By Jason Rantanen
The USPTO recently released the data on the number of patent applications filed in Fiscal Year 2015 via its Data Visualization Center (i.e.: the Dashboard) page.
Based on this data, the number of patent applications hasn’t taken a nosedive. Instead, applications have remained at the same level as the preceding year. The number of UPR (Utility, Plant and Reissue) applications did drop by about 0.5% as compared with Fiscal Year 2014, but that’s a very small change, especially when compared with the growth in UPR filings over the past several years. In addition, when Requests for Continued Examination are broken out (the PTO includes RCEs in its numbers of UPR filings on the Dashboard spreadsheet), the number of applications actually rose by about 1%.
Figure 1 depicts the numbers of UPR applications filed per fiscal year, with and without RCEs. (Additional note: these numbers do not distinguish between applications that do not claim the benefit of an earlier U.S. application and those that do, such as continuations and continuations in part. Also, historically plant and reissue applications have made up a de minimus proportion of the UPR applications (about a thousand of each per year).)
To check whether there might have been a sudden drop at the end of the year that affected these results, I also plotted the cumulative numbers of applications filed on a monthly basis for each fiscal year from 2009-2015. Fiscal year 2015 really doesn’t look all that different from Fiscal Year 2014 when viewed on a monthly basis and there’s no sudden unexpected dropoff at the end.
Finally, I graphed the numbers of design patent applications filed each fiscal year. I was a bit surprised that design patent applications were essentially flat as compared to FY 2014, indicating that – so far at least – there hasn’t been a huge surge in these applications.
Would the “flatness” in the design patent application realm be at least partially attributable to the increase in designs allowed per patent?
Not sure if it would be possible (without a deep dive) to take those applications and count each claim separately…
I don’t keep up with global macroeconomics, but is the U.S. economy currently in a shift from physical labor, manufacturing, a material production economy to more of a mental labor, intellectual and innovation (and invention) production economy?
For example, what are the graphs for numbers of engineers, scientists, inventors per capita, are they increasing? And what of the fraction of spending in the private sector on R&D? If these are increasing, and if this is indeed the trend, one would expect that the resulting product of all this mental work would be detectable, and observable in the form of the number of patent applications per year.
So, instead of manufacturing “gidgets” are U.S. entities just producing more IP? Is having a more intellectual property based economy wrong somehow?
You can just walk down the street and see that human skulls grew, like, ten times more massive betwen 1990 and 2015. Totally correlates with the huge observed increases in the human ability to innovate new intellectual stuff and, of course, the corresponding increase in patent grants to cover that stuff. Other than the obvious costs of widening doorways and redesigning movie theaters and sports stadiums, there’s nothing at all wrong with this exciting trend.
By the way, I have some cool knit caps for sale. The popular patterns this season are “Planet Jupiter”, “baseball” and “watermelon.”
^^^ because derision towards the factual basis of how innovation is today (and ties to the most recent Kondratieff wave), is just something that should be “applauded” and “promoted”….
/off sardonic bemusement
Kondratieff wave
LOLOLOLOLOL
Try a little “light” innovation understanding and a lot less empty snideness.
Good point Anon2.
Is there any correlation between the drop in RCEs and and the PTO trial post-final-office-action time credit or other sources of increases in the % of applications allowed before RCE’s?
Interesting hypothesis.
Is there a way to break this down by AU/TC?
Not that I see based on the dashboard spreadsheet.
May I suggest that the practice of filing continuations continues to grow, especially in view of IPRs and PGRs.
May I suggest that the actual practice was a drop (most recent year over year) of 2.4%….
So this morning we have the obvious, and the obviously wrong…
The interesting question would be why the drop in RCE filings (given the reasoning behind what Ned would think to see, which should be in a gain)…?
Gen eral climate? Not likely an answer given the increase in new filings.
Reassessment by those already in the game…? Perhaps. But what is the makeup of the new filings versus the makeup of the (reduced) RCEs? Has the respective makeups of each changed over the last few years?
Is the bulk of data (readily) available so as to dig a little deeper?
…and would it be interesting to note that the size of the drop in RCE filings is greater than the size of the court cases for enforced patent rights as a percentage of possible enforcement actions…?
