For the chart below, I collected a randomized sample of outcomes from 30,000 utility patent applications published 2001-2016. For each application, I identified the ‘disposal date’ – with the disposal date being either (1) the date that the resulting patent issued or (2) the date that the patent application was deemed abandoned. Still pending applications (even those subject to an RCE) were not given a disposal date.
For the chart below, I grouped disposals by quarter and then calculated the percent issued as patents compared with the percent abandoned. You’ll note the drop in allowance rate in 2008-2009 under Jon Dudas with the rapid rise in allowance rate once David Kappos took-over as director. Although less dramatic, allowance rate continued to rise under Michelle Lee. Of course, the allowance rate depends upon both the USPTO approach to prosecution as well as that of the applicant.
There are many different ways to calculate USPTO “allowance rate” and this is only one. The PTO typically considers the filing of an RCE to be a disposal. That approach makes the allowance rate appear substantially lower. Others look at an entire patent family — making the allowance rate appear substantially higher.
I’d be interested to see a chart that focuses on TC 3600.
It would be interesting to “replay” the rather infamous Office “Reject is Quality” allowance dive graph at the height of the Reject Reject Reject are through various filters including art unit by art unit.
IIRC, something like that was done once before, and noticeably the Reject Reject Reject mantra was shown to affect ALL art units (and quite opposite the propaganda that it is merely “software patents” to blame).
“Although I knew the road from McRo to the return of reason and common sense by the CAFC would be short, I never expected it to be quite this short.”
There. Fixed.
LOL
Client calls and says “What do you think the odds are of the Supreme Court upholding McRo’s ‘no pre-emption because limited rules and therefore eligible’ test for “new” computer program claims?
What do you tell them? Remember: you’re s00per smart and even though you found Alice incomprehensible (because abstract could mean anything! <-LOL) it's clear as crystal that "enhancing" an "accounting record" by "correlating" it with some information must also be eligible.
So what do you tell them? Remember, you still have some down payments to make on your yacht.
Client calls you (yes, this is a hypothetical), and asks you if you can patent software, as software is a manufacture and a machine component.
What do you tell him?
(This is also a rhetorical hypothetical, as you are on record as feeling that software per se is not eligible).
What do you tell him
I tell him there’s a surplus of desperate hacks out there who will file anything for him because they’ve convinced themselves that algorithms are structures.
Also, instructions aren’t manufactures, nor is information. But like I said: there are desperate people out there happy to take your money and tell you otherwise. That vacation home isn’t going to buy itself!
You missed reading the part about my post being a rhetorical hypothetical – pay attention son.
…looks like you need a reminder (just a reminder mind you, as you have volunteered the admission against your interests of knowing the controlling law concerning the exceptions to the judicial doctrine of printed matter) that software has that aspect of being functionally related that merits the designation of manufacture as the word “manufacture” is understood in the patent sense.
Let’s have you be inte11ectually honest about this point, eh Malcolm?
software has that aspect of being functionally related
All instructions are “functionally related” to the instruction follower. Absurd “activist” maneuvers by a coddling court that habitually blows the big ones exist to be ign0red and/or entombed in the graveyard of history.
As if your reliance on “functionally related” isn’t hypocritical enough, we’ll note that you and your cohorts can’t even be bothered to recite with any particularity the actual writings that would impart functionality to any machine in either your claims or your spec. You just feel entitled to punch your way through to “functionally related” by reciting (try to believe it) the function.
It’s a farce, “anon.” We all know it. And we all know why it continues: patent attorneys gotta eat steak and drive fancy cars. That’s it.
Your dissembling attempt here at “all… functionally related” was betrayed by your admission against interests.
Try a little inte11ectual honesty on this point of law.
(Try it)
your admission against interests.
LOL
Okay, Jackie Chiles.
Make all the jokes you want – but it was your own volunteered admission that now sets the stage for your L I E S here to be exposed.
Let’s take a quick look at some of your dissembling:
“All instructions are “functionally related” to the instruction follower.”
You assume that we have mere instructions (which we do not).
You assume a human follower (which we do not have).
You assume that you can ig nore the legal point that you have volunteered knowing and understanding.
You assume that no one will recognize the games that you play.
You assume wrong – across the board.
By the by – the little game you play with wanting to substitute a human for the machine to which software is a component and an express manufacture for goes by my famous coined term of:
Anthropomorphication.
