48 thoughts on “Three Charts from the USPTO 2015 Annual Report

  1. 7

    OT but a Rule 36 affirmance was handed down today in this inequitable conduct case. I didn’t listen to the oral arguments last week but I can imagine that they were … colorful.

    link to law360.com

    When he sought the patent, [patent attorney Jeffrey] Sonnabend initially disclosed to the USPTO low-resolution images of what he thought might be a similar product, known in the case as the Merrick hangers, according to court filings.

    The claims of Sonnabend’s original patent application were denied based on the photos. After discussing the rejection with the patent examiner over the phone, Sonnabend then submitted a new application stating he was seeking to cover a set of hangers that abutted against one another to utilize a so-called cascade hook, which he claimed was not a characteristic of the Merrick hangers.

    But clearer photos and an examination of the actual hangers indicated that Sonnabend’s description was not correct, as the Merrick hangers did touch against one another in a cluster. Sonnabend was under an obligation to turn over either clearer photos of the Merrick hangers or the physical hangers themselves in order to guide the USPTO’s decision, Judge Swain said at the time.

    As his patent was being processed, Sonnabend sent a cease-and-desist letter to Bed Bath & Beyond, claiming that its Slimline Hanger product would infringe Worldwide’s patent. He later filed suit in 2011, prompting an eventually successful summary judgment motion from the retailer to invalidate the patent.

  2. 6

    I can’t say for sure, but I can say that in my experience, more and more people are filing from a “cayman island” location. Which of course there aren’t that many people that live there, so the number being issued to entites that we would usually call merican might be a bit higher, they’re just filing from the caymans.

    1. 6.1

      6, why does the Office still require the identification of citizenship of an inventor in an ADS when the requirement for identification of citizenship was removed from the statute (§ 115) in the AIA?

                1. 35 usc 100(a) DuqIppu’chugh discovery (baS batlhchaj chaq patent nIH baj) chab distinction ‘ej reH wej properly SoQ ned

                  (that’s Klingon…)

                2. anon, Star Trek was great and the series with Picard even better. Loved the movies too.

                  But let me tell you, the Expanse is great too, with a new hero, Jim Holden. That guy is something. And all the characters in the series are strong and interesting – although they seem to have toned down Avasarela quite a bit, which is a pity. Here dialogue is not fit for minors.

                  I’ve read all the books and am now watching the Sci Fy channel’s production. Pretty good so far.

              1. 6.1.1.1.1.1.2

                Isn’t country of residence still of issue when filing international applications? (Cf. MPEP 1805, 35 USC361)

                1. Reed, certainly country of filing is important for treaty obligations. (Paris convention, PCT and the like.) I assume that country of residence might also be applicable in some cases for treaty purposes.

                  Recall, that once upon a time, we allowed only US citizens the right to file applications. I assume that we might selectively extend that privilege to residents of particular countries, which may make the nationality of the inventor important.

                  But if we do not prohibit anyone from filing a US patent application, I don’t know why we even collect that information in the ADS.

                2. It helps identify the inventor no? Joe Smith invented a new method of discovering natural laws. Which Joe Smith. Well, one of the Joe Smiths from New Zealand.

                3. Recall, that once upon a time, we allowed only US citizens the right to file applications.

                  While a purely (xenophobic) stance is neither palatable, nor useful, it should NOT be forgotten that patent law is (and remains) a sovereign-centric law.

                  We really should aim to protect and promote this Sovereign (or at least not forget that such is a foundational driver, while seeking any world-wide comity).

  3. 4

    Way to make a 4-ish % drop look like a 50% drop, chart.

    any thoughts why it is down for US residents? Is it to do with the Alice case since foreign residents are unlikely to file something in the US they haven’t filed in their own country.

    They are patents issued, not patents filed, unless you’re saying that foreign filer’s always submitted decent subject matter and US filers were getting cr*p approved until recently, which may be the case.

      1. 4.2.1

        I wouldn’t think its “deceptive” if one looks at the scale/axis. But, then again, asking anyone in today’s age to actually take the time and focus is like asking them to help you move – so, yeah, it could be deceptive in that people won’t be careful and jump to conclusions based on a glance.

        I also trust Dennis and I liked that piece from the Washington Post. They found some good examples to poke back.

        1. 4.2.1.1

          There remains an “art” on data presentation that does speak to (actively) choosing how the data appears based on what the data is and the message that you are conveying with the particular data chosen.

          Not sure if that rigor was applied here (in fact, it is apparently admitted that it is not).

          I too though, do not see any “malice,” given the lack of any additional commentary, so I would not label this so much “deception” as I would label it as lack of thoroughness.

          To me, it is clear that a change in status is why the data is being shown. So yes, a more proper presentation would avoid the “eye candy” effect that some “default” Excel graph might offer.

          But it’s not a major deal.

          1. 4.2.1.1.1

            I too though, do not see any “malice,” given the lack of any additional commentary, so I would not label this so much “deception” as I would label it as lack of thoroughness.

            Pshew! I bet Dennis is relieved.

            1. 4.2.1.1.1.1

              I am apparently relieved that are so apparently relieved that Prof. Crouch is relieved that you are so willing to put up a wager on the matter.

              😉

          2. 4.2.1.1.2

            Thinking about the “message” here – with the axis as used – a possible lesson can be chosen from the following:

            a) US inventors understand the negative consequences of recent legal events more quickly than foreign based inventors and play more of a leading edge in trends

            b) the US patent system is made up of smaller (more traditionally innovative) firms which are more likely to be hurt (and to notice the hurt) than either larger US or foreign based entities.

