selden.

    I would.

    For a number of reasons.

    Patent term is now ticking from teh file date, not the issue date.

    The Selden case was well over 100 years ago. I know Congress is slow, but not that slow.

  43. Just a Sockpuppet: the USPTO certainly treats them like a new patent filing — i.e., wait 1-3 years before issuing a new action.

    On the rare occasions when I have filed an RCE, I’ve always managed to convince the Examiner to pick them up within a few months of filing.

  44. Just, I got the info while reading the 2nd Cir. opinion in the Selden case.  The court observed that Selden was able to keep his patent application pending in the patent office for 17 years because he would take the maximum allotted time to respond to an office action each time an office action was issued.  The court mentioned that the allotted time then was two years.

    Well I don't know personally whether that was a patent office rule or whether it was a statute at the time, the late 1800s.  But the reaction to the Selden case in America was strong.  Most Americans believed Selden had abused the patent system by intentionally delaying  his patent in the patent office while the automobile industry was established, only to spring his patent on the public and essentially take over the American automobile industry and choosing who could be part of the club.  (Henry Ford, a cost-cutter through is innovative assembly line manufacturing technique, was excluded from the club.)  I wouldn't be surprised if Congress reacted by imposing a shortened statutory period to respond in response to Selden.

  45. “IANAE, we have statutory time limits for applicants to respond to OAs. In the old days, it was two years. Now, 6 months. Why the reduction?
    It seems that Congress caught on that delayed prosecution was not good for the public.”

    Where did you get your information???? 35 USC 133 governs the period to reply. That period for reply has been at most 6 months since at least November of 1949. That dates corresponds to when the First Edition of the MPEP was published (see section 710).

    “The most egregious example of delay is the new rules regarding RCEs. They should not be treated as new applications for examiner action purposes.”
    I’ll agree with you there.

  46. ok, seriously, who in the world is always posting this gibberish? it’s in every thread, never makes a lick of sense, and is always unique too. has some mental patient been given access to a computer with patently-o bookmarked or something?

  47. “A properly examined application will results in either an allowance or a rejection or provide a substantive step in the one direction or the other.”

    Bingo … a good rejection results in an abandonment. While there is always exceptions, few clients will continue prosecution in the face of a good rejection.

    IANAE clearly has never seen a “good rejection.”

  48. And if you can’t spot the logical fallacy in your argument then it is no surprise that you’re still struggling with those LSAT practice tests.

  49. “Always a pleasure to hear from two people who have clearly never prosecuted a patent application through to ‘disposal’.”

    Yeah … I guess those few hundred Notice of Allowances with my name on it didn’t mean anything.

    “Prosecution can take as much or as little time as the applicant wants.”
    No … I’ve seen claims narrowed to the nth degree in an attempt to get a “quick” allowance. I’ve then seen those same claims (which were previously rejected), broadened back out and get subsequently allowed after appeal. If an examiner doesn’t want to allow, it doesn’t matter how many limitations your throw into the claims.

    “he shouldn’t be doing that if he can make a [good] rejection.”
    There — I fixed it for you. Unfortunately, the USPTO doesn’t know the difference between a good rejection and a rejection.

  50. IANAE, we have statutory time limits for applicants to respond to OAs. In the old days, it was two years. Now, 6 months. Why the reduction?

    It seems that Congress caught on that delayed prosecution was not good for the public.

    But now the PTO again part of the problem and not part of the solution. Rather than expediting prosecution, the PTO is slowing it down in any number of ways. The most egregious example of delay is the new rules regarding RCEs. They should not be treated as new applications for examiner action purposes.

  51. I hope that the small uptick in utility application filings in the past year is more US origin applications as opposed to foreign origin applications.

  52. The positive side of these numbers is that the steady filing numbers should give the PTO breathing room to address the backlog of 1.2 million pending utility patent applications.

    There seems to be a number of un-stated assumptions built into the above statement. Plus it’s not clear how there can be a “steady state” of application filing when the rate of original applications and the con/div applications are both rising (with the latter apparently at record levels).

    Could we see another graph of (original + con/div) applications/year going back to, say, 1980? And the “backlog” per year overlaid on top of that?

  53. Don’t worry like I said I am not going to let you take one more day. The Law will demand I get my Birth info. and whatever else the law demands will also come. I am free. Free to be me! It’s time for me to get some happiness from this Life.
    Have a nice Day.

  54. Always a pleasure to hear from two people who have clearly never prosecuted a patent application through to “disposal”.

    An unwarranted assumption IANAE. Please put away such ad hominem as it serves no purpose here.

    Aren’t you an academic anyway? (my turn for the ad hominem). It rather shows in your comment of “The only way the examiner can “force” a disposal is by allowing the case

    Most people “who have prosecuted a patent application through to ‘disposal’” will recognize a rejection that cannot be overcome and a crrp rejection that should be fought – and will advise clients to the best of their ability based on the actual examination.

    You obviously miss the point that the examiner’s actions have far more control of the situation. A properly examined application will results in either an allowance or a rejection or provide a substantive step in the one direction or the other.

    For some reason you like to think that applicants love to string along hopeless applications. Sure there are the extremely rare applicants who just won’t go away, but most applicants are reasonable, and if the first examination is crrp, it is reasonable to fight it.

    Come back and post when you grow up a little.

  55. The number of patent filings is not indicative of the innovation going on. I personally generated no less than 10 more inventions last year (most not disclosed) and yet that 10 fold increase is not reflected in the number of applications I filed.

  56. Page 666 in my Non Fiction… Letter of firing sent back … Weeks later when Robin is off… I get it all crunched up as if it was stuffed between something. On the Zip code.. MANN a BIG MISTAKE… says 38329-4829? Ivy in Parsons 4839… Hmmm. And Robin the wonder man was aked by me if it came in,,,, NO! But it also says in handwriting ATT 11-25-11? Howd He Know Dattt? Elementary.
    OJ GLOVE.. i missed my calling CSI.. See if only they let me grow. I coulda been a contender

  57. Always a pleasure to hear from two people who have clearly never prosecuted a patent application through to “disposal”.

    Prosecution can take as much or as little time as the applicant wants. The only way the examiner can “force” a disposal is by allowing the case, and the law (not even the MPEP, the actual law) says he shouldn’t be doing that if he can make a rejection.

  58. The Patent Office is publicizing misleading numbers? When an attorney submits misleading numbers to an examiner, the attorney risks his/her registration number and the client’s patent application.

  59. Combine the high rate of increase in the number of RCEs with the high rate of increase in the number of appeals being filed, and what I’m taking away from all of this is that the USPTO isn’t doing a good of job of efficiently disposing of applications.

    Bingo.

    A good examination precludes lengthy and protracted prosecution.

    It is as simple (and as difficult) as that.

  60. Combine the high rate of increase in the number of RCEs with the high rate of increase in the number of appeals being filed, and what I’m taking away from all of this is that the USPTO isn’t doing a good of job of efficiently disposing of applications.

    Also, although I dislike counting RCEs as a “patent filing,” the USPTO certainly treats them like a new patent filing — i.e., wait 1-3 years before issuing a new action.

  61. What “job” would that be then, “No Brainer”: writing patent applications would that be, or writing office actions?

    Both equally, I suppose. To which I can only say, hear him, hear him.

    Mind you readers, isn’t it surprising, that nobody else thought of that solution already.

Comments are closed.