I realize that this (continues) to go over your head, and I do wish that the good Professor or one of his academic buddies would lay out the complete history (rise and fall) of the Mental Steps doctrine (you know from someone that you might be willing to at least half listen) showing exactly why the attempted zombiefication of that failed doctrine necessarily involves “smudging” two of the expressly named statutory categories (machines and manufactures).
I do wish that the good Professor or one of his academic buddies would lay out the complete history (rise and fall) of the Mental Steps doctrine
LOL
Nothing’s stopping you from doing that yourself, you know.
After all, you’re the expert! And you’re a very serious person.
You assume that we have mere instructions (which we do not).You assume a human follower (which we do not have).
I’m not “assuming” anything, “anon.” And this is why it’s imp0ssible to have a conversation with k00k00bananas dissembling ninnies like yourself.
What I said was this: “All instructions are “functionally related” to the instruction follower.”
It’s not a rebuttable point. It’s a bad fact for you, and we all understand that. But the choice to dissemble and act like a petulant little baby is all yours.
[shrugs]
“Nothing’s stopping you from doing that yourself, you know.”
Try reading what I wrote: (you know from someone that you might be willing to at least half listen)
“very serious person.”
Yay – poker tell of Malcolm having nothing intelligent to say.
“I’m not “assuming” anything, “anon.””
Sure you are – otherwise you would not have advanced the comment to begin with.
“It’s not a rebuttable point. It’s a bad fact for you, ”
It is not a “bad fact” UNLESS you are trying to dissemble – exactly as I pointed out that you were trying to do.
You just got busted doing it.
Again.
Maybe you want to say something in those English short declarative sentences that are NOT simply you dissembling?
Give it a try.
“ the choice to dissemble and act like a petulant little baby is all yours.”
Classic Malcolm number one meme of:
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You need a new script, Malcolm.
Although I knew the road from McRo to complete obliteration of reason and common sense by the CAFC would be short, I never expected it to be quite this short.
“Correlating information” to “enhance” some other information is eligible subject matter? Because “computer”? Under Mayo and Alice? LOLOLOL
When the s0fteew0ftees want to dive to the bottom, they just take a puff off that endless tank of greed and desperation. Newman shows up right on cue to provide the anvil.
More of the same mindless Malcolm ad hominem…
Yay ecosystem!
Breaking news. Google pulled a ‘Coup’ and whacked – the US Register of Copyrights – because of her pro-patent views. link to wsj.com
Not really breaking news as some of us posted this type of information last week.
(Thanks for the link though)
Ok, breaking news outside patently-o.
…and other blogs…
(sorry to rain on your parade, just not as “breaking” as you might want it to be)
That being said, it is something worthwhile to mention, given that certain sAme ones like to pretend that the patent system is not under attack…
iven that certain sAme ones like to pretend that the patent system is not under attack…
Nobody’s pretending anything of the sort. The patent system is far from perfect and, it being a system that is run by the government, everyone is welcome to try to improve it. People will inevitably disagree about which improvements are preferrred.
Also, you just attacked the patent system yourself a couple days ago.
LOL – what duplicity from Malcolm.
Pretending that he does not attack the patent system (or that those views that align with his desired Ends do not attack the patent system).
You version of “improvement” is like saying “Congrats, we stopped the cold, but ki11ed the patient in the process.”
As for my “attacking,” I have “attacked” poor Office management and poor examination consistently for years now.
You seem to want to act surprised about that…
I have “attacked” poor Office management and poor examination consistently for years now.
LOL
Yes, you’re totally concerned about “poor examination.”
Sure you are.
Sorry that THAT fact disappoints you and prevents you from merely labeling me as “one of them” (because I don’t see the world as you see the world).
Maybe you want to get out of your own way and put that enormous ego of yours to the side…
Pretending that he does not attack the patent system
Take a deep breath, “anon”. Before you know it you’ll be spouting off your pointless irrelevant nonsense about boxes of protons and inherency.
I never said that I wasn’t attacking the patent system. Why would I say that? There is much about the system that is eminently worthy of being attacked. Recall also that I have explicitly told you a zillion times that criticizing aspects of a system is vastly different from demanding that the entire system be abolished, and I oppose the latter view. Again: you’ve been told expressly numerous times. Try not to forget, and try not to pretend to forget. I know that’s difficult for you.
