Estimate: Fewer than 26,000 Active US Patent Attorneys & Agents

by Dennis Crouch

USPTO records identify about 41,800 active registered patent practitioners.  That number is obviously wrong because many folks have retired from the practice of patent law or even passed-away in the many years since the many years since the USPTO last conducted a survey of active practitioners. Because the PTO has no CLE requirement or regular registration fee, non-practitioners often stay on the rolls even when they should have been dropped.

The Office of Enrollment and Discipline (OED) has a new director — William Covey — who has initiated a new survey of practitioners that will attempt to refresh the rolls. The USPTO will begin mailing survey letters later this month to practioners whose registration numbers are below 25,000.  A response must be returned to the PTO within 45–days in order to remain on the rolls.  Questions can be sent to: OED@USPTO.gov.

In addition to this survey, I am looking to find the rough number of patent attorneys that are actively practicing before the PTO.  As a first cut, I decided to identify all of the registered practitioners associated with one or more recently filed patent applications.  To do this, I pulled up the PAIR files of 47,000 of the patent applications that published in the calendar year 2011. (This represents about 15% of the applications published that year).  Using those documents, I identified all of the patent attorneys associated with each application (usually by PTO customer number). 

It turns out that this group of 47,000 patent applications is associated with about 21,500 patent practitioners — just over half of the 41,800 practitioners on file at the PTO.  Based on my rudimentary stats, this projects-out to an estimate of fewer than 26,000 patent practitioners associated with at least one application published in 2011.

As an aside, about 82% of these active practitioners are registered as attorneys and the remaining 18% as agents.  Not surprisingly, agents have a much greater drop-out rate than attorneys. About 8% of the applications listed no professional.

Notes:

  • I'm planning to work these numbers up a couple of different ways and would appreciate comments or suggestions. dcrouch@patentlyo.com
  • If anyone would like to help with the population estimate based on my sample, please let me know. The problem is a bit tricky because each attorney may be associated with any number of applications and each application may be associated with any number of attorneys. You can download the raw data listing each attorney for each application in my sample. [qryExportFile.zip]

  

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

45 thoughts on “Estimate: Fewer than 26,000 Active US Patent Attorneys & Agents

  1. Most of the time, I have either been in-house or ghost-written them for other people (partners, other associates). I don’t worry about who gets the credit as long as the client/engineer/president is happy.

  2. Not sure if the person being a “govn’t bureaucrat” is pertinent or not; but rather, what is pertinent is that the system would be run by those very “govn’t bueaaucrats,” so the point is very much on the mark.

    Unless of course, your system includes having someone other than the government run that system…

  3. So you’re a govn’t bureaucrat?

    It’s easy to spot. I can tell because you don’t know about the existence of automated credit card payment systems and databases.

    It would have an initial setup cost and be paid for in less than two years, even at 10 dollars.

  4. Q: “How does the USPTO defray the costs of administering the process of qualification of patent agents by examination?

    A: They charge excessive fees for the examination.

    C: “How about the PTO levying a significant annual fee for staying on the PTO Register

    R: How about not. Why is it that people want to make this ever more a sport of kings by striving for a dollars for answers apporach?

    C1: “flush off the Register those agents who don’t practise any more… some measure of competence

    R1: Did you ignore the many posts here about those that still do practice that missed the attempted identification scheme? Do you not recognize that the public should already recognize the presence on the Register as some measure of competence (do you know that the Patent Bar passage rate hoovers around 60%? – that’s 60% of accomplished individuals of whom a vast majority have both accomplished legal and technical hurdles)?

    C2:”finance, and so improve the quality of, that examination

    R2: You are assuming that that examination is what is at fault in some sort of “quality” scheme. Likewise, you are assuming that if only the Office charged more, they could fix that. There is no basis for your assumptions, and the Office – at any time – can decide to change the way they test patent bar applicants – without any such cost factor being involved.

    Q: “What is it that is preventing the PTO from doing that?

