New PatentlyO Law Journal Article: Covid-19 Pandemic’s Impact on the U.S. Patent System Through November 2020

Journal, Patent

New PatentlyO Law Journal article by Nicholas Shine.  Mr. Shine is  a J.D. Candidate 2021, BSEE, is a 3L student at the University of Denver, Sturm College of Law. This essay was conducted as a directed research project under the supervision of Professor Bernard Chao.  – Jason

The Covid-19 pandemic has had and continues to have a major impact on people and countries across the globe.  The pandemic has not only affected people, it has affected many facets of life including the economy.  The United States government has passed two measures in an effort to address the issues Covid has introduced.  The Coronavirus Aid, Relief, and Economic Security (CARES) Act provided $2.2 trillion in economic stimulus. Both the CARES Act and the United States Patent and Trademark Office (USPTO) have provided relief to stakeholders with regard to patents and applications.

This essay examines patent abandonment rates and application rates to determine if they can shed light on how the Covid-19 pandemic affected innovation.  While the results show temporary perturbations, the pandemic has had minimal effect on overall trends.  This may suggest that abandonment rates and application rates may be surprisingly resistant to economic downturns or that the measurements are simply not good proxies for innovation.  Part II of this paper describes the data available from the USPTO and the methods used to work with the data. Part III examines the data as well as offer theories about the results obtained from the data.

Disclosure statement: This essay was conducted as a directed research project under the supervision of Professor Bernard Chao.  Nick Shine has been employed part-time as a law clerk at Polsinelli’s Denver office.   He has no conflicts that he is aware of, and the study required no funds.

Read: Nicholas Shine, Covid-19 Pandemic’s Impact on the U.S. Patent System Through November 2020, 2021 PatentlyO Law Journal 27 (2021) (Shine.2021.COVID-19Impact)

Prior Patently-O Patent L.J. Articles:

