Patent Pendency Redux


by Dennis Crouch

Readers asked for a bit more detail on the patent pendency chart that I posted a few days ago.  The first chart below again shows median patent prosecution pendency for utility patents grouped according to issue-year. The chart now includes ‘whiskers’ that show the 25%-75% interquartile range.  The second chart shows a more detailed prosecution pendency histogram for all patents issued January-May 2015. The lightly colored bars again represent the median and interquartile range.  You’ll note that the pendency histogram is skewed with a long tail.  For the chart, I cut-off the display at 10-years even though there are some (a small handful of) patents issued that took more than 10 years to issue.  This type of skew typically results in (1) the average pendency being greater than the median and (2) the mode pendency being less than the median. Both of these are true here.



With the amount of data here (over 100,000 patents), I would have expected the histogram to be much smoother.  My guess is that much of the jumpiness is due to artifacts caused by my monthly grouping and the PTO’s release of patents on a weekly basis.

16 thoughts on “Patent Pendency Redux

  1. 6

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  2. 5

    More OT news: On remand from the Supreme Court, the CAFC in Teva v. Sandoz has rejected Teva’s claims as indefinite.

    This is certainly the correct result and congrats to the defendants here. The CAFC relied on Nautilis and simply pointed out the plain facts: the term at issue (“molecular weight”) was given contradictory meanings by the applicant/patentee and therefore the claim was indefinite. At the end of the day, Nautilis had a far greater impact on this case than the Supreme Court’s decision in Teva

    To the extent that Teva argues that the meaning of “molecular weight” in the context of patents-in-suit is itself a question of fact, it is wrong. See Teva, 135 S. Ct.
    at 841–42. A party cannot transform into a factual matter the internal coherence and context assessment of the patent simply by having an expert offer an opinion on it. ….

    Determining the significance of disclosures in the specification or prosecution history is also part of the legal analysis. Understandings that lie outside the patent documents about the meaning of terms to one of skill in the art or the science or state of the knowledge of one of skill in the art are factual issues. ….

    During prosecution of the related ’847 and ’539 patents, which with respect to molecular weight have identical specifications, examiners twice rejected the term “molecular weight” as indefinite for failing to disclose which measure of molecular
    weight to use (Mp, Mn, or Mw). And the patentee in one instance stated that it was Mw and in the other stated it was Mp. We find no clear error in the district court’s
    fact finding that one of the statements contained a scientifically erroneous claim. We hold that claim 1 is invalid for indefiniteness by clear and convincing evidence because read in light of the specification and the prosecution history, the patentee has failed to inform with reasonable certainty those skilled in the art about the scope of the invention.

    Also noteworthy is footnote 5:

    we have said before, and reaffirm today, that past and future prosecution of related patents may be relevant to the construction of a given claim term.

    This is also an astute and wise observation. Claims that may have been “definite” at issuance can later become indefinite when an applicant or patentee makes statements about claim terms that introduce contradictions and indefiniteness into the meaning of the claim.

    1. 5.1

      re footnote 5-Taking a patentee’s statements made during past prosecution which may have led to the patent getting issued, are publicly available and holding them to it seems reasonable. Using past statements in related patents makes sense as well if the language is the same.

      But when you switch to ‘future prosecution’, your now arguing for ‘definite’ language to change based on what happens with related applications after the patent issues. There doesn’t seem to be any justification for this.

      If you are infringing on day 1 after the patent is issued, why should you not be infringing on day 2 based on a statement made during prosecution of a different patent, no matter how related? What if ownership has changed? Maybe only between related companies and with the same patent agent?

      Should the validity of a patent claim change in the middle of a suit based on a statement made or not made during prosecution of a related application? About trial but before judgement is pronounced? After judgment on a motion to overturn an injunction? There should be a point of finality, and the issuance of the patent seems to be a fairly logical one. It either has a meaning that day or it does not. It either was novel and non obvious over the prior art or it was not.

      1. 5.1.1

        James: But when you switch to ‘future prosecution’, your now arguing for ‘definite’ language to change based on what happens with related applications after the patent issues. There doesn’t seem to be any justification for this.

        Prosecution histories of related patents are necessarily informative as to the meaning of terms shared between those patents. The public can reasonably asssume that applicants and patent owners are not using shared terms in different ways and, therefore, more information is better. There are no good reasons for allowing applicants or patent owners to engage in internatlly-contradictorty have-it-both-ways behavior.

        This is why Nautilis was a very important case and will remain an important case.

        What if ownership has changed?

        Great question. Here’s the reasonable solution that benefits the most people and puts the burden on those most prepared to address the problem: upon acquiring a patent that it wishes to assert, a patent owner must disclaim any and all patents it owns using arguments that contradict other patents in its portfolio or risk having those patents be invalidated.