    A: You are assuming that you are asking the right question, that your suggested path is the right answer. As mentioned, the Office does not need your base assumption to “improve” tests. What metric are you depending upon to suggest that patent attorneys (generally speaking) need to be better tested?

    Q: “Would it not raise the status (and competence) of US patent prosecutors?

    A: Status is unrelated (or at least minimaly so). Raising the bar (sic) will always raise the comptenece level of those passing that bar. How high do you set it? How high is any bar to be set? Why not limit registration to the top 1% of all test takers annually? Why would that not be considered “fair”?

    Q: “Higher status = higher hourly rates, no?

    A: To a degree, yes; but only to a degree. But such a degree exists even now, so your proffered solution does not guarantee any different result (plus, you seem to ignore the basic economic tendency to seek low cost factors, which may not have a purely logical basis).

  5. How does the USPTO defray the costs of administering the process of qualification of patent agents by examination? How about the PTO levying a significant annual fee for staying on the PTO Register, the flow of such fees serving to:

    1. flush off the Register those agents who don’t practise any more (so the public can take presence on the Register as some measure of competence)

    2. finance, and so improve the quality of, that examination (like including an examination of competence to draft claims)

    What is it that is preventing the PTO from doing that? Would it not raise the status (and competence) of US patent prosecutors? Higher status = higher hourly rates, no?

  6. I can just see one of those letters from potential clients that I try to License telling me it is NOT my Property and to get lost “AGAIN”, NOT! It’s all about the penmanship! I’ve seen enough of those BUZZ BUZZ BUZZ….
    GHA GHA GHA GHA!

  7. Dennis,
    Back to your query – you asked about accuracy. Someone started to mention the in-house folks, like myself. Contrary to what was said above, we don’t always show up on the patents filed on behalf of our companies. I don’t actively write patents much anymore, but I consider myself active, inasmuch as I initiate and review the process, which is conducted by outside counsel. I don’t know how you are going to count us; perhaps we are in the minority.

    On the matter of replying to correspondence from the PTO – as I recall, that’s the reason we are required to update our addresses – the threat of such a census under 37 CFR 10.11 (though I should think email would be sufficient in this day and age)! I know they snagged a lot of prominent practitioners last time they polled, however (c. 2004, I believe).

  8. Contrary to what IANAE seems to think, it is quite possible to be dropped from the roster under circumstances that would never endanger a client’s interest when an official action is mailed. In the early years of my practice (1980’s) it was, if not common, certainly not uncommon. Back then the PTO conducted a “survey” like the one described every year, mailing a postcard to one third of the registered practioners on a rotating, alphabetical basis. Anyone who did not respond was dropped. When an attorney changed jobs and an application or other client matter stayed put, someone else was assigned to it. If the matter went with the attorney, the old firm had an ethical duty to forward official communications until the mailing address was updated. There was no comparable duty with respect to personal communications to the attorney and the postcards were often ignored and discarded by the old firm. This problem was much worse in the pre-internet days when it could take months from the date that an attorney sent a change of address until the roster was updated. Remember that the address to which official communications about an application or other client matter are sent is the one in the file, not the one associated with the attorney’s name in the roster. I know several attorneys who were dropped under these circumstances. Having said that, the only consequences were the embarrasment of having their names published in the OG in the list of people dropped from the roster and the expense of a petition for reinstatement.

  9. set a fee that doesn’t even cover the expenses of processing the fee.

    not too smart (also fails the paper work reduction act and various other regulations).

  10. Who signs the apps, though? There is a registration number and an individual signing, not just the name of the firm.

  11. The last time the USPTO tried to burden the patent bar with an annual fee, it was a lot more than $10. Fortunately, Kappos let this idea die, even though it had passed public comment and was set to go into effect.

  12. There are numerous University technology transfer offices with registered attorneys/agents. However, most of these practioners will have only filed ‘in-house’ (and unpublished) provisional applications in 2011. Few TTO’s prosecute cases themselves, instead relying on outside counsel.

  13. Practitioners having a registration number higher than 25,000 are not in the current survey. Accordingly, it is not necessary for them to call or advise OED that they did not receive the survey. A survey will be sent to them in the future.

