30% More Patents Issued in 2010

An anonymous reader writes "The numbers are in, and the US Patent Office granted 219,614 patents last year, which is 31% higher than in 2009 and 27% higher than any year in history. This wasn't just a marginal increase in patents being approved, but a major leap. US Commerce Secretary Gary Locke and USPTO director David Kappos have both stated that one of their goals is to reduce the backlog in patent approvals, and it appears that the way they're doing so is by approving more patents, more quickly with less scrutiny — with a large percentage of them being software patents. This may decrease the backlog at the Patent Office, but seems likely to increase the backlog in the court system as lawsuits are filed over a bunch of these new patents."

Comments

It's a shame

[Pojut]

It's a shame "don't submit obvious patent trolls", "don't attempt to patent shit you obviously didn't create", and "don't waste the PTO's time by changing one line in your claim and resubmitting it" can't be followed. Seriously. WTF.

Re:It's a shame

[Local ID10T]

Agreed. Judges can fine/imprison those they feel are "wasting the court's time". The patent office needs such penalties as well. I suppose it would just become a numbers game -how many successes required to balance out how many penalties...

Re:It's a shame

[aztracker1]

Initial submission $5000, each re-submission double the cost of the previous submission. Cut the protection of Software, Process, and Design patents to 5 years... that would go a long way.

Re:It's a shame

[undecim]

Initial submissions $5,000?

So what are individuals and small businesses supposed to do?

Re:It's a shame

[coolmadsi]

Initial submissions $5,000?

So what are individuals and small businesses supposed to do?

What about "Initial submission $5000, refunded if approved". That way you'd want to be certain that what your trying to patent is demonstratably unique and worth patenting.

IBM

[santax]

Let's hope they get the Patent-patent and lock it away forever. People believing that there is only 1 inventor of an idea don't know shit about history. It's very very rare for 1 person to come up with something really unique. Patents, especially on obvious things like math (software) or a 1 click-to-buy (amazon) aren't a big problem today for the average citizen, but it won't be long before those lobbies will get a law that will also let them target the end-users. Mark my words. Patents as they are implemented have absolutely nothing to do with protecting design, but everything with locking out fair competition and maximizing profits for often very obvious things that at least another million people thought about but just dind't file for it, for the simple reason: duhhh obvious.

Re:IBM

[Znork]

Patents... aren't a big problem today for the average citizen

As patents (and other IPR) are effectively a form of taxation they can burden the economy with inefficiency until it becomes incapable of competing with other producers who aren't burdened with the same costs.

The inability that western and other IPR heavy economies show at competing with less crippled economies certainly appears to be a rather significant problem for many average citizens.

Of course, as long as IPR levies are hidden away as 'private' costs, rather than being regarded as parts of the tax burden, the system is unlikely to get corrected as there is no representation for the paying parties in the system or accounting for the actual costs to the economy.

Re:IBM

[PolygamousRanchKid]

People believing that there is only 1 inventor of an idea don't know shit about history. It's very very rare for 1 person to come up with something really unique. Patents, especially on obvious things like math (software) or a 1 click-to-buy (amazon) aren't a big problem today for the average citizen, but it won't be long before those lobbies will get a law that will also let them target the end-users.

Issac Newton and Gottfried Leibnitz both independently invented Calculus. Imagine if one or both of them patented it?

School Teacher: "Hi! Welcome to Calculus class! Your books are on your desks. Please note that they are sealed. Please read the EULA on the cover before breaking the seal and opening them."

Re:IBM

[mangu]

People believing that there is only 1 inventor of an idea don't know shit about history.

I couldn't agree more with this! Not only there are patents that are submitted by totally different people almost simultaneously - the telephone patent where Alexander Graham Bell submitted his entry a few hours before Elisha Grey is a good example - but also most inventions are a gradual evolution of separate ideas that end converging into something useful.

Look up the Selden patent to see how a hundred years ago some car manufacturers tried to spread FUD about how people who bought cars from other manufacturers could be sued and lose their automobiles because the other manufacturers hadn't paid royalties to the "automobile inventor". Sound familiar?

Re:IBM

[vikstar]

One conclusion is that the people who work at the patent office are below average intelligence, as they consider something obvious as something non-obvious.

Thirty percent more what?

[xednieht]

30% more Shit from the USPTO

There I fixed that for you.

increase the backlog in the court system

[countertrolling]

Eh, waddya gonna do? It's good for business.

Have they patented oxygen yet?

[steeleyeball]

What kind of moron patents DNA sequences... A Naturally occurring chemical. Putting a patent on the techniques to discover the sequences I could understand, if I didn't think knowledge should be free. Such a lack of wisdom is really sad.

