USPTO Grants 2022

The US Patent and Trademark Office (USPTO) issued a total of 359,000 patents in 2022, including 323,000 utility patents. This marks the third consecutive year of decline in the number of issued patents. The 2022 figures show a 1% decrease from the previous year and a 9% decrease from the record-high numbers seen in 2019, as depicted in the chart below.

 

58 thoughts on “USPTO Grants 2022

  1. 9

    Everything which can be invented . . . has been invented.

  2. 8

    Recognizing that the previous thread has now ‘gone to page 2,’

    Wt’s own salacious “breadcrumbs” — refuted.

    link to open.spotify.com

  3. 7

    Be nice to see the whole picture that includes applications filed, backlog, and allowances.

    1. 7.1

      Night Writer,

      You are correct – the amount of anti-patent B$ that is flowing on this thread is just awful (holding one’s nose is not enough).

      Not only from the feeble attempts of the typical examiner crowd (Ben and Random), but Greg repeatedly weighs in and is corrected.

      On top of that, he insists on continuing his most-odd ‘secret’ signaling of burying hyperlinks into small character sets.

      For example, buried in Greg’s posts at 6.3.1.1.1.1.1 – the “i” in “filed” in the last paragraph – is a link to a horribly written (and very errant Click-bait titled) hit piece on the conservatives of the Supreme Court.

      And then you have Mr. IPR Cheerleader at 6.6 “thanking” for statistics – and while admitting that they just do not support the point asserted – STILL seeks to denigrate patent holders as merely “garner lawsuit settlement payments” – an anti-patent holder propaganda piece.

  4. 6

    One can only hope. Software and business method patents account for ~87% of the IPRs instituted over the last fiscal year (slide 9), compared with only ~9% for pharma, ~3% for chemical, and ~1% for designs.

    In other words, legacy software and business method patents evidence more prior art defects than all other sorts of patents put together. Clearly there was a deficit in examination quality back when these were granted. Nor is there any real reason to suppose that this examination defect has been fixed for applications currently pending.

    This is hardly surprising. Software and business method claims are generally drafted in very functional language, and it is hard to search functional claims. Prior art can easily disclose a structure that is capable of the function that the claim recites, without ever using the functional terms recited in the claim or any synonyms of those terms. Under such circumstances, it is challenging for an examiner to find the most pertinent art, so it can hardly be surprising that the most pertinent art is frequently missed at the examination stage for software and business method claims.

    In other words, software and business method applicants are frequently getting claims granted on the basis of very incomplete examination. This does not end well for the patentees if they try to enforce, as the PTAB statistics bear witness. It would be better for all involved (the applicants, the USPTO, and the general public) if these applicants were to get the message that the patent examination system is not really well designed to process their applications, so that the applicants could adjust their behavior accordingly. Most of them would be better served if they just walked away from the patent system, without ever applying.

    1. 6.1

      Whoops, sorry. This was meant as a reply to Josh Malone’s #2 below.

    2. 6.2

      Your linked slide does NOT support your assertion – and in fact, with Bio/Pharma instituted at a HIGHER percentage, your logic would dictate that it is the Bio/Pharma folk who should be running away from the patent world as a form of protection.

    3. 6.3

      Do the number of IPRs filed track with the number of litigations filed in a particular technology? If so, it may not be prior art defects that is the driving force. I do note, however, that IDSs for bio/chem applications tend to err on the side of overinclusion.

      1. 6.3.1

        Do the number of IPRs filed track with the number of litigations filed in a particular technology? If so, it may not be prior art defects that is the driving force.

        This is a good point. Software patents see more IPRs instituted than pharma patents because they see more IPR petitions, and they see more IPR petitions because they are asserted more often than pharma patents. In other words, Mr. Mountbatten’s point does not really follow.

        On the other hand, his broader point that software applicants would be better off if they never got involved with the patent system. The PTAB statistics do show that the software patents are disproportionately likely relative to patents in other tech areas to be asserted, but those assertions rarely end well for the patentee. Most of those patentees would have been better off if they had never involved themselves with the patent system.

        1. 6.3.1.1

          >>Most of those patentees would have been better off if they had never involved themselves with the patent system.

          Oh brother, there is so much anti-patent crxp in this string that I had to hold my nose to finish reading this nonsense.