  14. They do, however, raise an enrollment non-issue.”

    corrected.

    much hullaboo over nothing.

  15. I work for one of the larger patent firms in the US and one problem I see is that some large firms associate all of their registered attorneys with their customer number. But there are a significant number of these attorneys who do not currently do any patent prosecution, and some of which have never really done any. They are litigators only. I would think that you should discount a large percentage, maybe 20% of large firm attorneys as being registered and associated with an application, but not practicing before the USPTO.

  16. I have been practicing for 15 years, but I doubt there are more than a handful of patents that specifically have my name on them. Most of the time, I have either been in-house or ghost-written them for other people (partners, other associates). I don’t worry about who gets the credit as long as the client/engineer/president is happy.

  17. Why would that worry you?

    Because it’s sort of our job to reply to mail from the PTO in a timely manner. If you were a client, would you employ an agent who was likely to miss PTO correspondence that had a deadline for responding?

    What harm is there in remaining registered after you retire on the off chance that you might want to do a little work for a friend or relative or even yourself if you start to tinker in the garage or basement now that you have some spare time?

    No harm at all. I assumed that these were just ordinary letters requiring a simple response to the effect that the agent is still alive and receiving mail. You’re acting like they intend to make everyone with a reg number below 25k sit the exams again or some similar injustice.

    There might agents and even attorneys that do all the activities associated with patent practice before the PTO except sign papers. That might be left to supervisory attorneys or agents under whose direction they work.

    So what? They don’t need reg numbers for that, do they? I did all that stuff before I got my number. What about all the people currently without a number who do all that actual work? Should we count them in the number of “active practitioners”? And if so, what do we care whether active practitioners have numbers or people with numbers are active? As long as the people who still use their numbers get to keep them.

    Why should such an agent or attorney be classified as inactive and purged from the rolls. Their circumstances might change. They might in sometime put out their own shingle….

    Well then, if they foresee that as a possibility they can invest in a postage stamp to keep their number. I didn’t see any implication that agents would be summarily purged from the rolls if they didn’t show up in Dennis’ survey, for example.

  18. I’m sure the OED can clear up any issues with a simple letter or call.

    I think a better system would be an annual registration fee. Just 10 bucks would do it, but it would allow everyone to keep an accurate count.

  19. You really have no clue as to what you are talking about.

    +1

    The academic needs to go back to his tower.

  20. “It’s a bit worrisome that one could get a survey from the USPTO, miss it, and then be booted from the rolls as a registered patent attorney.

    It’s a bit worrisome that one could get mail from the PTO, miss it, and then not get booted from the rolls.”

    Why would that worry you?

    Moreover, why is there a need to purge the rolls? What harm is there in remaining registered after you retire on the off chance that you might want to do a little work for a friend or relative or even yourself if you start to tinker in the garage or basement now that you have some spare time?

    “It’s a bit worrisome that one could get a survey from the USPTO, miss it, and then be booted from the rolls as a registered patent attorney.

    It’s a bit worrisome that one could get mail from the PTO, miss it, and then not get booted from the rolls.”

    You really have no clue as to what you are talking about. There might agents and even attorneys that do all the activities associated with patent practice before the PTO except sign papers. That might be left to supervisory attorneys or agents under whose direction they work.

    Why should such an agent or attorney be classified as inactive and purged from the rolls. Their circumstances might change. They might in sometime put out their own shingle….

  21. It’s a bit worrisome that one could get a survey from the USPTO, miss it, and then be booted from the rolls as a registered patent attorney.

    It’s a bit worrisome that one could get mail from the PTO, miss it, and then not get booted from the rolls.

    Also, regarding agents with numbers who are never of record because they’re in-house or their firms never include them in the client number or whatever, in what sense can they be described as “active”? All they’re doing is stuff that non-agents could also do. Sure, what they’re doing is technically an activity, but they’re not really active as agents.

