FY2017: PTO On Course for Record Number of Issued Patents

by Dennis Crouch

The chart below shows the number of utility patents issued each fiscal year going back to 1980.  FY2017 has 7-weeks remaining. If issuances remain steady, then we’ll see a substantial increase in the number of patents issued over FY2016.  Importantly, the increase is not due to increased new application filing but instead reflects the PTO continuing to work through its backlog of pending cases.

PatentsPerYear

Dennis Crouch

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

19 thoughts on “FY2017: PTO On Course for Record Number of Issued Patents

  1. This is the result predicted by ‘public choice’ theory. The Agency inherently seeking expansion and growth would necessarily and predictably seek a continued justification for its massive ‘second division’ the PTAB. Therefore, resulting in a flood of new patents. In other words, having a magic wand making the front line examining division only issue valid patent eliminates the continuing need for the PTAB. Since an Agency will never agree to give up an expansion such as PTAB, is provides the incentive to flood the system with new patents.

    1. long term stability of that “provides the incentive to flood the system with new patents” is going to come from where?

    2. Owen Bracha advances just such an idea in is work, Owning Ideas. So long as the Priviy Council was dispatching dubious patents, paying particular attention to what was being patented on the front end could be, and was, lax.

  2. Misleading stat. They issue and collect fees BUT invalidate the very patents they’ve issued. The PTAB and Fed Circ. make enforcement next to impossible. It’s a scam at this point.

  3. How is this big increase in issued patents possible with all the rejections of applications on 101 and applicant discrimination constantly alleged in comments here and on Gene’s blog?

    1. Good question Paul.

      It is very possible because the data published in the above format certainly does not capture the picture that you want to see.

      The picture that you want to see would take into account not just grants, but all of the other actions besides grants in the same time period.

      But is you ONLY look at the grant picture above, the take-away is easily obscuring the other issues that are going on.

      Note as well the caveat from Prof. Crouch: “ Importantly, the increase is not due to increased new application filing but instead reflects the PTO continuing to work through its backlog of pending cases.

      You see that big “bite” out of what otherwise would be a more smooth curve in the Dudas-led Reject-Reject-Reject era circa mid to late 2000’s? Those who persevered through the improper rejections are making up a chunk of the hill you see (which if you averaged out the numbers as to how they should have been, the slope of your increasing line would have been less).

      I have pointed this out previously, and remind you more so to remind some of our newer readers.

      1. The Dudas Dump on allowances appears from this same chart to have ended in about 2008, or about 9 years ago, so very few of those applications can still be in the backlog and just getting allowances by now. The big increase in the number of examiners several years ago has far more to do with the big increase in allowances.

    2. P.S. Approximately 300,000 allowances divided by approximately 9,000 PTO examiners equals 33.3 average allowances per examiner per year, or .65 per week for 51 work weeks. That includes all their PTO paperwork and statistical reports as well as evaluation of the application and claims, doing a prior art search, writing up the office actions, responding to all amendments and RCEs, etc. This does not include any of the large amount of time that is spent on finally rejected applications. I.e., there is not much time for a thorough prior art search against all parts of all claims.

      1. Your calculations are not correct, as you start off constraining items to be within a certain time period (your “per year” effect) when the processing window most certainly overlaps more than one year.

        As the professor’s caveat indicates, a certain chuck of these grants are for non-newly filed applications. Without more, it is not possible to pin point any drivers (or the respective weight of different drivers), but consider that processing of continuations and the like would drive away from your “averaging” in multiple ways. For one, the item “being searched” would have already been fully searched (presuming a valid examination) in the parent application, since no new matter is present. Consider as well that such would have a better understanding (again, presumably) from the examiner with the subject matter of the application – as contrasted with picking up a brand new application.

        Mind you, I “get” the point that you want to drive at: are examiners appropriately (whatever that term may mean) performing probably the most critical aspect of examination.

        And if you were to champion “better examination” as driver to patent reform, I would be fully aligned with such effort.

