As expected, the USPTO issued just under 300,000 utility patents in calendar year 2015. The new number represents a drop from 2014 – the first drop since President Obama took office and appointed David Kappos as USPTO Director. Barring a new radical transformation of the Office, I expect that the grant numbers will hover around this mark for the next several years.
PB: If the goal is to prevent “data processing” type claims (where data comes in and data goes out), then it would help everyone if someone (the court system or Congress) would say that.
That is the goal.
Lots of people are already saying that. They’ve been saying it for years. Instead of fighting the tide and making terrible arguments in defense of such claims, maybe you should start publically acknowledging the problems with such claims when you see them.
The problem is not with the claims – per se**.
The problem (as you miss connecting the dots yet again) – is that the law is NOT what you want it to be. Hence, PatentBob’s call for a direct and clear law (and since this is statutory law, let’s leave the courts out of it.
**And yet again, I do not HAVE TO defend any individual claims when the problem Malcolm is your posts that do not follow the rule of law itself and seek ONLY to achieve an Ends without regard to the Means to those Ends.
This is all power grab when view pragmatically from the Agency point of view.- and can be explained in terms of the political view of the 4th branch (Agency power – and accountability). The passage of the AIA creating IPR has relived the political pressure for the PTO to execute high quality on patent issuance. Because now, PTO can just issue junk patents – and then subseqeunty deal with ‘important’ patent in the IPR. In other words, PTO now gets the cake and gets to eat it too.
“The passage of the AIA creating IPR has relived the political pressure for the PTO to execute high quality on patent issuance.”
An interesting take – the exact opposite of what needs to be done.
And quite the opposite of the attempted spin and (mis)characterization of Malcolm, as to my calls for real reform (examination accountability). But why let such (inconvenient) facts get in the way of the short script narrative?
“and then subseqeunty deal with ‘important’ patent in the IPR.”
In essence then, all we have now is a very expensive registration system, in which all of the traditional costs support a bloated and nigh-worthless examining corp and any REAL application of the rights “earned” in the traditional Quid Pro Quo deal are only earned running a post-grant gauntlet….
I do hope people wake up when they realize this – such a registration system could be set up that would function far more efficiently for millions a year and not the BILLIONS currently supporting the Office fiasco.
any REAL application of the rights “earned” in the traditional Quid Pro Quo deal are only earned running a post-grant gauntlet….
Meanwhile, tons of granted patents that aren’t “do it on a computer” junk are being licensed left and right without being IPR’d.
This is all power grab when view pragmatically from the Agency point of view
Yes, the PTO was empowered to make it easier to get rid of junk that is should never have granted in the first place. Boo hoo for you. Great news for everyone else.
Once again – you quite miss the point, as you celebrate the Ends without regard to the means.
What a putz.
I think the increased resources, examination and PTAB, are beginning to bear fruit.
Not sure that such could be said, given only the singular data here (see PatentBob’s comment below).
No, you definitely can’t reach that conclusion based on the data at hand. For instance, what if the number of patent applications increased two-fold from 2010 to 2015 or decreased by two in the same time period? With this singular data point, you can’t draw any conclusions.
And, if you want the PTO to stop issuing “junk” patents, then make the rules clear. I don’t know about what you’re seeing, but my view is the PTO is all over the place with Alice rejections. I see claims that probably should have Alice rejections that don’t, claims that shouldn’t have Alice rejections that do, and claims in one group that are deemed OK under Alice but basically the exact same claims in another group that are rejected under Alice. It make no sense.
If the goal is to prevent “data processing” type claims (where data comes in and data goes out), then it would help everyone if someone (the court system or Congress) would say that. In other words, simply say “data processing claims are invalid.” To couch this in the “abstract idea plus significantly more” rubric means that everyone is confused as to what’s patentable. This helps no one.
“It make no sense.”
It truly is Chewbacca on a planet of Ewoks.
Hey AAA JJ,
LOL, love your comment!
Helps no-one? Surely not. When the boundary is fuzzy, it’s easier to push it. I presume there is nothing that delights an Applicant working at the envelope (and his attorney if he or she is self-confident) than a fuzzy limit. Why? Because it allows full rein to the advocacy skills of his persuasive prosecutor. Regardless what subject matter is brought to the attorney’s desk, there will (assuming maximum effort) always be a non-zero chance of getting something to issue. Yippee!
