USPTO’s Swelling Examiner Rolls


Count of USPTO Employees by Fiscal Year

In FY2014, the USPTO swelled to over 12,000 employees.  This represents a 50% increase in less than a decade.  As the chart above indicates, the bulk of the increase (and indeed, the bulk of employees overall) is in patent examiners.  Today, the number of patent examiners is approaching 9,000 and Director Lee expects to continue to hire more examiners through the next year.

The idea here is to take control of the 1.1 million application backlog to ensure that patents are either issued or rejected early in the process.  A major question is what will the USPTO do with the excess employees once the backlog comes down.

56 thoughts on “USPTO’s Swelling Examiner Rolls

  1. 11

    ” A major question is what will the USPTO do with the excess employees once the backlog comes down.”

    Why wait?

    I would hope that the PTO would train it’s entire examining corps in Integration Analysis, as incorporated and detailed in commissioner Hirshbergs memos on official USPTO guidance for determining 101 statutory subject matter.

    It’s imperative right now that these examiners understand that the Supreme Court of the United States, in Prometheus v. Mayo, reconciled it’s precedents with the Diehr doctrine that claims are to be considered as an “Integrated Whole” in the concluding analysis.

    It’s especially crucial that new examiners understand you DO NOT merely identify an application as a method beneficial to conducting business and/or involving computers, then wave your hand and magically conclude the claims are directed to an abstract idea. And that even if it is evident the claims involve an abstract idea, you MUST proceed to step two of the Alice two step test, and determine if the abstract idea is “integrated” to the point the idea itself is no longer preempted.

    After all this is the type of professional and thorough examination and analysis all applicants pay for and deserve to receive. If applied fairly and competently across the spectrum of arts, such an integrity based patent system will not only reduce the backlog but raise the quality of all patents and become a great benefit to the national economic interest.

    1. 11.1

      this is the type of professional

      You’re lecturing people on what “professionals” should do?

      That’s funny.

      You were wrong about Bilski. You were wrong about Mayo. You were wrong about Alice. You were were wrong about ABL. You were wrong about Ultramercial.

      And now you’re lecturing people on what “professionals” should do?

      Give us a break and keep your vapid, self-serving nonsense over at IP Watchdog where it belongs.

      1. 11.1.1

        This is the type of comment that makes me wonder why I read the comments. It’s pure vitriol with no substance.


          While MM may have been a little sharp, I think he makes a fair point.

          That is, 101 keeps emphasizing the need for integration analysis (?), but has never explained what that analysis requires. I’ve asked him several times. The closest thing to an answer I’ve gotten is that the claims must be enabled?


            Little sharp?

            Um, no, that would be excessively dull – what part of “pure vitriol with NO substance” did you not understand?

            Your cheerleading is wearing thin, go.


              Anon, it is apparent that Go Author, like MM, is not interested in any substantive and Intellectually honest discussion, especially of Integration Analysis.


            Actually I have answered all your questions about Integration Analysis, quite in depth. Go ahead and search the blog and you will see it’s all there.


            Go Author, What questions have you asked about Integration Analysis, that have not been answered? Ask now and I will gladly answer.

            Thank You


              Actually I have answered all your questions about Integration Analysis, quite in depth.

              Please show everyone an example of a recently granted but ineligible claim whose validity/ineligibility has not already been challenged. And explain to everyone why that claim is ineligible according to your understanding of “integration analysis.”


              Of course, if you believe that there are no such claims you may simply say state your belief and we may take that statement for what it’s worth.


                Your post is illogical.
                May I suggest you post a claim from an actual patent or pending application, and tell me if the concept of the claim ( or other Court created exception) is “Integrated” to the point the concept itself is not preempted.

                That would set the stage for an intellectually honest discussion.of Integration Analysis.

                1. Malcolm once again invites someone else to jump into a briar patch…

                  Gee, what a surprise that he cannot make a case directly himself.