        Of course that rule will cause much hand-wringing by mass acquirers of patents (you know, those “patent monetizers” who love themselves so much). Why should the public be concerned about putting that burden on such entities? The answer is that the public should not be concerned at all. The concern over gamemanship, the proliferation of invalid patents, and the wielding of patents obtained through the use of contradictory arguments and facts is the far greater concern.

        Should the validity of a patent claim change in the middle of a suit based on a statement made or not made during prosecution of a related application?

        It depends on the statement but in certain situations: of course! Why the heck not?

        There should be a point of finality, and the issuance of the patent seems to be a fairly logical one.

        That’s ridiculous. The good news is that only a tiny fraction of patent owners would ever agree with you. And that’s a truly small number of people relative to the rest of the population.


          Seems to be a rather complicated approach which leads to potential problems, as opposed to a simple rule of ‘look at prosecution history, but not anything post issuance.

          If you are looking at something post issuance it shouldn’t be defining the meaning of the term, as it doesn’t at all impact what the examiner thought of the meaning of the term when the patent was granted.

          If your concerned about the equities of a party arguing two different meanings fair enough. The second patent application should be nuked because of the inconsistencies. As well, if it was made by the same party, the statement could be used as an estoppel against enforcing a contradictory claim interpretation. But it shouldn’t change whether the term itself has a meaning.

          Otherwise you get situations where there is uncertainty as to the meaning of the term so long as a related patent application is pending, and you have potential for situations like:

          Patent applicant says the claim term means X. Examiner says okay you get a patent.
          Patent licensed.
          Patent portfolio gets sold to new party.
          Patent infringed.
          Licensee brings suit, gets to trial, is winning.
          Submission made during prosecution of a related party saying term means not X.
          Licensee’s suit collapses?

  3. 4

    Off the topic of pendency but Walker v. Sons of Confederate Lizardbrains came out today which may have some impact on the final decision in the “slants” trademark case and similar “disparaging” marks cases. Link to opinion at top of page here: link to

    Some quotes of interest from Breyer’s majority opinion (lengthy dissent by Alito, Thomas and Kennedy):

    in order “to ascertain whether [a government] intended to designate a place not traditionally open to assembly and debate as a public forum,” this Court “has looked to the policy and practice of the government” and to “the nature of the property and its compatibility with expressive activity.” Ibid….

    Texas’s policies and the nature of its license plates indicate that the State did not intend its specialty license plates to serve as either a designated public forum or alimited public forum. First, the State exercises final authority over each specialty license plate design…. Second, Texas takes ownership of each specialty plate design, making it particularly untenable that the State intended specialty plates to serve as a forum for public discourse. Finally, Texas license plates have traditionally been used for government speech, are primarily used as a form of government ID, and bear the State’s name….

    The fact that private parties take part in the design and propagation of a message does not extinguish the governmental nature of the message or transform the government’s role into that of a mere forum-provider.

    1. 4.1

      From the commentary found at Malcolm’s link:

      As a combined result of two new rulings, government both gained added power to speak for itself but faced the loss of some of its power to control what others may say in public displays. And the meaning of the First Amendment, in general, became somewhat more confusing.

      Yay SCOTUS

  4. 2

    The tail (after 4 years) looks smooth, in my opinion.

    On the other hand, the data before 4 years have pre-AIA and AIA applications. Could it have any influence on the lack of smoothness?

  5. 1

    I have to wonder if the “cherry-picking” effect would wipe out the (illusory) improvement in processing time.

    One should not attempt to ignore the changes in both process protocol and volumes for the other decks of the Titanic when one is counting deck chairs.

      1. 1.1.1

        Some of your caveats as to processing time will tend to even out the picture, and remove the impression that “real time” is getting better.

        When you look at the total picture, you will realize that what you see here has more than just a little bit of “moving the deck chairs on the Titanic” aspect to it. For example, one of the changes by Kappos was to reconfigure the “reward” for first time action and reduce the award for RCE processing, with the as yet to be discussed impacts of placing items in Much longer RCE queues. Add in as well the “deck chair” of exploding Appeals queues, and the take-away of the entire picture is a bit less “rosy.”


          Agreed, Kappos didn’t do anything except make pendency longer. But because the PTO treated RCEs as new cases, their stats could make Kappos look good when in fact he was just re-arranging the deck chairs as you said.



            It is less an indictment against Kappos as a realization that the genesis of the issue pre-dates Kappos and must be “credited” with the just say no Reject-Reject-Reject era.

            Kappos still needs to be given credit for stopping the ridiculousness of the Office thinking that it could simply “reject” itself out of doing its (admittedly difficult) job of examining on the merits.

            And you might want to contemplate that having this full-scale picture works against your diatribe against Kappos as someone simply rubber stamping Accept-Accept-Accept – NOT a good thing either – but just not supported by the full picture.


              I am not sure what Kappos’s intent was but to get more patents issued faster. I think part of his plan was to make RCEs less attractive to examiners so that they would tend to allow cases rather than force the RCE.

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