        Further, if (and I am not saying that you are doing so) the insinuation is that the reverse of the Dudas-era coined phrase of “Reject-Reject-Reject” is going on, let me remind you of my long standing critique that the rubber stamping of Accept-Accept-Accept is just as unacceptable ad the Reject-Reject-Reject mode.

        1. anon, have you seen Ron Katznelson’s comments on the Examination Time Analysis initiative? (link to uspto.gov). It seemed like his arguement that the PTO lacks the authority to increase average examination time would be the sort of thing you’d love.

          1. Thanks Ben for the heads up and for the link. I had not been aware of those comments.

            Having now just located them, the comments (themselves dated Jan 30 but noted as to the Office on Jan 31) run 67 pages.

            Teh first paragraph though, sets an excellent tone:

            Subject to the limited scope of PTO’s ability to implement changes to the examination time as described below, I applaud the efforts by the Office to investigate means for improving examination quality. As the Notice correctly recognizes, setting examination time is inextricably linked to examination quality. Moreover, optimal allotment of examination resources should depend on application complexity attributes. For example, while the Office collects fees for excess claims and pages in applications, the examiners receive no credit in counts, nor are they given time in accordance with such application attributes and fee collections.

            He appears to be set on improvements without simply saying “here’s more time.”

            As others have often noted (perhaps not of late), there IS a certain amount of inefficiency even with the time now given. Along that line of thought, giving more time will not improve THOSE inefficiencies and would thus likely be a mistake to throw more good time after bad time.

            Me, I am not so hung up on ANY particular “set time,” and my past suggestions for improvements thus mirror only in part what Ron suggests.

            We BOTH would prefer a non-one-sized-widget-fits-all mentality.

            I think that Ron makes a mistake though in his comment:

            While the PTO has authority to reallocate examination resources or devise ways to use them more efficiently, it lacks Congressional authority to increase them across the board (i.e., it cannot increase the cost of examination per application) even for the laudable purpose of improving examination quality.

            because I do not see that an increase in examiner time (per se) necessitates an increase in user fees (albeit, the Office staying within their budget is clearly a requirement of any ongoing system). I can easily see that in the LARGER system management, any such cost of “more time” may be set off with less cost (to the applicant, if those costs actually do end up flowing through – but would not flow through IF – and yes, that’s a mighty big, but legally important IF – the “in the aggregate” requirement is met.

            I am not sure that I buy his “substantive policy choice” position – at the same time his note on the AIA fee setting limited by “in the aggregate” is clearly something that I have made a point of. Under THAT restraint, he may have a (larger) point that I have not gone to the lengths to ascertain. So I am not sure that I agree (or quite disagree) with the main thrust of your post.

            Overall, and other than perhaps a few similar minded quibbles, his historical ties are superb. Unquestionably superb.

            And worth noting, those who so often find themselves opposite my views are those sAme ones who have not – unlike Ron and myself – actually aimed and proposed suggestions for improving the system.

            1. Pardon Potential (re)Peat…

              …and I would add that the Office – were it to use the AIA power – needs to move a bit more quickly, given that THAT AIA granted power does have a sunset provision.

    3. I suspect that practitioners whose wallets rely on business method applicants are overrepresented in those discussions. The tech centers which deal with actual technology and specific devices have not been significantly affected by Alice.

      1. Certainly there is a chunk represented.

        Did you happen to miss the series on the recalcitrance of those specific art units?

        (much to Malcolm’s chagrin, perhaps, there are actually art units designated for the evaluation of such applications)

        1. The point is that bO Ttom feeding glibertarian maximalist types never Stop whining on the internets. Rich entitled crybabies of generally low intelligence with even lower ethics.

          And yes I’m talking you, Mr. “protest vote” <— LOL

            1. …as is noted the usual lack of touch with reality of those feelings.

              Maybe instead you should focus on substantive points of patent law instead of sharing (yet again) your mere feelings…

  4. ~2% = substantial increase?

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