            While b) is correlated with a) to some extent, these optional views may be different causes of the relative drop as shown in this particular view of the data.

            Further, the comment by Prof. Crouch that RCE’s show an even bigger effect can support these options in that the majority of smaller (more innovative) players can see the relative*** drop in value that the patent system delivers.

            ***yes folks, relative is an important qualifier as the sum total (including Big Corp and foreign filings) is still high.

            To the ends that the patent system is becoming even more a game of kings and “occupied” by Big Corp and foreign filers, the very entities that can compete across even non-innovation factors, and given that the AIA has made patent procurement longer, more expensive, and rights less certain, the co-opting of the political process by Big Corp can be seen as a raging “success.”

            So the Good News/Bad News comment I posted earlier today applies here as well.

            1. 4.2.1.1.2.1

              Its also possible that foreign filers never got particularly into filing patents on Alice and Alice-like subject matter. Given the EPO’s examination procedures, its probably the most likely explanation.

              1. 4.2.1.1.2.1.1

                Most likely? Not at all, Alex – after all, we are talking about filings in this sovereign.

                Your “view” only might hold if we were talking about filings outside of this sovereign. Make no mistake that foreigners are, have been, and appear to be increasing their filings here – filings that MUST pertain to our sovereign’s laws.

                1. Only if you don’t account for domestic laws biasing a company/individual’s initial assessment of the patentability either on subject matter, anticipation, or obviousness grounds. If a German or French company does not believe their domestic laws will enable them to get a patent, it may influence their choice of filing any patent application at all, even if US law would allow them to obtain a patent.

                2. Alex – you are yet again missing the distinction of the limited sovereign coverage of patent law.

                  Your “point” simply does not matter when you consider that a filing in ANY one country only obtains rights IN THAT country.

                  I have to wonder if you actually practice obtaining patent rights for clients on a global basis…

  4. 3

    Residents? Now that corporations can apply for a patent in the U.S., what does this resident statistic mean? Where does IBM resides?

  5. 2

    any thoughts why it is down for US residents? Is it to do with the Alice case since foreign residents are unlikely to file something in the US they haven’t filed in their own country.

    1. 2.1

      I believe there is a strong correlation between Alice & the PTO’s application thereof and decreasing US resident patents. The US is the leader in software innovation, and the PTO has made it difficult to patent innovations implemented in software. I suspect there will soon be statistics on revenue falling from US software companies due to unprotected concept copying by non-US residents.

      1. 2.2.1

        I frequently see discussion of the metrics for RCEs vs. original applications, but I don’t know of a reason why these should matter – it seems like an arbitrary distinction.

        Here’s a more interesting way of slicing up the data: Applications awaiting a first action on the merits, vs. applications with one or more previously issued office actions.

  6. 1

    Of the “big five” patent offices, the US and EPO both receive more patent applications from non-residents than residents. In China, Japan, and Korea, the vast majority of appications are from their residents.

    See Figure Two from WIPO report: link to wipo.int

      1. 1.1.2

        Les, Jane, everywhere in the world except the USA the entity that files is the owner. That owner has a nationality and an address. Part of that address is the country. For me it is inconceivable that the statistics are based on anything other than that address.

        Of course, multinational corporations have addresses in many countries. I suppose some of them, Big Pharma in particular, give to the USPTO their US address.

        In other news today, IBM just announced the creation in Munich Germany of their world wide research centre. Will their named inventors there be giving the USPTO addresses in the USA?

        1. 1.1.2.1

          Inventors have their home address or they use their work address. So, in your IBM scenario, they would have an address in Germany.

          1. 1.1.2.1.1

            Wieso? I envisage many of them sitting at a screen somewhere in the USA. Given German law on compensation to employees for making patentable inventions, that might well please the employer too.

        2. 1.1.2.2

          “Of course, multinational corporations have addresses in many countries. I suppose some of them, Big Pharma in particular, give to the USPTO their US address.

          In other news today, IBM just announced the creation in Munich Germany of their world wide research centre. Will their named inventors there be giving the USPTO addresses in the USA?”

          This was the point I was making Max.

          1. 1.1.2.2.1

            You are correct Les.

            Simply put, “having an address” is NOT what a “good citizen” makes. Entities that are trans-national have NO true sense of duty to ANY nation.

            These types of entities can, will, and have, engage in a race to the bottom (for everyone else) as they are really beholding ONLY to themselves.

            And given the fact that IP law is still very much a sovereign-centric item (and there is NO such thing as a One World Order master sovereign), every nation should be aware (and to a very real extent, beware) an entity of such size that it would rather compete on non-innovation factors and can ploy one nation against another for lowest cost factor status.

            I am not polly anna, and I do recognize that such “might makes right” is out there, and will not go away. But I am also not born yesterday and think that such entities would only too gladly sacrifice the innovation of tomorrow for a continued hold on a ‘less-innovative’ world (when it is their hold that is status quo).

          2. 1.1.2.2.2

            Good point Les. But what makes you think only corporations play the Address Game?

            It is very common in Europe for real human beings to have residential addresses in more than one country, more than one passport, and tax liability in more than one country. You might be surprised how many master jugglers there are around:

            link to en.wikipedia.org

            1. 1.1.2.2.2.1

              Aren’t you the one expounding on “ethics” and “duty” at the IPKat? And here you are apparently giving a winking nod to what amounts to be tax fraud…

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