Winner: US Patent Office

[denis-The-menace]

The US Patent Office get its funding from patent applications fees.

So the question is: WHAT THE #UcK DID YOU EXPECT!

Re:Winner: US Patent Office

[Arccot]

The US Patent Office get its funding from patent applications fees.

So the question is: WHAT THE #UcK DID YOU EXPECT!

There's a lot of people bashing the USPTO, but I can't think of a way to manage them any better given the resources they do have. Its like blaming teachers for schools falling apart. Patent review is not exactly a prestigious job, so it requires at least average pay for its workers. The filing fee is, what now, about $350? That's about a days worth of work for a patent examiner, maybe a bit less once you include benefits. So unless I'm wrong, assuming the patent office is fully staffed with no waste, a patent examiner has to read a usually massive document from start to finish, review if the material is actually able to be patented, review past patents to see if any conflict, and make a judgment whether to approve or not. Denials need to make sense and stand up in court. All in a field the patent examiner likely has little to no experience in.

The office isn't screwed up, the system we use to evaluate patents is.

Re:Winner: US Patent Office

[click2005]

How about increasing the cost of each additional patent a company files in a year by 10%?

Re:Winner: US Patent Office

[olsmeister]

10%? How about 100%?

Re:Winner: US Patent Office

[dgatwood]

Won't work. Companies can't really file patents. The inventors technically file the patents and assign them to the company (by prior agreement). Therefore, get a large enough company and you can effectively file a whole lot of patents without the same person ever being the listed inventor.

No, if you want to cut down on the number of junk patents, require that the people listed on the "Inventor" line pay for the patent by personal check and make reimbursement illegal.

Re:Winner: US Patent Office

[Pinky's Brain]

You're right, they can't possibly judge a patent accurately with the time they have ... even if they were allowed to use judgement (obviousness is a judgement call, it can NEVER be broken down into some objective test ... except by redefining the word obvious, which is what the fucking lawyers try to do time and time again).

So why even try? If patents can only be truly judged by true practitioners (expert witnesses) in a court of law why not dispense with the whole charade? Just let examiners check if all the boxes are filled correctly so they can be entered correctly into the database before rubber stamping them?

Re:Winner: US Patent Office

[RicoX9]

Came here to suggest something like this. Say the first 10 are $350, incrementing 20% every 10? Top out at say $5K/application?

I think the unintended consequence of this would be creating hundreds of wholly-owned subsidiary companies just for filing patent paperwork. You'd need to link/register individuals linked to specific orgs to bypass that. Dunno. Just needs something like this to put the brakes on the process.

Re:Winner: US Patent Office

[aztracker1]

Bring the filing fee up to $5000, if you get the patent, it's less than the cost of the granted patent... that would be a start... then double the fee for each resubmission... Reduce the protection time of "idea" based patents (Software, design, process) to 5 years... that would go a long way towards resolving the issue.

Re:Winner: US Patent Office

[JDevers]

Or just make patents non-transferable.

Re:Winner: US Patent Office

[Dragonslicer]

The US Patent Office get its funding from patent applications fees.

So the question is: WHAT THE #UcK DID YOU EXPECT!

Did you read the article you linked to?

The Patent Office is structured to be self-sustaining, surviving on payments for patent applications, patent issuances and periodic fees that keep a patent alive for its full 20-year term. But Congress retains the authority to determine whether the agency can keep all of its fees.

If the USPTO kept all of the money that it brings in, there would be no backlog. Examiners could probably get a pretty large pay increase, along with another few thousand examiners being hired. In reality, the USPTO gets to keep a pretty small percentage of the money that it collects.

Re:Winner: US Patent Office

[SuricouRaven]

At which point the inventor discovers that if they want to enforce their patent against any large corporation, it'll cost them several hundred thousand dollars in legal fees. Plus they couldn't use their patents anyway, because usage patents would follow. Eg, an inventor comes up with a new form of ;nanofolded insulation' foam (I just made that up), and patents it. But a few weeks later someone has read his patent and patented 'use of nanofolded insulation in HVAC systems,' 'nanofolded insulation catalytic reactor', 'a filter system using nanofolded insulation' - and so on. One of the reasons that large companies cross-licence their patent portfolios is that they know it's impossible for any of them to do business without infringing on patents they don't even know about.

Re:Winner: US Patent Office

[Citizen of Earth]

There's a lot of people bashing the USPTO, but I can't think of a way to manage them any better given the resources they do have.