  • Thomas F. Cotter, Is Global FRAND Litigation Spinning Out of Control, 2021 PatentlyO Law Journal 1 (2021) (Cotter.2021.GlobalFRANDLitigation)
  • Colleen V. Chien, Nicholas Halkowski, Maria He, and Rodney Swartz, Parsing the Impact of Alice and the PEG, 2020 Patently-O Law Journal 20 (2020) (Chien.2020.ImpactOfAlice)
  • Paul R. Michel and John T. Battaglia, eBay, the Right to Exclude, and the Two Classes of Patent Owners, 2020 Patently-O Law Journal 11 (2020) (Michel.2020.RightToExclude)
  • Thomas F. Cotter, Two Errors in the Ninth Circuit’s Qualcomm Opinion, 2020 Patently-O Patent Law Journal 1 (2020). (Cotter.2020.TwoErrors.pdf)
  • Jasper L. Tran & J. Sean Benevento, Alice at Five, 2019 PatentlyO L.J. 25 (2019) (Tran.2019.AliceatFive.pdf)
  • Bernard Chao, Implementing Apportionment, 2019 PatentlyO L.J. 20 (Chao.2019.ImplementingApportionment)
  • Jeremy C. Doerre, Is There Any Need to Resort to a § 101 Exception for Prior Art Ideas?, 2019 PatentlyO L.J. 10. (2019.Doerre.AnyNeed)
  • Colleen V. Chien, Piloting Applicant-Initiated 101 Deferral Through A Randomized Controlled Trial, 2019 Patently-O Patent Law Journal 1. (2019.Chien.DeferringPSM)
  • David A. Boundy, Agency Bad Guidance Practices at the Patent and Trademark Office: a Billion Dollar Problem, 2018 Patently-O Patent Law Journal 20. (Boundy.2018.BadGuidance)
  • Colleen Chien and Jiun-Ying Wu, Decoding Patentable Subject Matter, 2018 PatentlyO Patent Law Journal 1.
  • Paul M. Janicke, Patent Venue: Half Christmas Pie, And Half Crow, 2017 Patently-O Patent Law Journal 13. (Janicke.2017.ChristmasPie.pdf)
  • Paul M. Janicke, The Imminent Outpouring from the Eastern District of Texas, 2017 Patently-O Patent Law Journal 1 (2017) (Janicke.2017.Venue)
  • Mark A. Lemley, Erik Oliver, Kent Richardson, James Yoon, & Michael Costa, Patent Purchases and Litigation Outcomes, 2016 Patently-O Patent Law Journal 15 (Lemley.2016.PatentMarket)
  • Bernard Chao and Amy Mapes, An Early Look at Mayo’s Impact on Personalized Medicine, 2016 Patently-O Patent Law Journal 10 (Chao.2016.PersonalizedMedicine)
  • James E. Daily, An Empirical Analysis of Some Proponents and Opponents of Patent Reform, 2016 Patently-O Patent Law Journal 1. (Daily.2016.Professors)
  • Tristan Gray–Le Coz and Charles Duan, Apply It to the USPTO: Review of the Implementation of Alice v. CLS Bank in Patent Examination, 2014 Patently-O Patent Law Journal 1. (GrayLeCozDuan)
  • Robert L. Stoll, Maintaining Post-Grant Review Estoppel in the America Invents Act: A Call for Legislative Restraint, 2012 Patently-O Patent Law Journal 1 (Stoll.2012.estoppel.pdf)
  • Paul Morgan, The Ambiguity in Section 102(a)(1) of the Leahy-Smith America Invents Act, 2011 Patently-O Patent Law Journal 29.  (Morgan.2011.AIAAmbiguities)
  • Joshua D. Sarnoff, Derivation and Prior Art Problems with the New Patent Act, 2011 Patently-O Patent Law Journal 12 (sarnoff.2011.derivation.pdf)
  • Bernard Chao, Not So Confidential: A Call for Restraint in Sealing Court Records, 2011 Patently-O Patent Patent Law Journal 6 (chao.sealedrecords.pdf)
  • Benjamin Levi and Rodney R. Sweetland, The Federal Trade Commission’s (FTC) Recommendations to the International Trade Commission (ITC):  Unsound, Unmeasured, and Unauthoritative, 2011 Patently-O Patent Law Journal 1 (levi.ftcunsound.pdf)
  • Kevin Emerson Collins, An Initial Comment on King Pharmaceuticals: The Printed Matter Doctrine as a Structural Doctrine and Its Implications for Prometheus Laboratories, 2010 Patently-O Patent Law Journal 111 (Collins.KingPharma.pdf)
  • Robert A. Matthews, Jr., When Multiple Plaintiffs/Relators Sue for the Same Act of Patent False Marking, 2010 Patently-O Patent Law Journal 95 (matthews.falsemarking.pdf)
  • Kristen Osenga, The Patent Office’s Fast Track Will Not Take Us in the Right Direction, 2010 Patently-O Patent L.J. 89 (Osenga.pdf)
  • Peter S. Menell,  The International Trade Commission’s Section 337 Authority, 2010 Patently-O Patent L.J. 79
  • Donald S. Chisum, Written Description of the Invention: Ariad (2010) and the Overlooked Invention Priority Principle, 2010 Patently‐O Patent L.J. 72
  • Kevin Collins, An Initial Comment on Ariad: Written Description and the Baseline of Patent Protection for After-Arising Technology, 2010 Patently-O Patent L.J. 24
  • Etan Chatlynne, Investigating Patent Law’s Presumption of Validity—An Empirical Analysis, 2010 Patently-O Patent L.J. 37
  • Michael Kasdan and Joseph Casino, Federal Courts Closely Scrutinizing and Slashing Patent Damage Awards, 2010 Patently-O Patent L.J. 24 (Kasdan.Casino.Damages)
  • Dennis Crouch, Broadening Federal Circuit Jurisprudence: Moving Beyond Federal Circuit Patent Cases, 2010 Patently-O Patent L.J. 19 (2010)
  • Edward Reines and Nathan Greenblatt, Interlocutory Appeals of Claim Construction in the Patent Reform Act of 2009, Part II, 2010 Patently‐O Patent L.J. 7  (2010) (Reines.2010)
  • Gregory P. Landis & Loria B. Yeadon, Selecting the Next Nominee for the Federal Circuit: Patently Obvious to Consider Diversity, 2010 Patently-O Patent L.J. 1 (2010) (Nominee Diversity)
  • Paul Cole, Patentability of Computer Software As Such, 2008 Patently-O Patent L.J. 1. (Cole.pdf)
  • John F. Duffy, The Death of Google’s Patents, 2008 Patently O-Pat. L.J. ___ (googlepatents101.pdf)
  • Mark R. Patterson, Reestablishing the Doctrine of Patent Exhaustion, 2007 Patently-O Patent L.J. 38
  • Arti K. Rai, The GSK Case: An Administrative Perspective, 2007 Patently-O Patent L.J. 36
  • Joshua D. Sarnoff, BIO v. DC and the New Need to Eliminate Federal Patent Law Preemption of State and Local Price and Product Regulation, 2007 Patently-O Patent L.J. 30 (Download Sarnoff.BIO.pdf)
  • John F. Duffy, Are Administrative Patent Judges Unconstitutional?, 2007 Patently-O Patent L.J. 21. (Duffy.BPAI.pdf)
  • Joseph Casino and Michael Kasdan, In re Seagate Technology: Willfulness and Waiver, a Summary and a Proposal, 2007 Patently-O Patent L.J. 1 (Casino-Seagate)

