by Dennis Crouch
I find the chart below interesting. It reflects the reported number of non-provisional patent applications filed each month at the USPTO. (Here, an RCE does not count as a new filing, but a continuation, CIP, or divisional does). The data comes directly from the USPTO’s patent dashboard.
I note the high-point in the chart represents March 2013 – a time when applicants were looking to get their applications on-file prior to the AIA-deadline. The second high point is in March 2014 when the pre-AIA influx of provisionals were set to expire.
Quarterly Filings: What is most notable to me is the quarterly nature of the data. Year-after-year we see a high number application filings in the end-of-quarter months of March, June, September, and December and lower filing numbers in the other months. This pattern has held stead for every month of every quarter going back to the beginning of my data-set in 2009. Is this really being driven by internal corporate pushes to meet quarterly goals? Is it the corporate clients driving this or are law firms also pushing for this outcome?
UPDATE: Professor Jeremy Bock (Memphis) sent along his chart showing the phenomenon from a slightly different perspective.
This is ABSOLUTELY driven by in-house legal departments. I spent a few years in-house in the IP Legal dept of a Fortune 500 company, and we had quarterly filing goals. At the beginning of the quarter I would send out all the invention disclosures I was going to have filed and I instructed outside counsel they had to be filed by the last day of the quarter.
This isn’t possible. That would mean that there is some connection between patent applications and incentives to innovate. That isn’t true. We know that isn’t true because the SCOTUS said so.
It is almost impossible to have any respect for a justice after listening to the oral arguments in some of the patent cases and reading their opinions.
I listen to this arrogant ignorant man (link below) and no longer trust a thing he says. I wish we could have people more like in Europe or Germany where they can be liberal towards social issues, but understand science and care about business. They can spend some time to learn their place in the world.
Instead we have these low life justices that somehow believe whatever pops into their ignorant little heads is brilliant. We need different people on the SCOTUS. We need people like Breyer off the bench. He could pick up trash along the highways.
link to youtube.com
NW,
I completely concur in your view of Breyer. He makes me nauseous for reasons which go beyond his nonsensical opinion in Mayo.
We need people like Breyer off the bench. He could pick up trash along the highways.
Go Eric Guttag! You are a super serious person.
Are you going to start another impeachment drive?
Hey Malcolm,
Why should I be “super serious” when you never are? Also, where did you get the idea that I was going to “start another impeachment drive” when all I said that Breyer made me nauseous? Anyway, no point in us burning up any more “electronic ink,” so auf wiedersehen!
So to sum up your response MM: Google has instructed you to control all discussions regarding patents and any blog comment that is not anti-patent must be responded to. Here, you only had smoke so you blew some. It was really just a lame puff, but I guess when you write them for 8-12 hours a day you get worn out sometimes.
I’ll look forward to some more biting Google bucks responses after you have slept.
I always file at least one application on New Year’s Day, just to throw my enemies off guard.
How’s that working out for you, my dear sister?
Here’s my personal experience.
At the beginning of each quarter, the two main clients I worked with would have meetings with the partner managing the respective clients, and tell us how many new applications they were sending our way that quarter. Because they gave us the information at the beginning of the quarter, the earliest they realistically would be drafted and filed was by the middle of the quarter, but they all had to be filed by the end of the quarter. Which, to me, explains the filings chart in the article.
My understanding of why the clients did things this way was purely budgetary. They had an ongoing inflow of invention submissions by their R&D which were rated by a committee, then each quarter they looked at the budget and determined how many applications they could afford to file, then they took that number of the higher ranked invention submissions, and sent them off to counsel.
This process is going to be highly dependent on the company. Where I used to work, we had meetings with different people assigned to review patent submissions. We would review the submissions with them, possibly sending them to outside counsel, asking the inventors for more information, rejecting them (for many possible reasons), etc. There were goals for the IP organization, and year-end requirements, and those would be factored in too.
The clients I work with now that I’m no longer in-house have completely different systems, and goals and budgeting tend to factor into their decisions more than it did where I used to work.
I’d be curious to know what are the 10 or 20 dates of the year that see, on average, the lowest number of application filings.
