We've Already Surpassed Last Year's Patent Totals
from the a-mockery dept
We've already noted early on this year that the USPTO suddenly seemed to be ramping up its patent approval rate this year at an amazingly rapid clip. And now comes the news that we've already passed the number of patents granted last year and are rapidly approaching the highest number of patents approved in a year (we should hit it within a couple weeks)... and then we'll still have two and a half months left. As Patently-O notes:This dramatic increase in the rate of granting patents is impressive -- especially in light of the fact that during this time, the USPTO eliminated examiner overtime hours for an extended period of time and hired only a handful of new examiners.In other words, it's exactly what we feared. Under the Kappos' regime at the USPTO, they've decided that the number one problem isn't bad patents, but the time it takes to get a patent. So in order to fix that, it looks like they're basically approving a lot more patents, with a lot less examining. That means, a hell of a lot more bad patents are hitting the market this year. Even if you support the patent system, I can't understand how anyone can not be horrified by this result. Rushing through more patents doesn't help anyone -- except the holders of bad patents. This is dangerous to American innovation -- the one thing that the USPTO is supposed to be helping.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Reader Comments
Subscribe: RSS
View by: Time | Thread
Gosh, the US is Innovative
(sarcasm)
[ link to this | view in chronology ]
Govt granted monopolies do not lead to invention or innovation. The USPS has a govt granted monopoly and, aside from the technological progressions they stole from the private industry (ie: delivery confirmation), they've been the same since their inception. Same thing with the Cableco industry (ie: DVR stolen from Tivo, even though Tivo did have a patent the patent wasn't enforced very effectively and the incumbents still stole the idea). Govt granted monopolies are an enemy of technological progress. How much has your electric company innovated in the last 20 years?
[ link to this | view in chronology ]
Don't jump to conclusions
When they were not allowing cases, and going to appeals more often, patent "geeks" were crying about how hard it was to get a patent. Now that the PTO is allowing cases, people are suddenly "horrified" (as you put it).
Who's to say that with the new allowances that they are increasing the attention to quality assurance before these patents get granted? You should wait and see what kinds of "bad" patents come out of this. You might be surprised to see that very few issues may come up with patents granted this year due to increased quality assurance.
[ link to this | view in chronology ]
Re: Don't jump to conclusions
There's something called precedent, you know. I'd love to see how your policy of "pray and hope that maybe things will be better this time" works out for you. Please let us know.
[ link to this | view in chronology ]
Re: Don't jump to conclusions
It's based on historical knowledge.
"Who's to say that with the new allowances that they are increasing the attention to quality assurance before these patents get granted? "
The facts and all the bogus patents that have been around lately. You know, some of the ones that are mentioned on Techdirt.
"You should wait and see what kinds of "bad" patents come out of this."
I'm pretty sure we can come up with more examples of bad patents than you can of good ones.
"You might be surprised to see that very few issues may come up with patents granted this year due to increased quality assurance."
I might be surprised if aliens from outer space come and give us a bunch of free gold tomorrow morning but I won't hold my breath.
If history is indicative of the future then it's perfectly reasonable to try and make future predictions based on historical facts. I might be surprised, the predictions might be wrong, but in this case it's highly unlikely.
[ link to this | view in chronology ]
Re: Don't jump to conclusions
[ link to this | view in chronology ]
This is particularly likely, don't you think? There was already a low quality threshold, I don't see how ramping up the approval rate could affect this in a positive way.
"The USPTO is damned if it does, and damned if it don't (as the saying goes)."
Not at all. If they start to only approve valid patents that meet their own criteria, they will be applauded. There's no evidence that this is happening, and they have a history of passing patents that are later overturned on points of obviousness or other invalidity.
All we're asking is that patents that don't end up costing industry millions (either through lawsuits or discouraging innovation) are rejected when they should be.
"You should wait and see what kinds of "bad" patents come out of this."
I predict a post in the near future on this site about a bad patent, along with a link to this post with a "see, we told you" kind of comment. Your unfounded optimism is unfortunately less likely to be proven true than Mike's pessimism.
Feel free to be smug about your prediction if it does come true, but I very much doubt it will.
[ link to this | view in chronology ]
Wait...
So how can patent approvals be up and the economy be down? Me no get it....
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Uh...101, 102, 103 and 112 still have to be satisfied, and these matters are moving forward with amended internal guidance/policies implementing KSR, Bilski, etc.
The USPTO is not in the business of simply issuing patents to anyone who applies. If this was the case then we would have stayed with the registration system established in the Patent Act of 1790. It is in the business of examining applications to determine if they comply with the above-noted section of the patent laws, and if they do comply then issuing a patent accordingly.
Will some "bad" ones get by? Yes, as is true of any process with a human component. However, just because some may get by is no reason to be horrified that the USPTO has started to change some of its past practices so that it can start to effectively address the large backlog of pending applications.
[ link to this | view in chronology ]
Re:
The more relevant question is will some good patents get by? Yes, maybe one or two, but that hardly justifies allowing dozens and dozens of bad patents by.
[ link to this | view in chronology ]
Re:
Yes, there is a human element. Yes, it makes mistakes. Prioritizing the elimination of the "backlog" (of their own creation) over the approval of quality patents will generate more mistakes.