Open the patent documents to public scrutiny as soon as they are submitted. The public will point out the obviousness, triviality, and huge pile of prior art for each of them. This requires NO resources beyond a web site.

Re:Winner: US Patent Office

[denis-The-menace]

And where are those funds going to? Pork?

I patented the use of letter "E" on line $0.02 per

[Joe The Dragon]

I patented the use of letter "E" on line $0.02 per use.

Patent Trick

[Demonantis]

My prof was talking about patents and using them as a resource for generating new ideas. The original intent of patents. He had to warn us though because companies will file multiple patents that vary slightly, but in the end don't work. They are there to hide the actual patent. Talk about side stepping the whole concept of why patents exist and is contributing to the backlog.

Re:Patent Trick

[syousef]

My prof was talking about patents and using them as a resource for generating new ideas. The original intent of patents. He had to warn us though because companies will file multiple patents that vary slightly, but in the end don't work. They are there to hide the actual patent. Talk about side stepping the whole concept of why patents exist and is contributing to the backlog.

I could have sworn patents were there to stiffle innovation so that people get rich.

Re:Patent Trick

[operagost]

No, Captain Cynic, they're not. In the US, the federal government was given the power to issue them so that inventors could be free to innovate without having to worry about their ideas being stolen as fast as they could be created. Without patents, the rich would actually ALWAYS have the upper hand once they get access to a new product or its design documents. The problem is not with patents themselves, but with the length of time they are in force. The duration is far too long with most things.

Re:Patent Trick

[Grond]

He had to warn us though because companies will file multiple patents that vary slightly, but in the end don't work. They are there to hide the actual patent.

Alas your professor must not know much about how patents work. There are several problems with this theory. First, filing multiple applications on slight variations is a good way to end up with an obviousness-type double patenting rejection. Basically, non-identical applications must also be 'patentably distinct.'

Second, the inventors and the patent agents or attorneys are all under a legal obligation to "disclose information which is material to patentability." Lack of utility (i.e. the invention does actually work as claimed) is material to patentability and so must be disclosed. An attorney or agent that knowingly misrepresents a non-functional invention as functional is in jeopardy of losing his or her registration to practice before the PTO.

Third, inventors must also "declare that all statements made herein of my own knowledge are true and that all statements made on information and belief are believed to be true; and further that these statements were made with the knowledge that willful false statements and the like so made are punishable by fine or imprisonment, or both, under 18 U.S.C. 1001 and that such willful false statements may jeopardize the validity of the application or any patent issued thereon." An application must make some claim to utility (and therefore functionality), so knowingly misrepresenting a non-functional invention as functional is illegal.

Fourth, it's expensive as heck. Even if you only file in the US the filing fees, attorneys fees, and maintenance fees for a patent are in the tens of thousands of dollars. If you go international you can easily crack a few hundred thousand. If you file in every major jurisdiction you can easily get into the millions. That's per patent. The strategy you're suggesting is financially infeasible for such a minimal payoff, especially given the risks outlined above.

Re:Patent Trick

[syousef]

No, Captain Cynic, they're not. In the US, the federal government was given the power to issue them so that inventors could be free to innovate without having to worry about their ideas being stolen as fast as they could be created. Without patents, the rich would actually ALWAYS have the upper hand once they get access to a new product or its design documents. The problem is not with patents themselves, but with the length of time they are in force. The duration is far too long with most things.

All nice in theory, but the system doesn't work. It just gives inventors the incentive to be lazy and sloppy going to market, withhold the invention (as you point out almost indefinitely), and suppress other people's inventions if they are similar.

Imagine instead a system where an inventor had no control over his invention, with anyone permitted to copy, but if the inventor can show his invention was used, he is entitled to some portion of the profits. Suddenly everyone is competing to produce the product efficiently, other inventions are permitted. The inventor is paid. Everyone wins.

Re:Patent Trick

[operagost]

Imagine instead a system where an inventor had no control over his invention, with anyone permitted to copy, but if the inventor can show his invention was used, he is entitled to some portion of the profits.

That's why we have patents with licensing. Do you want some sort of arbitration with every single instance of copying?

Re:Patent Trick

[delt0r]

What are you smoking. What a lawyer can or can't do has nothing to do with what they should or should not do. Legal obligation or otherwise. ditto for patent applicants. When was the last time anyone got penalized for patenting something frivolous? There are no consequences to either the patent office, the patent applicant or the patent attorney for deliberately filling for something they all know is not patentable. Its gets through anyway. And if later, after costing a lot of people a lot of money the courts say it should not have been granted. There is no fine or fee or liability for it.

So they keep on doing it.

