by Dennis Crouch
I’ve got three charts to show you below. The first and second are histograms showing the number of claims per US utility patent – 2021 and 2006 issue dates respectively. You’ll notice that the 2021 histogram has a much stronger central tendency focused on the buffet-limit of 20 claims. The 2006 patents are significantly more spread, with many more patents under and over 20-claims mark. That wider distribution is also shown in the time-series box-and-whiskers plot at the bottom (showing 25-50-72 percentiles in the box). And by the standard deviations: the standard deviation for the 2021 claim counts was less than half of that for the 2006 claim counts. Basically, the 2021 patents are much less likely to either a very large number of claims or a very small number of claims.
My hypothesis is that these changes are driven by several factors, with the following two most impactful: (1) Since 2006, there has been a substantially increases in USPTO fees associated with having more than 20 claims. That change has pushed folks away from having a large number of claims in a single patent; (2) Since 2006 we have also seen a further professionalization of patent prosecution, including a recognition that the applicant should include 20 claims if possible. This change has shifted applicants up from the very low numbers. Some may argue that restriction practice is also important. However, I don’t believe that restrictions have increased so dramatically as to cause this change.
But – why does someone need 20+ restatements of the invention? Would it be conceivable to have a system that includes just one claim? What do you think?
The fee structure for excess claims (>20) was established in the form we know back in 1982. The final chart below comes from 1980, and you see no 20-claim impact.
