Total utility patent grants are down about 7% for calendar year 2021. Still the total ranks as the third highest of all time. The Office has almost eliminated unwanted delay in examination. Right now the delay is about 17 months from filing to first office-action. They really don’t want that to go below 14 months in order to capture 102(a)(2) prior art (former 102(e)).
81 thoughts on “2021 Patent Grants”
[B]ig corporations have lost faith in the US patent system. It isn’t totally worthless to them but it is now a form of junk paper that they will continue to pursue as there is still some value to it and still some optimism that perhaps things will flip.
How can one know whether corporations have “lost faith” in patents? One cannot “lose” what one never had. Did corporations ever have “faith” in the patent system?
The list from IPO that NW links below is very heavy on “tech” companies. Bill Gates rather famously wrote a memo in 1991 suggesting that “[i]f people had [taken out] patents… when most of today’s ideas were invented,… the industry would be at a complete standstill today.” He anticipated that the proliferation in software patents would, in turn, give rise to a proliferation of patent wars among tech companies and suggested that “[t]he solution to this is patent exchanges with large companies and patenting as much as we can.”
In other words, he did not see software patents as a business tool with an affirmative value to the then-up-&-coming Microsoft. Rather, he expected that an arms race was about to start, where patents were necessary as a gun to point at your competitors’ head when they point one at yours. It would be strange to describe this view as “having faith” in patents.
Imagine that you live in a high crime neighborhood, so you carry a gun for protection. Then the neighborhood starts to gentrify, and years later crime has dropped significantly. When the citizens of that neighborhood cease to go about carrying guns, does that betoken that they have “lost faith” in firearms?
Oh brother, Greg.
I would point out what has happened since 1991 is that the market has become dominated by just a few very, very, very large tech giants who benefit greatly from a weakened patent system as they can adopt any new technology with impunity.
Imagine that you live in a world where you farm a small plot of land and make a living from harvesting the fruits of your small plot of land. But a few companies convince the government that private ownership of land is a bad idea and that anyone should be able to harvest any plot of land. Now giant tractors come along and grab your harvest leaving you starving. You are forced to take a job with the companies that have now become giant corporations. You still plant your small plot of land but the corporation decides what you are paid and harvests whenever it pleases them.
I know who the “citizens of the high crime neighborhood” are in my analogy—software companies that sell a product at a profit. Who are the analogues to the small farmers in your analogy?
Except your analogy doesn’t fit as the effect of burning down the patent system has been the rise of a few corporations that completely control the software industry. So your citizens would have had to merge or become employees of a corporation.
My small farmers are the want-to-be inventors or small software companies where any technology they invent can be taken at any time by a large software company.
The “small farmers” who grow real food can live off the fruits of their labors, but farmers who harvest platic imitation carrots or colored cardboard heads of “broccoli” are fairly fated to starve.
Small software companies who genuinely invent new technologies can assert patents to prevent other companies from stealing their “harvest.” If the patents cover only anticipated or obvious “vegetables,” however, then there is no “harvest” there to steal.
Pardon Potential rePeat for filter…
LOL – no lack of inte11ecctual honesty there, eh?
By the by – the ONLY difference — and evidence that ‘editing’ is STILL not being objectively applied — is that the post that made it through omitted the direct copy and past of Greg’s statement.188.8.131.52.2
[T]he effect of burning down the patent system has been the rise of a few corporations that completely control the software industry.
This is absurd. In case you do not recall, the DOJ brought antitrust charges against Microsoft in 1998. The DOJ opened an antitrust investigation against Google in 2001. In other words, there was serious industry consolidation in the tech space well before KSR, or Alice, or eBay, etc.
The idea that deterioration of patent protections gave rise to tech monopoly formations gets the history completely backwards. Rather, trends wholly unrelated to patents fostered the emergence of cash-rich tech monopolies. These then became a popular target for PAEs.
The Nobel laureate Richard Feynman used to say that “[t]he first principle is that you must not fool yourself, and you are the easiest person to fool.” The popularity of the idea that monopolies emerge because of failures in the patent law is an enduring testament to Feynman’s accuracy of perception on that point.
The tech monopolies did rise prior to 2008 and they then used their power to burn down the patent system to grow —much, much bigger–and take whatever they want, and ensure that they would never be challenged.
