Status of US Patent Applications

ApplicationStatus

The chart above shows the current prosecution status of U.S. patent applications as either patented (blue), abandoned (red), or still pending (green). As you might expect, more recently filed applications have a greater percentage of applications still-pending, while fewer than 10% of those filed before 2009 are still pending.  You’ll note that the percentage of issued-patents appears relatively steady at about 60% over the filing-years 2005-2010. However, we can expect that figure to rise for the later-years in that group as the still pending cases are finally decided.

The applications here were considered through actions on October 1, 2014.  Thus, the 2012 applications have been pending between 1-year-9-months and 2-years-9-months.

The chart below looks at the same data, but limits it to only fully decided cases – those that are either patented or abandoned.

DecidedApps

 

 

63 thoughts on “Status of US Patent Applications

  1. 10

    Still waiting for a decision an Appeal that was docketed to the Board in August 2012!! on an application that was filed in 2008!

  2. 9

    You’ll note that the percentage of issued-patents appears relatively steady at about 60% over the filing-years 2005-2010. However, we can expect that figure to rise for the later-years in that group as the still pending cases are finally decided

    Given the recent Supreme Court decisions with broad applicability to large classes of invalid claims, why do you expect the figures to rise, Dennis?

    It seems like the opposite should be expected … if the system is working like it’s supposed to.

    Of course, if the PTO does everything in its power to make sure that changes in the grant rate don’t alarm its especially sensitive “clients”, then certainly we can expect no change whatsoever.

    1. 9.1

      Of course, if the PTO does everything in its power to make sure that changes in the grant rate don’t alarm its especially sensitive “clients”, then certainly we can expect no change whatsoever.

      I am not sure I understand the meaning of this comment.

      Is this like RandomGuy’s insude “knowledge”? Was there an Office memorandum to rubberstamp Approve-Approve-Approve?

      Such a rubberstamp would be every bit as bad as the rubber stamp of Reject-Reject-Reject.

      But one should note that the idea of “Quality does not equal Reject” is NOT the same as rubberstamping Approve-Approve-Approve.

      Yes, that quote is real – and was really necessary – as reflected in the factual data that I have provided links to. The very data that particular people still seem to have difficulty integrating into their world views.

      1. 9.1.1

        Is this like RandomGuy’s insude “knowledge”?

        I don’t know.

        Was there an Office memorandum to rubberstamp Approve-Approve-Approve?

        I don’t know.

        Quality does not equal Reject”

        In fact, “quality” certainly does equal “reject” when the claims being rejected aren’t worthy of a patent. And that’s true of a vast number of patents that were granted both before, during and after Kappos, in addition to all the claims that are presently pending and parked on appeal by heeldigger types hoping for a miracle.

        Maybe you can tell everyone if you believe that “the far bigger problem” (relative to invalid computer-implemented patents) is that the USPTO doesn’t issue more patents than it’s already issuing. I’ve heard it said that this is what “honest” people believe, but it sounds like something only a relentless shill would say when his/her idea of what constitues a valid patent is a minority view increasingly rejected by the public, the courts, and lawmakers.

        1. 9.1.1.1

          Aside from your “I don’t knows”, all we have in response is an attempted twist in meaning of what I said. No one is saying that a rejection de facto means that the examination was without quality.

          Can you respond without such twists Malcolm?

  3. 8

    Dennis, I would be very interested to see these statistics broken up by major art groups. For example, one set of data for biotech/pharma groups and one set for InfoTech/computer groups. My clients often ask about pendencies in the biotech/pharma industries and I use your data to give them a general answer.

    1. 7.1

      “… thread …” … making this an especially enjoyable thread indeed …

      Maybe Dennis would consider posting more of his articles on weekends 🙂

        1. 7.3.1.1

          He didn’t call anyone a troll.

          He simply said that trolls were bonding, and it was cute.

          It was left up to the reader to determine who the trolls were.

          You apparently determined that it was you?

