Update on Patent Grant Rates

I have updated my grant-rate chart from a prior post. For these figures, I obtained a set of 15,900 published patent applications and categorized each application according to its area of technology and also as either patented, abandoned, or still pending. The chart below shows both the grant rate (percentage of applications that have been patented) and also the still in-process rate (percentage of applications that are still in-process).

My sample of applications are a random set of published applications with filing years of 2004 through 2010. About 94% of these cases have been concluded (either patented or abandoned) and my original chart did not include the in-process numbers which, for most areas-of-technology are fairly minimal. However, on reflection, I went back and looked at these figures and found that they are important.

Notably, the eCommerce arts appear to have a low grant rate. However, a substantial percentage of applications in that area are still pending. It is almost certain that some of those still-pending applications will issue as patents and the final grant rate for the area will be higher than originally predicted.

GrantRateUpdate

52 thoughts on “Update on Patent Grant Rates

  1. The e-commerce field has a low grant rate because it should. Everything in the e-commerce field is nothing more than an abstract idea of doing business, impotently tied to machines.

    Source: me. Legal support: Supreme Court precedence (see “tautologies”).

  2. The differences between the bottom fifth and the top fifth (with the high grant rates) are interesting. No doubt there are multiple factors at work but one likely factor is that in the chem/bio area applicants are probably more likely to file on compounds and treatments that show some promise in initial trials (pre-clinic) and then drop the cases if complications turn up later or if there are prior art issues and nobody was/is able to produce the necessary post-filing evidence of unexpected results (or, in the case of university apps, if no licensee is willing to follow up).

    Still, I’d expect these issues to arise at some level in the art units with the highest grant rates. Do they?

    1. Still, I’d expect these issues to arise

      LOL – of course you would. And anyone that deals with multiple art units would immediately see that such an expectation is not only NOT expected, but would question why you would even have such an expectation to being with.

      There is an easy answer, let me give you a hint: bias.

      Simple, unthinking bias – the type of “Gee, my glasses work for me, they should work for you” bias that pervades your entire blog-lifetime.

      Stop.
      Wake up.
      Think.

      1. Hey, Billy — we all know you are a total t 0 0 l with all kinds of mental issues but next time try your hardest to do everyone a kindness and try to attack something that was actually said instead of your b.s. out-of-context version of what that person said.

        I made a straightforward attempt to explain the data, using plain English. Then I made another simple statement about my own beliefs, that I qualified with a question. Here’s what I wrote: “I’d expect these issues [obviousness challenges required a demonstration of unexpected results] to arise at some level in the art units with the highest grant rates. Do they?”

        Then you accused me of being “biased” for making that statement. Why?

        And let me remind you again, Billy: I’ve prosecuted in the computer-implemented “arts”, and the mechanical arts, in addition to chem/bio. And I’ve been involved in litigation in these areas, on both sides, in addition to opinion work.

        But I don’t typically prosecute in those top ten grant rate art units. Hence my question and maybe you can answer for everyone, Billy: are obvious rejections more frequent in other art units relative to these top ten grant rate art units? Or are they just more easy to overcome? And why?

        1. try to attack something that was actually said instead of your b.s. out-of-context version of what that person said.

          LOL – AOOTWMD on that to several others!

          straight forward attempt… right into bias. If you have to ask why, you should pay more attention to what you typically write or just have more self-awareness.

          let me remind you again… um, sure (wink wink – but only in this universe does such actually count)

          You are a one trick-short script pony and you f001 no one.

        2. And let me remind you again, Billy:

          Several LOLables:

          1) first ever post by you with this content Malcolm.
          2) I don’t believe you – and given that you do not believe that intellectual honesty is required for posts on a mere blog, the only way to believe you is for you to provide samples of this alleged wide experience.
          3) You gave a single silly example and then tried to extrapolate from that single silly example across the board
          4) your bias is evident, and I supplied that comment as it explains your perverse one-pony view of patenting.
          5) that you don’t even “get” why the comment reveals your bias is also telling. It’s like trying to explain to the guy who offers you his glasses when you comment that you cannot see something clearly why the offer is problematic.
          6) you moved the goalposts with a far less specific question of mere frequency of obviousness rejections that had nothing to do with your original post

          No doubt, you will want to scream “stop shovelling” while (again) it is you clutching the shovel, standing in that hole of yours.

          1. 1) first ever post by you with this content Malcolm.

            L i e.

            I don’t believe you

            That’s nice, Billy.

            You gave a single silly example

            What “single silly example” are you referring to, Billy, and why is it “silly”?

            your bias is evident,

            Because Billy is really objective. Try to believe it, folks.

            that you don’t even “get” why the comment reveals your bias is also telling

            That you keep repeating this lame b ull cr ap in the apparent hope that it will somehow make sense is also “telling”, Billy.

            mere frequency of obviousness rejections that had nothing to do with your original post

            Uh, no. But do keep digging, Billy. It’s always fun to watch.

            1. It is not a 1ie – show me otherwise.

              You will not because you cannot.

              That you think my mere repeating is what you deem (in your Red Queen / Humpty Dumpty way) to be “lame b ull cr ap” is more telling than you even begin to recognize.

  3. OT, but the intersections with “larger concerns” are subtle:

    link to news.yahoo.com

    from marriage of brain waves, to DEFENSE funding, to the presence of the Terminator robot in the background of the interview, this piece is Rich with both the benefits of the patent system and some of the larger societal concerns with technology outstripping the ability of humans to control that technology.