(you know, the flea on the tail of the dog, wagging the dog syndrome)
From an Examiner, one reason RCE’s dropped may be due to internal pressure from the PTO on examiners. The PTO tracks how many RCE’s each Examiner has, and they are seen as a negative thing. Which is frustrating to me, at least, because my art has higher than average RCE filings, not because of the examiners, but because we have a lot of foreign applicants who seem to prefer more slow moving prosecution, or just don’t seem to be able to effectively respond to first actions. My SPE has told me, on the record, that I need to bring down my RCE numbers, but off the record, tells me that he can’t point to a single one of my RCE’s that was improperly required by me.
anony,
Thank you for the internal examiner perspective.
How does that perspective though, tie into being a causal factor for the applicant side filing of RCE’s?
Your internal pressure does not seem to have a link (and probably should not have a link) to the external filing of an RCE.
“should not have a link” – I agree, but it does. Many applications are “close calls,” meaning that they aren’t clearly allowable, but the rejection leaves something to be desired. In those cases, I (as an examiner) would prefer to make the rejection, and see the Applicant clarify the record such that the rejection is clearly overcome and I can allow the case. However, if I know that they will file an RCE (which may, in aggregate, hurt my employee review), I may just say “meh, close enough” and issue the patent without requiring the more clear record and clear reasons for allowance that would result in further prosecution.
anony,
I am still not sure that I am seeing support for your view “that it does.” The driver for your actions does not translate into a driver for applicant actions per se.
I do see that from your perspective you indicate that you may be “influenced” to take some improper actions (I am sure that you are aware that I feel that Allow Allow Allow is just as bad as Reject Reject Reject and that neither is You – the royal you – doing your job).
But that does NOT reach around and change the dynamics from the applicant’s side. In part because that path is not pre-known and is not something that can be counted on in any particular case or even on any large scale.
Your comment about “lacking clear reasons for allowance is also a problem – and separable from the clarity that you “want-but-don’t-pursue” from the applicant. What exactly stops you from being honest and explicit to why You are allowing something? Do you think that this type of honesty would give the Office a “bad reputation?” Believe me, that reputation is there and there in spades, and your (lack of) diligence in not recording the record from your end does not make that reputation better.
What you state seems to be more implicating the actuality of what happens when the RCE gravy train is put to a stop.
I do appreciate your “honesty” in sharing that you may feel inclined to NOT do your job properly, but (once again), all that that is, is a reflection that You and the Office systems are still out of wack.
Are you confirming that you are not doing your proper job? That the system of how you are measured is promoting improper examination…? Are you saying that you are being rewarded for sub-par performance, and that the applicants before you are aware of this and are filing less RCE’s because of this?
I would posit another possibility: the endless black hole and destruction of compensated time lost from patent term that the changes made in attempt to end the RCE gravy train and decisions on PTA have created. The RCE path from the applicant’s viewpoint is now fraught with the double peril of non-attention and no catch-back for time spent sitting in queue – potentially ALL of the time that any finally obtained patent may have.
“Are you confirming that you are not doing your proper job? That the system of how you are measured is promoting improper examination…? Are you saying that you are being rewarded for sub-par performance, and that the applicants before you are aware of this and are filing less RCE’s because of this?”
Pretty much what goes on here anon. It is what it is. It’s why I am trying to leave. It is a corrupt environment.
To give each application the time it deserves and getting promotions (or even being retained in your first year) is mutually exclusive.
However, this is largely due to the fact that everybody doesn’t know how to stop filing patents at such a historically unprecedented rate.
WOW.
Thanks Topce – I do hope those in “power” take note of this.
However – your “reaction” against those filing patents is simply not something I can give the least amount of credence to.
That is even more wrong than what you are being exposed to.
Some art units get almost twice as much time for their applications (e.g. business methods).
These art units are also the ones who get bit-by-bit amendments that often fail to overcome the prior art of record.
Any year now we’re going to move to CPC (and redo BDs). And then I won’t have to cover as many technologies, and will hopefully get more time (yeah, right). Any year now.
Every RCE I have ever done has had overbroad claims. Maybe attorneys are just responding to the market and filing narrower claims at the outset.
The system benefits the big corporations who can file tons of RCEs.
Topce,
you really do have to lay to rest your fallacies based on your external “philosophies.
Patent law – substantive legal points – IS agnostic to owner or owner’s wealth.
You seem “hung up on” the fact that those with more money have more opportunities.
This applies throughout ALL areas of life. Deal with it.
And remember – with patent law, one must STILL have the invention in the first place in order to have the application and HOW EVER MANY RCEs or continuations that one may wish to indulge in.
You keep on missing this critical point with your fixation on “wealth.”
To clarify, I’m referring to the subset of cases that fall in the middle – not clearly allowable, but not strongly rejectable. That is a reality, this isn’t a zeros and ones kind of job, there is a lot of subjective middle ground.
