Disclaimer and Dedication

The chart above shows the number of disclaimed/dedicated patents per year going back to 1995.  Every year it has been a relatively small number, and for each instance there is usually some strategic reason for the disclaimer. As you can see, FY2022 is figuratively off the charts–almost triple any year since 2005.   I have not yet figured out whether the change here reflects some important change in practice or just a statistical anomaly.  Can someone help me understand what is going on here?

You can find these in the Official Gazette notices.

10 thoughts on “Disclaimer and Dedication

  1. 5

    How many were Covid-related pharma patents, disclaimed/dedicated for PR? Does any tax advantage apply for incurring such a loss? Might others in other industries be similarly motivated? How many were simply patentees exhausted from trying to prevent knockoffs by elusive foreign infringers, effectively giving up on the system?

    –Giarc

  2. 4

    Given the relatively small numbers involved, the jump could be the result of a single entity disclaiming a small chunk (or the entirety) of its portfolio for some reason or another.

  3. 3

    A relatively minor pet peeve here:

    The graph is simply misleading.

    Sub silento, there is a premise that a baseline of existing patents (for which the action presented) is a constant.

    As readers are reminded time to time, this is just not so.

    Far more likely here (with proper treatment of the raw data such as normalizing per granted claims), the 300 may stick out even more, may signal a “break” from a ‘recent’ trend of “hold onto everything to see how law may shake out,” or even may be swallowed up in a natural error bar (signifying much ado about nothing).

  4. 2

    @Dennis – is there any trends in the 300 or so patents that were dedicated? Are they of a certain technology? Is there a large common owner? Any insight into the subject matter and owners of the patents may help us understand why the spike in dedication.

    1. 2.1

      I would also be curious to see the issue dates of the 300 compared to prior years’ disclaimed and dedicated patents. Is there a typical age of a patent at which time they are let go? Did that change in 2022?

  5. 1

    Can you clarify what you included in your “disclaim” number – terminal disclaimers? Other?

    Ditto for “dedicated” – do you mean expressly? You mean via disclosure w/o claiming? Do you mean expiration?

    1. 1.1

      I am sure that Dennis is not referring to terminal disclaimers as that might be 10% of all patents granted. He appears to be referring to disclaimers and dedications under sections 253 (and 288).

      1. 1.1.1

        Agreed, although Kaad’s question does point out that there are several additional paths of “disclaim and disclose.”

      2. 1.1.2

        Correction, I am sure he is not referring to terminal disclaimers made during patent prosecution, but is referring to terminal disclaimers made after patent issuance.

      3. 1.1.3

        Yes, this still-mere 300 in 2022 must be the number of disclaimers or dedications under 35 USC 253 or 288, not maintenance fee abandonments. In a 2010 blog Dennis had noted that “Of the 100,000+ [U.S.] patents issued in 1997, fewer than 50% are still in-force” by 2010 due to non-payments of the consecutively increasing maintenance fees. [Non-payment is also the easiest way of abandoning an entire patent, including abandonments for technical obsolescence.]
        I have no answer to Dennis’ question – why the large disclaimer increase for 2022? Most disclaimers historically have been of individual claims found overbroad or otherwise defective when challenged in interferences, reexaminations, IPRs, or patent litigation. There has not been a 2022 jump in any of those.

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