Prosecution Timing

After a number of years on the rise, the average pre-issuance patent application pendency began to drop in 2010. The PTO hopes that its renewed effort on hiring examiners and addressing prosecution bottlenecks can force this pendency even lower.

For the chart below, I built a database of all utility patents issued since January 2005 and calculated the average number of days in prosecution for each US patent, grouped by patent issue date.  Thus, the chart includes patents issuing from original applications and continuation filings as well as US national-stage filings based upon foreign and PCT priority.  For my calculations, I did not consider provisional application filings and I did not use the filing of an RCE to cut-short the application pendency.

Patent2011066

Some applicants like to see the odds that a patent will issue within a given timeline. The chart below groups patents by issue date and then reports the percent of patents that issued within a given period relative to the application date. In particular, the chart shows the percent of patents that issue within two years, three years, four years, and five years from application.

Looking at chart –  the lowest series shows the percent of the issued patents that issued within two years of the application. Back in 2005, about one-third issued within two years, that percentage dropped steadily until 2010 when the USPTO began increasing the speed of throughput.  In 2010, the two-year series began to drop again — likely because the USPTO began its initiative of Clearing the Oldest Patent Applications (COPA).

24 thoughts on “Prosecution Timing

  1. eweeee lookie. 2006 Issue Fee matched… And eweee lookie worthless Trademark is matched to a Revocation sent to the Patent Office.And lookie Ids’s also.
    To Dave,
    And yes I am half crazy from all of this. But there was so much done to me I didn’t know where to start. But you saying that to me.. Cut to deep. That makes you just like them. Only they have been doing it longer.

  2. given that you didn;t even have the right AUs
    when you did a chart on one TC, I sincerely doubt that any of this data is right either

  3. 6 explain why a person with polio has to live in an Iron Lung, and they have mass, form, and gravity working. Or did Scientists just skip over that phenomena?
    And on another note if female Mammals are supposed to be the prettiest, as in Birds being the male. Why is the King of the jungle prettier than the female Lion?

  4. Now I get why Applicant won’t let go of the atty in the Case.I’m the Applicant. LOLOLOL, Thanks for the Assignee to Applicant that helped immensely.

  5. link to youtube.com

    An interesting lecture on dark matter, dark energy, what they are, the broad stroked science behind them, and various models and theories that are proposed to explain the unexplained phenomena we see.

  6. LIE AFTER LIE AFTER LIE. 60 YEARS OF LIES AND THIEVERY.
    AND YOU TELL ME I’M ACTING A LITTLE OFF. OR THAT YOU ARE GOING TO HAVE “ME” COMMITTED? IT’S ALMOST FUNNY. BUT I AIN’T LAUGHING.

  7. Handwriting on the wall:

    In the en banc case of ZOLTEK CORP v. US, /media/docs/2012/04/09-5135.pdf, the Federal Circuit held that the importation or use of the product of a patented process was a direct infringement of a method claim where one step was performed outside the country and a finishing step was performed inside the country by the infringer. Essentially, the court combined 271 (a) with 271 (g) .

    One can look to the holding of this case to see that if a method claim has one step performed by one party that produces a partially finished product where the final steps are performed by a second party, the second party is a direct infringer and the first party may be liable for inducement or contributory infringement.

  8. A more accurate estimate of application pendency would be to sample PAIR by application number and determine the fate of applications based on their application date — issued, abandoned, and pending. I know that this would be much more cumbersome, but it would reflect any differences in the age distributions of the three classes of applications.

    Both this method and Professor Crouch’s method will miss applications that have not published or issued as patents. However, the continuity data in PAIR can allow an estimate of some of these, given enough time.

    Sounds like a good undergraduate research project for science or engineering pre-law students…

  9. Better question,

    Anyone agree?

    Especially as there are a multitude of different ways of statutory interpretation and Ned Heller is the very last person on the planet that should be engaged in such (yes even behind 6).

