Overall Patent Application Timeline

The time series chart above shows the average utility patent application pendency for US patents grouped according to the year of issuance. These data differ from that normally reported by the USPTO because I do not count the filing of a request for continued examination (RCE) as an abandonment+refile. Two other caveats: (1) this calculation looks only at issued patents and does not consider the pendency of applications that were abandoned; (2) the calculation ignores priority claims that greatly impact overall pendency. The 2011 figures are only through May 2011.

 

60 thoughts on “Overall Patent Application Timeline

  1. 60

    Sorry my friend Jules, but your alternative explanation does not hold up to scrutiney, as it fails to explain the return to allowance rates closer to the historical average with the assumption of the head of the Office by Kappos.

    Your supplied alternatives are very much still in play today and yet the famous Dudas curve remains the anomoly that it is. Today the allowance rate has returned to the historical norms. Today.

    Do you even understand the bounds of the transgression? – Do you recognize how many sigma outside the logstanding (and yes – even now) historical reference points the allowance variance represents?

    Need I remind you of one of the very first directives to the examing corps by Kappos (Quality does not equal rejection)?

    I will also kindly remind you that those who do not remember the past are doomed to repeat it. Sure, “getting over Dudas” is good advice (and one you errantly assume that I need to do), but forgetting or worse – rewriting history is not something to be countenanced.

  2. 59

    “the now famous Dudas curve defies any (and I mean absolutely any) explanation for the fantastic dip in allowance rate”

    Disagree. AIPA-1999 and the introduction of PGPUBS drastically increased the amount of prior art available for rejections. Also, increased hiring increased the number of new examiners with more time per application, leading to more rejections. Those are two alternate explanations.

    Get over Dudas and move on with your life. You’re stuck in the past.

  3. 58

    The BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY v. ROCHE MOLECULAR SYSTEMS, INC., ET AL. decision is out by the U.S. Supreme Court.

    link to supremecourt.gov

    in yet another dazzling display of the ultimate master’s divine observations, ping is once again exalted as the opinion mirrors the hallowed ping’s observations.

    the word of ping

  4. 57

    Fortune 500, sue your patent attorneys for the cost of the false marking suits that their docketing malpractice caused you to be hit with!!!

    That’s quite the assumptions that you make – on several levels. You have jumped from a discussion on prosecution to a point after prosecution has been completed.

    You assume that the patent attorneys have been asked to docket such actions.

    You assume that the patent attorneys have been negligent on such actions.

    You assume that the docketing is the reason for the false marking suits (and not, for example, that the product marked has not changed in the interim).

    You assume that the cry of “ ‘Your Honor we had no idea when our patents expired!!’ ” is actually used in the false marking suits, much less than “to a man

    There is no “cha-ching” for Ming.

  5. 56

    Good stuff, DIP. I wouldn’t know about clearing biz methods and software. Comms have standards committees and patent pools. That leaves “electronics”. Consolation: perhaps there is more scope for quick designs around than there is in mech eng, materials and chem/bio.

  6. 54

    Asked and answered.
    Your answers are false, and thus my questions remain.

    I will also point out to you that which has already been pointed out – “trolls” do not prosecute, they buy afterwards. Your eagerness to not only accept false answers but to push for them when you should know better is suspect.

    There is a vast difference between knowldege of “markets” and the sleuthing needed to find out why this phantom menance is being bandied about.

  7. 53

    On the contrary, such “troll types” are the types that would be interested in letting the market develop

    LOL. There are more than enough “developed markets” for trolls to leech off.

    The questions persist – Whom? Why?

    Asked and answered. Maybe with all your knowledge of “markets” you can try to answer the question for yourself.

  8. 52

    A lot of truth there Max, but also some gaps. Certain techs in the US can and do successfully check for clearance. Chemical and Pharma companies have expensive value added data that allow them to perform accurate clearance work. Consumer goods companies are also successful, but mainly because the volume of art to review is small (products with a 3 year lifespans and little novelty do not get patented – shoes, toothbrushes, toys and packaging).

    It’s the high tech electronics, communications, biz methods, and software that is a disaster for clearance purposes. The classification systems for these arts are useless (even the daunted ECLA didn’t go near Class G). Text searching is useless because there is no standardized nomenclature. So, even excluding the pending applications, the issued patents which could be problematic are virtually impossible to identify.