Least Filings over past decade or so:
1 New Years Day
2 4th of July
3 Christmas
4 February 29th
5 January 2
6 Christmas Eve
7 Veterans Day (11/11)
8 December 26
9 July 5
10 November 27
11 July 3
Most Filings over Past Decade or So:
11 6-29
10 9-29
9 3-15
8 11-30
7 12-20
6 10-31
5 3-31
4 12-21
3 12-22
2 6-30
1 9-30
Strange to see Halloween near the top of the most-filed list.
Its the end of the quarter.
Edit : ok not end of qtr.
What businesses run on an end of quarter being the end of the tenth month of the year? That would mean a fiscal year start at Feb 1, May 1, Aug 1, or Nov 1.
I get that anything is possible in defining a fiscal year, but just don’t see the prominence suggested.
Anon,
In answer to your question: businesses that uses the National Retail Federation 4-5-4 Calendar. It’s fairly common among retailers. I wouldn’t expect it to have much influence on the timing of patent filings, though.
Link:
4-5-4 Calendar | NRF – National Retail Federation
Thanks Dobu, that was helpful.
(no snark)
For those of you not venturing to Dobu’s link, the calendar offers a method of dealing with leap year (in a rather cludgy way):
“Dividing the retail calendar into 52 weeks of seven days each, or 364 days, leaves an extra day each year to be accounted for. As a result, every five to six years a week is added to the fiscal calendar. This anomaly has most recently occurred in FY’00, FY’06 and FY’12, and will occur in FY’17. ”
Clearly, this cannot be the explanation for the single day filing rate for Halloween. Not a ghost of a chance at that.
😉
Brother-in-law inventions disclosed/interviewed over Thanksgiving.
?
You are saying that filings sp1ke on October 31 because of the information shared on the holiday of the third Thursday of November….
Everyone, please, just take a look at the data. There is no Halloween anomaly
Here’s a hint “oh no, the end of the year (12/31) is coming up, and I haven’t filed all the application I need this year for my client. I ***probably should make sure I file a certain number of applications by the end of every month to make sure I meet the end of year goal****’
That’s why last day of Sept., last day of Oct., last day of Nov., days right before Christmas, and last day of December are there…
Good thoughts, Logic. There is certainly an “end of the month” trend for filing and it makes some sense that the “urge” to get something filed before the end of the month would become stronger as the calendar year winds down.
I guess what I found interesting was that Halloween is a very widely observed holiday, like the holidays in the list of dates with the lowest filing rates. But, among widely celebrated holidays, Halloween is an odd duck among widely celebrated holidays because it’s not a government holiday. Valentines Day, M 0thers Day, and F-thers Day leap to mind as a similar sorts of widely celebrated holidays. None of them appear on either list presumably because they aren’t government holidays and because they all fall more or less mid-month.
Another factor might be that one works on new applications when one can. When one is bombarded with Final Office Actions, one must tend to those. Might new applications get filed in some sort of phased relationship to Office Action issuance?
Hmm. Seems like getting a filing date in a new application would be more important than beating the 90-day deadline for OA response.
Never underestimate the ability of a client to see things differently. Someone up the chain sends an email informing “NO MORE EXTENSIONS OF TIME EVER!!!” and suddenly filing that application a day or two later than it otherwise would be doesn’t seem quite so important anymore.
Of course, that was most likely pre-AIA, with the ability to “swear back” if need be.
Now….?
Not if clients object and regularly refuse to pay for any extension of time fees.
Maybe now. But under the INVENTOR gets the patent, the race was less important.
Also Dennis, its not just the 90 day deadline. If one waits till day 90 or after to file a response to a Final Office Action, the Advisory Action does not come until after, sometimes well after, day 120 and we are talking about a ridiculously high extension of time fee for filing a Notice of Appeal.
…and very little time to Prepare and get approval from the client for a Pre-Appeal Brief Request for Review….
That’s why you’re a law school professor now.
Perhaps more significant than quarterly budgets, is the fact that most corporate fiscal years coincide with the end of a calendar quarter. Thus, if a company’s fiscal year ends on March 31, June 30, or Sept. 30, there will often be a push to get applications filed before the end of the fiscal year–whether due to budget issues or to improve filing numbers for the fiscal year. Most companies operating on a fiscal year will use one of these calendar quarter end dates (unless there is some particular reason to use another date, such as retailers who often use Jan. 31 as their fiscal year end date in order to better capture holiday sales in a single year).