  4. 6

    It would be interesting to include a segment of the bars to indicate applications awaiting a decision from the PTAB. The fact that their backlog is 2-3 years now is enough of a special situation that those applications should be separated from the cases where an applicant has simply been going back and forth with an examiner ad infinitum.

    1. 6.1

      PTAB backlog is 2-3 years. How long does it take the Federal Circuit or the Supreme Court to decide a case before it?

  5. 5

    @Denis: You’ll note that the percentage of issued-patents appears relatively steady at about 60% over the filing-years 2005-2010. However, we can expect that figure to rise for the later-years in that group as the still pending cases are finally decided.

    Sorry, I don’t follow.

    These data lead one to expect that as the later-filed cases (2010-2012) are resolved their pending bars will approach 0, their abandoned bars will approach 40%, and their patented bars will approach 60%. That 60% plateau is clearly the trend in 2005-2009 applications. What indicates any different result in 2010-2012 applications?

    The way the 2009-2010 bars are approaching the 60% plateau says that virtually no applications are allowed that have been pending more than about 5.75 years. (Jan2009 to Oct2014 = 5.75 years) That is certainly not my experience.

    I find the consistency of the 60% plateau disconcerting. Intuitively, I would have expected a downward slope in the blue bars from L to R for a much longer span of time than 5.75 years. More like the red bars. But if the blood red bars tell the story of applicants running out of resources to fight inane rejections rather than cases being properly resolved, then this picture makes more sense.

    At any rate, I would certainly expect the earlier years’ blue bars to fluctuate around some plateau mean by at least 5-10%. The sort of statistical consistency seen in this allowance rate suggests someone ought to start sniffing around for some sort of artifact or PTO-imposed allowance ceiling left over from the dark Dudas days.

    As to the second graph, I’m with anony @ #4. I’m, like . . . huh? on this one.

    If a poll shows a precinct is made up of blacks, Hispanics, and whites, and if it ignores the whites and reports that of the remainder, 60% are black and 40% are Hispanic, then we would know . . . what? Well, that Karl Rove conducted the poll.

    1. 5.1

      Sorry for the confusion. I’m trying to think through ways of communicating allowance rates and how allowance rates change over time.

      A helpful way to group patents for comparison is by filing-date because they all share the same state-of-the-art and current-law as of that critical filing date that is so important for patent law.

      Regarding the second chart, it essentially asks: what is the allowance rate for the cohort as of now. In my mind, the chart is helpful because the relative allowance rate is hard to discern from the first chart since that chart is overwhelmed by drama in the still-pending category.

      1. 5.1.1

        As with any other stat, you have a variety of ways of employing the statistics by a variety of statisticians (insert Mark Twain joke here).

        However, one way of communicating this that really needs to be discussed in greater detail is the historical (30 plus years) record as shown at
        link to ipwatchdog.com (especially the second graph – a T001 used by the Office itself).

        One should note that the new graphs presented by Prof. Crouch seriously implicate that the through-the-bottom allowance rate is now factually reflected as a false and suppressed allowance rate. that inexplicable drop to the 40% has no other viable explanation – and given the data here, those who fought the bogus rejections of that era have – in line with historical norms – overcome the Executive Policy driven attempt at denying patent rights.

      2. 5.1.2

        How to present the data. Now that you mention it, I’m not sure what these % figures mean. And I don’t mean just this post but the PTO’s and Quinn’s as well.

        Take 2005. How is that 60% calculated? All of the allowances filed in 2005 divided by all of the cases pending as of 2005? Or the aggregate of allowances from 2005-2014 divided by the total number of applications filed in that same period? I mean, there must be a dozen ways to calculate an allowance rate. I can see your dilemma.

        Given the range you are working with, which is 69 months, maybe for each month reported, calculate the percent of allowances for all applications filed that month. And then calculate annual means.

        Beginning at Jan2005 calc the percentage of allowances as the aggregate of allowances for applications filed in Jan2005 divided by total applications filed that month. Then do that 68 more times for each month until the end of Sep2014.