The larger issue that I’m addressing is whether Google is somehow pulling the strings behind every move that the patent maximalists (or IP maximalists) disagree with. For instance, you are aware of a little crowd of whining patent attorneys who has managed to convince themselves that Google is paying me to comment here. That is an absurd notion that I’ve also expressly rejected. But keep polishing your tinfoil hat and pretending to be oh-so-persecuted. It’s what you guys do best.
No one said every move…
On the other hand, you do seem intent on sticking your head deep somewhere and denying ANY move.
Dance, “anon”, dance! Wheeeee!
And it’s not even Friday yet. Thanks for the laughs.
LOL – another classic Malcolm moment of:
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Yay ecosystem!
Breaking “news”: the link you posted is to an opinion page.
Behind a pay wall, no less
As mentioned mike and Ordinary Squirrel, previous stories and links have been provided on the Google-Copyright Office Big Corp-politics connection (still opinions, but not behind a paywall).
The “stories” were also debunked as pure speculation, with more reasonable (and less “exciting”) explanations provided.
Wrong Malcolm, no such debunking happened.
But then again, you are still in denial about the level of Google’s spend rate seeking to influence the government, so your view of what “more reasonable” Means is more than just a little suspect.
no such debunking happened
Because newly hired managers never dismiss underlings, especially underlings who publicly propose changes that threaten the managers job or who otherwise have disagreements with the manager. And the meetings discussing those dismissals never happen behind closed doors.
Therefore: Google.
Great theory, “anon.” Totally not pure speculation on your part. And totally not debunked.
Got it. You’re awesome.
Way to mischaracterize the incident, the story about the incident, and my comments about the story about the incident.
Because of your very own feelings “must be right,” no less.
No thanks.
Way to mischaracterize the incident, the story about the incident, and my comments about the story about the incident
Absolutely nothing mischaracterized about any of those things.
Nice try! And thanks for the laughs, “anon.” Be sure to high five your bff NWPA next time he shows up here spouting his usual nonsense, like you always do.
Because “Malcolm says so” (regardless of the plain facts so evident).
Yay Decade of Decadence!
the allowance rate depends upon both the USPTO approach to prosecution as well as that of the applicant.
But oddly enough, it’s apparently completely immune to changes in the law that the “experts” told everyone “would end patenting as we know it.”
Fascinating how that works. It’s almost as if the PTO responds to every Supreme Court decision that would tighten up some aspect of the law by relaxing its application of the rules to the other aspects.
Kinda like how KSR tightened up obviousness, so the PTO (with help from its enablers at the CAFC) loosens up its restrictions on functional claiming. Got to keep that gravy train running! The worse thing ever, of course, would be to treat logic “on a computer” patents like we treat logic “with a pencil and paper” patents. What would happen to all those patent attorneys who rely on those patents to buy their sports cars? The fabric of the universe might tear apart if the rug is pulled back out from under their cushioned entitled feet.
More CRP from you Malcolm.
It was Congress in 1952 that loosened up “functional claiming.”
Stop prevaricating.
I’m talking about situations where the “innovation” is the new “function” and there is no distinguishing structure described anywhere in the claim or in the specification.
You can dance around all you want but Congress never intended to “loosen” the system up to that extent, nor did Congress ever intend to make logic the subject of patent claims.
But both of these things have happened. And the major beneficiaries? Patent attorneys, at the expense of everyone else and the system’s credibility.
Next up: design patents. And let’s all pretend that nobody predicted any of this.
Lol – are you back at trying your hand at the optional claim format of “objective physical structure”…?
I notice the new wrinkle (adding a “lacking in spec”) as well.
I am sure that you have not thought that through and included the doctrine of inherency in your argument.
Otherwise, you may want to (finally) explain the “magic” of [Old Box] all of a sudden having a new capability (explicit, and not your dissembling Box of Protons “logic”).
The rest of your whine is noted as merely being the same old stale script as usual from you.
Please take some night school classes in elementary English, “anon.” Then you’ll be able to read comments and maybe — just maybe — you’ll learn when not to pull all your recycled irrelevant nonsense out of your grab-bag of recycled irrelevant nonsense.
My comments clearly reflect the CRP that you yourself are “recycling.”
Once again, you indulge yourself with your number one meme of
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Yay ecosystem.