Its far more expensive to defend against a patent that is later ruled to be invalid that it is to get one. That is assuming your not bankrupt before its all over.

Re:Patent Trick

[Grond]

What are you smoking.

I'm an attorney, and I'm registered to practice before the Patent and Trademark Office.

When was the last time anyone got penalized for patenting something frivolous?

It happens pretty frequently, actually. Patent attorneys and agents carry malpractice insurance for a reason. It typically costs thousands of dollars per year, and that's if you haven't been sued before.

There are no consequences to either the patent office, the patent applicant or the patent attorney for deliberately filling for something they all know is not patentable.

Demonstrably false. Inequitable conduct is a big issue. Many patents are rendered unenforceable every year because of it, and the responsible attorneys often get sued for malpractice as a result.

And if later, after costing a lot of people a lot of money the courts say it should not have been granted. There is no fine or fee or liability for it.

Also demonstrably false. A court may award attorney's fees and costs to a defendant in such a case. And again, malpractice suits will fly.

Its far more expensive to defend against a patent that is later ruled to be invalid that it is to get one.

But it still costs money up front to get it, and patent litigation is expensive for the plaintiff, too. Your statement says nothing about the economic inefficiency of the OP's alleged 'strategy' of filing numerous patents on non-functional inventions as a smokescreen.

Calm down

[Locke2005]

As the principle author of a patent application based on misuse of the DHCP protocol to do device discovery, I find your lack of faith in the US Patent system disturbing...

Worst year on record

[21mhz]

We should really curb our emissions (of frivolous patent applications), or else.

Look at the bright side!

[Vinegar Joe]

"This may decrease the backlog at the Patent Office, but seems likely to increase the backlog in the court system as lawsuits are filed over a bunch of these new patents."

More jobs for lawyers!

Citation?

[LBArrettAnderson]

more quickly with less scrutiny
 
Ok, yes, the more quickly part is common sense. But how do you know that they're doing this carelessly or with less scrutiny? Perhaps they have more employees now.

Re:I patented the use of letter "E" on line $0.02

[dgatwood]

Fin. I Just won't us thm anymor.

Re:I patented the use of letter "E" on line $0.02

[TaoPhoenix]

Okay!

Look up Gadsby - I cannot show a Wiki Link without a incurring a cost to you.

Look up Lipogrammatic.

Why are people complaining?

[qzak]

Come on guys, this is a great example of reduced government inefficiency at its best! We should be cheering!!

... on the internet

[RingDev]

is now, "... on the phone"

-Rick

I've been waiting three years.

[NicknamesAreStupid]

Others with more complex patent applications wait up to eight years before getting awarded. Since patents are only good for 20 years after the date of application, their value is diminishing with these delays. Some cheer the idea that the patent process may become obsolete. Of course, some people have never had an idea or even a clue, and they need the playing field leveled.

Re:I've been waiting three years.

[Dachannien]

Initial delays during prosecution are generally the fault of the USPTO, mainly because the application sits in a queue for a long time waiting for an examiner to get to them. That's why there's been a big push for the office to shorten the time to first action. But the longer prosecution takes, generally speaking, the more that delay can be placed on the applicant and/or their attorney.

For instance, once you file a response to the first office action, the examiner has about two months to submit another office action in response to your response. But you can take up to six months to file that response (paying a fee if you take more than three months). Also, if you take only incremental steps in amending your claims, or you argue against a rejection in one response without amending and then amend in your subsequent response when the examiner doesn't buy your argument, then prosecution will take longer. Those delays are mostly generated based upon the applicant's/attorney's decisions in how to prosecute the application, and are sort of a trade-off between eventual issued claim scope and the quickness with which the application gets passed to issue.

When you're talking about 8 years in prosecution, you're almost certainly talking about a long initial pendency (3.5 years is about the max right now) plus an appeal plus several office actions and responses. Half of that 8 years results at least indirectly from the applicant's decision to fight tooth-and-nail for every bit of claim scope that they're going for. (Note that there's a sizable backlog for appeals, but attorneys know about this, and they can advise their clients on the resulting delays from appealing rather than just amending the claims.)

Also note that delays created by the office beyond a certain point get credited to the applicant with a patent term adjustment, meaning that the actual term of the patent is 20 years from effective filing date plus those extra days. There are numerous issued patents with patent term adjustments over 1000 days, most of which arises from the application working its way through the initial backlog.

Finally, the complexity of an application doesn't necessarily cause an increase in time spent in prosecution. While applications are divided up by subject matter to be processed by different art units (essentially departments or workgroups covering one particular field), and different art units have different pendencies, those pendencies are dependent more on changes in the number of applications filed in those fields over the past several years compared to the amount of hiring that the managers in those art units have chosen (or have been permitted by their bosses) to do. What you see is that the hot areas of technology these days are also the more complicated ones, so lagging employment in the corresponding art units results in an increase in pendency for those applications.