                2. As I explained, I don’t really understand what ‘integrated’ means. But here is a recently issued patent that seems on its face a little junky: 8903921

                  Independent Claim 1:

                  1. A computer implemented method for analyzing on-line behavior patterns within an Internet forum in which a plurality of users using respective computers post respective on-line messages to a host computer such that all participants can view the on-line messages posted to the host computer, the method comprising: the host computer executing a data capture module identifying or generating data associated with an on-line message, the on-line message being created by a participant of the Internet forum and posted to the host computer; the host computer executing an on-line behavior module to parse the data to generate parsed data and analyze the parsed data based at least in part upon a lexicon or a syntax associated with the data relative to at least some pre-determined on-line behavior criteria; the host computer designating the on-line message as a helpful message of interest positively contributing to the Internet forum to address an issue related to a product or service of developers of the host computer and discussed on the Internet forum based at least in part upon a result of analyzing the parsed data; the host computer generating one or more recommended actions in response to the helpful message of interest with an analysis module executing on the host computer based at least in part upon execution results of the on-line behavior module; the host computer reporting a result generated by the behavior module or the analysis module to a human moderator of the Internet forum for the human moderator to determine a final action from the one or more recommended actions to award the participant of the on-line message; and the host computer delivering a public announcement or message to the Internet forum for the final action that awards the participant of the on-line message to encourage the participant for positive contribution to the Internet forum.

                  Is this claim integrated?

                3. Go Author, As I have explained to you before The Supreme Court in Diehr instructed, “Unless otherwise defined, “words will be interpreted as taking their ordinary, contemporary, common meaning,” Perrin v. United States, 444 U.S. 37, 42(1979), …
                  .S. 175, 182] 

                  Now within that legal framework, the ordinary, contemporary definition and use of the term “Integrated”, from is as follows:




                  1. combining or coordinating separate elements so as to provide a harmonious, interrelated whole.

                  2. organized or structured so that constituent units function cooperatively.

                  Now, Go Author, which part of that definition do you not understand?


                I don’t understand how that analysis relates to controversial claims under 101.

                Based on your definition, it would appear that the claims in Alice, Bilski, Mayo and others were all integrated, yet we know those claims are all invalid under 101.

                1. Go Author,

                  Your mistake is presuming that identifying a claim as “Integrated”, means the claim is eligible subject matter and the analysis is over. However this is not the case and the analysis is far from complete.
                  For example, E=MC2 and the Arrhenious equation, reduced to a series of steps are perfectly “Integrated” processes but nonetheless Court created exceptions and therefore invalid under 101.

                  However “Integrate” either exception into a process, manufacture, composition of matter or machine, to the point the exception is not preempted, and the claims as a whole are valid under 101.

                  This is the law and no court can deny it. But apparently they can ignore it, just ask Lourie. Understand now Author?

      2. 11.1.2

        “You’re o people o “prn what “professionals” should do?”

        I hire patent professionals and gladly pay them well. And as the one that writes and signs the checks, I fully expect my examiners and attorneys to understand and be able to apply the Supreme Court’s Integration Analysis.

        Of course I would never hire a self proclaimed patent attorney that has nothing to do but but troll the nation’s leading patent blog 24/7.

  2. 10

    Is there any data on the age of examiners? E.g. #of examiners between 20-30, 30-40, 40-50, etc.?
    I suspect some of the core must be getting up there in age and must be considering early retirement or phased retirement

    1. 9.1

      The propaganda machine in full roar attempting to take all of the credit for such “Tr011” controls…

      Get your hip-waders on.

  3. 8

    Dennis: In FY2014, the USPTO swelled to over 12,000 employees. This represents a 50% increase in less than a decade.

    Correct me if I’m wrong but that “swelling” wasn’t keeping up with the number of applications filed over the same time period. Just so there’s no mistake about the direct cause of the “swelling.”