          1. 6.3.1.1.1

            [T]here is so much anti-patent crxp in this string…

            Fair enough. The point of my 6.3.1 is that certain people would be better off not involving themselves with the patent system, so this is an objectively “anti-patent” message.

            It is also an objectively true message, so it is a shame if you find it objectionable. Certain people really are better off not involving themselves with the patent system. Patents serve a very useful function, but there are many functions that patents do not and cannot serve.

            If you write a novel, a patent will not protect it. If paint a mural, a patent will not protect it. If you record a hit single, a patent will not protect it.

            By the same token, if you invent some software or some business method, it is unlikely that a patent will be of any commercial use to you with regard to that software or method. A patent is not as categorically irrelevant to the software or business method as to the novel or mural or song, but the chances of successfully enforcing a software patent are only slightly better than for enforcing a patent on a novel.

            Over a decade of lived experience now demonstrates that most software inventors are better off omitting the patent step in their business plan. If, as Josh Malone suggests, many of them have cottoned onto this truth, that is all for the best.

            1. 6.3.1.1.1.1

              Greg, you don’t work in the field. Software patents can still be very valuable and can still be asserted.

              It is true their value has decreased enormously to the detriment of R&D and innovation in the USA.

              I just worked with a start-up where I got their primary invention allowed after 3 months and they got millions in funding on the basis of their product and the IP that could be used to stop copiers.

              1. 6.3.1.1.1.1.1

                Software patents can still be very valuable and can still be asserted.

                It is true their value has decreased enormously…

                Fair point. Despite the tone of my 6.3.1.1.1, it is too much to say that there is no value to any software patents. There is no denying, however, that the last several years have seen a long string of small-entity and micro-entity inventors whose patents collapse like tin foil when asserted.

                Those folks would have been better off if they had never filed. Moreover, it is hard to see that the actual state of innovation would have been any the worse off if those inventors had never involved themselves with the patent system.

                1. Well, there are papers reported on the other big blog that say that innovation is being hurt by the weakening of the patent system.

                  And, from my experience the big corps will just take what you have if you don’t have IP protection. You really have no experience in this area at all.

    4. 6.4

      Software and business method claims are generally drafted in very functional language, and it is hard to search functional claims. Prior art can easily disclose a structure that is capable of the function that the claim recites, without ever using the functional terms recited in the claim or any synonyms of those terms. Under such circumstances, it is challenging for an examiner to find the most pertinent art, so it can hardly be surprising that the most pertinent art is frequently missed at the examination stage for software and business method claims.

      Yup. Not to mention that nobody ever invents a function.

      1. 6.4.1

        This is such nonsense. People invent machines and methods. The methods perform functions.

        1. 6.4.1.1

          Yes, a machine or method is one way of performing the function. It makes as much sense to say “I have a method that performs the function therefore I fully possess the entire function” as it does to say “I have a job that earns me money, therefore I possess all the wealth”

          1. 6.4.1.1.1

            You should (but won’t) quit your day job.

          2. 6.4.1.1.2

            RandomGuy, it is like you don’t understand patent law at all.

    5. 6.5

      In other words, legacy software and business method patents evidence more prior art defects than all other sorts of patents put together. Clearly there was a deficit in examination quality back when these were granted.
      Wow … this is some lousy analysis.

      Bad assumption: IPRs are filed equally across all technology classes. One rarely files an IPR when the value of the patent is negligible. Software is subject to lots of IPRs because software is V A L U A B L E. By way of example, Facebook has something close to 3 Billion monthly users. Needless to say, they aren’t in the same jurisdiction, but that represents a LOT of infringing behavior. One doesn’t need to get much of a royalty on a 100M users (in the US — just a guesstimate) to add up to significant damages. In short, valuable inventions attract IPRs.

      Software and business method claims are generally drafted in very functional language, and it is hard to search functional claims.
      Really? Where did you find this nugget? From some 30 year old treatise on software patents? Or from Benson v. Gottschalk, which was written in 1972? The ubiquitous nature of software patents provides for plenty of prior art. Moreover, software tends to be pretty well documented so there is also plenty of NPL available for those willing to dig for it.

