Yes, President Obama's Patent Office Started Approving Basically All Patent Applications Again

from the and-so-it-goes dept

Want to know why there are bad patents? Because there’s no such thing as a true “final rejection” of a patent (i.e., you can always keep refiling and try, try, trying again and again until it’s approved) and because the former head of the Patent Office, David Kappos, saw it as his main challenge to get rid of the giant backlog in getting patents approved. And thus, soon after Kappos took over the USPTO, we noted that patent approval rates started shooting upwards. Over the previous six years or so, the approval rate had been in a gradual decline, with it really starting to drop off around 2004, just as the Supreme Court started hitting back on a bunch of bad patent rulings, and making it clearer that, no, not “everything under the sun” should be patentable. However, Kappos never appeared to view patent quality as important, merely patent quantity and ending the backlog — and thus, the patent office started to take an approve anything mentality.

Some argued that Kappos had magically made the office “more efficient” and that’s why the approval rate started to shoot back up. However, we questioned how you could spend less time reviewing patents without also decreasing the quality of those reviews (and thus the quality of the patents approved). And, indeed, a study released last year made it clear that the approval rate had little to do with improved efficiency, but rather was due to drastically lowered standards.

The same folks who were behind that study have just released some new figures, including 2013, and it shows that the true patent approval rates have continued to go up. Basically, in 2013, the true allowance rate for patent applications was 92% (much higher than the USPTO’s officially reported number of 54%). The discrepancy is because the USPTO’s number counts “rejections” for patents as if the patent was truly rejected, and doesn’t look at how many patents actually make it through the full process. Thus, the fact that patent applicants can keep trying and trying until they get approved is massively hidden by the USPTO’s bogus number. This new number is much more accurate, and shows a pretty clear change in how the USPTO viewed patent approvals once President Obama got into office and installed David Kappos in that position (chart via

Of course, as Tim Lee notes in the link above, Kappos is now out at the USPTO (and instead is lobbying for some firms pushing to block meaningful copyright reform, of course). The interim director of the Patent Office is Michelle Lee, who used to work as Google’s top patent lawyer — leading to at least some hope that she might bring some sanity back to the USPTO’s willy nilly approval system.

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Comments on “Yes, President Obama's Patent Office Started Approving Basically All Patent Applications Again”

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Anonymous Coward says:

Re: Re:

It would be better to somehow attach patent rights to a decline in the economy. However, as a recent report shows:

the decline in business is not something that is easily tied to patents. Indeed, the decline apparently has been happening for the last 30 plus years, predating trolls and an array of national and international changes in intellectual property rights laws.

As for your comment about “affordable goods,” what evidence do you have? Using one or more indices, it appears that goods in the United States are as affordable, if not more affordable, than in most countries of the world. Indeed, in many of the countries with relatively weak IP or where few patents are filed (e.g., Argentina, Brazil, and Greece), prices of some electronic goods are higher, or even much higher, than in the US.

Have an opinion, but please have one supported by the facts.

Mason Wheeler (profile) says:

Re: Re: Re:

The decline in the economy has been going on since the Nixon administration, which did any number of disastrous things for our country. To name just a few of the many examples:

1) China. This is pretty self-explanatory. You know how they say “only Nixon could go to China”? Don’t you wish, looking back now, that he hadn’t?
2) Establishing the modern health insurance system, with full knowledge that it would lead to increased costs for worse results.
3) Doing away with the Gold Standard. You know that chart that’s been going around for the last several months, showing how back in the 70s, increases in productivity stopped being matched by increases in the average citizen’s standard of living? Well, guess what happened exactly at the divergence point. (Apparently there are several slightly different versions of the chart, presenting the same data in different ways. Here’s one, for anyone who hasn’t seen it.)
4) Appointing a traitor to the Supreme Court. Ever heard of Lewis Powell? Probably not, if you weren’t both alive and really paying attention back then. But he’s the father of modern corporatism, the man who radicalized the Chamber of Commerce and turned Ralph Nader–the man who has saved more lives with his work than any American but Jonas Salk–into a pariah in the business community. And Richard Nixon appointed him to the Supreme Court! While there, he wrote the majority opinion in the Belloti case, which laid the foundation for the ongoing dismantlement of campaign finance law ever since, culminating in recent abominations like the Citizens United case and the McCutcheon case. (It’s worth noting that John Roberts was an ardent disciple of Powell’s.)

I could go on, but that’s more than enough to make my point. If you want to know where the country started going downhill and why, look at the Nixon administration.

Seegras (profile) says:

Re: Re: Re: Insure you can blame someone from the other party

modern health insurance? If you consider “inefficient, bad, and costly” as modern, then it probably is.

