by Dennis Crouch
The chart above might take a couple of minutes to digest, but the main point is that, while the median patent has remained relatively unchanged, patents are becoming more uniform in size.
The chart above shows the number of claims per patent for three groups of patents – those issued in 2007, 2012, and 2017 (through 10/16/17). For each group, the chart provides a size-strata based upon the number of claims found in each patent and a relative percentage. Thus, in 2007 about 27% of patents issued with 1 to 9 claims; in 2017 that figure has dropped to 20%. Similarly, in 2007 about 30% of patents issued with 21 or more claims; in 2017 that figure has dropped to 18%. That decrease at the extremes of claim count size has been replaced by a bulge in the middle – patents with 10 to 20 claims (especially those with exactly 20 claims).
This graphical representation is akin to a measure of variance or standard deviation. As expected, the standard deviation has also dropped during this time as shown by the chart below:
This second chart reports both the average claim count and the standard deviation for each year of utility patent issuance. Note that the average claim count has dropped slightly (especially since 2011) while the standard deviation has decreased substantially each year.
Causes: It is easy to postulate on the causes for the changes here. First up is USPTO Fees. Starting in 2004, the USPTO substantially increased the cost of filing patents with >20 claims or >3 independent claims. This led to a substantial decrease in “jumbo” patents with many patent claims. Today, it is quite a bit cheaper (w/r/t USPTO fees) to file two patent applications with 20-claims (3 independent) each rather than one application with 40-claims (6 independent).
Evidence Based Prosecution II: Independent and Dependent Claims
In addition to USPTO fees, the market for patent prosecution has shifted significantly to patents-as-a-commodity with recognized usual costs. The fixed-cost approach means that a change from the usual 20-claim standard will involve a heightened level of review and approval — something many outside counsel avoid. Often, the fixed-cost agreement includes the particular number of claims to be drafted. This reasoning can also be combined with the continued increase in the proportion of foreign-originated patents – many foreign applicants enter the US system with a smaller claim-set (based upon high foreign fees for jumbo claims).
Finally, we should recognize that independent inventors are a smaller proportion of patent applicants than ever before – as is the proportion of applicants that file without the advice of a patent attorney. The very-small claim sets tend to come from these groups of independent inventors and those who do-it-yourself.
Some folks believe that restriction practice is also to blame here, but I have not thus-far found a significant increase in restriction requirements during this time. (Percentage of applications filed as divisionals is down during this time period).
Good or Bad?: Perhaps a question for a different post, but the standardization has some important benefits: reducing transaction costs between applicant and attorney and facilitating better management of patent examiners. The lower number of claims may also make it easier for third parties to understand the scope of what is claimed — however this is only true if the ‘extra’ claims are not simply being replaced by an ‘extra’ patent.