by Dennis Crouch
In a recent post, I discussed major proposed changes to terminal disclaimer practice that could significantly impact the landscape of patent law. Today, I want to briefly note a trend that underscores why these proposed changes are more pertinent than ever: the increasing percentage of U.S. utility patents bound by a terminal disclaimer.
The Rising Trend
USPTO data from the last two decades reveal a noticeable increase in the percentage of issued patents with a terminal disclaimer, from 9% in 2006 to more than 18% by 2024, with a major jump from the prior trend in 2023. These trends suggests a growing complexity in patent portfolios and an increasing emphasis on non-statutory double patenting at the USPTO. At the same time, the number of patents issued per year has also more than doubled. The result then is that in 2023 almost 60,000 utility patents were bound by a terminal disclaimer.
The data also indicate that this trend spans a diverse set of entities—from large tech corporations to small startups and individual inventors. This diversity suggests that the implications of both the rising trend of terminal disclaimers and the proposed regulatory changes are widespread, affecting a broad swath of the innovation ecosystem.
The USPTO’s regulatory proposal has now been published and can be reviewed here: https://www.federalregister.gov/documents/2024/05/10/2024-10166/terminal-disclaimer-practice-to-obviate-nonstatutory-double-patenting. The USPTO is only accepting comments via the Federal eRulemaking Portal at www.regulations.gov. To submit comments via the eRulemaking portal, you have to search for docket number PTO-P-2024-0003.
Major Proposed Changes to Terminal Disclaimer Practice (and You are Not Going to Like it)