        So you now have 69 monthly allowance rates based on applications filed and allowed between Jan2005 and Oct2014. Then for each year take the mean of the 12 monthly allowance rates in that year. Or you could do quarters if you can live with an n of 3.

        That would allow you to calculate standard deviations for each year or quarter and get some handle on how consistent the PTO is.

        Sorry . . . just flapping around here on the back of the envelope. Caveat: I got a “C” in my last stats course. ( But that was before calculators. )

        1. 5.1.2.1

          How is that 60% calculated?

          The office tracks disposals, a disposal being an allowance, an appeal, an abandonment or a RCE. When one of those things happens the examiner has “done their job” and the applicant has gotten what they paid for. The office tracks allowances. The office divides allowances over disposals.

          So if, for example, I file a single application, and it is rejected and I file a RCE, and it is rejected and I file a RCE, and then the application matures into a patent, the office would score that as a 33% allowance rate despite the fact that the office has taken one submitted application and created one patent out of it (what any normal person would call a 100% allowance rate). These values drive the numbers in the article anon linked, and you can immediately see why it would be faulty.

          When you see it like this, you see that any value that comes from an office-based statistic must necessarily underreport the allowance rate. Dennis is attempting to correct for that by comparing the number of published applications that have abandoned to the number of published applications that became patents.

          Of course, that’s still not the best barometer, is it? There’s a very simple way to determine the allowance rate – take the average number of abandonments sent out per examiner and the average number of allowances sent out per examiner. Then multiply by the number of examiners, and calculate allowances over (allowances + abandonments).

          But seriously, do you see an explanation for the allowances to straight-line like that? I mean, that looks like OBL’s pulse.

          Since you got a C in stats I’ll help you out: one could only conclude that either a) a significant string of coincidence set all the values to the same or b) there is some confounding variable that causes all of the values to line up.

          1. 5.1.2.1.1

            Thank yew. What I hear you saying is that the bureaucrats did worse in stats than I did.

            RG: “take the average number of abandonments sent out per examiner and the average number of allowances sent out per examiner. ”

            Per year? I’m still looking for the time parameter in these allowance rates.

            As for RCE manipulation of the numbers — I wonder if that trick is premeditated prevarication by PTO or just thick bureaucrats.

            Perhaps for stats purposes each RCE should count as an abandonment and a separate application, the way they are for assessing filing fees. And what about continuations and CIPs? Do they calculate as multiple allowances on a single application or as separate serial applications with their own abandonments or allowances?

            My point is that these critical issues are never spelled out by whomever is presenting the numbers.

            1. 5.1.2.1.1.1

              Perhaps for stats purposes each RCE should count as an abandonment and a separate application, the way they are for assessing filing fees.

              They are. That’s the problem. That’s how you can have one submitted case turn in to one patent and somehow report less than 100% allowance rate.

    2. 5.2

      I find the consistency of the 60% plateau disconcerting.

      Seems odd given that KSR, which rejected the more restrictive TSM test in favor of a more lax standard, came down right in the middle of that timeframe too, doesn’t it?

      or PTO-imposed allowance ceiling left over from the dark Dudas days.

      How interesting perspective can be. I would think that given the Examiner’s ability to discover prior art has increased and the law has gotten more lax, the most likely conclusion one could draw is not that the consistency displays a Dudas-imposed ceiling (that somehow managed to survive his departure), but rather is more consistent with a Kappos-imposed floor.

      1. 5.2.1

        You seem to want to act as if the improvements were ONLY available to one side of the equation, thus, you continue to highlight your lack of objective and critical thinking.

        You really should try to understand your bias and how that bias creates some mighty big blindspots RandomGuy.

        1. 5.2.1.1

          It is a fact that the private search sector embraced the technology first. It’s a further fact that not all applicants avail themselves of it. It is still a fact that while electronic databases of unpublished applications should massively increase the ability of examiners to find what used to be 102(e)s, the Applicant had no way of searching them. All of those are are not equal-application facts that tilt in favor of rejection.