    Today, the number of patent examiners is approaching 9,000 and Director Lee expects to continue to hire more examiners through the next year.

    Given the relentless stories we’ve been told over the years about the horrors and “embarassment” of “the backlog”, a plan for additional hiring doesn’t seem unreasonable.

    On the other hand, the PTO does have some unambiguous legal tools in its hands now to flush vast amounts of junk down the drain. The PTO should start using those tools zealously. Last time I checked, the PTO is required to use them.

    Does anyone know if the PTO is still “confused” about the ineligibility of claims which protect 3D printer data?

    1. 8.1

      The second paragraph in my comment shouldn’t be italicized (my comment, not DC’s). Apologies for the formatting error.

    2. 8.2

      Does anyone know if the PTO is still “confused” about the ineligibility of claims which protect 3D printer data?

      I’m not familiar with this specific issue – have any more info?

      1. 8.2.1

        ’m not familiar with this specific issue – have any more info?

        The issue is that certain low-level “innovators” have already tried to patent old or obvious structures and methods by tying those structures and methods to the “hot” (but also unfortunately and critically: old) generic process of 3-D printing.

        Likewise, as has been discussed here in the past, the PTO has improperly granted claims protecting so-called “data structures” and other ineligible information “encoded” or otherwise stored on “computer-readable media”, in addition to claims protecting methods of creating such information that are distinguishable from the prior art methods only on the basis of the ineligible information.

        Given that the PTO, to my knowledge, hasn’t done its job and informed its “customers” in clear terms that such claims are either ineligible or invalid, the reasonable presumption is that the PTO is “confused” and later tonight it will grant a bunch of ineligible or invalid claims directed to the type of subject matter I described above.


          I’m generally aware of the 101 problems about computer-implemented inventions, but I guess I was wondering if you knew of, for instance, any particular patents about 3D printing that you think aren’t eligible under 101.


            (all of them – per Malcolm’s ‘thinking’ – but ask him for an actual on target, specific case cite, preferably one that does not dabble in the magic of the unlimited “Gist/Abstract” swordplay)


              ask him for an actual on target, specific case cite

              You’ve been floating this same baloney “argument” since pretty much forever, “anon”. Meanwhile, your house of cards keeps tumbling down exactly how I (and others) explained to you and your fellow mindless “claims as a whole!” mumblers.

              Where’s my “cite” to support the assertion that claims to information on old media are ineligible? That’s pretty funny. It was funny back in 2008 when the zombies first showed up in force to smear their weak sauce all over the Internets. In 2014 it’s just as funny, although the side helping of abject helplessness and willful blindness is starting to look a bit sadder with each passing day.

              Here’s what’s especially funny: although “anon” likes to pretend he’s a lawyer, he somehow missed the part where basic logic, reason and case law combine to establish controlling law that isn’t limited to the specific technology referred to in the cases. Go figure.

              all of them – per Malcolm’s ‘thinking’

              Really? Tell everyone exactly what you’re referring to, “anon.” We all know that you believe you can read minds. Try proving it for a change.

              Go ahead. Make everybody laugh. Again.


                There you go again with your misrepresentations Malcolm.

                Reading minds…?

                Where did you invent that?

    3. 8.3

      MM said, “. The PTO should start using those tools zealously. Last time I checked, the PTO is required to use them.”

      You mean the tools of Integration Analysis right? Because the last time you checked and posted the link to the USPTO official guidance, that’s exactly what the examiners were “required” to do.

      1. 8.3.1

        LOL – I remember Malcolm bragging so much as he was the first one to present the link to the USPTO integration analysis – that left out his own little pet theory rendition of the case.

        Good times.

        (do you think that Malcolm has yet learne his lesson to read – no matter how quickly – and understand before posting a link and bragging?