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6 thoughts on “New PatentlyO Law Journal Article: Covid-19 Pandemic’s Impact on the U.S. Patent System Through November 2020”

  1. 2

    The author references the CARES act relief, but appears to be totally unaware of the actual implementation of that relief. They would do well to review the “Notice of Extended Waiver of Patent-Related Timings Deadlines under the Coronavirus Aid, Relief, and Economic Security Act and Other Relief Available to Patent Applications and Patentees.”

    link to uspto.gov

    The cratering of abandonments in April/May should not be attributed to either applicant behavior or some hypothetical productivity loss when responses due in that period were receiving automatic CARES act extensions!

  2. 1

    I read the article, and have a couple of comments that the author may wish to consider.

    Firstly, I would suggest that the dip in abandonments near the start of the pandemic probably is due to the impact of an upheaval in working conditions within the USPTO, although the reasoning in the article seems a bit unclear. I would assume that the leading category of abandonments is failure to respond to an office action. The earliest that such an abandonment could be recorded is six months after issue of the office action. This would mean that abandonments in April-May of 2020 correspond with office actions issued in, or earlier than, October-November of 2019. It is thus unlikely that applicants’ decisions to abandon these cases are related to the pandemic, or that the April-May dip has anything to do with substantive processing of applications, i.e. the work of examiners. Processing abandonments is a purely administrative process, which is not especially time-critical. It is not uncommon for Notices of Abandonment to be issued some time after the final date for responding to an office action has passed. It may that there was some slow-down in this area as the USPTO moved its operations to remote working. It would then have been necessary to catch up in the subsequent months, leading to the observed increase in abandonments.

    I think that this may be what the article is getting at, but I wasn’t quite sure. In any event, the date on which the Office records abandonment might not be the most appropriate measure of applicant behavior. A decision to abandon may be made at any time, but the USPTO will not usually have any indication of this until after an event occurs (such as issuing an office action) that requires some action on the part of the applicant. The effect of the pandemic on applicant behavior is thus likely to be distributed across 2020 and beyond, and it may be a year or more before there is enough data available to discern any patterns.

    My second comment is on the new filing data in Figure 5. Since (unlike many other patent offices) the USPTO makes no information regarding new applications available until publication, it is always impossible to obtain meaningful data about recent US filings. Information about PCT national stage filings might become available fairly quickly, because most of these applications are already past their 18-month publication date. For other non-provisional applications, information may become available at any time up to (nominally) 18 months after filing, depending upon whether the benefit of some earlier application is claimed – unless a non-publication request is made, in which case no information will be available unless and until a patent issues.

    I tracked Australian patent applications throughout much of 2020 (see, for example, this summary that I posted in November). In Australia, bibliographic information is published at filing, so there is no problem tracking unpublished applications. I noticed some effects that may have been influenced by the pandemic, but it appears fairly inconclusive at this stage. The true impact is only likely to emerge over the coming months and years, as the flow-through from any change in priority and PCT filings becomes apparent.

    The impact in the US may be different, and it will be interesting to monitor this as the available data becomes more complete, so I would encourage the author to continue to follow up on this work.

    1. 1.1

      Mark, not sure what you meant by “the USPTO makes no information regarding new applications available until publication.” The raw filing numbers are available before publication. “In FY 2020 a total number of 653,311 patent applications were filed at the U.S. Patent and Trademark Office [announced] Nov 19, 2020.” Indicated comparatively in a chart as a relatively small but definite drop from FY 2019.

      1. 1.1.1

        Yes, it is true that those total numbers are reported by the USPTO, at least on an annual basis. However, the paper uses PEDS data downloads to analyze filings on a quarterly basis. That is simply not effective, and necessarily shows an apparent decline in new filings, primarily over the most recent six quarters.

        1. 1.1.1.1

          Thanks. Also, PTO application “abandonment” data is dubious for other reasons. An “abandonment” in favor of a continuation, CIP, or divisional is not really an abandonment.

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