Give SCOTUS a break. It needs 20+ years to monitor the effect of its “Abstract plus was” test before it can draw the definitive line in the shifting sands.
You over-estimate (and under think) the power of the scriviner.
…for at least “getting something to issue” is not the goal.
The goal is to best serve the client.
Of course, if you buy the mantra of Malcolm (which no doubt you do), then all attorneys ever do is to seek out how to maximize their own wallet.
While attorneys are human (so “bad eggs” are surely there), I tend to have a different view on that factor. A view that I sincerely hope that our profession shares, more so than the self-loath1ng (since Malcolm professes to be an attorney) anti-attorney short script mantra that Malcolm is always on about.
While attorneys are human (so “bad eggs” are surely there)
But we must never talk about them! There are soooooo few of them, after all, and they never file hundreds of junk patent cases in East Texas, nor do they run around screeching that “everything is abstract!”. Sure, maybe some of them bloviate nonstop about the “Royal Nine” and some of them have extreme difficulty following basic logic but its not really fair to point that out.
Focus son – your 0bsession that crowds out all else is just not healthy.
Not healthy for you.
Not healthy for this “ecosystem.”
As to your attempted conflation with other soundbytes, that’s just you being an arse.
I wonder what the recent “highest grants fro 2015” data would look like if you consistently removed ALL of those “pesky” “directed to” “data processing” type patent grants…
(since, as the issue was not properly before the Court in Alice, with BOTH sides stipulating that the hard goods statutory category aspect of 101 was met, the “Gist/Abstract” sword cleaves through all sorts of patents, and the “directed to“-ness – if following the unlimited reign provided by the actual words of the Alice case – easily swallows much much much more than what (perhaps) the Justices were aiming for as their ends.
So let’s take a look at that top 10 again, and take a “worst case” chop:
The Top Ten list of 2015 U.S. patent recipients* includes:
RANK COMPANY PATENTS
1. IBM 7,355
2. Samsung 5,072
3. Canon 4,134
4. Qualcomm 2,900
5. Google 2,835
6. Toshiba 2,627
7. Sony 2,455
8. LG Electronics 2,242
9. Intel 2,048
10. Microsoft 1,956
* Data provided by IFI CLAIMS Patent Services.
Note that ALL of the top ten are in “danger”**
A little mental exercise on the monies that would have been eliminated from the patent office for just these top ten filers…
The above number of patents is 33,624 (this year)
The total of fees per patent for a non-action route through filing to final maintenance fee is $15,160 PER patent.
The total hit then – for the group of patents for this year with all absorbed fees for the Office is:
$509,739,840.
Just this top ten – in danger – has a half Billion dollar “hit” attached to it at the Office.
Of that, the last two (presuming that a challenge usually won’t come before that time) maintenance fee portion is a rather hefty:
$369,864,000 leaving $139,875,840 netted
Let’s also put on the table the version that Maint 2 is paid (since any challenge may not yet be completed), the removed portion is still a sizable:
$248,817,600 leaving $260,922,240 netted
So can anyone tell me what the impetus “really is” for the Office?
.
.
** granted there surely is hardware type advances, but given – as above – that hardware can be “deemed” to be abstract, such is included here.
that hardware can be “deemed” to be abstract
Not if it’s claimed in structural terms that distinguish it from prior art hardware.
But go ahead and pretend otherwise! Your chicken little “everything is abstract because I say so!” dance is endlessly amusing.
“claimed in structural terms” has NOTHING to do with anything – except your little Windmill chase and LACK of understanding of what is ONLY one claim format option.
“claimed in structural terms” has NOTHING to do with anything
You couldn’t possibly be more wrong.
I couldn’t be more correct.
Once again, you seek to make an issue by trying to make one optional claim format be the de facto ONLY legal claim format.
It just is not how you want it to be.
Deal with it.
I can feel the declining innovation in my corns.
Either that or it’s going to snow tonite.
MM, assuming the PTO is granting fewer business method and “computer implemented” patents that were formerly allowed because of the presence of a computer in the claim, I wonder why the grant rate since Alice has remained so high? I one of the Alice briefs said that fully half of all pending applications were of the “computer implemented” type.