Compared to the other “modern” we have in a lot of European countries, I’m not quite sure why your system is called “health insurance” in the first place. Seems rather like a scheme to funnel funds from the population to somewhere else. And the real fun is that half your population seems intent to sabotage any effort of fixing it.

Pragmatic says:

Re: Re: Re: Re:

Agreed up to here:

3) Doing away with the Gold Standard. You know that chart that’s been going around for the last several months, showing how back in the 70s, increases in productivity stopped being matched by increases in the average citizen’s standard of living? Well, guess what happened exactly at the divergence point. (Apparently there are several slightly different versions of the chart, presenting the same data in different ways. Here’s one, for anyone who hasn’t seen it.)

Here’s why:

The fluctuations alone would play havoc with the economy. It was abandoned for a reason: it wasn’t working. In any case, the abandonment of the gold standard coinciding with productivity having stopped being matched by increases in the average citizen’s standard of living is a flase equivalence logical fallacy.

See this rock? Yes? Good. Have you noticed that there aren’t any tigers around? Wanna buy it?

Being on the gold standard would cause more problems than it’d solve.

That One Guy (profile) says:

Not overly surprising

When you’ve got a system/government that believes that the number of patents is an indication of ‘innovation’, rather than the quality of the patents, it makes sense they wouldn’t particularly care how good they were, and only focus on getting as many through as possible.


‘… Michelle Lee, who used to work as Google’s top patent lawyer… ‘

Maybe it’s just me, but I don’t see a patent lawyer as the best choice if you’re trying to reduce the number of patents granted by tightening up the standards.

A better idea I’d say would be to find the CEO/founder of a company that was patent-trolled out of existence, put them in charge of the patent office. Sure they’d also have a pretty obvious axe to grind, but at least they’d be more likely to reduce, not increase the number of bad patents that make it through.

broken says:

Thinking too hard


We got it all wrong. I finally figured it out.

It’s all about finding ways to circulate those monies held by multinationals in oversea accounts. You see, more litigations mean more monies being spent in the good ol’ US of A. Our lawyers get super duper rich. They get to spend monies on wonderfully patent protected and highly priced goods. And monies keep circulating in the economy…

Did someone say money laundering? Nah… It’s just lawyers getting paid big bucks to stimulate the sinking economy…

Think of trickle down benefits in every law office in the land. Windfalls!!!

any moose cow word says:

It’s obvious that a huge part of the patent backlog is the number of applications getting continually resubmitted til they finally land on the desk of some unqualified schmuck. Basically, the patent office has been turned into a giant slot machine–the application fee is merely a bet and the payout is a government granted privilege to threaten others with financially crippling lawsuits. A payout is almost guarantied, it’s merely matter of whether you’re willing to play long enough to get it.

The problem isn’t reducing the backlog, it’s reducing the number of resubmissions that’s causing the backlog. Reducing the number of rejections is just simply the worst idea, the patents that keep bouncing back are clearly of the lowest quality and shouldn’t be allowed through. The easiest solution would be to set a hard limit on the number of resubmissions, but that’s too easy to subvert–simply make a few changes and start the application process all over again.

Another solution would basically be bureaucratic purgatory–deprioritize the processing of resubmissions. Mistakes and clerical errors aren’t unusual, so a resubmission or two shouldn’t be punished. However, ones that keep coming back, trying to game the patent system, could be held back for a few years. Those that get rejected and resubmitted again will just be held back even longer. It wouldn’t necessarily stop bad patents from coming back, but it would slow them down considerably. There isn’t much incentive to gaming the system if it takes almost a decade to get yet another rejection.

Anonymous Coward says:

The Study Is Misleading, and Almost Certainly WRONG

The first time this bogus study showing a 98% approval rate was referenced, I let it go, but apparently it is being taken as gospel, so it is time to point out that the study is wrong.

First, the study does absolutely nothing to take into consideration restriction by the USPTO. What is a restriction? When the USPTO deems that the claims in an application cover more than one invention, the USPTO issues a restriction requirement,tell the applicant: You have three inventions. Pick one to be examined. The referenced study appears to count submission of each invention as a “resubmission” rather than being the equivalent of a new application. How many applications get a restriction requirement? I have not seen any studies. Anecdotally, I have seen as few as 1 out of 10 applications get a restriction requirement, but I have also run into series of applications where 3 of 5 applications get restriction requirements.

The other thing the study fails to consider is “omnibus” applications. Preparing patent applications is expensive, so it is common for companies to deliberately put multiple inventions relating to one device into a single application, and then filing divisional or continuation applications to cover the separate inventions. I have seen one patent application ultimately end up being ten different applications, each covering a different invention. This study appears to count each application, erroneously, as a “resubmission.”