Let’s see Apple’s stock has gone up 6000 percent since KSR.
Nice little tail you told Greg but factually ridiculous.
Almost all the value of the large tech companies has come post KRS/Alice/eBay. The true story is that they got a little bit big and then used their influence to burn down the patent system, which enabled them to consume the entire market and take any innovation they want.
But Greg still tries to belittle Efficient Infringement……
Logicians call this fallacy “post hoc, ergo propter hoc.” It is not a sound argument.…
Greg, be real. My argument is not “post hoc, ergo propter hoc.”
Not having patent rights means that disruptive technologies can just be absorbed by the huge corporations. And so forth.
You have just assumed that there is no value to patents.…
Greg is being inte11ectually dishonest.
He asserts merely sequential (with no proof), when it is beyond clear that a causal relationship (per typical human behavior and power dynamics) can easily be seen.
He “declares” the unsoundness of this (in a most unsound manner).
Can you say that you really are surprised?…
“Almost all the value of the large tech companies has come post KRS/Alice/eBay. The true story is that they got a little bit big and then used their influence to burn down the patent system, which enabled them to consume the entire market and take any innovation they want.”
Meanwhile Apple is filin on the reg.184.108.40.206
Greg had gone full Kool-Aid from the Efficient Infringers, and anyone “with a product” (somehow) must be those “good citizens.”
(just don’t ask him to actually abide by the FULL call on — for now — COVID ‘tech’ including critically the trade secrets and know how)5.1.2
The analogy leaves me unconvinced, WT. In the real world, it’s not that simple is it? For example, Peter Thiel, king of tech start ups, is quoted by Gene Quinn as saying that a PAE is a parasitic tax on the tech industry.5.1.3
Greg has openly mocked the concept of “Efficient Infringer” — but does at the continuing expense of cratering the shambles of his persuasiveness.
Do you know of any (non-examiner, non-Efficient Infringer type of) person that thinks that Greg is pro-innovation (outside of his Big Pharma bias)?5.2
Since I entered the patent profession in the early 1970’s I have seen ever greater business use of the patent system, world-wide, and no sign at all of any loss of “faith” in the usefulness of patents for business. There is one area of patent activity though, where patenting budgets might have been crimped in recent years and that is in patents for methods of doing business. This area was special to the USA, and from where I sit looks like a bubble that has been burst by certain relatively recent decisions of the US courts.
I suspect that NW earns some of his crust from writing patent applications in this area, that this work is less plentiful and less luucrative for him these days, and that this is contributing to his jaundiced view. NW, what do you say to that?
Max, I do some work where I get into the dreaded 36xx AUs. That work now, though, is probably about 5% of what I do. Although, probably about another 40% of what I do is under threat of 101 at all times. And I even get 101s on many applications where the EPO says they are technical solutions to technical problems.
But, Max, the numbers are below. This is not a subjective view on my part but objective data in the decline of the US spending on patents for US origin inventions. The average price of patents has dropped 80 percent since 2008. Again, not subjective but the data says this pretty clearly.
Night I’m not really in a position to critique the data but my gut feeling tells me that US corporations increasingly promote inventive activity outside the USA. MS has labs in the Far East, right? Pfizer got its C19 vaccine from Mainz in Germany. That might explain a decline in US-originating inventorship, perhaps, even while US-based corporations dominate world-wide even more than before. Who writes the patent applications on such inventions, I wonder.
Your point on 35 USC 101 seems to me to confirm rather than contradict my suggestion that a bubble has burst (or even that a pendulum has swung to the opposite extreme of its swing). As to the fall in the “price of patents”, my sense is that this is a world-wide trend. I remember 25 years ago reading a piece about the Asian view that patents are a business tool and that going to litigation must be seen as a serious failure by the responsible business managers. That view has spread everywhere, even to the judges in the USA, I suspect.
Whatever Max. The numbers don’t agree with your narrative in the US.
Whatever Max. The [fill in the blank] don’t agree with your narrative in the US.