Ned,
Do you remember the percentage “cliff” chart I refer to at post 1?
The just-say-no Reject-Reject-Reject era was NOT constrained to the Windmill chase items that you and Malcolm like.
Why then would you expect the same now?
These types of charts always leave me wondering what the percentage grant rate chart looks like nowadays – you know the one, the one with the mysterious (and still unexplained) drop to 39% (or so) grant percentage rate (in the infamous Reject-Reject-Reject era).
Yeah, that chart is basically useless without knowing how many patents are being filed and/or are pending.
The patent grant rate (at least not how any normal person would talk about it) has never been as low as 39%. Right now it is sitting at about 70-80%.
A number that is, of course, way way too high
“way too high”
Why?
hmm turns out I was slightly off, it’s been between 68.4% and 70.7% every quarter since July of ’14. It must only be my tech center that approaches 80%.
Random,
We’ve been down this road before.
You were wrong then too.
(the “or so” captures the 42%)
This took a few nanoseconds search on google images: link to ipwatchdog.com
a little more d1gg1ng:
link to patentlyo.com
something tripping the filter…
Here’s another one:
[link objected by filter]
Note that here 41% was reached – as a measure of a 12 month rolling average – which of course means that the actual low point was LOWER than 41%.
LOL – the clean talk block is the Office URL…
Other than the office URL (append to that to complete the link) try:
“about/stratplan/ar/2011/vl_mda02_03_fig8c.html”
This chart is believable. I can imagine a 1yr period (1/9 to 1/10) where the allowance rate went between 50-55%. Outside of that 1 year there were 2 more (one on either side) of 55-60% and everything else above 60%. This chart is probably accurate.
ipwatchdog’s suggestion that for a whole quarter the average was 42% is absurd. The patentlyo chart pegs that exact same timeframe at 57% minimum. ipwatchdog is using the wrong stats.
FYI you don’t have to “guess” at the real stats, go to the uspto website, search for the patent dashboard and download excel file from the bottom of the page. You could have gotten the current answer in all the time you spent sleuthing up old stats.
Pay attention son – read the source of what I have provided.
Yeah, I’m aware of that. That’s because you’re looking at the “allowance rate”. You need the chart for “allowance rate without RCE”. Allowance rate is meaningless to people outside the office, or to people within the office who do not balance the books.
That’s the kind of bad analysis you’d expect from ipwatchdog btw.
Just to preempt whatever stooopidity you might have on deck –
The Allowance Rate is the number of allowances divided by the number of disposals. A disposal includes a RCE.
I could file a single application, get it rejected twice, file a RCE, have that RCE allowed and the office would peg the “allowance rate” at 50%, despite the fact that there has been one allowance from one application.
The allowance rate without RCE is closer, because now you’re only dividing by (Allowance + Abandon + Appeal) which is still not accurate (as the only way to actually do it is divide by allow + abandon) but it’s much closer to being accurate, you only have stray allowances screwing it up instead of constant RCEs.
To show you how much of a difference this makes: As I said, the allowance rate (i.e. the “allow without rce rate”) since July 14 has fluctuated between 68.4 and 70.7. The office’s allowance rate (i.e. their “allowance rate”) for that same timeframe fluctuated between 46% and 53.3%. See how its like 20% off?
The “true” allowance rate has never been 40%, it might at one point have dipped to like 60-65%.
stray appeals* screwing it up
The actual thing that occurred is that the office focused more on compact prosecution, which led to quicker abandons/allows rather than RCEs. If we go by your metric the allowances have only increased 4-10% since the “reject reject reject” era, which means you’ll probably post on ipwatchdog tomorrow we’re still in the reject reject reject era.
Another hilarious moment…
Seven posts from you Random when one that merely acknowledges that I was correct would do.
You try so very hard to NOT acknowledge what the Office (and not Quinn) provided.
Instead of the baseless ad hominem of “ whatever stooopidity ”, you would have done yourself – and what little (if any) credibility that you may wish to cling to – better had you simply accepted that what I stated was true, and merely added that there are alternative ways at looking at the situation.
I have no problem with alternative ways that treat (consistently within the alternative views) RCEs, divisionals, and the like, and then look at the cold hard data.