        2. 5.2.1.2

          You really should try to understand your bias

          Please give us all a break with your horseshirt.

          Your ten times more “biased” than most of the commenters around here but you’re so fcked in the head you don’t realize it.

      2. 5.2.2

        Ha! Exactly — one man’s floor is another man’s ceiling. Women’s, too, but they have glass ones.

        But seriously, do you see an explanation for the allowances to straight-line like that? I mean, that looks like OBL’s pulse.

        Of course, in absolute numbers, with the numbers of applications increasing year to year, that would be an upward sloping line with no bumps or other deviations in the rate of rise And the rate of rise of allowances would precisely match the rate of rise of applications. Spectacular, statistically speaking.

        Those graphs in Quinn’s 2010 post anon links to look more like data I’m used to seeing.

  6. 4

    The most recent data is skewed. Applications that are allowable will be quickly allowed. Applications that are not, will be rejected and in limbo for a few years. Applications that end up abandoned usually are abandoned after a few rounds of prosecution. Thus, the majority of cases from 2012 that will be allowed will be allowed much sooner than the majority of cases that will end up abandoned, which will happen later when Applicant’s give up.

    Thus, it appears the allowance rate for the more recent years will go down, not up.

    1. 4.1

      Thus, it appears the allowance rate for the more recent years will go down, not up.

      What you say is correct (a clearly allowable case will issue immediately, a clearly bad case may take a few rounds to drive it into the applicant’s head) but the conclusion doesn’t necessarily follow. While the month-to-month allowance rate will likely drop as time goes on, you can’t tell from just these graphs where the allowance rate would go. We would need a similar graph from last year so that we could compare how the change over time functions.

      I suspect when all is said and done the allowance rate will go up, but not because of any of the data the graph gives me.

    2. 4.2

      Anony, I agree that there is some skew in timing but it is a little more complex than you state. Initially there are a rush of allowances for the small percentage of cases with first-action allowances. However, those are followed by a number of abandonments following the the first OA and there tend to be more abandonments than allowances following the second OA.

      1. 4.2.1

        and there tend to be more abandonments than allowances following the second OA.

        I’m not sure this is accurate, but I think this would be an interesting graph in itself.

        Regardless, doesn’t your statement agree with anony’s? You’re both suggesting most of the allowances come at the beginning with the late-decisions mostly breaking toward abandonment. He’s wondering by what standard are you suggesting that the allowance rate will go up for the 2012s if the allowance rate is 75% right now (with only a third of the cases reporting) and you’re in agreement that that rate will only decrease as more data comes in. What makes you say that it won’t decrease by more than 15% with more than two thirds of cases still at large?

    3. 4.3

      Applications that are allowable will be quickly allowed.

      Actually the data shows this NOT to be so.

      Compare the USPTO historical allowance chart (the famous dip down to 40%) with the new data presented by Prof. Crouch. Ask yourself where did that 40% go? Those willing to continue to fight the rubber-stamped Reject-Reject-Reject bogus rejections provides the answers. To quote Director Kappos, Quality does not equal reject. to get from 40% back to 60%, you should note that a full 50% of the quantity rejected appear to be your “will be quickly allowed.” Sorry anony, but there is no way for your statement to stand as correct.

      1. 4.3.1

        The article you linked is terrible, he can’t even graph the with/without RCE rate correctly. The “without RCE” allowance rate is always higher than the “with RCE” rate, and the very data he screenshotted shows this. If you go to the same page today, you will again see the without RCE has a higher allowance rate than with RCE. All of his conclusions are wrong.

        Regardless, neither of those data are charting the same thing that Dennis was, so why would you expect them to match up?
        Dennis is charting allowances/(allowances + abandonments + pending which somewhat resembles “all filings”) for each application number. Without RCE charts allowances/disposals for new cases only. With RCE charts allowances/disposals for all filings. None of those are the same data.

