by Dennis Crouch
US provisional patent applications continue to be popular, with about 170,000 filed each year since 2013. After filing a provisional, the applicant then has one-year to move the case to a non-provisional or PCT application, and eventually toward patent issuance.
If the applicant does not follow-up with these next steps, the provisional application is abandoned, and the file kept secret. About 40% are abandoned — and that adds up to 1.4 million application files lost to the public. As you might expect, the abandonment rate depends upon the type of applicant:
- Micro Entity: 78% Abandonment Rate
- Small Entity: 44% Abandonment Rate
- Large Entity: 25% Abandonment Rate
There is a good amount of talk about patent grant rate — what percentage of patent applications eventually end up as issued patents. In general though, I have never seen any grant rate calculation take these abandonment numbers into account.
I was considering calling for a new publication regime; Something along the lines of amending Section 122 with a statement to the effect that Any application that has not already been made publicly available 5-years after its effective filing date will be published by the USPTO. My problem with an immediate call for publication here is that we cannot really tell whether these abandoned applications include any of the shoulders-of-giants that future innovation might stand upon. Does a public interest in this unknown information outweigh the private benefit that the patent applicants receive by secrets kept. Although these applications are all secret, the USPTO does have the power to conduct a study on the files to begin to help us understand their value. We’ll see if I can push the agency in that direction.