The USPTO has completed its patent issuances for Fiscal Year 2017 which ends for the Federal Government on September 30, 2017. The primary raw number 315,386 utility patents issued in FY 2017. This is the most patents issued by the USPTO in a single year and tops the record set in FY 2016 by 11k – a healthy but still modest 3.5% increase. Although the PTO has slightly reduced its number of patent examiners, the allowance-rate for 2017 is at an all-time-high (71.4%)
USPTO Backlog of unexamined applications remains steady at about 540,000 – this is slightly more than the number of disposals (allowances + abandonments) completed by the PTO in a year. PTO’s reported grant rate
At post 1.2 you wrote: “Why ‘means a greater allowance rate’” and “Are you putting forth the canard of examiners being worn down into allowances”.
This was responsive to me writing “Fewer junior examiners hired means a greater proportion of primary examiners means a greater allowance rate” at post 1.
My response was exactly on point. To be clear: NO, sir, I am saying nothing regarding ‘wearing down’ examiners. I was simply pointing out that an increasing overall allowance rate is the expected outcome from reduced hiring. Whatever one-sided shortcuts you may be importing into this coversation, you asked a question about my point, and I indicated that the factor your brought up was unrelated to my point. If you cannot keep up with such a simple thread, there is no point in responding further.
Whoops. Responsive to 1.2.1.2.1.1
Thanks for linking that together Ben (I really did not see that you were responding to the “wearing down” suggestion).
Still, I just do not see the connection that you want to make vis a vis: “ an increasing overall allowance rate is the expected outcome from reduced hiring”
It is almost as if you are saying that once an examiner finally understands their job, they are LESS likely to blindly Reject Reject Reject… 😉
As to the other responses – YOU are doing what you are accusing me of: I brought up different points and YOU are not responding to those different points.
Obviously, I am not the one (at least the only one) that “cannot keep up with such a simple thread,” eh?
I HAD NO IDEA WHY HE WAS SUSPENDED OR ALL OF THE INS AND OUTS AND WHY THEY EXPUNGED THE SUSPENSION BUT I DO NOW.
JOHN MUST BE THE INVESTIGATORS FRIEND. OR EVEN WORSE NOW THAT I GET THE CONNECTION. WERE YOU IN THE ARMY TOO.
I find it hard to believe that in the year 2017 there are really over 300,000 genuine new ideas worthy of patents. Disgraceful.
Why?
Because way back in 1899, Charles H. Duell (then Commissioner of US patent office) was attributed with the utterance of “everything that can be invented has been invented.”
😉
I’m not a conspiracy theorist by any means. But I’ll indulge a little here and say maybe the Office needs to keep grants high to also keep IPRs/PGRs/CMBs going gangbusters. $ to grant and $ to kill, it’s a beautiful scam.
maybe the Office needs to keep grants high to also keep IPRs/PGRs/CMBs going gangbusters.
The Office could drop the grant rate to zero and there would still be a massive pile of junk to deal with.
Please find a better script. Whining about IPRs is p @ thetic. Grow up, you silly entitled baby.
Stultifying.
Where did I whine about IPRs?
MM, you appear to be a very poor excuse for a human being. Sad, really. I hope your life in the really real world isn’t so pathetic that you’re overcompensating in cyberspace.
Divide the numbers of IPRs and the miniscule numbers of CBMs and PGRs into the number of patents issued, per year, and if your calculator does not run out of room you will see how insignificant the former are to the PTO budget. [Even if they made a profit, which is doubtful since they take a great deal more PTO time and skill than application examinations.]
Touché.
It is far less a matter of “making a profit” (given that the Office is not allowed by law to do such a thing), and far more a matter of just how allocation of the monies input into the system (by those paying for particular services) are being “re-appropriated” into services that are perhaps counter to how those monies were gained.
IF any and all costs associated with PTAB were born directly by those seeking to eliminate the property rights of a granted patent, perhaps the matters would be different.
Kind of new to all of this. I was surprised to learn that the PTO is not tax-payer funded as government agencies are supposed to be. They get their bills paid by the applicants with the examination fees and the bulk of it from maintenance fees. Doesn’t that create an incentive to increase the allowance rate? In light of recent Supreme Court decisions, doesn’t it affect the maintenance fee revenue if companies decide not to pay for those kind of patents? To make up for such loss, I can see the PTO increasing the allowance rate. Is there a reason why the PTO is setup this way?
Is there a reason why the PTO is setup this way?
Ask the patent maximalists if they want the PTO to be taxpayer funded.
You know what that would mean, don’t you?
an incentive to increase the allowance rate
Gotta please the “customers”, doncha know.
It is not a matter of “please the customers” as you appear to want to insinuate, but rather, it is a matter of allocation of the funds provided by customers – see post 5.2.2 above.
Here here!