      In other words, software and business method applicants are frequently getting claims granted on the basis of very incomplete examination.
      The same happens to all types of technology. Prior art is searched using keywords. If the keyword from the claims being searched doesn’t match the keyword of the prior art, it is quite possible that the prior art will be missed. The one thing about software is a LOT of it involves international standards, which means that the same terminology is being used to describe the same things. That isn’t necessarily the case in a lot of non-software technology. As someone who has worked with both software and non-software technology, I don’t see software claims being inherently harder to search than non-software technology.

      Most of them would be better served if they just walked away from the patent system, without ever applying.
      LOL. Who do you work for? Google? Facebook? Apple? Any of the other large software corporations who ‘appropriate’ the software of others and call it their own? Those are the ones that would be the happiest if inventors stopped filing patent applications are software-related inventions. They don’t need to compete on technology — they’ve got the kind of market power that would make 19th century industrialists blush with envy.

      1. 6.5.1

        “Prior art is searched using keywords. If the keyword from the claims being searched doesn’t match the keyword of the prior art, it is quite possible that the prior art will be missed.”

        Prior art is not only searched by keyword. It is also searched based on classification, and anyone who knows that also knows that software and business methods suffer from particularly poor classification relative to chemical, mechanical, and non-software electronics.

        1. 6.5.1.1


          and anyone who knows that also knows that software and business methods suffer from particularly poor classification

          Translation: “Wah.”

          More examiner-whine about the p00r job of…

          … the Office.

          1. 6.5.1.1.1

            Examiners classify their applications with a tool called CAT. Unfortunately, the office does not provide training, motivation or time for examiners to classify their published applications.

            1. 6.5.1.1.1.1

              Perhaps you misunderstood my post as some indicator that I care about the internal workings of the patent office.

              I do not.

              I do care — very much — when examiners try to make their problems into being problems (especially internal ones) for my clients.

    6. 6.6

      Thanks for the PTO IPR statistics that “Software and business method patents account for ~87% of the IPRs instituted over the last fiscal year (slide 9), compared with only ~9% for pharma, ~3% for chemical, and ~1% for designs.”
      But, as noted by others here, that shows that far more such patents have broad claims and are being sued on these days, since more than 80% of IPRs are filed by patent suit defendants or others so threatened. I.e., not necessarily showing an examination quality difference.
      If such patents were really not worth obtaining in general, and did not garner lawsuit settlement payments, we would not have the whole patent lawsuit financing investment business we have now.

      1. 6.6.1

        If such patents were really not worth obtaining in general, and did not garner lawsuit settlement payments, we would not have the whole patent lawsuit financing investment business we have now.

        I am not sure that the logic here holds up, although I confess that I frequently fall victim to this sort of argument.

        “If ride-sharing is not a profitable business model, we would not have so many Uber drivers.”

        “If meal kits were not profitable, we would not be plagued with so many HelloFresh and Blue Apron pop-up ads.”

        “If housing prices were artificially inflated, there would not be so many successful flippers in the market.”

        Etc.

        The reality is that the rise of China has created a huge lake of excess savings looking for a productive business in which to invest. It has to go somewhere, with the result that lots of unprofitable businesses models have been given a chance to make a go of it in the U.S. market.

        All of these look like great successes for some period of time. Some of them really have worked, but more have failed eventually. Too early to say which category litigation finance will ultimately occupy.

        1. 6.6.1.1

          One can hope that your doubts are confirmed, and the whole patent lawsuit financing investment business we have now loses so much money that their financial investors all stop doing so. But I have not seen any reports of such death so far. And, patent litigation has advantages in that the defendant has an added clear and convincing evidence requirement to overcome the statute-presumed validity of the patent and S.J. is rarely granted or sustained on that issue. Making cash settlement payments to avoid an expensive jury trial and appeal on all issues far more likely.

          1. 6.6.1.1.1

            And, patent litigation has advantages in that the defendant has an added clear and convincing evidence requirement to overcome the statute-presumed validity of the patent and S.J. is rarely granted or sustained on that issue. Making cash settlement payments to avoid an expensive jury trial and appeal on all issues far more likely.
            And patent defendants have multiple ways of kicking up sand — delaying justice for years on end — sometimes lasting over a decade. The hurdles placed on patent owners are so onerous that few are able to receive the value of the infringement of their patents. Rather, most are forced to take pennies on the dollar in settlement offers to avoid the protracted battles that the companies with multi-multi-billion market caps can afford without batting an eyelash.