And when I find myself in that subjective middle ground, I use my judgment to make the best call I can.
When my superiors set in place rules or standards or policies that indicate a preference for fewer RCEs, I take that into account when making my decision.
Thus, if the powers at the PTO want fewer RCEs, they will get them, because I will lean more towards allowance on the ‘middle ground’ cases.
I’m not abdicating my duty, I’m just making subjective calls based in part (within reason) on the changing philosophies of those that employ me, as I’m sure you do.
Anony, I have to disagree.
It is a binary Yes/No decision – grant or not grant.
It comes down to that.
As far as your decision being based on ANYTHING ELSE other than the merits of the case – well, THAT is you introducing that exterior factor into the situation and making your own problems into problems for others.
Replying to your reply that the decision “is” binary:
Well, if it is binary, why do we have examiners, APJs, circuit court judges, federal circuit judges, and supreme court judges, all having differing views of the same case? If it is binary, people as smart as judges should all agree, right? I mean, either it is obvious, or it isn’t. Why can’t they all agree? Oh, but examiners should be more knowledgeable than all, and know either yes or no.
When, and by what metric, is something “obvious” to one of ordinary skill (and who, exactly, is that one of ordinary skill)? If you know something I don’t, I’d be willing to learn.
There will always be debates in the courts.
That has nothing to do with the binary nature of the grant decision.
You are forgetting one critical point on all of this:
It’s
your
job.
Do your job well, and the rest will take care of itself. Do your job poorly, and, well, the effects unfold.
anon, there is an increase in 111(a) filings — original, divisional, and continuations. This could be explained by increases in original alone. But, it also could be explained by increases in the latter two categories as well.
I think continuations may be up for reasons explained.
But there could also be increases in divisionals because the examining corp has been very active in this areas, primarily to reduce the number of claims being examined at a given time.
Thanks Ned.
I would add Ned, that in light of KSR that should be moving to decrease, rather than increase, the occurrences of divisionals (since the Court opened wide the use of disparate art to reject, claiming that “searching disparate art” is “too tough is just not a claim that can “wash.”) and that the actual increase (if in fact there is such), can only be attributed to the rampantly bad practices of Office requirements for divisionals.
As I mentioned to anony, I am against bad examination – even bad examination that results in an (improper) Allow Allow Allow. As we have discussed, a bad request for division DOES lead to the possibility of a lax application of multi-patents that should not be so (the notion that a requested division makes each request “patentably distinct.”
That would make too much sense and how would the office make its money? Less divisional filings=less fees.
Everyone is very liberal with restrictions and nobody understands how they work.
I am beginning to see where you are coming from anon.
I think the problem is GIGO for the most part still. But the PTO’s procedures don’t help to say the least.
Looking at the big picture, it appears that the PTO had been trying to extend its global influence.
There is definitely an effort going on to harmonize patent law around the world.
The PTO is perhaps too focused on being an ambassador and not focused enough on fixing $-hit.
>I am against bad examination – even bad examination that results in an (improper) Allow Allow Allow.
Then write your congressman and tell them to pay for the PTO with tax dollars instead of fees, or try to get them to increase the fees.
You do realize that fees are adjustable, right?
Set your budget realistically – and the fees will follow.
This is entirely within the power of the Office – RIGHT NOW.
And yes, those examiners who fail to take a stand as to the proper time to do a proper job (and their spineless union that SHOULD protect them) are far more “at fault” with ALLOWING the current facade to continue.
This is a “you” problem all the way done the line.
All the examiners have said “give us more time” wrt the “Quality Initiative”. I believe the report even had the same conclusion. If they listened to examiners we would already have more time per case.
Make your voice heard. Last I knew they were still asking for advice from the general public.
But telling examiners things that you should be telling management doesn’t really help.
It is a “you” problem.
My client does NOT pay for “X” amount of examining time.
My client pays for a proper examination.
>My client does NOT pay for “X” amount of examining time.
Like I said, complain to management about the production quota.
And like I said – don’t make the internal problems of yours into external problems for me and my clients.
Examiners going to do the best job *in the time allotted*. Hell, even superiors POPA tell the examiners the exact same thing.
Don’t make what you believe is your entitlement (i.e. anything beyond the time allotted) into my problem.
Time for you check in with reality and what the deal that the Offixe has chosen to make IS
There is no “entitlement” as you would imply.
There is no need for me or my client to be dragged into the internal workings of the Office.
It is abundantly clear that you know – or should know – that what I speak is a plain fact.