Change the process

[Chapter80]

I'm probably one of the few on Slashdot that thinks patents are a good thing.

But I would love to see the process changed whereby patent proposals were posted on a wiki website, inviting the public to cite prior art (or to present arguments as to why the patent should not be granted, with a comment rating system, so that people could vote on the comments) before the patent was granted. This would just help the patent examiners be more educated. .... I think I'll patent that idea.

Re:I patented the use of letter "E" on line $0.02

[igreaterthanu]

Fin. I Just won't us thm anymor.

Fun with shell scripts: ShellScriptGames.com [shellscriptgames.com]

That is still $0.10.

Re:I patented the use of letter "E" on line $0.02

[Joe The Dragon]

send the $0.10 to 1060 west addison chicago IL

Misleading stats

[Anonymous Coward]

Those stats are misleading. USPTO also processed 24% more applications in 2010 than 2009, so more allowances are expected. The allowance rate has remained around 45% since 2008, which is actually a drop from being over 50% for 2006-7. This compares favorably with the 49% and 48% allowance rates for the Europe and Japan, respectively. Allowance rate is allowed patents divided by total disposals.

The USPTO has many problems but the allowance rate is not one of them. Quality and scrutiny of granted patents are likewise a focus of the office, with much improvement over the situation from several years ago. Read about it in the USPTO PAR.

Source: USPTO Performance and Accountability Report (PAR) FY 2010. Look particularly at the chart on page 125.

USPTO makes all sorts of patent data available. Patentlyo.com for one does a good job analyzing this stuff. Techdirt is more interested in making headlines than objective analysis.

Re:I patented the use of letter "E" on line $0.02

[dgatwood]

Jeez. I just watched that movie last night. What are you, a Peeping Tom?

The politicians will hail this as a huge upsurge..

[John Hasler]

...in "innovation".

The number of rejections is also up

[Grond]

The number of rejections is also at a record level. The Office is simply operating more efficiently after a couple of years of mismanagement. The rate of allowance is still somewhat low, historically-speaking.

Re:The number of rejections is also up

[trentblase]

I suspected this may be true so I googled a bit for this number, but couldn't find it. An even better number would be the number of applications abandoned.

Adopt Peer-to-Patent

[Amorymeltzer]

I strongly urge you and everyone here with an interest to read this paper, entitled "Peer to Patent: Collective Intelligence and Intellectual Property Reform. I've copied the abstract below but the basic gist is to utilize a system of peer review. It's far from perfect, but despite being five years old it's a fresh look at a crippled system, and would be a great starting point to get the ball rolling on the conversation needed to fix this.

Peer to Patent: Collective Intelligence, Open Review and Patent Reform argues that remedying the information deficit that impedes effective patent examination is a key to improving patent quality. The article shifts the locus of patent reform to the administrative practice of examination. It addresses the problem by proposing a new model for open examination whereby self-selected, scientific experts submit prior art with commentary to the patent examiner. Open examination combines the transparency and self-selection of public participation with the structured practices of peer review. It goes beyond them, however, by eschewing the closed conception of expertise that sometimes plagues peer review and by making legal decision-making more transparent and accountable than traditional notice-and-comment rulemaking.

Metaphorically, open examination marries the practices of Wikipedia to the authority of administrative law. By redesigning the method for patent examination, this proposal points the way towards a new approach for both intellectual property and administrative law, not by altering statutory or judicial standards, but by improving agency institutional competence. The United States Patent and Trademark Office will launch the Community Patent Review pilot in 2007 to try open examination and generate concrete data to drive reform.

I'm not surprised, with Locke in charge.

[Jane Q. Public]

Gary Locke was a not exactly a wonderful governor, and I don't think he's doing any better as Commerce Secretary. He lied when he said he was going to quit politics to spend more time with his family... he just had his eyes on D.C. instead.

I, for one, think we would all be much better off if he just went back to his family.

Patent Prosecution Highway = Patent Examination

[PdbAqB]

The Patent Prosecution Highway (PPH) has come into play so the USPTO does not have to re-examine patents where the patent has already been successfully examined in another jurisdiction (such as Australia, Japan etc) - I received a press release from the Australian Patent Office recently that stated that accelerated examination of a patent can take place where a corresponding patent has been examined with at least one successful claim in another jurisdiction that is party to the PPH. See www.uspto.gov & type PPH into the search box