The USPTO Patent Backlogs: Falling and Rising

By Dennis Crouch

Under Director Kappos’ tenure, the USPTO has focused on reducing the backlog of unexamined cases. That approach has been quite successful. The table below shows a 10% reduction in the backlog of unexamined cases over the past year. As you might expect, those cases do not disappear. Rather, the bolus is being pushed down the line toward eventual issuance or abandonment. Thus, as the number of unexamined cases drops, the RCE backlog and BPAI backlog continue to grow. I suspect that we’ll eventually think of these cases as the “baby boom” of patents.

In this study, unexamined cases include only those that have not yet received a first action on the merits (FAOM) and do not include RCE cases. The rise in the RCE backlog is a direct result of USPTO policy to focus more attention on the unexamined cases.

In March 2012, the BPAI disposed of 911 cases — more than any month in recent history. This slowed the growth of the BPAI backlog. However, with 1,343 new appeals docketed, the growth continued.

19 thoughts on “The USPTO Patent Backlogs: Falling and Rising

  1. 19

    One thing being tragically overlooked by aia and Kapos in the rush to eliminate the backlog is what happens to small entities when there money runs out with no investors to proceed with there patents. Ive asked for inactive status on my patents that have gone into abandoned status but no confirmation on weather there thrown out or preserved. The other big problem is there putting all my patents out the door in other peoples names due to internet hacking and inter-office corruption. So the economic recovery is not starting now the way ive restarted it 5 times in a row since 1960 and my company is bankrupted is there an attorney in the house

  2. 18

    What do the rejection and abandonment rates look like (overall and percentage)?

  3. 17

    I’ve been saying exactly what is in this article since 2009 (when the new production system for examiners was proposed). Without more disposals, first action pendency means squat. A system where disposal encouragement should have been implemented instead of the encouragement to work on FAOM cases. With all else remaining equal, disposals are the only thing that truly reduce overall pendency and not how fast an examiner can pick up an unexamined case.

    On that note, the office is letting examiners allow more. Check out the allowance rate of the office from 2009 to 2011. That is one of the only reasons why the RCE/appeals backlog is not in line with the reduction of the backlog.

  4. 16

    USPTO Dashboard shows that Pendency from RCE Filing to Next Office Action has gone from 1.9 to 5.0 months in the last two years (163% increase) and that Pendency from Application Filing to Board Decision has increased from 74.4 to 84.0 (7 years!) in the same time period (129% increase). I wish they tracked the time from filing of Notice of Appeal to Board Decision.

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  5. 15


    In other words, pay attention to what I actually wrote and keep your over-reactions down to a rational analysis.

  6. 13

    Yes. Now prove that each of them have unreasonable scope (i.e., get back to work).

  7. 12

    “RCEs languishing” waah waah oh dear those evil examiners are at it again… and of course all the claims in those applications are of perfectly reasonable breadth right?

  8. 10

    Unfair chart, because the scales are not the same.

    The number of unexamined cases decreased by around 80,000, and from the chart, it would appear as ifa ll of those cases had been “pushed down the line” to RCEs. But RCEs increased by only around 30,000 (and appeals by only around 7,000), which means that the PTO is actually making headway.

    Of course, an increase in RCEs by “only” 30,000 is not good. And I agree that at least some of the work is being “pushed down the line”. It’s simply that the chart misleads into the impression that ALL of the work is simply being pushed down the line, which is clearly not the case.

  9. 9

    I think you missed the subtlety in the lead-inphrase “It’s amazing what one can do with stats

    Lighten up Francis

  10. 8

    We are moving the deck chairs, but they seem to be multiplying.

    Not true: the unexamined case backlog is shrinking at a faster pace than the RCE and Appeals backlogs are growing. In the time frame given by Dennis (i.e., December 2010 to March 2012), the unexamined case backlog was reduced by 77,056 applications, while the RCE and appeal backlogs grew only by 32,950 and 6,526 applications, respectively. So, in total, we have a net reduction of 37,580 applications over all backlogs.

    Now granted, none of this accounts for quality of examination, and appeals cases generally require more resources for disposal. But I would say that there is at least some positive takeaway from what Kappos & company are doing.

    Regarding the percentages, I think that is an entirely unfair way to evaluate their progress. The unexamined case backlog dwarfs the RCE and appeals backlogs, so a 1% change in the RCE backlog (i.e., 8.5k applications) will be a drop in the bucket in the unexamined application backlog.

  11. 7

    Thanks for highlighting the growing problem of RCEs. I have RCEs languishing for one year or longer with no end in sight. This does not “promote innovtion” or help the U.S. economy!

  12. 6

    The only worthwhile measure is the speed to an accurate resolution ( eliminating BOTH type 1 and type 2 errors).

  13. 4

    This is another example of how the U.S. has been procrastinating on repairing/improving/expanding its “infrastructure” over the past 20 or so years, even though we have been collecting the money to do so.

    Now we must pay the piper.

  14. 3

    An appeal brief was filed in 11/774,819 on May 5, 2011 and a decision was rendered on April 27, 2012. There are several other examples of less than a year from appeal to decision in the reported decisions of the last 30 days.

    OTOH, an appeal brief was filed in 10/862,227 on Feb 2, 2009 and a decision was rendered on April 12, 2012. There are many examples of three years or more from appeal to decision in the reported decisions of the last 30 days.

    Just sayin.

  15. 2

    It’s amazing what one can do with stats.

    Another way of looking at this paints a different picture.

    If you take the first month as a baseline and then chart the numbers as changes to the baseline, the unexamined cases improved 11% but the RCE cases worsened by 63% and the appeals cases worsened by 33%.

    We are moving the deck chairs, but they seem to be multiplying.

  16. 1

    Makes sense – RCE’s now go to the back of the line, and FOAM is quicker, and lousier. At least now, however, when they give lousy FOAMs, the Examiner’s are more likely to help you get the case allowed rather than keep rejecting. At least… in some cases.

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