    So what should a company do? They can’t forgo the single biggest market and they need that opinion… So the attorney has only two real options: 1) Limit the searching and opinion to references assigned to known market players (very popular) or 2) Limit the searching and opinion to a finite number of references (as requested via a phone call, never in writing – not my cup of tea).

    I’d love to be corrected on my interpretation of the options, but that’s what I’ve seen over my 15 year career. There are some middle ground areas of course where you can still choose to be ignorant or pay more and truly clear a new concept (medical devices, automobile technologies, semiconductor manufacturing, and other areas that require a lot of specialized knowledge to be a player).

  9. 51

    All this wonderfully expressed knowledge from the patent bar regarding the timing of patent application prosecution and pendency, and yet when hauled into court on a false marking claim to a man they cry: “Your Honor we had no idea when our patents expired!!”

    LOFL!!!!

    Fortune 500, sue your patent attorneys for the cost of the false marking suits that their docketing malpractice caused you to be hit with!!!

  10. 50

    Oh come on folks. It’s not rocket science. Who is damaged, when an Applicant keeps his published patent application pending, unexamined, for years? Why, all those competitors who sensibly insist on a clearance opinion before they invest heavily in new technology.

    Do we want people to invest heavily in new technology, and for their investments to bear fruit? Of course we do. Do we want them to get a clearance opinion good enough to give them confidence to invest? I rather think we do. How shall we help them to get useful clearance opinions? Why, by cutting back “pendency”.

    Alone in the world, the USA offers cascades of continuations, so applicant can “keep something pending” for the entire 20 year lifetime of the patent. And gullible Americans go on swallowing the line that their patent system (unlike that of the rest of the world) favours new entrants over the corporations already dominant in the market.

    For the US market people do of course rely on a clearance opinion. But only as a defence against triple damages for infringing “willfully”. As an opinion as to the level of risk of entering the US market…forget it.

    For the rest of the world, people still think that they can search and find all the patents that would clearly be infringed by the contemplated product. This is why the EPO just introduced a cap of two years on the period available to applicants at the EPO, to file any and all divisionals off of their pending patent application.

    Should America be educating the EPO, that clever post-Seagate investors don’t bother any more 8if they ever did) with clearance opinions?

  11. 49

    On the contrary, such “troll types” are the types that would be interested in letting the market develop – the OPPOSITE of the angst here.

    The questions persist – Whom? Why?

  12. 48

    If, as MaxDrei suggests, applicants “get what they want” with the longer wait til FAOM, then where does all the angst about pendency come from?

    Someone is making a big fuss about this timing issue.

    The angst is coming where it has ALWAYS come from: software/biz method troll types trying to strike it rich, filing new “paradigsm”, etc.

  13. 45

    If, as MaxDrei suggests, applicants “get what they want” with the longer wait til FAOM, then where does all the angst about pendency come from?

    Someone is making a big fuss about this timing issue. If not the applicants then whom? And why?

  14. 44

    What would interest me when it comes to “pendency” is whether applicants at the USPTO get what they want. You see, they do at the EPO, where an applicant can get fast track handling simply on demand, with no fee and no extra constraints on how to define the invention or prosecute the application. But hardly anybody ever asks.

    That I think is because few need immediately an issued patent on which to sue. Most prefer to wait and watch, tune the claims, then rush to issue as soon as the form of the infringement is visible.

    I suppose that applicants at the USPTO do something similar, namely crack on to grant of a first patent, then put on the back burner a series of continuation applications. The longer the wait til FAOM, the happier the Applicant.

    Does this then reconcile the Dennis data and the comments in the thread above

  15. 43

    And with 7 years left Max… I wonder what was coming down the Pike for me? How about getting a Boulder dropped on my head sort of like the one that the cute little caveman is shaping into a wheel?

  16. 42

    Dennis

    Can you plot a line showing the number of cases (new, cons and divs but not RCEs) filed by year on a right vertical axis? My guess is that the overall trend lines are going to be similar.

  17. 41

    “Your comments notwithstanding, the fault is yours, then, not the applicants’.”

    Sure, sure, everything is my fault.

    “how is it that you are being “worn down?””

    Applicants can argue FOREVER against any rejection dood. Maybe you’re not aware of that. They can file RCE’s FOREVER also. Having to address a boatload of issues and some small amendment for .75 counts on RCE FOAM is not my idea of a situation that I’m particularly eager to have happen.

    The worse their claims are the more rejections must issue, and the more arguments come back. It is absurd.

