Independent Patent Claims

As with dependent claims, the average number of independent claims per patent has also dropped significantly over the past decade. (From around 3.2 to 2.5 independent claims per patent).  As the histogram shows below, the decline comes primarily from a rise in the percentage of applications with three-or-fewer independent claims.


In particular, the chart shows a histogram of independent claim counts for two sets of patents — those issued in 2005 and those issued thus far in 2015.  This change is largely driven by PTO fees and the ongoing commodification of patent prosecution.

About half of the patents include a “method” or “process” claim. However, among what I term “computer related” patents, the percentage with method claim rises to over 80%. (Here, I defined ‘computer related’ patents ones that use any of the following terms in an independent patent claim: computer; processor; software; machine readable; information; memory; data; database; virtual; storage media.)




12 thoughts on “Independent Patent Claims

    1. 4.1

      I think he means the ongoing commoditization of patent prosecution. Commodification is something different.

      Does that help?

      1. 4.1.1

        Thanks Dan – The definition of these terms (Commodification and Commoditization) appears to still be somewhat in flux and depending upon the source are either partially or entirely overlapping. In any event, my prior aside regarding commodification is deserving of a larger blog post.


          Well yes, there is some overlap. But I think the overlap is with respect to the definition of either as the conversion of something that was or should be unsalable to something salable. That happened a long time ago with respect to patent prosecution. As far as I know, however, only commoditization has the meaning of the transition of something from a highly differentiated product to something generic, i.e., a commodity. I assumed that this latter meaning is what you were referring to. So I still think commoditization is the right word, unless you really want to discuss whether patent prosecution is the type of activity that shouldn’t be the subject of economic activity at all.

  1. 2

    I don’t think these data tell us much of anything about 2005 v. 2015. There are no indices of variation, for instance.

    There may be an interesting anomaly in the drop in 3 ICs at 2005, but it’s not likely significant. You’d need more years and a trend analysis to make anything of that.

    Move along. . .

  2. 1

    As with the other posts of this nature, this really is a non-event.

    Approximately 21% to 31% is readily explained as the (lazy) standardization practice of the fee-limiting three independent claims.

    Throw in the (same comments) on restriction practice (and the typical patentee response of not fighting those restrictions), and the resulting graph here becomes rather like “in other news, water is still wet.”

    1. 1.1

      Anon, I might suggest, but I do not know, but that the liberal use of restriction requirements to pair down the number of claims probably started under Dudas.

      1. 1.1.1

        Thanks Ned.

        Not quite here or there, given at least in part to your correct observation last time the topic came up that the “restriction game” can be played for the patentee’s benefit (and is probably one reason why the bar has not raised too much fuss).

        Shame on the bar for imbibing in the improper means to a “beneficial” ends.

    2. 1.2

      I hear you anon and largely agree. However, the way that I look at it is that there are actually a number of incentives increase/decrease the number of claims. In general, a patent with more claims probably cost more money to obtain (incentive for fewer claims) while a patent with more claim is probably more valuable (incentive fore more claims). What I find interesting is that the fewer-claims-per-patent is winning out.

      There are a number of explanations for this, one is that patentees interested in value have taken the alternate approach of obtaining more patents patents (each with fewer claims).

      1. 1.2.1

        It is “winning out” in part because of the commode-whatever effect.

        I was trained that the number of claims that was the right number was the number of claims it took to provide optimal protection.

        From that point (and only that point) you moved to the number of claims filed based on conversations with the client as to costs an risk/rewards.

        By and large we** have moved to an unthinking default of 3/20 and “make it fit.”

        **the Royal “we,” of course.

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