        The true allowance rate (allowances per filings) has never been as low as, or even close to, 40%. The allowance rate appeared to drop to 40% because of the way the office reports data.

        The correctly read data linked to shows that between 55-60% of cases issued on their first go around for Oct2009-11. Then there are an unknown number of RCEs filed, and an unknown number of those issue, but we do know that of the total number of new+RCEs, about 40% of those filings issue.

        To show you how meaningless this information is, if we were to have 100 applications in that time frame, 60 would issue immediately, and anywhere from 1 to 40 additionally would issue, depending on how many RCEs were filed to get there. It is entirely possible that the 42% allowance rate quoted actually describes 100% of applications resulting in patents. Now anecdotally we know that isn’t true, but that just underscores how pointless the office statistics are on the issue.

        The point is, the true allowance rate is never less than the “without RCE” allowance rate, and is always some unknown percentage more. The office says that in 2009, the allowance rate was 60% or more, which directly comports with Dennis’ data.

        1. 4.3.1.1

          Just so no one is confused, the article reports (from screenshot) a “Without RCE” allowance rate of 57-60% in FY 2009 and 2010, and a “With RCE” allowance rate of 40-45%. The actual article flips these values, but I’m going to use the correct ones and show how they are actually low:

          Example 1 (Realistic example of how 2009/2010 numbers would occur) – 10 applications filed, 6 are allowed in the first go of examination (no RCEs), the remaining 4 are RCE’d and 2 of those are allowed. One of the last 2 is RCE’d, which leads to an abandon, and the last abandons immediately:
          Actual Allowance Rate: 80% (8 allowances on 10 applications)
          Without RCE would report: 60% (6 allowed on 10 first round disposals)
          With RCE would report: 46% (7 allowances in 15 total disposals) (10 original + 4 RCEs + 1 2nd RCE)

          Hmm, 60% and 46%, so close to the actual values reported. Actual allowance rate during this time – 80%.

          Other examples: Example 2 – 10 applications filed, 5 are allowed, the remaining 5 are RCE’d and allowed.
          Actual Allowance: 100% (10/10)
          Without RCE: 50% (5/10)
          With RCE: 67% (10/15)

          Example 3 (showing how terribly off the numbers can be, extreme case) – 10 apps filed, 1 is allowed, the remaining 9 are RCE’d a total of 15 times amongst them, and all of them are eventually allowed.
          Actual Allowance: 100% (10/10)
          Without RCE: 10% (1/10)
          With RCE: 40% (10/25)

          Example 4 (Accurate for today’s numbers, dashboard reports them as 70.7% without, 52.8% with) – 10 apps, 7 are allowed. 1 is RCE’d, rejected, appealed and upheld and then abandons. 1 is RCE’d twice and is then allowed. The last abandons after the first round.
          Actual Allowance: 80% (8/10)
          Without RCE: 70% (7/10)
          With RCE: 57% (8/14)

          As you can see, the office, by definition, can never over-report the actual allowance rate and routinely under-reports it. It is entirely possible that the ACTUAL allowance rate for FY 2009 when Kappos made his statement was 80% despite his statement (correctly) reported in the article as 45% as the office considers it. Similarly, it would make a lot of sense for that rate to drop as time goes on (late breakers go toward abandonment) which leads us to the 72%ish allowance rate Dennis shows today.

          When the dashboard reports the “Without RCE” allowance rate today, that is the bare minimum of allowance – Even if every RCE resulted in a rejection, we would still be allowing 70% of all cases today. Since we know RCE’s commonly result in both allowances and rejections, it would not be surprising if the true allowance rate today was between 80-90%. This number is higher than it has ever been, and it is in an era where the courts have announced major 101 and 103 issues which make rejection more likely than they previously have been, and also an era where people are availing themselves of larger scopes than ever before (as means-plus language has generally dropped out of use). It should be immediately apparent that the numbers are going the opposite direction of where they should be.