This has more to do with MaxDrei’s narrative coming in that single flavor of EPO Uber Alles.5.2.2
I should add that I deal with some VPs of large corporations that are in charge of their patents.5.2.3
With the caveats of “as such” and “per se,” MaxDrie’s admonitions against “methods of doing business” come across as MORE than a little shallow.5.3
Bill Gates? I remember when you would call Microsoft (bout MSDOS problems) and he would answer the phone This is Bill. He made his first millions from IBM (with his momma’s help). IBM was for many many years the number one patent filers because their strategy when they got lawyer letters about infringement they would have their meeting and say maybe we are infringing your patent but here are a thousand of yours you are infringing. How bout we cross-lincense?
So my point is Bill’s take came from IBM. But IBMs strategerty no longer worked when the lawyer letters came from what you people now call NPEs.
Another thing to remember about Bill is what he did early on with Microsoft.
For example, Bill tried to claim that he owned or had a co-copyright of any software that you wrote with his C compiler. That led to the third-party C compilers that we had to buy in order to write programs for PCs without owing Bill money for each sale.4
Would somebody care to enlighten me what Dennis means by “capture”. I mean, this category of prior art (A publications 18 months after their filing date) is searchable only after about 20 months have elapsed since my competitor filed at the PTO. So how does a PTO search on my claims, 14 months after I filed them, “capture” all of this prior art?
Until I get answers, I’m supposing that the PTO does a “top up” search for this art, immediately prior to issuing a Notice of Allowance. That or the PTO is satisfied with a search of 70% of the prejudicial 102(a)(2) art.
Patent applications aren’t searched for prior art until after they publish.
That’s a really interesting answer, Night. How do you find the way the rest of the world does it: A publication at 18 months, including the Patent Office search report on the patentability of the claims? Is that of interest for the USA?
It’s not as if I have not thoroughly schooled MaxDrei on the differences in the Sovereigns when it comes to the notion of “secret prior art.”
How rude of MaxDrei to pretend that this is an area in which he knows nothing about.
I’m not being rude. I’m genuinely perplexed. What does Dennis mean then, with his 14 month “capture” comment? If you have any idea, share it, do.
Don’t be obtuse — that’s equally rude.220.127.116.11.1.2
Snowflake’s own designated expert, after “engaging” with his nonsense, concluded that he was quote “an incredibly sloppy writer, reader, and thinker.”
Hi Shifty – still trying to apply things out of context I see.
It’s been a small while, but nice to see you choosing to make posts that provide me coin.18.104.22.168.1.3
“PTO does a “top up” search for this art, immediately prior to issuing a Notice of Allowance”
Yes. They call that an “update search.”22.214.171.124.1.4
Not only a “top up search,” but also an interference search for those first to invent applications.
The top up searches are easier.
Hi zero, here you have a chance to build on what I provided in the past (vis a vis secret prior art) with your pre-retirement experience, but you choose not to.4.2
I think that, in practice, it varies from examiner to examiner, whether there is a top-up search to look for latterly published 102(a)(2) art.
Quite misses the point on the entire notion of “secret prior art.”
“PTO does a “top up” search for this art, immediately prior to issuing a Notice of Allowance”
Yes. They call it an “update search.”
Hi shifty – got a little excited in your replies, eh?3
Just by way of additional info here, US-origin filings in the USPTO declined 5.4% YOY (285,113 in 2020, 269,586 in 2021). USPTO filings from CN-origin increased 5.2% YOY (39,055 in 2020, 41,210 in 2021).
Yes this is what I’ve been saying that the US origin filings are dropping and continue to drop.
I’ve said for a long time without CN we would have had layoffs at the USPTO.
I don’t think this is over. I think patents continue to be weakened at the CAFC.
The patent system was strong for so many years before Obama, who is the main reason the patent system has been destroyed, that it is taking time for the trust in the system to be eroded but we are seeing that. It would not surprise me if we had a year where US filings drop 25%. Probably just another Alice type of dagger in the heart of patent law.
It would not surprise me to see the budget in a couple of large clients drop by 50%.
To your point there is also a subtle item in the write-up above: “The Office has almost eliminated unwanted delay in examination. Right now the delay is about 17 months from filing to first office-action. They really don’t want that to go below 14 months in order to…”
What this means (basically) is that the “hill” that is shown is actually a DRAWING DOWN of a prior backlog — as opposed to a steady state increase.
