References Cited Per Patent

In the US patent applicants and patent attorneys operate under a duty to disclose to the USPTO “all information known to that individual to be material to patentability.” 37 C.F.R. 1.56. Here, material to patentability is defined as non-cumulative information that either (1) “establishes, by itself or in combination with other information, a prima facie case of unpatentability of a claim” or (2) is inconsistent with a position taken by the applicant before the USPTO. Id. Typically, the duty of disclosure is fulfilled through the process of submitting information disclosure statements (IDSs) to the USPTO along with copies of the actual material information (such as prior art references).

Over the past 13 years, the number of references cited per patent has grown dramatically as shown in the chart below that shows the average number of references cited both by Applicants and Examiners as seen on the face of issued patents.

12 thoughts on “References Cited Per Patent

  1. Note that a reference can be cited by both Applicant (IDS) & Examiner (PTO-892).

    On an Issued Patent, some of the examiner cited (e.g., *) references, may have also been cited by Applicant in an IDS .

    If number cited by Applicant (on Dennis’s curve) represent the non-* references, then they may be lower than the actual number of references on IDS’s.

  2. In other words the number of relevant references has stayed more or less static while the number of cited references has gone through the roof for no apparent reason.

      1. Oh they matter if the examiner picked is one that actually reads the IDS. I have had many great references I likely would not have found (especially foreign refs or NPL) that get utilized in rejections. Many times applicant will draft around his closest prior art in his IDS and then add a term at the end of the claim (indeed that is practically standard practice in my art now). I go out, try to find that last thing, and then 102 with the new ref or 103 with the ref from the IDS.

        That said, the copious amounts of irrelevant nonsense that are submitted are uncalled for.

        1. UNcalled for?

          No. They are most definitely still called for. Past threads on the subject fully explain why the ‘dumptruck’ effect is most definitely still called for.

          6, maybe you can grab a lesson on ‘legal realism’ from the jokester Leopold.

    1. It would be a serious mistake to label the delta between examiner and applicant references as “relevant references.”

Comments are closed.