  4. 7

    I can tell you that the backlog has been cleared in many areas already thanks to the hiring binges and pushing examiners into the program. Spes are struggling to find work for examiners and upper management is sitting around doing nothing about it. The cpc actually offers a good opportunity to realign numbers to match the queues but management has no plan to actually use cpc. They didnt go into government to actually make decisions.

  5. 6

    Perhaps they’ll start detailing primaries to the PTAB. I hear they still have a very impressive backlog of appeals.

    Or (thinking wistfully & wishfully) they’ll give each application more time for examination in exchange for some more onerous peer review. For example, each final action and each allowance could be signed by two non-supervisory primary examiners (or, for junior examiners, one non-supervisory primary signature in addition to the SPE signature). That would slow the backlog decrease, at least not reduce quality, and give every primary examiner a bit more work to do. Worth a try?

    1. 6.1

      Perhaps they’ll start detailing primaries to the PTAB.

      There have long been details for examiners at the Board. They don’t let the examiners just run amok though – the APJs are still the ones doing the deciding. In the end it’s more of a training opportunity for the detailed examiners than it is an efficiency increase for the Board.

      Also worth considering that part of the APJs’ performance rating includes “leadership” which can be partly satisfied by mentoring a detailee.

  6. 5

    “A major question is what will the USPTO do with the excess employees once the backlog comes down.”

    Perhaps Examiners will be given more time to examine applications thoroughly. That will require more Examiners to examine the same number of applications, but this will improve the overall quality. Also, management might institute a pay per production unit with a cap on salary commensurate with current pay and with supervisory review of quality. That will get top management out of the current mess with trying to control hours “worked” by remote or hoteling Examiners. Face reality. It does not help anyone if Examiners sit at their desks doing who knows what, whether they are remote or physically present. The only thing that matters is the number of production units and the quality of those units. The PTO came up with a good system many decades ago. Tweak it now to fit the modern world of remote work.
    Mr. Petitions

    1. 5.1

      Also, management might institute a pay per production unit with a cap on salary commensurate with current pay and with supervisory review of quality.

      I don’t follow what you’re proposing here – can you get into some specifics of it? Are you suggesting that SPEs be paid based on the number of counts their examiners produce?

      1. 5.1.1

        No, what I am proposing is that Examiners be paid $X per production unit (e.g. first action on the merits, allowance, or abandonment of an application), rather than $Y per hour worked. This would remove need by upper management to monitor number of hours worked by Examiners. Maximum salary would be determined based on congressional imposed maximum salary.



          You need more to your system to avoid abuses like cherry-picking, Office stall on difficult cases, and you actually have an odd feature of dissuading maximum efficiency.

  7. 4

    There is a tremendous amount of inertia built into the system, with many practitioners continuing to practice as they always have and filing applications on on the kind of things that clearly should not make it to first base under an Alice analysis. They do so because they are paid to do so. The people feeding them this work at the corporate level may be complicit because they may have been hired to help oversee the filing of such cases. How many of the patent lawyers hired by banks in the last ten years to file patent applications on methods of making money are turning to their GC and saying “Look, we were wrong, and there is no point in continuing to file on this stuff”? Not many. So it may take two or three years for the message to really sink in. But once it does, the PTO may be in for the greatest blood-letting in its history. Because unlike years past when it found itself with more examiners than needed, this time around they have a very low attrition rate, so they can’t reduce their numbers much merely by not replacing people as they quit or retire (and as a group, the examiners are pretty young). There will be RIFs.

    1. 4.1

      the pto isnt exactly pushing the point either. show me an examiner who holds the line on 101 and ill show you 10 who dont care. the post alice instructions? total garbage. but the pto knew that when they wrote it.

      gotta keep those allowances coming. invalid? whatever. thats up to the courts to decide. to the pto its a disposal and one that it gets paid quite well for at that. also, it keeps its real customers, the law firms, happy.

      what else is a poor little captured agency to do?

    2. 4.2

      ““Look, we were wrong, and there is no point in continuing to file on this stuff?”