  7. 3

    Do people look at this and see what a ridiculously high rate that is, or what inside information are you missing that would cause you to draw that conclusion if not?

    1. 3.1

      RandomGuy,

      Your animosity is only matched by your lack of historical knowledge.

      ridicuously high rate

      Do you know what the historical rate was prior to the Duffas “Reject-Reject-Reject” era?

      What exactly are you implying with the comment “inside information“?

      1. 3.1.1

        Do you know what the historical rate was prior to the Duffas “Reject-Reject-Reject” era?

        Did the law change since the Dudas era which loosened the rules on obviousness, which alone would suggest that the number of allowances would drop? KSR came out in mid-2007, and by those graphs apparently the only case that ruling affected was its own 🙂 Was that pre-Dudas rate on the same number of applications per year, or has there been an explosion since then? Did the internet come into common Examiner usage (and have such excellent resources to improve the ability to reject) before the Dudas era? The ability to gather information has greatly increased (a fact which tends toward rejection) and the standard for rejection has decreased, and yet there appears to be almost zero discernable difference in the allowance rate during ANY year since Kappos took over, and an INCREASE in allowances from before Kappos. As Alice (the girl, not the case) said, “Curiouser and curiouser.”

        Let’s switch from history to math. I know that its simple math that if the rate holds constant and we have more applications than ever before then we are allowing more patents than ever before (which we are). Of course, were all those truly non-obvious changes, we would expect a corresponding non-obvious advancement in society analogous to the amount of patents being issued, which we are not seeing.

        But it’s worse than that, because the patent grant rate shouldn’t even hold even. Having more applications in a short timespan would naturally lead to more non-grant applications, because the publishing of an application is not immediate. In other words – isn’t it remarkable that even if we assume every inventor had a perfect knowledge of all prior art in existence at time of filing, that so few of them happened to file patents that accidentally stepped on another inventor’s toes by covering the same or obvious subject matter of an unpublished application (which they could have had no knowledge of) filed up to 18 months before? And even that assumes the inventor has a full knowledge of prior art (and if so, why have an Office at all?), despite the fact that prior art published before the filing date makes up the vast majority of rejections.

        Think of how silly that sounds – that we are both so inventive that we’re breaking the most patents issued per year like 6 years running now is it? And yet this super-inventive time is also so uninventive that on average we don’t have two inventors claiming non-obvious subject matter JUST OVER EACH OTHER (as the allowance rate is over 50%). That’s pretty good for blind accuracy there, let alone perfect judgement of non-obviousness over imperfect knowledge of all of the prior art that existed prior to filing.

        At some point, if people keep pinning the tail on the donkey with extreme accuracy, its time to check to see how well that blindfold filters.

        What exactly are you implying with the comment “inside information“?

        I’m not implying anything, I’m outright stating only the obvious – that clearly I have knowledge that you don’t have. I’m wondering what knowledge it would take for a reasonable person (and perhaps you’re not the one to which I should direct the question) to take the next step to question the information conveyed by the graphs above.

        1. 3.1.1.1

          Your being out of touch with law is now being attempted to be matched with being out of touch with history, math, and logic.

          1. 3.1.1.1.1

            Your being out of touch with law is now being attempted to be matched with being out of touch with history, math, and logic.

            Dennis, please put this jackaxx to bed once and for all.

        2. 3.1.1.2

          ^^^ “I’m not implying anything, I’m outright stating only the obvious – that clearly I have knowledge that you don’t have.

          Come RandomGuy, share that “knowledge.” You have outright stated nothing here, and once again merely imply that as an insider, you somehow “know” a secret that you have not shared. You (hopefully) do recognize that saying “Quality does not equal reject” is NOT the same thing as saying “rubber stamp Accept-Accept-Accept,” right? You have something more than that? By all means – please share it.