            Then again, your comments have always reflected a lack of concern for the underdog so I shouldn’t be surprised.

            1. 6.6.1.1.1.1

              Plus one

              Billion.

            2. 6.6.1.1.1.2

              I don’t disagree with your added comments about how some deep-pocket defendant companies act when sued for large amounts by patent owners. [That is not new – years ago some judicial delays of patent suits were even more protracted and onerous. ] But if “most” patent owners really only got “pennies on the dollar” [from realistic pre-suit infringement damage calculations], then we would not have the well documented increase in extent of professional venture capital funded PAE suits. Nor would those lawsuit financial investors take such low settlement offers and agree to drop their law suits if they thought they had a decent chance of winning a large jury verdict.

              1. 6.6.1.1.1.2.1

                Your reply is a non-sequitor and does not support (logically) your contentions, Paul.

                There are a handful of reasons for ever taking any amount of settlement, and just because some are taken at lower levels does NOT mean that the matters do not have merit at higher levels.

          2. 6.6.1.1.2

            When I was a new associate, a brilliant patent litigator told me he prefers to be a defendant rather than a plaintiff in a patent infringement lawsuit. As he explained, the defendant only has to win on one issue, but the patentee must win on all. That was before defendants got the gift of IPRs that can be filed at any time in the life of a patent.

            1. 6.6.1.1.2.1

              Not sure that defendants can be said to be allowed to file an IPR any time in the life of the patent. The general public can file any time up until 6 years after the life of the patent, but defendants only get one year past the date when they are served with the complaint.

              1. 6.6.1.1.2.1.1

                Yes, defendants only get one year past the date when they are served with the complaint to file an IPR. But the more serous limitation is that of the numerous possible defenses to a patent suit, an IPR is limited just to 102 or 103 arguments based solely on patents or publications.

                1. You seek to impugn that which was given express reasoning by Congress in their actions.

                  This is a form of misinformation from you Paul.

              2. 6.6.1.1.2.1.2

                Thanks. I should have said potential challengers, not defendants.

            2. 6.6.1.1.2.2

              I do not doubt that some patent litigators prefer to represent defendants. The only significant burden of proof most patent owners face in their patent suits is proving up infringement. In contrast, there are numerous possible non-infringement, invalidity or unenforceability defenses to investigate for and develop clear and convincing evidence for.
              Which sides attorneys do you think have the greatest total discovery, research, pre-trial-motion and trial-preparation Billing Opportunities?

              1. 6.6.1.1.2.2.1

                Billing opportunities…?

                Is that why YOU personally gave up your registration number so long ago and stopped helping innovators obtain their (rightful) legal protections through patents?

                Your post here does not support your contention — quite the reverse, as you impugn the Efficient Infringers for whose purpose your posts sound in.

                1. The indicated subject here is the representation preference of patent litigators, which is normally understood to be the attorneys getting well paid by the parties to do the patent litigation, not the parties themselves, as seems somewhat confused here. If patent owners versus sued defendant companies [the parties] was meant, the question is moot, as defendant companies can only start lawsuits with a DJ action [and sufficient cause for that] which is now relatively rare. And, why would any company prefer to be a defendant rather than a plaintiff?
                  Whether or not defendants [with sufficient cash] may be personally preferred by certain patent litigation attorneys for logical law firm financial reasons has nothing whatsoever to do with anyone’s alleged personal sympathy for alleged patent infringers. Any attorney with such client discrimination attitudes might be better served working in a “public defenders ” office. How many prep & prosecution patent attorneys would turn down good new patent business opportunities from major software or internet companies with well deserved reputations as “efficient infringers?”

                2. [W]hy would any company prefer to be a defendant rather than a plaintiff?

                  Huh? Why would anyone prefer to be the plaintiff? Almost by definition, the plaintiff is the party who finds the status quo to be intolerable, while the defendant is the party who finds the status quo tolerable—or even better than tolerable. Why would anyone prefer to be the one with the burr in his shoe?

              2. 6.6.1.1.2.2.2

                Your sympathy for accused infringers is noted.

                1. … and repeated (yet again) with an additional post of nonsense above (to which even Greg took note of).

                  Paul simply no longer understands the nature of prep and pros (that is, obtaining innovation protection), seeing how it has been MANY years since he gave up his Reg. No.