As Prof. Crouch indicates – the ‘optimum’ cushion has been reached, and further drawdowns may well bring about some employment adjustments that you have been speaking of.
Couple in any further economic downturns (or Court induces ‘don’t bother attempting to patent THAT type of innovation — or Foreign entities re-evaluating how many apps they pour into our country), and your throughput will be further throttled back, and at some point the prior “bloating” of the examiner corps will need a serious “right-sizing.”
This may well indeed be closer than most anticipate.
I wonder if the Examiner’s are hearing any groundswell on this.
Definitely anon. I noticed that drawdown too which mitigated the decrease in allowances.
I would add to what you said that China is a state controlled policy to file patent applications. The Chinese government could pull the plug at a moment’s notice.126.96.36.199
“As Prof. Crouch indicates – the ‘optimum’ cushion has been reached, and further drawdowns may well bring about some employment adjustments that you have been speaking of.”
They already had a whole bunch of people that “got mad and quit” last year I heard at a meeting. Guessing 2.5-5%? We’ll see if that continues.
wow 6 – last year you say? That went unreported, and was certainly left out of the exchange between one of the regular examiners on these boards who has challenged Night Writer’s predictions of examiner RIFs.
Care to share a link?
Don’t have a link, just heard it in a meeting from SPE. Apparently we have Drew Hershfield, or whatever his last name’s spelling is, and his other high level bros thinking literally “the job is getting easier” for some or other reason. Obviously it is not, at least outside of some select few arts. And so some people that are either just mad about this just described and/or that, or are also sometimes probably behind in work because of just how SUPAR EZ (rather the opposite) the job has become, just up and quit. At least that’s what I heard.
“That went unreported”
Official numbers might not be out yet, and who knows, they might be able to staunch the flow and make the overall nums for the year just look a little high. We’ll see.
I actually believe it tho as I myself almost quit. And still might. And the AU as a whole has been a bit on edge with some folks definitely “behind”. It just wears on people to hear that they’re liek totally not making numbers when the truth is they didn’t really have a chance to make nums under the job that is supposedly desired, from the outset.
Thanks for the reply 6.
As to the part of the reply that is nothing but whining (what the job is cannot be a surprise, and I just don’t buy the “when the truth is they didn’t really have a chance to make nums”
You – both the Royal You, and the personal you, fully agreed to those conditions.
And it’s not like you don’t have a union, right?
“You – both the Royal You, and the personal you, fully agreed to those conditions.”
Agreeing to “conditions” and actually having a chance to meet the conditions are not the same thing re re.
See many gulags for extreme examples.…
Your reply does not make sense.
If you (f00lishly) agree to something that you do not have a chance of meeting – then the f001 is you.
Calling me a re re while YOU BE the re re is only making my point for me.188.8.131.52.1.1.2
“thinking literally “the job is getting easier” for some or other reason”
These people are too smart to actual think that. They are making up nonsense to serve their gaslighting efforts. The C-star process alone has made the job significantly worse for some AUs.
“just up and quit. At least that’s what I heard.”
I haven’t heard this, but there’s always some people quitting. I have heard of more aggressive SPEs on the hunt for errors under the new PAP, which certainly could lead to more people quitting.
But over the long haul, the office reports 7946 examiners on staff as of November 2022 and had 8072 examiners on staff in November 2019. That’s effectively flat; the office does not appear to be targeting lower staffing levels (yet).
“These people are too smart to actual think that. They are making up nonsense to serve their gaslighting efforts.”
I thought that myself. But I think maybe from their bird’s eye view they think that since whatever searching is getting a tiny bit easier, and since the “formal” requirements for a search are just do a few word searcheslol, then people can tots have it easier than they did back in the paper days. Which yea, if you want to do a shty job (if signatory) and if your signatory (if junior) will allow that then you’re all set. It’s ta rded, but it technically is possible, as we see with Biden and other boomers. And I’m hearing it third hand, so maybe his overall meaning not as ridiculous as it sounds.
“I have heard of more aggressive SPEs on the hunt for errors under the new PAP, which certainly could lead to more people quitting.”
There are no real new errors to be found under the new PAP for all intents and purposes. If they’re doing that it’s was ted effort.
“That’s effectively flat; the office does not appear to be targeting lower staffing levels (yet).”
