By Dennis Crouch
Although the Patent Act provides for a 20-year patent term, that term can be extended in a few ways. The most common avenue is through Patent Term Adjustment that is automatically awarded to patentees if the USPTO fails to meet its guarantee of timely examination. As the backlog of pending cases grew, so has the average patent term adjustment. More recently, however, the USPTO has moved to reduce the backlog and average pendency – that result is that PTA has also been significantly reduced — for the first time in several years, the average PTA is below 1-year. The time series below shows the average PTA for all utility patents granted since January 2005. The jump in PTA seen in 2009 was due to a legal change in how the term is interpreted. The second chart shows the percentage of patents that are awarded PTA – that figure is also trending down, but is still a troubling 70%.
‘USPTO Continues to Reduce Patent Term Adjustments’
Yes, the GATT Treaty has been a landfall for infringers and a Waterloo for inventors. It’s bad enough that we have to fight the PTO to get our patents and now we have to watch as our effective patent terms dwindle and evaporate. Now the PTO can submarine our patents and suck all life from them. We have little we can do except protect what we can as trade secrets and take what we cannot to our graves. The federal government and the PTO are robbing and destroying us.
… correlation does not equal causation.
This Patently-O study, indicating that about 70% of applications are still getting about a year on average [some obviously very much longer] of PTA extended patent term, is appreciated.
The patent term adjustment statute [even as amended] and its subsequent case law disputations is so ridiculously complicated that apparently the PTO has never even tried to provide a simple summary explanation.
This is a further oversimplified edit of what someone has posted on Wikipedia. Suggestions for corrections and improvements would be appreciated:
Total PTA = Type A + Type B + Type C – Applicant Delay – overlapping delays
Type A Delay: The USPTO fails to reply within 14 months of the filing of the application, and other office actions within 4 months of receipt of an applicant response.
Type B Delay: The total USPTO prosecution time to issue exceeds 3 years, and no RCE (Request For Continued Examination) is filed prior to then.
Type C Delay: calculated in the event of secrecy orders or interferences.
Applicant Delay: the applicant fails to respond to an office action within 3 months of its mailing.
This appears to be good news.
Let’s just hope that we don’t a shadow jump like near the end of 2009 awaiting us.
First Office Actions should issue no later than a year and a half, and appeal decisions within one year.
PTO obviously needs to hire even more examiners and more administrative patent judges.
I’m finding the delay in most art units to be between 1 and 2 years. 2 is a bit on the high side, but I think that 12-14 months is about perfect.
Comments are closed.