With such massive erroneous assumptions, the issue rate could easily have been OVER 100%! Before researchers create bogus, meaningless, and erroneous studies, they really should know what they are studying.

When I was a child, I pulled a leg off a grasshopper, and yelled at it. Th grasshopper tried to jump away. I kept repeating this process until the grasshopper had no legs. At this point, the grasshopper no longer moved. Conclusion? A grasshopper with no legs is deaf. Bad science, bad study.

Anonymous Coward says:

Re: Re: The Study Is Misleading, and Almost Certainly WRONG

Well, I would not want to say a study is flawed without providing some sort of reasoning. If I did that, I was being acting as irresponsibly as the people who performed the flawed study.

I have never heard of a patent on taking a picture with a white background. What patent number is that?

Copyrights and patents are two different things.

Anonymous Coward says:

Re: Re: Re: The Study Is Misleading, and Almost Certainly WRONG

“I have never heard of a patent on taking a picture with a white background. What patent number is that?”

I realize it is difficult to stay abreast of the fast paced news these days … but ffs it is even on TD which I assume you read.

“Copyrights and patents are two different things”


Anonymous Coward says:

Mike Masnick's Statement Is Wrong

Mike Masnick says:

There is no such thing as a final rejection of a patent.

That statement is easily proven wrong. I searched for a couple of minutes and found patent publication 20010002834. This publication was filed January 30, 2001. The USPTO shows that this application received a final rejection on February 23, 2004, and was subsequently abandoned. No follow-on patent applications filed after this application. So, this patent application got a final rejection and that was the end of that.

If you think that was a fluke, here is patent application 09/736,892, which abandoned for failure to respond to an office action (a rejection). The applicants must have thought the rejection was pretty good, because they not only abandoned the application, they never filed another. That makes the rejection FINAL. Bam…

There are tens of thousands of such applications.

Anonymous Coward says:

Was is no one pointing out...

…that the USPTO has three times as many Examiners as it did a decade ago? Three times as many Examiners should mean three times as many patent applications being examined, and if the historical allowance rates (not the bogus rates in the study) are accurate, then there should be three times as many patents issued.

Anonymous Coward says:

Re: Re:

Depends on whether there has been a shift to more omnibus and divisional applications. Since the researchers seemed ignorant of these, then we have to wait for better- designed research. It would have been hilarious had the approval rate been over 100%, which is possible with their bogus accounting method.

Technically Dirty says:

The Patent System

It is misleading to say that applicants can just keep trying and trying to get the same patent, as this article argues. Once you are rejected, you cannot stick with the same claims, and keep arguing the same thing until you “get the patent.” You usually don’t get anything like the patent you wanted in the end if you stay with it that long in the face of rejection. Instead, your application is cut to pieces, until what you’re getting is worthless much of the time. Big companies will persist and take whatever they can get, but so what? 99 percent of patents don’t make a dime. Every time I see one of these bandwagon anti-patent articles I think “they should talk to a patent lawyer.” If you don’t know what you’re talking about, and still blunder ahead, you wind up used by those who do. A few powerful companies are presently trying to maintain their advantage by eliminating competition from new people. Patents help new companies get a foothold and challenge them, despite their superior size and strength. They get sued by little guys. They don’t like this, so they have been lobbying, manipulating the media, and brainwashing the public with distorted half-truths like this article. At the same time, these companies were built on big patents – Google pagerank, anyone? The anti-IP atmosphere in Silicon Valley hangs thick with hypocracy. The patent system is in place in every modern economy for a reason – we would not be anywhere near where we are technologically without it. They even understood this in ancient Greece, where an early form of patent originated and stoked economic growth. People will not work hard to build something if a big, bad actor can just immediately steal it and squash them for their effort. They need protection to have a chance to grow and fly – like a baby bird. Or we can just have Apple/Google/Facebook and nothing else, because they’ve destroyed the upstarts’ IP with this misinformation and lobbying, or acquired them with impunity thanks to an antitrust division that they’ve also strategically weakened. No one in their wildest dreams in the 40s, after Rockefeller, would have believed that Exxon and Mobil would be allowed to merge. Yet it happened with no issue from Justice. Now, they’re taking apart the patent system with “reform” after “reform.” The big guys own this country inside and out. The individual has been enslaved to just work for them, one way or the other, and that should trouble every one of us. We need a diverse group of tech providers, open to competition from new people. The patent system gives them a fighting chance against the 800lb gorilla if they have created something new, useful and nonobvious – Not anything “under the sun” as that phrase is misconstrued in this article. That phrase relates to fields of endeavor under section 35 USC 101, not all patentability requirements. Research what a term of art means before you criticize it. Patent examimers are hard-working, smart people (like Albert Einstein, for example, before he was famous). They do a difficult, thankless job that only gets more thankless with incorrect insults to their work quality, like this article.