No reason to that I know of. If anything the “backlog” is back to growing in my area, I believe, at least, after a dip awhile back.…
You seem to be seriously backtracking here 184.108.40.206
Not just US-origin filings. Total filings at the USPTO dropped from 621K in 2020 to 597K. Truly, 2020 was a hard year.3.1.3
“I’ve said for a long time without CN we would have had layoffs at the USPTO.”
About time 1.2 billy people started doing their fair share.2
Night Writer’s comment on the previous thread at link to patentlyo.com
is on point.
As you and I have discussed (at each iteration of the narrative of “oh, so many patents,” there are several factors that are NOT included in the conversation.
Foreign versus native
Big Corp versus small
(and the Big Corp and Foreign elements could further be fine-tuned into Trans-nationals and entities that would have a larger stake in the advancement of the US Sovereign — juristic ‘people’ who do NOT have such a beholding are simply more apt to pursue [and advocate] games that diminish a Strong US innovation protection system)
Greg “Alfred E Neuman” DeLassus has even descended to posting on older less-traveled threads to the tune of trying to make believe that Efficient Infringers are not a real thing – a real threat to Strong US innovation protection systems.
Funny that – he professes to never read my comments, and yet, finds himself sneaking in snide shots from the sidelines. It is clear that his fake umbrage (oh N0es, sharp words) is a gossamer coat over his
Is the trend line of best fit for this data set linear or logarithmic?
The better question — given that innovation begets innovation — is why would anyone expect a linear trend line.
But hey, judicial branch (and others) with an anti-patent bent need not be bothered with at all, since “growth,” so everything MUST be hunky-dory.
People should not be “anti” or “pro” patent, but judge each one on its own merits. I think your tune would change if some troll sued you with an expired patent that they just purchased, claiming that your product infringes based on an obviously ridiculous interpretation of the expired patent. This sums up a big chunk of patent cases that get litigated. Having a troll sue on old patents that they didn’t even invent does nothing to promote innovation or justice. That said, of course there are many good patents, and sometimes people infringe those and they should pay.
“People should not be “anti” or “pro” patent, but judge each one on its own merits.”
Anyone who understands innovation – who understands why at the start of the US that no one questioned WHY we would have an innovation protection system – would be PRO patent.
That you want to ‘walk this back’ to some (merely) implied neutral stance — as if that ‘neutral’ were to be objective — is an error of not understanding the very concept that you are expressing your opinion on.
If you understood the topic, you would see that actual “neutral” IS to be PRO-patent.
“ I think your tune would change if some troll sued you with an expired patent that they just purchase”
This is a logical error, in which you are INSERTING your feelings without more, with no proof of this supposed wrongdoing at the onset.
You do realize that 35 USC 282 exists, right? and exists for a reason, right?
Your bias is showing – and it is clear that you do not understand innovation and why we have a patent system in the first place.
Billy is just plain nuts.
Thank you for the mindless insult Malcolm – a sure sign that I am on point.220.127.116.11.1.2
Donald Trump calling people “nuts”:18.104.22.168.1.3
Donald Trump calling people “nuts”:
That’s hilarious — as prior to Malcolm’s recent year plus “sabbatical,” I had often labeled him the “Trump” of these boards.22.214.171.124
Litig8or, in short no.
Having a market for patents is a good thing.
I agree there is a problem with patent lawsuits where there is too much of a burden on the D and the P can cause a lot of trouble for the D (and the courts don’t help.) Yes I’ve done some patent litigation.1.1.2
The better question — given that innovation begets innovation — is why would anyone expect a linear trend line.
Haha this is the kind of fantasy-based thinking one would expect from anon. “X begets X” suggests a logarithmic growth line only if you think purely in terms of math and ignore real world constraints.
The number of people are only slowly increasing, and most of the growth comes from places that are not large innovation leaders. *PEOPLE* invent things, nonobviousness is a relative standard, and there are only so many people-hours. Patents don’t mate like junebugs to produce baby applications all on their lonesome; each application represents the work of a human that expended sufficient time and study to reach further than the obvious.
The fact that patents fell only 7% during the start of a pandemic (remember there is a 17-20 month lag between filing and examination) is incredible. I would expect them to be down year-over-year in 2022 as well.