[ link to this | view in chronology ]
Re: Re:
Perhaps you missed my reference to 101, 102, 103 and 112. You do know what these #s represent and why they are important, don't you?
[ link to this | view in chronology ]
"In the years before the fall of America as a super power the government guided by big pharma tried to maintain control through IP laws. America couldn't compete with cheap labor and the ingenuity in other countries so the government thought it would be viable to try and patent the maximum number of ideas as it could no matter how ridiculous those ideas were in the believe they would charge other countries and companies around the world for it. It didn't work that way unfortunately for America, because it stalled innovation inside America and pushed research and development to other areas and when they tried to change course when other countries started to use IP to lock down basic technologies vital to the development of current technology in those days, it was to late, they have lost the ability to come up with ideas and secure them, they have lost the ability to compete and the country economy was getting worse, angry people took to the streets and the security apparatus responded violently"
One day this all could happen.
[ link to this | view in chronology ]
Re:
should be; it was to late, they had lost the ability to pass laws which endangered the totalitarian state. Their ideas were owned before they were conceived. Anyone with any sense opened their startup in Canada or Chile or New Zealand. Soon the larger companies who often found themselves victims of ludicrous entitlement lawsuits, began an exodus with the rest of the future world. And so the Roman decline began anew.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Come on; everybody* wins!
*And by everybody I mean patent lawyers.
[ link to this | view in chronology ]
the 500 million dollar problem
[ link to this | view in chronology ]
Improved efficiency leads to improved issuance rate
1. The move to Alexandria is complete, so attention is no longer diverted to the move.
2. The physical setup of the Alexandria location is more efficient.
3. The Examining Corp has reduced turnover so the corps is getting more experienced and that may lead to efficiency.
4. The PTO is finally getting up to speed with a decent prior art collection on computer-related inventions so they are not shooting in the dark like they were in the not to distant past.
5. Applications are now being predominantly filed electronically so the Examiners do not have to mess with paper shuffling. It is much more efficient to call up a file with a few clicks than to order it and wait for weeks. It allows Examiners to now respond to many interview requests on the spot or in very quick fashion. Much more efficient.
6. Computerized searching has replaced paper searching and is now well entrenched and understood by Examiners. Computerized searching takes a fraction of the time of paper searching, and computerized searching is more accurate since, unlike the paper file, the computer search files are always available and always complete and much more current.
7. Search of possibly conflicting applications is now electronic and thus more efficient.
This increased efficiency may well be due to the computerization of the PTO, the move to new more efficient facilities, and the paperless handling of applications and searches.
Hence, CA and his optimism may be more in touch with reality than catchy slurs, innuendos, and wild speculation. Time will tell whether the affirmance rate goes up or down. KSR and Bilski suggest more cases will be invalidated than before, so if the affirmance rate stays the same or goes up, it will prove all you naysayers wrong.
As to going to a 1790s registration system, there are good arguments why that might be a good thing if coupled with a quick exam and infringement analysis by the PTO prior to or as part of any patent infringement suit.
And it came to pass, in the days of the rise of Japan and then China and India as superpowers challenging America that they adopted a system of delayed examination of patents and it resulted in them catching and often surpassing America in various areas of technical innovation. America took the path of making it difficult and expensive to get a patents, so creative enterprises died or moved to the Far East and India where such difficulties do not exist. Without a reward, inventors ceased to invent, the economy stagnated and jobs moved overseas. Oh....that's not really fantasy, it has happened and is continuing to happen. Unless we make patents easier to get, not harder, and easier to enforce, not harder, we will continue to see the rise of contingent litigators as they will be the only ones who can enforce the patent of an individual creative inventor who is being steamrolled by big business such as those in the Coalition for Patent Piracy and its patent deform which appears still headed for another defeat.
[ link to this | view in chronology ]
Re: Improved efficiency leads to improved issuance rate
Sorry, no dice. If the increase had been gradual, then you might have a point. But this is a huge jump.
[ link to this | view in chronology ]
It's funny to see Google ads for patent attorneys on your site
[ link to this | view in chronology ]
Re: It's funny to see Google ads for patent attorneys on your site
He is into money making, don't you see it ?
A paid stooge and PR jerk, nothing else
[ link to this | view in chronology ]
Re: It's funny to see Google ads for patent attorneys on your site
First of all, what's "hypocritical" about selling ads? I'm confused...
Second, if you knew how much Google ads pay, you would laugh. I think in a month, we'll make enough to buy the team here lunch at McDonalds
[ link to this | view in chronology ]
allowance rates
Not necessarily. For years the PTO held back and allowance rates were artificially low. Inventors had to fight to get their patents. Many as a result didn't make it and went out of business. I suspect the allowance rate now is more nearly what it has historically been. Patent prosecution will never be perfect, but any patents that issue prematurely will likely never be asserted. It costs millions to do so and firms are quite hesitant as anyone but you will guess before spending all that money to enforce a questionable patent.
[ link to this | view in chronology ]
Kappos and patents
The IP system COULD be a major economic engine for the US, but the way it has been going since the 70's, and especially now, it is a major hindrance to our economy.
MY clients, on the other hand, use it for good - or become ex-clients.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]