Anonymous Coward says:

Re: Re: The Patent System

However, the article seems to imply that it nearly always happens, based on potentially bogus assumptions. The only possible way to get a patent on something that has been final rejected is to appeal the rejection, which the authors do not appear to discuss. Once claims have been final rejected, and there is no appeal, an applicant has to write different claims, or the USPTO will reject the claims on the first office action. The USPTO will also reject claims with minor or trivial differences.

The USPTO loves continuing applications because nearly 100% of them have claims more narrow than the original application. The examiner already has the prior art, so it is an easy rejection or allowance for the examiner. The USPTO will fight against eliminating contining applications because they require much less examination time than original applications, but the fees are the same as an original application.

Seegras (profile) says:

Re: The Patent System

Patents help new companies get a foothold and challenge them, despite their superior size and strength.

That is the theory. But you are unable to back this up. Nobody ever could, yet. Because the only studies that exist could not demonstrate this with any statistical significance. Neither your next sentence:

The patent system is in place in every modern economy for a reason – we would not be anywhere near where we are technologically without it.

Actually, we probably would be much further.

I’ve been researching the history of the patent system somewhat, it starts out with delaying the advent of the steam machine by 20 years and gets worse from there.

Please go read first to have all your claims about the utility of patents refuted one by one.

In the meantime, I’ll give the word to someone else:

“the impediments thrown in the way of improvements by the existence of patents will hardly be credited by those who are not familiar with the operation of them. In the present state of things they create such barriers that it is almost wonderful that any improvements can be effected.” — Isambard Kingdom Brunel, 1870

Anonymous Coward says:

Re: Re: The Patent System

“Actually, we probably would be much further.”

Just as there is, as you claim, no evidence that patents help new companies get a foothold, neither is their evidence that we would be further along. There are claims, and there is speculation, and there are streams of allegedly logical thought that suggest we might be better, but the same things exist for patents.

I have read Kinsella’s “Against Intellectual Monopoly.” It makes some good points, but it too is relatively short on factual data, relying instead on irrelevant studies and substantial speculation.

Anonymous Coward says:

The Study Betrays Its Ignorance

I followed the links to the study and found it erroneous to the point of being laughable. The ignorance of the authors is to the point of being profound, and essentially makes their entire study worthless.

The study includes so many fundamental problems that it is hard to know where to start when pointing them out. Take something as fundamental as “file wrapper continuations.” File wrapper continuations ceased to exist in 1997. Then the authors seem to totally exclude divisionals, restricted applications, and continuations-in-part. How did they treat these rather common applications? It is hard to tell, because they included a type of application that no longer exists, while seemingly ignoring others that do.

The authors then make a blanket statement about applicants making “minor” changes to an application and resubmitting it. In the context of the study, what does minor mean? If ANY changes are made to the application, the changes do not receive the benefit of the original filing date, and the application either has to be filed as a continuation-in-part (CIP), or a new application, giving up their priority date for the original application.

The authors also seem to totally neglect, or fail to appreciate, the difference between an RCE or continuation and an original application. Based on the minimal detail they provided, just how did they count resubmissions? If an applicant got a patent issued and then filed a continuation application, how did they count that? If an applicant filed an application that was not allowed, and then filed three divisionals and two continuations from the original application that were subject to a terminal disclaimer, did they count those as five resubmissions? That would mean a 500% allowance rate!

There is little doubt that what the authors tried to do is difficult. It involves hundreds of hours of pouring through USPTO records. However, in order for your research to have meaning, you really should understand what you are researching, and explain how you are going to keep from introducing systematic errors into that research.

Anonymous Coward says:

Re: Re: The Study Betrays Its Ignorance

And all patents are evil, no one has ever been incentivized by patents, and patents are never final rejected, every one is resubmitted until the USPTO allows it. Would you be interested in a piece of the Brooklyn Bridge? How about some really cheap land in Florida? I also know where Elvis has been hiding.

Seegras (profile) says:

And all patents are evil

Of course. Milton Friedman says so. Thomas Jefferson too.

no one has ever been incentivized by patents

Of course not. There are plenty attorneys and trolls incentivized by patents.

and patents are never final rejected

Apparently, you can still challenge this. Unless you refrain to, in which case they are final rejected.

