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.

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Comments on “We've Already Surpassed Last Year's Patent Totals”

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28 Comments
Anonymous Coward says:

No wonder why technological progress seems to be slowing down. Pretty soon every industry will be stagnant, just like the pharmaceutical industry.

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?

C A says:

Don't jump to conclusions

This is a purely speculative and unproven prediction. So you are predicting that since the allowance rate has increase, the quality has surely decreased. The USPTO is damned if it does, and damned if it don’t (as the saying goes).

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.

Anonymous Coward says:

Re: Don't jump to conclusions

“This is a purely speculative and unproven prediction.”

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.

nasch (profile) says:

Re: Don't jump to conclusions

Generally between the three options of doing a job quickly, cheaply, or well, you can choose at most two of them. I don’t see any reason that wouldn’t hold true for examining patents, but if you can, I’ll listen. Since they’re hiring few additional examiners and cutting back on overtime (still doing it as cheaply as before), and approving patents at a substantially higher rate (doing it faster), it seems highly likely they’re doing the job less well.

PaulT (profile) says:

“So you are predicting that since the allowance rate has increase, the quality has surely decreased”

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.

Anonymous Coward says:

Re: Re:

I think everyone should get patents. It would stimulate the economy if everyone started rushing to the patent office with a bunch of applications and if the USPTO started granting them. First of all it would mean more revenue for the USPTO as patent applications cost money. Secondly, since patents, and especially obvious ones with prior art, clearly stimulate innovation it would mean more innovation. Well, at least more legislative innovation.

Anonymous Coward says:

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.

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.

Anonymous Coward says:

Re: Re: Re:

Excuse me, but perhaps you would be kind enough to point out where I purportedly said that backlog elimination was a priority over the proper examination of pending applications.

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?

Anonymous Coward says:

I can see the documentary in the future already.

“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.

Anonymous Coward says:

Re: Re:

it was to late, they have lost the ability to come up with ideas and secure them

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.

burdlaw (profile) says:

Improved efficiency leads to improved issuance rate

Nowhere is it proven that the PTO is issuing more bad patents. Only proven is that they are successfully attacking the backlog and issuing more patents. There could be a number of reasons for the increased issuance.
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.

Mike Masnick (profile) says:

Re: Improved efficiency leads to improved issuance rate

Heh. Having worked in and been around the tech industry for many years, I can tell you one thing with near 100% certainty: no computer system increases efficiency that much in 1 year, especially when it comes to a complex process.

Sorry, no dice. If the increase had been gradual, then you might have a point. But this is a huge jump.

Mike Masnick (profile) says:

Re: It's funny to see Google ads for patent attorneys on your site

You’re part of the patent ecosytem, the “contrarian,” using your opposition to get attention and sell ads. Hypocrite.

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

staff says:

allowance rates

“they’re basically approving a lot more patents, with a lot less examining”

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.

Gene Cavanaugh (profile) says:

Kappos and patents

As an IP attorney (okay, “patent” attorney – sheesh!) I am both saddened and a little sickened by this. I didn’t know the USPTO under Kappos was making a political move (I suppose to cater to the wealthy).

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.

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