          1. 3.1.1.2.1

            You have outright stated nothing here

            Of course not, as it is not my place to disseminate that information. That is not the same thing as commenting on public information.

            You (hopefully) do recognize that saying “Quality does not equal reject” is NOT the same thing as saying “rubber stamp Accept-Accept-Accept,” right?

            I have said neither of these things (nor do I equate them) as I don’t believe the latter and am agnostic on the former. But I think my postings to this particular blog post have covered a wide range of concerns one might have if one were to read them dispassionately.

            1. 3.1.1.2.1.1

              You do recognize that you have flat out contradicted yourself, right? You first said that you have explicitly said something that you now affirm that you have kept hidden.

              This “inside knowledge” helps no one. Hiding behind a “it is not my place to disseminate that information” can only impliedly “affirm” (at least in your eyes) that there was an internal edict to rubber stamp Accept-Accept-Accept.

              As I have always held, such a rubber stamp would be just as wrong as the rubber stamp of Reject-Reject-Reject.

              My belief though is that it is only in your mind that the edict not to rubber stamp Reject-Reject-Reject is understood to be a rubber stamp in the reverse direction. I truly think that you deep down think that it is your job first and foremost to deny patent rights until the applicant proves their right to have a patent. I think this exhibits a fundamental flaw in your understanding of the patent system and reflects an anti-patent bias that has been deeply ingrained in many (but certainly not all) examiners.

              1. 3.1.1.2.1.1.1

                My belief though is that it is only in your mind that the edict not to rubber stamp Reject-Reject-Reject is understood to be a rubber stamp in the reverse direction.

                Of course not. And it is not a binary operation anyway. I will categorically tell you that I am not aware of an edict to allow-allow-allow, but I have a hard time believing that there was an edict to reject-reject-reject either. There are office procedures. Those procedures either closely track the law or they do not. When the procedures do not track the law, and they create an environment that tilts the field in one direction or another, for reasons which may or may not be proper on a whole host of levels, the system as a whole has a problem. You’ll notice I am very careful to distinguish between my job (which involves following office procedures) and my duty (which is to fulfill an examining role according to the law). The fact that I need do so is problematic.

                You do recognize that you have flat out contradicted yourself, right?

                No – I started off by saying I have a different view from many people here, and I have information that people here don’t have, so I asked what kind of information would be persuasive, and I still ask that now. The fact that I won’t directly convey the information doesn’t mean it isn’t discoverable. I think the misinformation of the article you linked is very helpful, for example, because it allows one to correct misconceptions about what the data put out by the office means. One may want to further consider why the data is expressed in that manner.

  8. 2

    “Application filing year” is ambiguous unless it is the earliest benefit-claimed application filing date of continuations, CIPs, divisionals, and RCEs, including claimed provisional and foriegn* priority filing dates.

    Since USPTO statistics all to often disguise such true filing dates to disguise true total application pendencies, it is particularly essential that independent studies do not.

    *[This latter especially after the major AIA change in their legal impact.]

    1. 2.1

      The application filing date is printed on the front of the publication, and it’s not ambiguous. Why would effective filing date (which is what you seem to be arguing for) a better barometer?

      Also, while I think the PTO keeps a system that has the effect of disguising the total pendancies, I honestly don’t think that’s the reason. You need to treat a RCE as a new case because otherwise it totally skews the amount of work done by an Examiner. If about a third of my time is spent on work relating to RCEs and that work was lumped in as just part of one “case”, then it would appear as if I’m doing less work than a new hire (who spends no time on RCEs because they have none) and that kind of skew would render all data by the office irrelevant. I don’t know why a claim to a provisional (which is stated it is not examined) nor a foreign case, nor a CIP would be a “true pendancy” that the office should answer for. Ditto for most continuations. Divisionals and RCEs I get you on.

      I can’t speak for other areas, but anecdotally my regular new docket is filled with filing date 5/2013 cases right now.

      1. 2.1.1

        You need to treat a RCE as a new case because otherwise it totally skews the amount of work done by an Examiner

        Unmitigated B$.