  10. What is the meaning of “patented, described in a printed publication, in public use or on sale” in the new statute? We have had numbers of discussions on this issue, many taking the position that since the words appear in a newly enacted statute they can be given an entirely fresh and new meaning. However, in the en banc case they came out just a couple of days ago, ZOLTEK CORP v. US, the Federal Circuit had this to say about construing the words of a statute:

    “The scope of the Government’s waiver of sovereign immunity thus depends on the meaning of (1) “an invention described in and covered by a patent”; (2) “used or manufactured by or for the United States”; and (3) “without license of the owner [of the patent] or lawful right” to do so. Id. Moreover, this language must be interpreted in accordance with its ordinary meaning in 1910, when Congress enacted § 1498’s precursor. See Perrin v. United States, 444 U.S. 37, 42 (1979) (stating that “unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning” at the time Congress enacted the statute).” ZOLTEK CORP v. US,/media/docs/2012/04/09-5135.pdf, at 16

    With respect to “public use” and “on sale,” I respectfully submit that the courts will look to the meaning they had at the time they were first introduced into the patent statutes in United States. I believe both were introduced in 1836 in response to a case often discussed here in Patently O,

    Pennock v. Dialogue, 27 US 1 – Supreme Court 1829

    Anyone disagree?

  11. WAY WAY WAY off topic.
    Has anyone ever heard of Mellon Investor Services?
    I have a letter here I never saw before from Mellon Financial Company, and after that a small SM after Mellon Financial Company Doesn’t even have a date on it? On the bottom it says MEL-003? Maybe that means 2003. Papers I found with it are dated 2003 so that makes sense. Does anyone know of this company, or what they do? It claims to have also come with a form to fill out and send to them?
    Do you think maybe someone else took the form out of my Mail in my PO BOX and filled it out and had it sent to them? Could I have a financial mystery unsolved?

  12. Thanks Dennis.

    One neat picture is if you plot actual number (rather than percentage) and then apply a trendline (I arbitrarily took a grouping of 100).

    What is obvious from that picture is that the bottleneck has been removed from the patent office and applications across a spectrum of “age” have been finally allowed to mature into patents – all starting around late 2009.

    Anyone want to hazard a guess at what happened then?

    Here’s a clue:

    Quote: “Quality does not equal reject.”

  13. Prof.DC writes, “regarding “greater than five years of pendency.” That data is implicit in the graph since all patents that didn’t issue within five years must have taken more than five years to issue. You can already see the information on the graph by simply turning the monitor upside down. ”

    Yeah, right.

    Have you tried it?

    All them pixies falls out if you turns it upside down.

  14. I wonder if the Great Recession has quickened attorney prosecution of cases including less frequent uses of petitions for extensions of time.

  15. Reading is a good first step.

    Understanding the rest of the story requires more than mere reading.

  16. P. Thanks for your post. I agree with your first statement and to get the best picture of this, I would need abandonment data, which the PTO does not release on an application-by-application basis. However, I think that your disagreement also comes from your selective quote of my paragraph. I think that in the two sentences following that I explain that we’re dealing only with patents.

    As to your last point – regarding “greater than five years of pendency.” That data is implicit in the graph since all patents that didn’t issue within five years must have taken more than five years to issue. You can already see the information on the graph by simply turning the monitor upside down. I did not include the series on the right-side-up chart because it became too messy.

    Dennis

  17. “In order to have a full and accurate picture, you would need to account for both applications still pending and abandoned applications.”

    For the chart below, I built a database of all utility patents issued since January 2005 and calculated the average number of days in prosecution for each US patent, grouped by patent issue date.

  18. Is the proper benchmark for “success” the government’s promise to have prosecution complete within three years?

    If so, does this mean that 50% (or more) of the time for each patent achieved since roughly third quarter ’08 have failed to meet the promise?

  19. Some applicants like to see the odds that a patent will issue within a given timeline

    These charts do not show that.

    You have a “success” bias in that your data is coming from applications that have matured into patents. In order to have a full and accurate picture, you would need to account for both applications still pending and abandoned applications.

    Further, the picture, and what it does portray is not complete in that the percentages of issued patents within the specified times cannot all be dropping. What is needed is the remainder category (i.e. greater than five years).

  20. I’ve seen a few continuation applications recently sail through in under a year. One such case filed at the end of August 2011 was first examined in January. A first filed application granted special status due to inventor age filed in the first week of October, on the other hand, still hasn’t been docketed to an examiner.

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