“Although the PTO has slightly reduced its number of patent examiners, the allowance-rate for 2017 is at an all-time-high (71.4%)”
Can we see that 30-year historical grant rate chart? (the one that also reflects the “Reject-Reject-Reject” era bite out of the allowance rate)?
If I recall correctly, the historical rate was between 70 and 75%, which would greatly temper the quoted item.
the historical rate
The silliness here is incredibly stale but still funny.
“anon” is a very serious person! And this topic always makes him a little nutty because it exposes his rich little whining white behind in a way that makes him uncomfortable. Let’s watch him spin.
“exposes his rich little whining white”
…white…?
the historical rate was between 70 and 75%,
I don’t think that’s correct, but assuming that is correct, doesn’t it seem odd that the rate would remain stable completely independent of
a) Changes in the law that makes obviousness easier to prove/show
b) Changes in the law that make judicial exceptions where there were practically none before
c) Changes in technology that allow an Examiner to find prior art easier
d) Increases in the number of applications filed which suggests there would be more applicants which happen to seek to patent the same subject matter
If the rate is the same as the “historical” rate, that would suggest that the allowance rate is chosen beforehand, and then the conclusions based on whatever the law requires are drawn to fit the rate they seek to fulfill, doesn’t it?
BTW, I’m not stating that is what is happening btw, I’m just suggesting that that would be the logical outcome based on your argument, isn’t it?
I mean just think – if rejection rates have remained stable for 30 years, the same in a post-internet, post-obviousness world – one wonders why the office bothers to use computers or apply KSR at all? I’m sure I could research just as well using shoeboxes and libraries and finding explicit motivations to combine if that’s what the stats say, hahaha.
And why complain about Alice? It appears to have zero effect on the ability to actually get a patent. CLS Bank was apparently the only entity in the whole country performing a preexisting business patent on a computer.
Not sure that the implication of “remaining stable” inures to either my comment of the historical record – you are off on a tangent.
No – what you state is NOT a logical outcome of my argument, as you insert a host of suppositions (like people not being able to adopt in how they present their inventions, and that there is some “zero sum” game of total possible inventions).
Inventions lead to more inventions – that is WHY we have a patent office in the first place.
Figure 8 of the study by Professor Cotropia and me at link to papers.ssrn.com shows Allowance Rates/Grant Rates for the PTO’s FYs 1980 through 2016.
Fig 9…?
You are correct! The examination performance of the USPTO as measured by Allowance Rates/Grant Rates for the period 1980 through 2016 is reported in Figure 9.
Figure 10 compares examination performance of the USPTO, EPO and JPO for 1995 – 2015, which is the period for which data for the EPO and JPO were available as of the writing of the study.
TOTAL loss of credibility at the end of hte very first paragraph and the inane homage to Lemley:
“This practice is identified by scholars as the source of much abuse of the U.S. patent system and adds to the reputation of the U.S. Patent & Trademark Office (USPTO) for issuing low quality patents.1″
..and just reviewed some of your past writings….
You have been pretty much absolutely wrong on every angle concerning patent law that you have written about – from “Besson is right” to the canard of “wearing down the examiner” to your laughable description (and lack thereof of the Tafas case, to your pro-infringer’s rights view of taking away the stick and allowing some type of “reward” for those who innovate and do NOT use the patent system, pretty much any position you take is the wrong one for a truly innovation-rewarding strong patent system.
While I appreciate the link with some of the factual information, your views vis a vis what will improve the patent system is – quite frankly – bullocks.
I’ve now gone back to your 1992-1993 papers and see just how long and how off your views have been…
You wrote of the then “boogeyman” of a seemingly more lax standard for 103 with: “Adoption of a higher standard should however aid the PTO in its efforts to conform. The higher standard will over time result in fewer application filings. This in turn will enable the PTO to do more thorough examinations. “***
The two have nothing to do with each other – at least in the prescriptive sense that you want to make it seem. Examinations need to be thorough under the law NO MATTER how many applications are filed, and wanting fewer applications filed is simply inane.
You seem to have a fundamental MISunderstanding of innovation and how patents are a GOOD thing.
You hearken to the era of Flash of Genius.
I see given how this belief system of yours has apparently been entrenched for more than a quarter century, just why you glom onto the propaganda of Lemley and Besson and company.
You sir – opposite of the stance you wish to project – are no friend of innovation.
If this is what guided Kodak, it is of little wonder why that once great company tanked.
*** from: TESTIMONY OF CECIL D. QUILLEN, JR.
Presented at the Public Hearing on the Standard of Nonobviousness
at the United States Patent and Trademark Office on July 20, 1994 – “Much of what I will say is drawn from two earlier papers, Innovation and the United States Patent System Today, presented at an ABA Continuing Legal Education Institute in 1992, and a paper entitled Proposal for the Simplification and Reform of the United States Patent System, published in the fall 1993 issue of the AIPLA Quarterly Journal.“
And yet somehow we are still subjected to this entitled contingent of wealthy endlessly whining crybabies who can’t stop screeching about “star chambers” because they can’t get patents fast enough and, gosh darn it, they’re not as easy to monetize.