    Oh and hey, why don’t you come on over here and sit in my chair and do the job for a few years and then tell me all about how there is no wearing down. It is a mental wearing down, it’s just the repetition of arguments, or new arguments after all the time. There is always doubt, even when you have balls as large as my own, as to whether or not you’re right on every one of the 15 issues they just raised. Especially when you actually understand those issues, as I do, but many examiners probably don’t. There are tough calls to be made sometimes and you’ve got to steel yourself and make them with an iron fist or nothing gets done and that is draining.

    “What possible thing can an applicant do that would deny the validity (pun intended) of your work?”

    Secondary considerations? A 131 dec? Bring up some portion of the reference that I didn’t pay enough attention to? Submit some new evidence that casts a new light on how another reference would be read? There are a million things and if you don’t know them then you sux as an attorney. My work is not perfect, just as nobody’s is.

    But all that is besides the point. Even if they did not do something to VALIDLY “deny the validity” of my work they can still sit and deny the validity of my work and I have to respond to everything they say.

    “Once you have the originally filed application, applicants can add no new matter”

    Yes, a concept that seems to go over ~50% of their heads.

    “If you do your job appropriately, there can be no such thing as wearing you down.”

    Um, yes there can. Not every non-attorney tard in this world likes to sit and argue about some obscure point that has no real world relevance what so ever. In fact, most people wouldn’t like to sit and argue period. The act of being in an argument that long wears you down.

    “wherein you now retreat from our engagement.”

    My pointing out that you were trolling me is not “retreating”. But my logging off the interwebs might be here soon.

  18. 39

    SO AS THE SAYING GOES.. MY SAYING OF COURSE.

    Triangle Triangle with corners of three,
    in NOV. of 98, becames special you see.
    I saw me a Lawyer with a head full of rocks.
    the Triangle now clearly 4 corners… a BOX!

  19. 38

    HOW CAN THE EXAMINER AT USPTO ALLOW A PATENT APPLICANT THAT THOUGHT SHE WAS PROSE… THAT WAS CLEARLY DENIED WHEN HE CALLED HER ON THE DAY IT PATENTED TO ALLOW TWO IDEAS IN THE PATENT.. WHEN SHE CLEARLY SIGNED OFF ON SOMETHING ELSE, AND THE USPTO CLAIMED IT WAS LOST… THE USPTO CAN NOT PATENT AN INVALID PATENT… PERIOD!

  20. 37

    Matt,

    You are indeed correct. There is a correlation – inverse and accounting for time lag, we see exactly the effect of the famous Dudas curve reaping that which it had sown.

  21. 36

    6,

    Your comments notwithstanding, the fault is yours, then, not the applicants’.

    If your job has been done, and the application rightfully denied, how is it that you are being “worn down?” If anything, a job well done, the first tiime around makes ALL subsequent interactions with the applicant easier. What possible thing can an applicant do that would deny the validity (pun intended) of your work? Once you have the originally filed application, applicants can add no new matter – their universe is closed off. If you do your job appropriately, there can be no such thing as wearing you down.

    There can be, however, a wearing down of fallacious and unsustainable positions – as we have seen on the thread link to patentlyo.com wherein you now retreat from our engagement.

    But to confuse the applicant overcoming your (unjustly held) position with “wearing you down” is to compound the error of you not doing your job appropriately with blaming the applicant for desiring to have what they, by law, are entitled to.

    So yes, “wearing down an examiner’ is a canard. There is no denying this.

  22. 35

    I should add that it is funny indeed that most small time inventors, and indeed, likely the people at most corporations couldn’t even obtain most patents today if it weren’t for attorneys helping them. The office would run all over them.

  23. 34

    “”it is about making sure the Examiner has rightfully done their job.”

    Yeah, see, we should probably just outlaw that. It’s like having someone that is, shall we say, on average, much better at doing a job, telling someone who is on average less good at a job that they’re not doing a good job. In every single case that they do. That is a special kind of fu ked up situation.

  24. 33

    Idk man, it isn’t such a canard. I find myself just wanting to allow things to be done with them more and more.

  25. 32

    Well idk about all that Max. We just reply when we feel like it as long as we meet the workflow reqs. There is no requirement not to send your complicated nonsense to the end of the line behind people who have pretty blatantly put their application into condition for allowance. I know which ones tend to get picked up sooner on my docket.