I’m talking about situations where the “innovation” is the new “function” and there is no distinguishing structure described anywhere in the claim or in the specification.
Nothing you wrote is remotely responsive to this, you miserable hypocritical cl0wn.
My comment about your propensity to make an optional claim format into more than just an option is directly responsive to your post.
But go ahead and pretend otherwise.
Except the issue isn’t “claim formats” and my comment is crystal clear about that.
This is where we ask the question again: are you st 00pit, or just a l i a r, or b0th? As usual, my bet’s on door number three.
Your claim is crystal clear that you want that “structure” in the claim (and yes, that is a claim format issue).
You are doing that
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thing again
Your claim is crystal clear that you want that “structure” in the claim
Right. That’s why I expressly mentioned the specification.
You really are a s a d j0ke, even for a bl0gtr0ll.
…and I commented on your “new wrinkle” – you kind of missed that, pumpkin.
Plus, you know that doesn’t change your follow up response (hint: “nothing” at post 5.1.1.1.2.1.1 – which is obviously false)
“Fascinating how that works. It’s almost as if the PTO responds to every Supreme Court decision that would tighten up some aspect of the law by relaxing its application of the rules to the other aspects.”
I wouldn’t say that is necessarily the case. People usually just amend around it and the “softiewafties” are super soft on applicants as ever. You can’t change the culture of examination with a mere judicial decision. All the decision does is make them demand a bit more amendment which doesn’t affect the allowance rate, but which does definitely affect the scope.
“Kinda like how KSR tightened up obviousness, so the PTO (with help from its enablers at the CAFC) loosens up its restrictions on functional claiming”
I don’t remember this happening post-KSR.
I don’t remember this happening post-KSR.
I’m not suggesting that a memo went out.
6’s comment does not indicate that he thought a memo went out.
“I don’t remember this happening post-KSR.”
Because it didn’t.
“I don’t remember this happening post-KSR.”
Because it didn’t.
Meanwhile, anyone who’s been litigating prosecuting and examining file histories over that period can tell you otherwise.
Or you can pretend that concerns about functional claiming just sprouted up in a vacuum, for no reason.
No one said that there was no reason, Malcolm. Plenty of “reasons” for the propaganda machine have always been present.
But having “reasons” has never made those actions “correct.”
“Meanwhile, anyone who’s been litigating prosecuting and examining file histories over that period can tell you otherwise.”
I’ve been prosecuting cases for the past 17+ years and I’m not aware of any effort by “the PTO (with help from its enablers at the CAFC) [to] loosen[s] up its restrictions on functional claiming.”
Prolly because there never was any such effort by the PTO. In fact, its been the exact opposite with silly rejections alleging that functional recitations are “intended uses” that “don’t have any patentable weight.”
Maybe in the world of zygote cloning or gene combing or whatever it is you examine there was such an effort, but not in the electrical and mechanical arts.
(It might be only in his mind – next to those fields of Rye that he watches over)
Dennis—you may be interested in using the USPTO Historical Database published by the Office of the Chief Economist to get a sense of all applications, including those not published. We give aggregated data on disposals *by application month cohort*. That means that one can see the number abandoned or granted in each month, based on filing month for all applications since 1982.
Here is the link:
link to uspto.gov
You would want to use the “monthly_disposal” file. It would at least give you a sense of how many applications you miss by using only the published data.
Best,
Alan Marco
Chief Economist
USPTO
Thanks Alan for providing this resource!
It should be noted that in the 2008-2009 time frame, many of the abandonments we were processing were after first action. Basically, the economy was so bad that many applicants were deciding even before first action that they weren’t planning to pursue certain applications. That should be taken into account before drawing any conclusions about abandonment rates under Dudas versus Kappos.
That certainly would be a factor to add into the consideration. But that factor does not cancel out the fact that there was a Reject-Reject-Reject era, nor does it dismiss the actual words that Kappos delivered to the examiner corp, now does it, Apotu…?
Don’t ever change.
One quick way to check this would be to gauge just how much of that “pile” that came through in the Kappos era was “aged,” and were actual items that applicants fought to keep alive during the Reject Reject Reject era.
What do you think such an analysis would show?
the actual words that Kappos delivered
This is the same Kappos who’s been spouting propaganda to promote the inflation of the design patent bubble, right?
The same.
But you do realize how inappropriate it would be to over gen eralize between those two very different topics, right?