Slashdot Mirror
Study Suggests Patent Office Lowered Standards To Cope With Backlog
An anonymous reader points out a story at Ars about how the "significant reduction" in the backlog of pending patent applications may not be all that it seems. "...a new study suggests another explanation for the declining backlog: the patent office may have lowered its standards, approving many patents that would have been (and in some cases, had been) rejected under the administration of George W. Bush. The authors—Chris Cotropia and Cecil Quillen of the University of Richmond and independent researcher Ogden Webster—used Freedom of Information Act requests to obtain detailed data about the fate of patent applications considered by the USPTO since 1996.
They found that the "allowance rate," the fraction of applications approved by the patent office, declined steadily from 2001 and 2009. But in the last four years there's been a sharp reversal, with a 2012 allowance rate about 20 percent higher than it was in 2009."
There should be a penalty for submitting bad patents.
Is there a form to fill out for this? YOUR IDEA REGARDING [x] patents IS UNWORKABLE BECAUSE [x] It penalizes small applicants [x] It will be gamed just as much as the existing system.
The basic fundamental problem is that the patent office receives money to grant patents. Instead, it must receive money to evaluate patents. They get a small amount of money when you file, and a larger amount when they grant. The only solution I can see is a complete overhaul involving granting a lot less patents, but that's not going to happen without a complete overhaul of our society, because that challenges the mighty status quo.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
3. Allowance rate increases as average quality of patent applications increases.
You have to be a troll. A reasonable person can't think this...
Someone whose beliefs about patents are based on what they read on Slashdot, will not believe this. But someone who actually looks at reality will see things differently. The quality of patents really has improved in recent years. Much of this is because of the Supreme Court ruling in KSR vs Teleflex, which expanded and clarified the "obviousness" criteria, as well as invalidating many types of "combination" patents.
Another reason the backlog of patents has declined is that the USPTO is better funded, and has hired many more patent examiners. In 2005, there were about 7300 examiners. Today, there are more than 9500.
First, the incorrect or misleading:
But in the last four years there's been a sharp reversal, with a 2012 allowance rate about 20 percent higher than it was in 2009.
It can also be looked at as 12% higher, since it went from about 58% to about 70% in that time. "20 percent higher" is misleading. "120 percent of the 2009 rate" would be correct.
Calculating the real allowance rate is tricky because inventors can submit the same application multiple times. "From the perspective of the patent office, a 'final rejection' doesn't get rid of an application," Quillen told Ars in a December phone interview. If an application is rejected, the inventor can make minor changes to the application and file it again. "The only way you can reduce your numbers and get rid of somebody is to allow the case," Quillen said.
There are a number of different ways to re-file applications, with names like File Wrapper Continuations, Continued Prosecution Applications, Requests for Continued Examination and Continuation-In-Part Applications. But in all cases, the upshot is the same: the applicant gets another shot at convincing examiners to grant him a patent.
These are talking about two different things, mainly because the journalist doesn't understand the distinction:
1) An application can be "finally rejected" by the USPTO (meaning that it was rejected on specific grounds, the applicant replied, and the Examiner wasn't persuaded and "finally" rejected the application on those grounds), and the Applicant can amend to narrow the claims and file a request for continued examination or a continued prosecution application (the same thing, but for design patents).
For example, say you were Toyota and were patenting the Prius, and you originally had a claim of "1. A car, comprising: four wheels, an engine, and a battery" and the Examiner comes back and says "duh, that's every car." If you tried to argue that you meant a battery running the engine, but the Examiner wasn't persuaded since that distinction isn't in your claims (and there's other prior art with electric engines), they'd finally reject it. If you then amended your claims to recite your novel planetary engine dual-powered transmission, you'd have to file a request for continued examination so that it could be considered.
It's not really "submitting the same application multiple times" but several iterations of narrowing the application and arguing that as narrowed, it's patentable, until it finally is narrow enough to be allowed.
2) New applications can be filed as continuation applications or continuation-in-part applications, but they're not the "same application" by definition. Continuations and continued prosecution applications have the same specification, but different claims. Like, say, to save money, you wrote a patent application that described two separate, but related inventions. Like say, a new machine for more efficiently turning horses into glue, and a new offset gearing system for use in that machine or others that has increased torque with reduced tension. You could file a single application describing both, but only claiming the horse part. Later, you could file a continuation application using the same specification and claiming the gearing system part.
This helps small inventors by not requiring them to file dozens of applications on day one, when they might be short of cash, but file one big one, then later file additional continuations as they're able to raise capital. Importantly, all of the applications have the same effective priority date for prior art, and any patents coming from the applications expire on the same d
Another reason the backlog of patents has declined is that the USPTO is better funded, and has hired many more patent examiners. In 2005, there were about 7300 examiners. Today, there are more than 9500.
It seems to me that we need to compare the numbers here. So looking at 2005 as you mentioned, there were 417,508 patents filed. That means a per-examiner average of 57.19 patents. Fast forward to today, in 2012 there were 576,763 patents filed which gives us a per-examiner average of 60.71 patents. Instead of showing a decrease in the average patents indicating a more acceptable workload for examiners, we instead find that the opposite is the case. Given even the budget increase that provided for additional examiners, the workload on each examiner has been increased by ~6.4% since 2005 which should indicate that the approval rate should be in the same ballpark as it has trended to in the past. I can see no way to account for the 20% increase in patent approvals when the workload has also increased.
I browse the USPTO approved patents occasionally just for fun because seeing what gets approved is laughable sometimes. Ultimately I haven't seen any difference in quality of those approved at all but I do not evaluate a significant enough subset of the total approved patents to say with certainty that this is the case. I find it very hard to believe, however, that in the face of increased workload the quality of overall submissions has improved so drastically in 3 years that 20% more patents are being approved. With such massive datasets, a huge trend change like this almost never occurs. You can't tell me that out of 276,788 approved patents 55,358 of them just suddenly got better than previous years when the ruling in KSR v Teleflex that should have spurred these changes happened ~4 years earlier. Again, there should be a trend to the changes that shows an upward swing in approvals rather than this:
2007 - 484,955 Total Patents / 182,899 Approved Patents / 37.71% approval
2008 - 485,312 Total Patents / 185,224 Approved Patents / 38.17% approval
2009 - 482,871 Total Patents / 191,927 Approved Patents / 39.75% approval
2010 - 520,277 Total Patents / 244,341 Approved Patents / 46.96% approval
2011 - 535,188 Total Patents / 247,713 Approved Patents / 46.29% approval
2012 - 576,763 Total Patents / 276,788 Approved Patents / 48.99% approval
Ultimately, just looking at the numbers comparisons, it is almost as though every additional patent to the total number of patents since 2009 has been approved. For example, in 2010 there were 37,306 more patents than 2009 but there are !!52,414!! more approved patents. Taking the same comparison but going 2011 vs 2009 (because this is the year that shows the marked trend change), we have 52,317 more patents and 55,786 more approved patents. Finally, in 2012 vs 2009, we have 93,982 more patents and 84,861 approved patents (the first time since 2009 there have been less approved patents than the increase of actual submissions). What intrigues me most about these numbers is that we see a huge increase in the number of submitted patents during 2010 and on...I have heard through the grapevine that this is because of the slackening in standards at the USPTO to bolster the agency's numbers which has spurred the patent trolls but IANAPL (patent lawyer) so I wouldn't know anything about whether this is reality or not.