  26. 31

    MaxDrei,

    I do recognize that you seek to blame the “clear and convincing standard,” and in no small unrelated fashion, blame the applicants for the goings-on at the USPTO, but you would be decidely mistaken.

    The adversarial nature has always been there – the clear and convincing standard existed well prior to the current CAFC structure, and thus well prior to the problems at the Office.

    Your blame and asperions on the professionalism of counsel in obtaining rights for our clients (victimizing the examiners and turning them into “brutalised punchbags”) is not only unfounded, but unwarranted (and reminiscent of the canard of “wearing down the examiner”). Advocating for our clients is not about knocking the Examiner down – it is about making sure the Examiner has rightfully done their job. Holding Examiners accountable for valid denials of patent rights in no way, shape or form can ever be held to indicate that it s the applicants that are responsible for causing any Examiner to behave in an unprofessional manner – you quite frankly seek to pin any such unprofessionalism on the wrong party.

  27. 30
    Hardworking at Actually Addressing Real Issues and Accepting Certain Plain Facts as Incontrovertable says:

    I am not certain why you would respond as you have, Malcolm.

    If you really think the skew has been “very favorably” towards allowance, when the absolute facts of the now famous Dudas curve defies any (and I mean absolutely any) explanation for the fantastic dip in allowance rate, then nothing (and I do mean nothing) that anybody (and I do mean anybody) can say that will make you see just how ludicrous your position is.

    We will have to agree to disagree there.

    Likewise with your second comment about general culture – there is no fathomable way to deny the general culture at the Office as exmplified not only by the famous cure, but by the repeated efforts (consistently either deemed illegal or dropped when their illegality was exposed) of rule changes in direct animosity towards applicants.

    Are some prosecutors “bitter”? Sure, they’re human and in such a large group there are bound to be more than a few such people. But the idea that there is a general culture of “bitterness” amongst the patent bar is absurd.

    Further, as I am sure that you are aware, “troll clients” don’t actually prosecute patents – they buy them after the original inventors go belly up (for any number of reasons). Peter Zura reported on this quite awhile back, and I know that this point has been made several times, but you do seem incapable of remembering it.

    Lastly, it is not that I am (or ever have been) adverse to the Office hiring and training examiners. I have no idea where you would get such an idea that anybody woudl be against a well-trained examining corps. There is – (see my note above) – a very real – and justified – concern about what that training includes. But that just yet another thing that we, I fear, will have to agree to disagree upon.

  28. 29

    Looks like a correlation between patent pendance and allowance rates. When allowance rates go down pendancy goes up. When allowance rates go up, pendancy seems to remain the same and/or drop slightly.

  29. 28

    There is certainly a degreee of arbitrariness at the USPTO. As I’ve been saying for years, this is a problem. But based on what I’ve seen for the past fifteen years, the arbitrariness is skewed very favorably towards the allowance of patents of dubious validity, not the other way around.

    Are there “capricious” and “grudge-holding” Examiners? Sure, they’re human and in such a large group there are bound to be more than a few such people. But the idea that there is a general culture of “capriciousness” and “grudge-holding” at the USPTO is absurd.

    Bitter prosecutors who are relentless unhappy when their wannabe troll clients aren’t given the red carpet treatment by the USPTO don’t exactly engender a lot of good will. Weirdly enough, it often seems to be these same people who go ballistic at the thought that the USPTO should be given the opportunity to hire and train more examiners so that each could do their job better.

  30. 27

    Good grief, Inserter. Is that what goes on at the USPTO? I’m shocked. This, I suppose, is because it is all so “adversarial” at the USPTO, but less so at the EPO.

    Me, I blame the gruge-holding on the “clear and convincing” standard. If you can manage to knock the Examiner down, you are “good to go” against any infringer, till the end of the 20 year term. This in consequence turns USPTO Examiners into brutalised punchbags.

    6. You there? How does that sound to you?

  31. 26

    Well done

    Only if this means that arbitrary and capricious examination, including grudge-holding and selective favortism is “well.”

  32. 25

    My compliments 6. Nice answer. Must be you then, that gave the EPO the idea. Well done.

  33. 23

    There is a subtle difference between the internal age distribution of applications pending at the USPTO and the exit age distribution (or residence time distribution) based on the age of issuing patents. (See, e.g., link to en.wikipedia.org).

    Patent pendency estimates based on the exit age distribution will generally under-estimate the actual pendency of patents at the USPTO.