      That would be the mind set and advice of an incompetent Patent Attorney.

      A true professional would understand that methods beneficial to conducting business, especially processes that help a business profit are not an exception to statutory subject matter. Furthermore a truly astute attorney would proceed to prepare such applications with an “Integration” framework, making sure the fundamental economic concept the invention is applying is “Integrated” in the claims to the point the concept itself is not preempted.

  8. 3

    The story is actually more significant than Dennis’s post indicates. Hiring numbers are way down for FY 2015, and some art areas are starting to work on the first action backlog for other areas because they’ve cleared their own backlog. Not just business methods, either.

    1. 3.1

      Yes, I have seen this first hand.

      Its not just the total number of examiners, its the production requirement of them as well. Partially because attrition has been low, historically speaking, a large swath of those examiners are primaries.

      But attrition isn’t the whole story. The office was/is on a huge primary push. Even borderline examiners are shoved through program to become primaries. Lots of reasons for this…

      So you have a historically large examining force and a large and ever increasing percentage of those having to produce at high levels as primaries.

      1. 3.1.1

        I suspect that the pressure to mint more primaries isn’t so much from the top. There’s just as much pressure on SPEs to ensure that art units with dozens of still-green recruits have enough primaries available to review their work.

        As for attrition, this is probably going to be a big problem. With the economy doing so poorly, many examiners hired within the past decade have stayed at the PTO for long enough that they’re worthless (at least on paper) as engineers in industry now. Their only option now is to go to law school and become a patent attorney. The PTO’s reinstitution of the law school tuition reimbursement may be an acknowledgement of the fact that we’re going to need some examiners to follow that path, but it likely won’t make a big enough dent to solve the problem.

  9. 2

    “A major question is what will the USPTO do with the excess employees once the backlog comes down.”

    Presuming it does.

    1. 2.1

      Truth. The change in law is irrelevant so long as the practioners fail to adapt to it. The same swell of applications will occur and they will still be argued over, the focus of the argument will just be different. Wake me when applications begin to drop as the court is telling them they should.

      1. 2.1.1

        Exactly. Once that genie is out of the bottle it’ll take herculean effort to put it back in. And frankly I doubt those on the CAFC that need to do the heavy lifting are all that in shape or all that excited to do heavy lifting. To be sure, not every 101 analysis is easy.


          To be sure, not every 101 analysis is easy.

          It should be. The Supreme Court said that 101 is a “threshold issue,” and it’s clearly an issue that is to be decided without extrinsic evidence. If it’s not readily apparent that the claim is directed to an abstract idea, without any meaningful additions to that abstract idea, then the claim should pass 101 and we should move on. I understand that this is the topic du jour, but the fact that the Supreme Court has (properly) given you a new hammer doesn’t mean that every claim is a nail.


            “It should be.”

            Well of course it “should be”, but lawlyers attempt to hide dat ball and make it not so. They lump this in under the “art of the draftsman” and pretend like it is a “valued skill” when all it really is happens to be scoffin at the law and tomtrickery for the authorities.

            If sanctions were imposed for this behavior then perhaps we’d put a dent into the problem. But failing that I doubt we’ll see much improvement.

            “I understand that this is the topic du jour, but the fact that the Supreme Court has (properly) given you a new hammer doesn’t mean that every claim is a nail.”

            Oh I totally agree, I’ll hardly ever get the opportunity to use that hammer myself.



              Still living in that fantasy world of yours, eh 6? Still not understanding what you are commenting upon, and attempting to spin that subject to only its negative ends….


          To be sure, not every 101 analysis is easy.

          Right. But a lot of them are incredibly easy and should never be missed (and should never have been missed in the first place).

  10. 1

    even with Alice, the number of applications filed will not decrease IMO. And hiring new examiners can slow except for needed specialities and exceptional candidates. And there will be many retiring — for example, many of the new board members are in their late 50’s and 60’s, from what I hear.

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