USPTO News: USPTO Announces "Record Breaking" 2007 Performance

    By Donald Zuhn --

The U.S. Patent and Trademark Office released its FY 2007 Performance and Accountability Report today and announced that the Office had posted record-breaking numbers for 2007.  According to the Patent Office, the year-end numbers "reveal historic improvement in the quality of patent and trademark reviews and subsequently the quality of issued patents and registered trademarks."

The Performance and Accountability Report indicates that the Office examined the highest number of applications (362,227) in its history.  The report also notes that about 50% of patent applications were filed electronically via the EFS-Web, which is up from less than 2% in 2005.  In addition, the report shows that patent examiner decisions were upheld by the Board of Patent Appeals and Interferences 69% of the time in 2007, up from 51% in 2005.

According to USPTO Director Jon Dudas, "[t]he sustained trend of quality improvements are a tribute to the internal quality initiatives of our managers and employees," adding that "the quality of patent and trademark examination is a shared responsibility that begins with the application."  While stating that "[t]he USPTO will work tirelessly to ensure high quality agency actions,"  Director Dudas cautioned that "we must make progress to ensure examiners are presented with applications that clearly depict the claimed invention and relevant prior art is presented to the examiner in a timely manner."

In support of the Office's argument that patent quality was on the rise, the release notes that only 51% of patent applications were allowed in 2007, down from a record high of 72% in 2000 (and down from 54% in 2006 as we reported last year).  According to the Patent Office, "[t]he allowance rate is a function of many aspects, including the quality of the applications received."  However, the Patent Office was willing to take some credit for the historically low allowance rate, since the release states that "[t]he USPTO's focus on internal quality controls is primarily responsible for the lowered grant rate over the past several years."

Not all of the news was bad (or "good" if you equate dwindling allowance rates with patent quality).  For example, the average pendency to a first Office Action in Tech Center 1600 (biotechnology and organic chemistry) was down to 22.7 months in 2007 from last year's 23.5 months, while the average total pendency remained the same at 34.4 months.  Unfortunately, the overall average pendency to a first Office Action jumped from 22.6 months in 2006 to 25.3 months in 2007 and the overall average total pendency increased from 31.1 months in 2006 to 31.9 months in 2007.  Interestingly, the report states that in 2007, only 15.6% of the patent business group's total costs had gone to the prosecution of biotechnology (7.1%) and chemical (8.5%) utility patents.  In 2006, the patent business group devoted 7.8% and 9.5% to biotech and chemical patents.

Comments

[EG]

Don,

I still find it amazing that PTO keeps harping on the low allowance rate as reflecting "quality examination". It is but one aspect of the equation, and not necessarily the most important. I would say "fair, balanced and consistent" examination would be a better measure of "quality" but I'm sure the PTO hierarchy would consider that too difficult to measure. We've already seen how the PTO currently plays "fast and loose" with the facts in their current Rule making, as reflected in the GSK/Tafas suits. Frankly, at this point, what the PTO hierarchy has to say about "quality" in examination has very little credibility with me now.

[Waiting for Jan. 20, 2009]

EG: "Frankly, at this point, what the PTO hierarchy has to say about [anything] in examination has very little credibility with me now."

You still give them too much credit....

[EG]

Waiting for Jan. 20, 2009

You're probably right, I may have given the PTO hierarchy "too much credit." I'm watching with great fascination the GSK/Tafas suits, and all the fallout from those. May be the PTO hierarchy will be forced to explain all these so-called "quality" initiatives that no one but them seem to find worthy in depositions.

[GOD I HOPE SO]

"I still find it amazing that PTO keeps harping on the low allowance rate as reflecting "quality examination". It is but one aspect of the equation, and not necessarily the most important."

It is almost certainly the most important aspect of the equation and that is easily understood if you imagine the sort of patents we'd be seeing issued if that percentage rate had increased instead of decreased.

Get it?

[Kevin E. Noonan]

Dear Hope:

You presume that the patents that are not being allowed are solely (or disproportionately) patents that should not be allowed. You neglect to consider that the office may not be allowing patents that they should be allowing. It can't be the case that the Office has only and specifically refused to allow those patents that should not be allowed; not only is such an outcome statistically unlikely, it is not consistent with human experience. In any endeavor, whether it's patents or widgets, improving quality by reducing the bad species will always encompass at least some of the good species as well.

Which is why the bald numbers of reduced allowance rate don't tell the whole story. And the part about it "not necessarily being the most important" part of the story is this: the most important part is whether the Office is disproportionately refusing to allow "bad" patents (i.e., ones that should not be allowed). Because if the answer to this question is "no," it is legitimate to ask which does more harm to innovation, granting "bad" patents or refusing to grant "good" ones.

Now, do you "get it?"

Thanks for the comment.