            3. 6.6.1.1.2.3

              [A] brilliant patent litigator told me he prefers to be a defendant rather than a plaintiff in a patent infringement lawsuit. As he explained, the defendant only has to win on one issue, but the patentee must win on all.

              I expect that this is true. Is it not true for pretty much any lawsuit, however, and not just patent suits?

              The plaintiff is always the one with the ultimate burden, regardless of the subject matter of the lawsuit. Moreover, every area of law has its own varieties of affirmative defenses. Defendants can—and do—raise multiple affirmative defenses, and the defendant usually has to win on only one such affirmative defense, while the plaintiff must prevail on all in order to reach an ultimate victory.

              Both the plaintiff and the defendant each have small in-built structural features in their respective favors. The whole legal system, however, is structured somewhat to favor defendants. This is scarcely unique to patent law.

      2. 6.6.2

        The latest IPWatchdog has two Venable law firm partners noting that between 2019 and 2021 patent suits increased from 3,576 to 4,063 and suits against streaming service companies increased by nearly 900% from 2008 to 2017. [Since 2017, on average, 167 new cases per year.] Supporting what I had noted earlier they said that “This trend is largely attributable to an influx of litigation funding. Private investment firms facing a bear market now invest billions to capitalize on a high ROI achievable through patent litigation. … Moreover, there are many inexpensive patents that funders have acquired and asserted. For decades, inventors obtained streaming-related patents; most of their companies failed, leaving patents to be acquired by funded non-practicing entities.” Another commentator there also noted patent litigation funding.

      3. 6.6.3

        Paul, >>But, as noted by others here, that shows that far more such patents have broad claims and are being sued on these days, since more than 80% of IPRs are filed by patent suit defendants or others so threatened. I.e., not necessarily showing an examination quality difference.

        Software/Business methods account for like 80 percent of the patent filings.

        So, no.

  5. 5

    I hope that this 9% drop doesn’t foreshadow another dark age like the one which started with the 15% drop in grants over 2003-2005!

  6. 4

    For this to be meaningful, we need the number broken down by the origin of invention. Is the invention from the USA or outside the USA? What is the contribution from China, which has had a program of building their foreign patent portfolio?

    As I have said for many years, the number of USA origin patents continues to drop.

    This is consistent with what I see in my practice where patents continue to be deemphasized (along with research). I note that in some of the companies I work for I’ve noticed that as patents are deemphasized the research teams are laid off.

    1. 4.1

      NW, I think this is very technology dependent. I work entirely in chemistry and pharma, and I see a definite increase in both research and patenting. Greg commented earlier, and I completely agree, that it would it would useful to see this data broken down by art unit if at all possible.

      1. 4.1.1

        By AU would help too. I think chemistry and pharma have not been hurt as much as mechanical, EE/CS AUs. Plus, again, by origin of invention is important.

        1. 4.1.1.1

          Yup – as I noted below.

  7. 3

    Prof. Crouch, did you happen to notice whether the grant count was down across all art units? Or did some see increases and others decreases?

  8. 2

    The inventor boycott has begun. No more phony patents for us.

    1. 2.1

      Maybe.

      Maybe not.

      Greg actually has a point here — plus it may well matter very much how different entities are approaching ‘the game’ (and I give a nod to Night Writer as to distinctions of entities based on foreign or domestic basis, and I would — again — add my emphasis on distinctions as to multi-nationals).

      Numbers — alone — being down does not necessarily speak what you want to say (and I would also add that what you want to say falls directly into what the Efficient Infringers want you to say).

    2. 2.2

      The inventor boycott has begun. No more phony patents for us.
      Meh. I doubt any “inventor boycott” would impact more than a fraction of a percent of the number of patents issued by the USPTO.

  9. 1

    Just eyeballing it, we appear to be up relative to the trendline pre-pandemic, but noticeably down relative to where the trend should have been expected to go had the pandemic not happened. No surprise to learn that the pandemic negatively affected technological development, just as it negatively affected so many other aspects of human life.

    1. 1.1

      If true, I’d expect significant worsening in ’23 / ’24. This would be the very early cohort of 2020+ inventions.

      1. 1.1.1

        Agreed.

      2. 1.1.2

        I suspect that this may be more of a “money driving culling” effect than any actual drop in innovation.

        Let’s remember that often innovation finds a DRIVER in adverse circumstances.

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