  22. What about in-house patent attorneys? We rarely appear on prosecution documents.

    For most of my corporate clients with in-house patent departments, in-house attorneys/agents who have a reg # are associated with the customer number for all of the client’s matters, along with the practitioners at my firm. Many (most) of these attorneys/agents never draft applications or office action responses.

  23. First, it is interesting that the USPTO will send out 2599 surveys to those on the rolls with numbers newer than 25000. However, I see that it’s only to those that received their number prior to 1969. Granted all those receiving these surveys now will likely be over 70 years old and a large percentage may not be practicing, but once the government starts a process, why would you think they’ll stop at “older” numbers? It’s a bit worrisome that one could get a survey from the USPTO, miss it, and then be booted from the rolls as a registered patent attorney.

    Second, I think Dennis’ survey will be interesting but will miss those that use their registrations without actually filing in their name. Associates have been mentioned, but also litigators that periodically do reexams, in-house counsel that review but have outside counsel file, etc. all some others. That being said, I think he’ll get 80-90% of them.

  24. I think this methodology will lead to a very low estimate. I know plenty of patent agents and patent attorneys who file in the name of their partners, and this is not limited to large firms. In this economy, a lot of young tech companies are also hiring an agent or two but filing through outside counsel.

    There are also young solos who prefer having an experienced attorney reading their work before filing. All of these people are practicing, but their names aren’t always going on the apps. I have written many patents over the past year, and I am a patent attorney, but my name isn’t on any applications. I have filed through a law firm I do some work for, I have filed for a company I’m in house at, and I have filed through an unaffiliated colleague.

  25. “I doubt that large firms with decent litigation practices list in the customer number every attorney in the firm that has a reg. number. They probably only list the prosecutors.”

    Doubt all you want, but you’re wrong.

  26. Read my post a little more carefuly.

    The verb tense indicates a plamn forward – quite apart from the rules as they currently stand

  27. I agree with those comments above regarding junior practitioners, which includes patent agents. I am writing applications almost continuously, but you will never see my name on a patent application because all my patents and applications have the name of a firm on them rather than mine. I continue to write applications regularly.

  28. Read the rules.

    It only says that a registered practictioner must be named on inter partes filings. It has nothing to do with litigation. And, it doesn’t say who must prepare the filings.

  29. The number of partners that file the work of associates under their names to hide teh associates form the clients is much higher than you estimate.

    I bet that an accurate survey would come in closer to 35k.

  30. Seems to me that you are going to be missing those practitioners that have a reg. no., but focus exclusively on patent litigation. I doubt that large firms with decent litigation practices list in the customer number every attorney in the firm that has a reg. number. They probably only list the prosecutors.

    Those litigators are probably going to begin exercising their reg. no. a little more in the future with the inter partes proceedings coming down the pipeline.

  31. Robert – just to be clear, my 2011 data is from published applications in 2011 (not issued patents). I do agree with you, however, that it will miss some active folks who, for whatever reason, did not file new cases during the time period necessary to be published during my arbitrary time period. The flip side of this is that most firm list all of their registered patent professionals in the customer number used to file applications. And, most firms of at least 2-3 patent attorneys will have at least one application published during the year.

  32. While this estimate seems high to me, if it only takes into account 2011 issues, it is undoubtedly low. A busy patent practitioner can easily go a year without an issue, and junior practitioners often don’t get their names on applications they assisted with if their superiors get first dibs on the three spaces available on the issue fee transmittal form.

  33. Well, there you go. A ready-made litigation control mechanism – remove from any patent case an ordinary, non-patent-bar-registered attorney.

    I can $ee the re$ult$ already.

  34. Supply and demand.

    IP litigation has been dominated in recent decades by non patent attorneys. That will change with the new inter partes proceedings that can be conducted only by licensed patent attorneys and agents. This will increase demand for truly skilled patent attorneys.

    Where there is a demand….

  35. How about providing something like an estimate of the number of original, U.S.-origin patent applications filed with the PTO per attorney or agent per year? Combine that with realistic measures of what those applications really cost in attorney fees and we will have an interesting discussion of how lucrative patent application work is these days.

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