        You are aware of course that there can be no added matter and that a full examination has already occurred on any application for which an RCE is requested, right?

        Also, this type of pendency clarity is completely distinguished from any “examiner metric” that you kick up dust with. The data would not be attached (per se) to any particular examiner.

        Critical thinking instead of your animosity should be engaged.

        1. 2.1.1.1

          You are aware of course that there can be no added matter and that a full examination has already occurred on any application for which an RCE is requested, right?

          First, the fact that the rules say there can be no new matter doesn’t mean applicants don’t try. Do you think that issue just resolves itself without any work being done? And in fact, because I’m forced to practice compact prosecution, when someone adds new matter I have to search it. So I am not only making an argument against new matter, I am actually forced to do the work you claim doesn’t exist.

          Second, a full examination is done on the claims submitted. I assure you that unamended RCE claims require little to no time. That is an uncommon occurrence.

          Also, this type of pendency clarity is completely distinguished from any “examiner metric” that you kick up dust with. The data would not be attached (per se) to any particular examiner.

          The filing of a RCE is not under the control of the office. How should the office express the amount of work the examining corp is doing under this confounding variable? Because they used to not express it at all and I know for a fact that you, personally, responded by saying the office was misleading the public with a “shell game” because it was shifting pendancy into RCE backlog. So clearly it’s unacceptable to not report it. Explain right now how the office should report this work. Then call up the office and suggest it. You well know that I, as a lowly examiner, don’t really care what how the office expresses your pendancy. As a matter of fact I not only don’t care what your pendancy looks like, I don’t even really care what your pendancy actually is. Someone else has taken your pendancy considerations into account in making my rules for examining. And if you convince them they’re wrong and they change the rules, I’ll examine under the new rules. As you so often tell me, I should do my @&# job.

          1. 2.1.1.1.1

            Stay focused Random – read the criticisms of your post slowly to try to understand why those criticisms are not touched here by your comments.

            1. 2.1.1.1.1.1

              You don’t do rational criticisms anon. My posts are for people who might be confused into thinking like you if you’re not responded to. I gave up trying to convince you personally of things once it became clear you wouldn’t even follow the scoreboard of what the Supreme Court does. Still writing those abstract claims?

              1. 2.1.1.1.1.1.1

                All criticism from anon is rational.

                Some of it is rationally pointed at others’ irrationality – you do have to pay attention in such cases.

                1. You should probably be aware that there is more than one anon posting now.

                  I wonder if the Borg references will make a comeback…

              2. 2.1.1.1.1.1.2

                But I think my postings to this particular blog post have covered a wide range of concerns one might have if one were to read them dispassionately.

                Apply your own advice to yourself. You have jumped far too quickly to a defensive posture regarding the critical comments to your posts and you have not taken any of them in a dispassionate reading.

      2. 2.1.2

        You really don’t care how long a patent application was actually pending, as long as you can just give it an artificial “new” filing date?

        Amazing, and not surprisingly your customers find that attitude quite upsetting. It’s no more realistic or ethical than the resetting of V.A. hospitial admission waiting dates was.

      3. 2.1.3

        An RCE is NOT a new case. The “C” stands for “continued”. The graph is not for rating new vs. old Examiners, it is for rating overall office allowance rates. It says, what most experienced practitioners know, that allowance rates are around 60% , with that rate being lower for pro se applications and higher for attorney applications.

        1. 2.1.3.1

          An RCE is NOT a new case. The “C” stands for “continued”.

          You’d think this simple fact would have answered Paul’s original question 🙂 As Dennis says below, the actual filing date is used, which its clear that’s the only way the graph could have been constructed.

          1. 2.1.3.1.1

            Smile all you want while the point (the simple fact) is something those goes against your initial post.

          2. 2.1.3.1.2

            CLEARLY, your logic here falters as you yourself have shown several ways the graph could have been constructed.

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