By Dennis Crouch
Yesterday I posted on the rising number of patent attorneys. There is also a rising number of patents and patent applications. The three tiered chart below shows the number of utility patents granted and nonprovisional utility applications filed for each fiscal year going back to 1981.
In addition to patents and applications, the chart also includes requests-for-continued-examination (RCEs) (and that form’s predecessors). I include RCE filings here because the PTO has traditionally reported RCEs as applications whereas I tend to consider them an element of prosecution within an application. Thus, for FY2012, the USPTO will report 515k patent applications while I would calculate that number at a much more modest 357k.
RCE FILINGS: RCE filings grew at an exponential rate for much of the last decade. However, for the past three years there has been almost no growth in the number of RCEs being filed each year. A few years ago, it appeared that RCEs were serving a role in an informal collusion between examiners and applicants where the filing of an RCE provided the examiner with an additional “count” and the applicant quickly received an issued patent following the filing. For several reasons, that approach appears to have largely subsided. Today, only a small number of RCE filing lead to a quick patent issuance and in fact, most applications where RCEs are filed are eventually abandoned.
“Sampling bears that out.”
You have to be f’n kidding me. The last person’s word I would take about some factual issue is you. Perhaps I should quote one of your favorite lines … “patent numbers please.”
That’s not how it works in the US. I know of multiple firms (places I’ve worked or known personally) that all give flat rate patentability search and opinion, provisional patent prep, and non-provisional patent prep. Prosecution is hourly, but generally self capped at something like 2000-2500/ response (cut the overage).
So no, it’s not a false economy. It’s be a lot more solid if you could predict that the PTO would allow an application once it was in condition for allowance, but there’s no guarantee of that.
Dennis did something on that a year or two ago: Average length of issued patents over time.
I’m grateful for those insights guys.
Yes, I have been living in a charmed historical world. Yes, I’m naive (see last para below). But recently, in an effort to acquaint my partner colleagues with the dawn of the new world they must adjust to, I have taken to inviting them to imagine what it’s like when you want, say, a new kitchen in your house.
You go to the supplier with a good reputation and you get on fine. Then you ask how much it will all cost and get the answer: I’ll tell you first when I’ve finished the job.
Would you buy? Likely not. So why expect clients to buy services from a patent attorney on the same basis?
One thing troubles me. Litigators are engaged on a bottomless purse. For their master, just one thing matters: do not lose. But but but; the outcome of litigation depends (at least in Europe) on the quality of the original drafting of the application that is to be the foundation of the asserted patent. Get that wrong and you can’t win, no matter how crafty and hard-working are your litigators.
So economies in drafting are false economies, aren’t they?
Yeah, not exactly my experience at any of the firms I’ve been at either.
Yep. I know that the lenght of my applications has been cut. I’ve managed to keep my billing rate down in negotiations with my employers to allow me to keep the quality somewhat consistent, but with decreasing flat rates, something has to give.
One of my favorite sayings about quality writing:
“I would have written less if I had more time.”
That sounds like another good statistical study for Dennis to test for accuracy.
[Of course there is no way to tell how much the ability to easily electronically “cut and paste” text developed in the meantime might have added some verbosity?]
Thanks, that is what I was speculating about as: “the effect of increasingly complex technology.”
It should certainly be true in many cases. But on the other hand I have heard some examiners complaining about reduced, rather than expanded, application disclosures from the many patent attorneys and agents now operating on low fixed fees for application preparation, especially in software-related, or software utilizing, [including business methods] applications. I have no idea how much of an impact that actually has, of course.
Max, if your firm is still living in a charmed historical world of unlimited client billing hours, rather than a brave new world of fixed fees and caps for prep and prosecution work for major companies, you may be overun with job applicants!
Patent applications are probably three times longer now than 30 years ago.
you also have to account for the drastically expanded length and scope of the required and average disclosure.
Chicken and Egg here I think. Let’s not lose sight of that old notion that work is guaranteed to expand, and will do so by exactly the amount required to fill up the aggregate billing hours available.
I thought the most interesting statistic might be the ratio of the increase in applications filed [from this post as properly excluding RCE’s] to the huge increase in new PTO Registrant’s [from the preceeding post’s chart], over the same time period. I took a rough cut look, and it seemed to me that in the past 20 years the number of PTO current Registrants having taken and passed the PTO examination [albiet not all actually practicing] increased about 80%, or about 4 times, while the number of new applications being filed increased about 3.75 times?
That could lead to other interesting speculations, such as: has the hugh increase in word processing and computer power in the past 20 years provided no real benefit in patent practitioner productivity? Or, is that productivity seen only in an unmeasured reduction in secretarial and docket staffs? Is application drafting and prosecution immune to productivity increases? Or is the effect of increasingly complex technology cancelling it out?
I had that happen to a number of clients with claims/inventions that I still think were patentable.
They just got run down by the process and costs.
It’s a good thing that your thinking just is not in tune with reality.
That’s probably why you avoid substantive discussions and typically post in insults, feelings that things you don’t like are gxrbxge, and your famous everyone can have an opinion/policy modes.
How many of those are attributable to the economic downturn and the fact that sometimes it is the applicants that are worn down? The Office has a seemingly endless bucket of “NO,” while applicants have to pony up real money in order to continue to fight for their rights.
Prof. Crouch’s posts on “low quality” art units
Maybe ask Professor Crouch to confirm your impression of his post. I remember thinking you were n-ts at the time. I still think that.
Lol – more self defeat from MM.
Or don’t you remember Prof. Crouch’s posts on “low quality” art units which featured your very own backyard (and since we know your stellar work skews the average higher, the actual quality of the rest of the bunch is even lower).
“the rates at which Examiners are reversed…”
QQ QQ
“most applications where RCEs are filed are eventually abandoned.” — very interesting, would not have guessed this
I am also sure that this “applicant fault” is but an extremely small fraction
In some art units (e.g., computer implemented business methods and the like), I’m pretty sure it’s not a “small fraction.” Sampling bears that out.
And the rates at which Examiners are reversed is hardly informative when the patents that are issuing are g-rb-age.
I would not and we have not.
Better trolling please.
I am also sure that this “applicant fault” is but an extremely small fraction
Would you also describe these applicants as an extremely vocal minority? Because this sounds like a conversation we’ve had before.
“but let’s not pretend this is one-sided.”
I am sure that it is not one-sided and that there are those applicants who keep fighting g beyond any sense of reason.
I am also sure that this “applicant fault” is but an extremely small fraction – lets not pretend that the examination fault is not predominantly lolsided.
The obvious answer is a timely and solid examination.
It has always been the answer.
Judging by some of the appeals to and from the BPAI or whatever it’s called now, and some of the cries of “APPEAL ALL THE THINGS” on this very blog, numerous attorneys were also told not to give up the fight on anything, irrespective of the merits of the case.
It’s probably easier for examiners to do because they’re more likely to have a budget lined up for next year, but let’s not pretend this is one-sided.
I’ve heard that from numerous examiners and ex examiners. “We were just told not to allow anything.”
Yes, the game has changed… As my examiner told my prosecutor while discussing an absolutely senseless final rejection, “my group just isn’t granting ANY patents. You’ll have to appeal.”
Filing an RCE is senseless. Better to just appeal.
collusion?
More like extortion.
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