    Your applications are in the USPTO Dead Zone.

  34. 22

    I fixed this above. My numbers do not count an RCE as abandonment+refile.

    FYI – Fastest Art Unit is 2839 – DYNAMOS. 23 months pendency on average.

  35. 20

    “Typical time from filing to grant using that program is 6 months.”

    Patent numbers, please.

    Can I interest you in some beachfront property in Arizona?

  36. 19

    Interesting comment from Manimal. How to reconcile it with other content in this thread?

    Before the EPO, I have been getting an ever-stronger impression that many Examiners are using pendency to manage applicant behaviour. What I mean is: respond to a First Office Action with an implausible line of response and you might wait a very long time for a second action. But respond with an attractive line that the Examiner can run with, and you can expect a second action rather quickly.

    Does the USPTO turn a blind eye (as one says, these days) or perhaps openly give its examiners enough discretion to behave like this?

  37. 18

    Roughly 90% of the applications I filed three years ago have been allowed. Of the remainder, half are still pending and the others were abandoned in favor of cons to pursue different species.

    This is in the 1600 art unit.

    Some of my clients have been using the Green Tech Initiative to accelerate their cases. Typical time from filing to grant using that program is 6 months.

  38. 15

    Thanks.

    Come to think of it, what about a similar graph for design patent pendency?

  39. 13

    To clarify where I’m confused:

    “These data differ from that normally reported by the USPTO because they do not count the filing of a request for continued examination (RCE) as an abandonment+refile.”

    By “they,” do you meant the USPTO or the data?

  40. 12

    As far as this goes:

    “It looks like you are including RCEs as continuations, is that right?

    So the pendancy of a new application under your system is one of:

    (a) the date the application was actually filed to the date it issued without filing an RCE; or

    (b) the the date the RCE was filed, measured until the patent issued without filing another RCE?

    In other words, you don’t include any of the time from the date a patent was filed until the RCE was filed, because you consider that to be an abandonment, is that right?”

    I think I may have misread your post above, when you were talking about how the USPTO does their calculation.

    However, I do still have this question:

    “Am I correct in thinking that Applications claiming priority from provisional filings would also get a year less pendancy under your calculation (even though the application is supposed to be picked up for examination in order of the US effective filing date, and not the actual filing date)?”

  41. 10

    Thanks, Dennis.

    Do you have a guess as to the percentage of those patents included in this data that were continuations?

    It looks like you are including RCEs as continuations, is that right?

    Am I correct in thinking that Applications claiming priority from provisional filings would also get a year less pendancy under your calculation (even though the application is supposed to be picked up for examination in order of the US effective filing date, and not the actual filing date)?

    So the pendancy of a new application under your system is one of:

    (a) the date the application was actually filed to the date it issued without filing an RCE; or

    (b) the the date the RCE was filed, measured until the patent issued without filing another RCE?

    In other words, you don’t include any of the time from the date a patent was filed until the RCE was filed, because you consider that to be an abandonment, is that right?

    I’d also be curious to hear which is the fastest art unit right now under your system, and its average pendency. Additionally, are reexams included? Thanks again.

  42. 9

    I was wondering the same myself. I wonder why Dudas et al. were whining so much about continuations as they seem to be easy and “gravy” for the PTO.

    What would be interesting is a similar graph with continuations deleted then.

  43. 7

    (1) Continuations take about 1 year less (on average) than “original” applications.

    (2) The slowest art unit right now is 3688 (e-commerce coupons). The patents issued from that art unit are taking an average of 6 years to issue.

  44. 6

    The pendency data is skewed high and so the medians will be lower than the averages (means). You are correct that pendency does vary by technology center. There is also a large variance even within the same art unit.

  45. 5

    I filed a simple mechanical case recently, and the PTO estimate to receive a first Office action is 57 months. The typical case I get allowed without RCE still takes 5+ years to issue. Who is getting allowances so quickly that it brings the average down that far?

  46. 3

    I wonder if separating out the presumably included design patents would have any significant effect on the relative pendencies.

  47. 2

    DC,

    Does the median differ significantly? I suspect the data also varies greatly by Tech Center.

    It reminds me of the antitrust theory that an agreed maximum (price) eventually acts as a minimum. You should put a vertical line on the chart between 1995 and 1996.

  48. 1

    Something doesn’t seem right. I see 3 years to first office action far more often than I see an allowance after 3 years.

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