Would you be interested in a piece of the Brooklyn Bridge

Like a monopoly on it? Something like Roeblings US pat. 4’710 “Anchoring suspension chains for bridges” ?

Anonymous Coward says:

Re: Re:

Jefferson said patents are evil? I would like to see that quote.

Jefferson quote on patents:

1790 June 27. (Jefferson to Benjamin Vaughan). “An act of Congress authorising the issuing patents for new discoveries has given a spring to invention beyond my conception. Being an instrument in granting the patents, I am acquainted with their discoveries. Many of them indeed are trifling, but there are some of great consequence which have been proved by practice, and others which if they stand the same proof will produce great effect.”

It hardly seems he is saying they are evil in this quote.

Of course, we also have to remember that Thomas Jefferson is a charter member of the Intellectual Property Hall of Fame for being the first head of the US Patent and Trademark Office, as well as the first patent examiner, and for being an important influence in including Article 1, Section 8, Clause 8, in the Constitution.

Anonymous Coward says:

Re: Re:


I have been an inventor, and I am named as an inventor or co-inventor on more than 50 patents. Many of my inventions remain in production today.

Question: If patents had not existed, would I have been part of any of the inventions?

Answer: I am only speculating, but my belief is that the company for whom I worked at the time would not have existed without the presence of a core group of patents. That company was a small start-up that was fighting against several huge, well-established, competitors, with the capability of copying faster than we could invent. Without the existence of that company, I would not have worked for them, so many of the inventions I created would likely not have existed.

I have heard the argument that my former statement cannot possibly be true. However, all inventions are a conjunction of events, some intentional, some accidental. In a different time and place, the conjunction of events would not have led to those inventions (possibly others, or possibly none). Some of the inventions are darn cool, and were breakthroughs at the time. Indeed, some of the inventions sparked contests between several competitors on how to come up with a better, exclusive mechanism to offer larger customers (large customers love exclusive offerings, and multiple patented inventions gave exclusivity to those customers).

One should also consider the thousands of independent inventors who invented and revealed their invention ONLY because they knew a patent protected them from having their invention copied once it was revealed, leaving them with nothing. May of these inventions changed our way of life (Jan Ernst Matzeliger and the invention of the shoe last, and Clessie Cummins and the invention of the first compression release engine brake come to mind, though there are many others).

Would many inventions still occur without patents? Undoubtedly. Would many inventions have been delayed in introduction or never existed at all without patents? Undoubtedly.

staff (profile) says:

more dissembling by Masnick

‘Yes, President Obama’s Patent Office Started Approving Basically All Patent Applications Again’

Have you ever filed or prosecuted a patent application? Do you have any patents? No? All you know about patents is…you don’t have any.

The word on the street is Masnick and his monkeys are paid puppets for some of the worlds biggest invention thieves. Their aim is not to fix the patent system, but end it or make patents a tool only for large firms.

Can you say ?dissemble?? Just because they call it patent “reform” doesn’t mean it is.

Property rights and jobs in America are now hanging from a frayed thread. Congress and the White House continue to follow the lead of their multinational campaign donors like lambs…pulling America along to the slaughter.

All this patent troll and ?reform? talk is mere dissembling by China, huge multinational thieves and their paid puppets.

They have already damaged the American patent system so that property rights are teetering on lawlessness. Simply put, their intent is to legalize theft -to twist and weaken the patent system so it can only be used by them and no one else. Then they can steal at will and destroy their small competitors AND WITH THEM THE JOBS THEY WOULD HAVE CREATED. Meanwhile, the huge multinationals ship more and more American jobs to China and elsewhere overseas.

Do you know how to make a Stradivarius violin? Neither does anyone else. Why? There was no protection for creations in his day so he like everyone else protected their creations by keeping them secret. Civilization has lost countless creations and discoveries over the ages for the same reason. Think we should get rid of or weaken patent rights? Think again.

Most important for America is what the patent system does for America?s economy. Our founders: Jefferson, Franklin, Madison and others felt so strongly about the rights of inventors that they included inventors rights to their creations and discoveries in the Constitution. They understood the trade off. Inventors are given a limited monopoly and in turn society gets the benefits of their inventions (telephone, computer, airplane, automobile, lighting, etc) into perpetuity AND THE JOBS the commercialization of those inventions bring. For 200 years the patent system has not only fueled the American economy, but the world?s. If we weaken the patent system, we force inventors underground like Stradivarius and in turn weaken our economy and job creation. For a robust economy America depends on a strong patent system accessible to all -large and small, not the watered down weak system the large multinationals and China are foisting on America.

For the truth, please see

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