    We haven’t done our best project yet.

    Hoo-rah for someone embracing the patent system.

  4. Dennis — you need to change the header on your chart as it is now misleading (unless one discovers the tiny legends at the bottom of the chart). Specifically, one quickly glancing at the chart would believe that the horizontal bar represents grant rate when it does not.

    For each art unit, perhaps you could have three horizontal bars — allowed/abandoned/pending. You can then sort by each one.

    Alternatively, you can keep your single bar but include another color (say green) which takes your bar all the way across to 100%. Perhaps you can have green for allowances, red for abandon, and blue for pending (swapping green and red if you think allowances are bad and abandonments are good). You can then create three different charts sorting by (i) allowances, (ii) abandonments, and (iii) pending.

    For example, a sort by pending applications gives a good idea where the backlog at the USPTO resides.

  5. I like the fields in red. What a good fit, between what is “still in process” and what is more likely to be airy-fairy, softy-wofty, touchy-feely, ill-defined and speculative.

    Either the inventor wants it to stay “in process”, or the PTO has no stomach for “the process”. Or both.

  6. What is surprising to me is the low grant rate in 1610, 1793, 1630, and 1640. It would seem that organic chemistry and metallurgy would be complex enough so that discovering some non-obvious compound or process would be easy compared to discoveries in the art areas further down the chart. Can anyone in the chemical arts explain?

    1. I suspect the situation is similar to that with most other arts – most inventors don’t start from scratch, but rather start from something that already existed and make changes to it. It might be easy to come up with a random nonobvious compound if one merely tinkers in the lab, but the likelihood of it being useful and worth patenting would probably be low. It seems more likely that one would try to make changes to a known compound with known utility. This makes the pertinent prior art relatively close, and it makes the structural changes relatively small. There may be some aspects of chemistry that are unpredictable (I’m thinking biochem, for instance), but many fields of chemistry are mature fields and thus there are many aspects of chemistry in which the effects of changes are quite predictable.

      1. Your suspicion is fundamentally flawed RH.

        If it were similar, then you would not see disparity.

        There is disparity, hence, there must be some non-similarity. Troubled’s point was seeking out what that particular non-similarity is.

  7. By the way, this is a MUCH more informative representation of the data (aside from the new 90% max scale system), so thanks for that.

  8. I think that assuming ecommerce will go higher is based on a very flawed premise. Most of those applications will be rejected, rejected, rejected “to improve quality”. Many are startups, and the PTO will simply destroy their finances to the point that they cannot continue pursuing the patent. More applications are being filed, and with the new “None Shall Pass” Alice “rationale” in hand, the rejections will all have to go to the PTAB.

    1. bja – this is your second reference to 90% – I still do not understand what you are referring to.

      Can you clarify?

      1. (I really hope that you are NOT simply wanting an axis that goes to 100% – that would be – scratch that – might be – a really minor nit, given that would merely shift all the data closer to the middle of the screen).

        On the other hand, I do see some manipulative effect in pushing the picture of “grant” to the right – we have seen some of the koolaid crowd already react with the overall response of “too much granting going on”… So to that extent, perhaps providing a 100% scale should be an easy fix to implement. I wonder what the picture would look like if we chopped the right side of the graph off (start at 20%) and go to 100% – then the picture would really shift the data to the left.

        1. Yep, it’s literally a skewed picture because the right side of the graph is chopped off. We’ve seen this type of manipulation used by the anti-patent crowd before.

          If we’re centering data, start it at 20%. Why not?

  9. IIRC, one of the amicus briefs in Alice said that fully half of all pending applications were of the computer implemented variety.

    It would be good to know the raw numbers by group.

    1. Ned,

      Did you take note of the larger group of RED in the cryptography art?

      That’s an art field in which even the counsel from Alice gave up in oral arguments – and yet – the executive branch is stymieing the granting of patents.

    1. The graph of red alone in descending order would be a nice graph – showing the contested areas of patenteligiblity AND patent ability; and a subsequent dive breaking the red into type of rejections and ongoing contests into the two different realms would be highly valued.

      Such a graph showing extent of 101 rejections (and timing); combination of 101 and other rejections; and other rejections alone (and timing); would likely show the reflection of modern day politics and the effects of trying to change law through the judicial and executive branches having real-time effects on the patent applications drafted under existing legislative branch laws.

      This data would emphasize where the real patent law battles are being fought. It should also surprise no one.

          1. What are the odds that Malcolm Mooney “operates” in 1796?

            (lol – no, not just the year, but the art group field – and “operates” should be broad enough to cover his supposed representation of clients as an attorney and his rumored position within the Office)

        1. WOW, that’s a recipe for disaster at the PTAB. That paints a VERY clear picture of how Alice is going to crash the PTAB docket.

        2. I think it’d be worth doing further analysis on the first three or so art areas in this graph and seeing (a) whether a lot of these cases are languishing at the board, and (b) whether a lot of these cases have unusually large numbers of RCEs (e.g., more than 2) filed in them, to see why there are so many applications still in process. This would probably mean spot checks of randomly sampled applications.

          Or, a quicker analysis would be to plot these percentages (granted and in-process) in a line graph with the filing year of the applications on one axis, and see if there are any unusual art areas that don’t follow the normal trends.

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