I think blaming examiners for Management is unfair.
Management has its own agenda.
We are simply tools. “Doing our job” is going to result in improper examination because the PTO “wants” poor examination.
That is to say, despite what management says, it does not want examiners to spend more time on cases.
The reasons for this are complex but here are a few theories that go together.
1) The PTO is captured. anon have you read the quality submissions? Most are from industry groups who just want their cases allowed quicker.
2) The PTO wants to reduce the backlog at all costs.
3) The PTO management is deluded into thinking that it can reduce the backlog and increase quality at the same time
4) the PTO thinks that “quality” means examiners making less “errors.” “Errors” are defined as the examiners stretching references too far.
5) Stretching references increases PATENT quality but increases the backlog of appeals and RCEs
but what do I know? I guess I’m just not doing my job “properly”
The notion that stretching references increased “Quality” is downright shameful.
Stop
Drinking
The
K00laid.
anon,
What is your basis for determining the “job” of examiners? The tasks you note are the duties of the PTO, but it is the PTO and ONLY the PTO that defines what an examiners job is. You’re whining about what the examiners’ job SHOULD be.
Not at all “Bob.”
The bargain that the Office provides – per law – with my clients is what I am talking about.
It is you and your like minded examiners that fail to see the big picture here, that suppose (wrongly) that the internal structure is ALL that there is.
I will remind you (yet again) that the internal problems are NOT (nor are they attempted to be made to be) the problems of the external people.
Again. Whining what the examiners job SHOULD be based on what the PTO’s obligations are.
Wah.
You are quite missing the distinction between internal and external.
Let me know when you get a c1ue.
(Hint: the relationship between the Office and the public is external)
“I will remind you (yet again) that the internal problems are NOT (nor are they attempted to be made to be) the problems of the external people.”
This is false.
The Patent Bar has enormous influence over the PTO’s policies.
Bob below/above (wherever he shows up in this mangled thread) is correct.
You are describing the job OF THE PTO, not the job of Examiners. Examiners are only part of the PTO, and last I checked, it is the Commissioner (or someone like that) who is actually granting the patents.
The PTO (commissioner, directors, etc.) determine the job of the Examiners. If you feel that the PTO is not doing its job correctly, that does not mean that Examiners are not doing everything asked of them by management. Examiners cannot unilaterally change to make you happy. THAT would be Examiners not doing their job.
Want to fix it? Talk to management and have them correct our job description/duties to align with what you want. Until then, Examiners will do what management wants, not stakeholders.
Patent practitioners already do that.
Anon et. al got away with it during the 90s when software patenting was a gold mine.
Then management turned on them and Anon et. al started whining .
Being wrong en masse is no substitute for understanding the difference between internal and external workings guys.
Topce, as you indicated that you want to “get out of there,” recognizing this is especially important for you.
anony,
Being the “good little soldier” lost its cache a long, long, long time ago.
You don’t get to break the deal (the external deal) that you boss has committed to just because your boss turns around and presents internal metrics that make it difficult for you.
I am curious and all (since 6 shared that Lee has reminded you all of your ethical duty), if you understand the ethics involved here.
To Anon:
You seem to miss the point.
There are several patents that are neither clearly allowable nor clearly rejectable (if that makes sense, no, it’s not a legal or technical term). Basically, reasonable minds would AND DO differ as to which side of the “patentability line” they fall on.
Ethically, either decision is okay, as long as the examiner reasonably believes the decision, since either decision is reasonably supportable by the evidence.
So, as an examiner, I believe it is reasonable, ethical, and expected to adjust my decision based on the advice and guidance of management.
So you know, not that you seem to care, but so you know, I would never allow a case I was certain should be rejected, or reject a case I was certain should be allowed, regardless of management directives. But where there is a reasonable difference of opinion, I am comfortable siding with management.
Sir Jason,
Though the number of patents filed in UPR( including RCEs) has decreased but when we look and compare the other bar, that is the black one that represent no. of UPR filed excluding RCEs,we can see that there is slight increase in the number of patents filed from the last year.
In FY2014, it was 407,317 and in FY2015 it is 411,728. There is almost 1% increase.
-Nitin
Sir Nitin,
Last sentence of second paragraph:
“In addition, when Requests for Continued Examination are broken out (the PTO includes RCEs in its numbers of UPR filings on the Dashboard spreadsheet), the number of applications actually rose by about 1%.”
Thanks for the confirmation.
Sir Anon,
Sorry I missed that part. Thanks for pointing that out.
-Nitin
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