Filings increase at the end of quarters because many general counsel measure a patent attorney’s performance by the number of patent applications filed. This is a lousy and totally flawed metric because patent filings depend on R&D and business functions. The increases occur so patent attorneys can meet their performance goals.
You get what you measure.
Ye$
Another vote for in-house quarterly goals. While the rest of the law department is trying to get as many customer contracts signed, the IP group is trying to get patents on file to make quarterly goals for reporting purposes. I’ve been in two in-house positions where this has held true.
It’d be interesting if you broke this out based on small entity status. I suspect you’d see this pattern exacerbated for large entities and minimized for small ones.
Some corporate budgets are allocated quarterly and money not spent is pulled back. As a result, there is pressure to get applications filed “by the end of the quarter.” Now, its not clear to me that all corporate quarters line up with calendar quarters, but maybe enough do to explain your cycle.
Seconding in-house patent group metrics and law firm bonus structures. Some companies also provide inventor bonuses when the application is filed on a quarterly basis.
December is also a bit higher because of trying to make end of year goals and to use up any extra budget in the patent group.
Fascinating to me that this is enough to drive the numbers to this degree – and that it continues to happen every quarter.
You should do another analysis, looking to see when Office Actions or allowances are issued. You’ll see these also track quarterly goals and particularly year-end goals. December and January tend to be tough months for those in patent prosecution, as the Examiners have a deadline of the end of September. Last year, we were buried with work in December and January.
Dennis, it would be similarly interesting to evaluate the timing of office actions – particularly as they correlate with the USPTO’s bi-weeks. I’m guessing that there is a surge of office actions in the last week of the period – and an even greater surge if you look at the last couple of days in each period.
Yes there are those surges
David,
Do you know where one can find or how to compute a bi-week calendar?
Do you want to know when the Examiner’s biweeks are? You can just ask an examiner during your next interview, or, FYI, the fiscal year is ending so September is one long biweek for the Examiners ending Sept. 30. THen there is another “super” biweek Oct 1 through Oct 17. Then regular biweeks from there through Sept. 2016, starting Oct 18, Sundays through the second Saturday.
anony,
Thanks. The super-weeks explain how the bi-weeks sync up on a an actual week. Knowing in advance saves initiating a new conversation on the last day of a bi-week and may explain some lack of responses. One would think the PTO would post a calendar of bi-weeks. Are they afraid external entities would somehow game the system.
The next two weeks are the worst time of year to contact examiners, unless you want to file an express abandonment, or incorporate allowed dependent claims into independent claims.
Also, expect a number of poorly prepared examiners to call for an assortment of examiner’s amendments, all requiring very short turn-around time. By Oct 1, that “allowable’ feature might not be so allowable any more.
Already happening!
Actually, September isn’t all one giant biweek. There is a short biweek at the end of the FY this year, ending September 30. Then there’s a long biweek starting October 1 and ending a little more than two weeks later.
Its all that plus human procrastination. The same reason so many amendments only get filed just before or on their due dates.
There are many examiners who will tell you that as the amendment clock ticks towards the ceiling, applications look more and more allowable. Same concept. As the due date approaches, mediocre work is suddenly acceptable, if not outright required.
The filing blips are related to business cycles. Companies have quarterly meetings. The in-house counsel will either be giving a presentation to “the company” or he/she will be assembling “current state of IP” data for someone else to present or, if there is outside counsel, he/she may ask outside counsel to present the data. Preferably the data shows some “progress” on the IP front, for the bean counters and/or for the scientists/engineers who have invested time working on patent specifications/claims/etc.
I’m guessing that many companies evaluate some internal metrics on a quarterly basis, and there’s a push by the IP group to bolster their numbers for reporting. Seems like a pretty straightforward feature of metrics-driven management.
Bonus plans at law firms are at least partly responsible. A typical compensation plan will pay out bonuses/incentives quarterly, based on billings through the most recent calendar quarter. This results in a rush to get applications filed in the last few weeks of the quarter, so that the matters can be billed.
I must work at firms that are too small for this. I’ve only ever been at firms that paid bonuses once per year, around mid-December.
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