What’s that all about?
Rhetorical question. Everybody knows what’s that all about. These people — the wealthiest whitest people in the country — believe that the world revolves around them. They’re the Most Important People Evah! So we have to give them more money. Then it’ll “trickle down” to the lazy non-innovators out there. Sure it will! After all, they told us so and they’d never ever shill for their own self-interests. Nope. Not them. They’re very serious people.
MM, if you look at who is getting the patents, the story is quite a bit different than you surmise in your post.
Foreign companies.
Big US businesses.
But, patents from universities, startups and inventors are all down.
patents from universities, startups and inventors are all down
“Down” compared to when?
Maybe its because, like the golden age of science, the golden age of invention is over.
“wealthiest whitest people ”
WHAT
THE
F
the abject ra cism that flows perpetually from Malcolm is beyond belief.
Why would the most-ever granted patents and a historically typical rejection rate suggest anything but the total destruction of the US patent system?
Efficient infringing has never been so efficient!
Why the race-baiting?
the race-baiting?
LOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOL
Rich white guys and their sensitive fee-fees.
So many snowflakes to coddle.
You realize you’re not helping your cause with this kind of nonsense.
Please Pardon Potential (re)Post:
HE
DOES
NOT
CARE
He never has – he never will.
And apparently, the editors of this blog do not find this REPEAT behavior offensive. Sure, they may now and again remove an instance of the r a c1sm that Malcolm spews, but they do nothing at all to the fact that not only does he insist on repeating that v1leness, he makes it a point that he WILL CONTINUE to repeat that v1leness.
How so?
Obviously not meant for you Martin, sorry.
I’ve followed your comments on and off for a while, MM. I agree with you completely, but it’s only now that I’ve seen you bring skin color into it. Must be related to the national dialogue. Still, I’d suggest not here.
“Although the PTO has slightly reduced its number of patent examiners, the allowance-rate for 2017 is at an all-time-high (71.4%)”.
Why “although”? Fewer junior examiners hired means a greater proportion of primary examiners means a greater allowance rate.
That is the one useful observation here so far Ben. Yes, the big examiner hiring boom has been over long enough for there to be a lot more signature authority examiners free from SPE review, and they will also having higher disposal targets.
Also, I think Alice may have had some effect in increasing allowances in that some examiners have been giving excessive 101’s which don’t stick instead of spending time on more thorough prior art searches. The PTO collects so much internal data these days that they should be able to ID examiners with abnormally high initial 101 rejections and allowance rates, but I doubt if they would do anything about it.
Why “means a greater allowance rate”
Is it somehow “easier” to just “Allow Allow Allow” then it is to “Reject Reject Reject”?
Are you putting forth the canard of examiners being worn down into allowances?
Are you ignoring the more often heard opposite cases in which rejections are simply maintained with cut-n-paste boilerplate paragraphs cobbled together based on keyword searching?
Did all the other SAWS-like programs*** magically disappear?
*** Let’s not forget the public admission by the Office when faced with the SAWS snafu, that SAWS was but merely one of who knows how many undisclosed “quality efforts” that do NOT get reflected on the written record (as all examination efforts are supposed to be).
“Is it somehow “easier” to just “Allow Allow Allow” then it is to “Reject Reject Reject”?”
Yes.
“Are you ignoring the more often heard opposite cases in which rejections are simply maintained with cut-n-paste boilerplate paragraphs cobbled together based on keyword searching?”
Reporting bias.
Thanks Ben – that is the VERY first time that I have ever heard ANYONE state that it is easier to just “Allow Allow Allow.”
That being said – and much to Malcolm’s chagrin – I have always stated that “Allow Allow Allow” is just as bad as “Reject Reject Reject” – and neither are acceptable (and neither meet the requirement of ‘do your Fn job’).
That’s probably because it’s so obvious. I would be shocked if an Examiner denied it.
(Of course, there are caveats: (1) doesn’t apply to most junior examiners, (2) doesn’t apply in business methods AUs.)
Your “yes,” though, runs counter to my other questions. Care to have a shot at those, Ben?
1. I’m not suggesting anything about why primary examiners have greater allowance rates. Just noting a fact that I’m sure Dennis is aware of.
2. If you don’t know what reporting bias is, you can google it.
3. There are no SAWS-like programs, but I know there’s no point in trying to save a conspiracy theorist from their fever dreams.
As to your 1., NO ONE is making the distinction between primary and non-primary examiners (except you). I won’t go so far as calling this a strawman, but this is NOT a proper response to the post that I made.
As to your 2., your suggestion of reporting bias is a non sequitor to the questions that I have posted.
As to your 3., “There are no SAWS-like programs” – this is blatantly false – as the USPTO openly admitted to the contrary in its handling of the SAWS debacle. It only diminishes your own credibility to attempt to ignore this fact.
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