But first let’s disabuse you of the “It’s only Quinn” C R P, as I took NO analysis from Quinn – the graph itself was merely located on his blog, but is NOT made by him (maybe you want to note the seal of the Office….).
Random, this was published BY the Office and used BY the Office in an attempt BY the Office to “bolster” its own (warped) view of “quality.” It is a primary reason why Kappos had to come in and set the record straight that “Quality does not equal Reject.”
Secondly, the additional graphs (again, tracing back to the Office) CONFIRM what I state. No matter how much spin you want to try to have it otherwise, eppur si muove. Yes, there are other measures, and yes, those other measures may be more or less valuable, but those other measures do not make this measure disappear, nor does it change the fact that THIS was a measure created by, used by, and preferred by the Office. Attempts at revisionist history WILL F A I L.
As to the notion of consistency, THIS graph is consistent within itself and does – in fact – show an unprecedented and unexplained drop through the floor that very much aligns with the Reject-Reject-Reject era and the KNOWN attempt by the Office to merely reject itself out of actually doing the work of examination. We can surely talk about moving the deck chairs – as a subsequent action – as that did happen, but your lack of appreciation of history needs to be seriously corrected. It is disingenuous of you to attempt to mix and match the models and then ascribe some false notion that I would clamor about still being in a Reject-Reject-Reject era. This is something that I have never alluded to, nor does the data I present – when consistently within itself viewed even remotely implicate such. Kindly tuck your straw man away, thank you.
Further, my view on the matter (long correct) did not “need” any extensive “research” as you seem to want to implicate. It took nanoseconds to find the first OFFICE graph, and then mere minutes to find the additional collaborative graphs.
And yes, once again this path leads to the same conclusion: what I speak is the truth, not because I am the one that speaks it. I am the one speaking it because it – itself – is the truth.
Open your eyes son – the world does indeed turn.
Random, this was published BY the Office and used BY the Office in an attempt BY the Office to “bolster” its own (warped) view of “quality.” It is a primary reason why Kappos had to come in and set the record straight that “Quality does not equal Reject.”
As I’ve said, any chart that uses what the office calls “allowance” is a pointless chart. The PTO shouldn’t put it out externally, people shouldn’t publish it and nobody should care about it. Allowances that consider RCEs in the calculations are bunk.
Secondly, the additional graphs (again, tracing back to the Office) CONFIRM what I state.
No! What you said at 1 is that the allowance rate was “39% or so” the allowance rate has never been 39%. There was certainly a drop in allowances but never as low as 40%. Allowances (as any normal person would call them – % of filings that mature into patents) traditionally have hovered around 70% and apparently dropped to an average of 52%ish for a year. Allowances certainly were not below 50% for three years as the ipwatchdog chart states.
You and I obviously have our differences on whether there SHOULD be more rejections or not, but we have to at least agree on basic facts and the basic facts are that there has never been a year where more patents are rejected than allowed, and that has steadfastly remained true despite KSR and Alice tightening the standard and the number of filings increasing which suggests that more should be obvious over each other.
When outside influences (such as the office making a change in standard or teaching following Alice did) should push the allowance rate down and in fact it remains the same, it suggests that the office has a target and moves to meet that target rather than allow the issue to resolve itself naturally, but I assume you don’t appreciate that argument.
LOL – your desire to not face the facts is downright hilarious.
Hey, I do “get” that you “feel” that the Office should not use this as a measure of allowance.
But your feelings are irrelevant.
The Office has in fact used this measure.
And my post – merely showing this fact – is indeed correct.
So Yes! the items I present DO confirm what I have stated.
As to “should be more rejections” or not, again, all you are doing is stating your conclusion with your implicit view that increased filing numbers must necessarily mean more obviousness over each other. Such is most definitely NOT a fact, let alone something that you can ASSume as a given.
Quite in fact, the opposite should be presumed, since the very fundamental reason for having a patent system in the first place is to invigorate MORE innovation (by the Quid Pro Quo sharing). In other words, more patents should lead to MORE patents – not less. You are stuck in your “zero-sum game” mode of thinking that there is only a certain number of patents and that every patent granted means that the amount of remaining ones must be less.
This comes from your lack of understanding of the nature of innovation. May I (ever so politely) suggest that you study that topic. I recommend Trott, Christensen, Deming, Schumpeter, Prahalad, and Kondratieff as starting point.
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