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United States Patents

Study Suggests Patent Office Lowered Standards To Cope With Backlog 96

Posted by samzenpus from the lowering-the-bar dept.
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."
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Study Suggests Patent Office Lowered Standards To Cope With Backlog More

Study Suggests Patent Office Lowered Standards To Cope With Backlog

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  • Dumber, faster, patent trolling. I love it.

  • Correlation != Causation (Score:1)

    by Anonymous Coward

    There's another perfectly reasonable explanation for this.

    1. Allowance rate declines from 2001-2009 as standards increase.
    2. Fewer marginal patent applications submitted due to increased standards.
    3. Allowance rate increases as average quality of patent applications increases.

    • 3. Allowance rate increases as average quality of patent applications increases.

      You have to be a troll. A reasonable person can't think this...

      • Re:Correlation != Causation (Score:5, Interesting)

        by ShanghaiBill ( 739463 ) * on Monday April 08, 2013 @10:58AM (#43392071)

        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 [wikipedia.org], 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.

        • Re:Correlation != Causation (Score:5, Funny)

          by theVarangian ( 1948970 ) on Monday April 08, 2013 @12:45PM (#43393305)

          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 [wikipedia.org], 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.

          Stop ruining our patent bashing session with 'facts' ...

        • Re:Correlation != Causation (Score:5, Informative)

          by bdwebb ( 985489 ) on Monday April 08, 2013 @02:09PM (#43394039)
          You are saying that in four years the quality of patent submissions has increased by at least 20% but the case you quoted terminated in 2006 which was at least 3 years before the trend has changed and there was no trending change in patent approvals vs submissions in that interim period. The submissions approval process should have shown that changing trend 1-2 years after the completion of the KSR v Teleflex ruling had been handed down that in some way follows a progression to today or at least to 2010 when Obama increased funding [worldipreview.com].

          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 [uspto.gov]. 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.

    • Re: (Score:2, Interesting)

      by Anonymous Coward
      At my last company we got pushed into doing patent fillings to "build an IP wall" and increase the perceived value of the company to investors. Lots of patent applications flowed out of that effort and 90% of them were junk. Most of them got some sort of provisional rejection out of the gate, but after the lawyers got done mixing in some word salad (all of the "inventors" have left the company) almost everything has been accepted.

      I'm going with the lowered standards.

    • There should be a penalty for submitting bad patents.

      Maybe they should keep a ratio of good:bad and base the number of patents you're allowed to submit per month on that.

      eg.

      Ratio of 100:1 means you're allowed to submit 100 per month
      Ratio of 1:1 means you're only allowed to submit one per month

      • Re:Correlation != Causation (Score:5, Interesting)

        by drinkypoo ( 153816 ) <drink@hyperlogos.org> on Monday April 08, 2013 @10:21AM (#43391679) Homepage Journal

        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.

        • Is there a form to fill out for this? YOUR IDEA REGARDING [x] patents IS UNWORKABLE BECAUSE [x] It penalizes small applicants

          Ummmm, if you've never submitted a bad patent you can submit as many patents as you like (divide by zero=infinite!).

          [x] It will be gamed just as much as the existing system.

          How? If the name of the inventor is required on the patent you can't submit them in a fake name.

        • 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 lost me at that last point. We need to "completely" overhaul society because we need to change one office?

          • Re: (Score:2, Troll)

            by drinkypoo ( 153816 )

            You lost me at that last point. We need to "completely" overhaul society because we need to change one office?

            I lost you because I used too many big words. I said it won't happen without overhauling our society. What we choose to do about the problems endemic to our current system is outside the scope of this conversation. We have come to this pass because of our economic structure, however. If we fix this problem, another like it will be created.

        • 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.

          This is how it already works, depending on your definitions for "small" and "large". You pay a fee to file your patent application, and when it's allowed by the examiner, you pay a fee to have the patent issued. Of course, there's always room for discussion about how much those fees should be.

        • 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.

          USPTO Fee Schedule [uspto.gov]:
          Basic filing fee: $280
          Size fee (if applicable: $400
          Search fee: $600
          Examination fee: $720
          Publication fee: $300
          Issue fee: $1780
          Total USPTO receives to evaluate patents: $2300
          Total USPTO receives to grant patents: $1780

          ... there's a flaw in your math.

          Additionally, if you read the article or study, one of the things they're complaining about is that an application can be examined multiple times with multiple rejections, through the filing of requests for continued examination... w

          • The office gets money for almost every thing the applicant files. They also make additional money off renewals for allowances.

            Strangely not every fee covers the costs of examination.

      • There should be a penalty for submitting bad patents.

        There is. You don't get your money back if your patent is rejected.

  • Comment removed based on user account deletion

    • Re: (Score:1)

      by Anonymous Coward

      If progress and patents applications were exponentially increasing and the standard for acceptance remained the same then there should not have been a decline between 2001 and 2009.

    • If your definition of "innovation" is "number of patents submitted" then I guess patent trolls are the most innovative people around.

  • Cheap :-( (Score:3, Funny)

    by Impy the Impiuos Imp ( 442658 ) on Monday April 08, 2013 @10:00AM (#43391453) Journal

    Those bastards!

    They just gave me a patent on clearing backlogs by relaxing standards, and they're not paying me to use it!

  • Does this really surprise anyone?

  • It might imply something positive about the Bush administration, and that is not permissable.

    • I don't think this is an example of Bush Jr doing the right thing. I think it's an example of something he didn't think of.

      Obama and Bush Jr. are both corporate shills, no matter what is said on TV.

    • It looks to me like a confusing use of 'the x administration' to designate a particular division of time, even when the subject at hand has little connection to event separating time periods.

      • It looks to me like a confusing use of 'the x administration' to designate a particular division of time, even when the subject at hand has little connection to event separating time periods.

        Yes and no - it may still reflect a legitimate difference between John Dudas (PTO director appointed by Bush) and David Kappos (PTO director appointed by Obama). While Bush/Obama may not care about the specifics (and may be more beholden to their corporate interests anyway), Dudas and Kappos had different concepts about how Examination should be funded, what the timelines should be, etc.

  • Smaller patents because prior art easier to find (Score:4, Interesting)

    by IP_Troll ( 1097511 ) on Monday April 08, 2013 @10:48AM (#43391953)
    More likely this is a function of the internet, and the ability to search for prior art in a matter of minutes.

    In the past a party looking to get a patent would go back and forth with the patent examiner at the USPTO a number of times, because the USPTO had a vast library of prior art that your average person doesn't have access to. Every time the examiner came up with prior art the patent would have to be rewritten to shrink it claims.

    Now with the internet, anybody can search just about any database, this means the first draft patent will include more examples of prior art, a patent with less broad claims, and less for the patent examiner to object to.

    A better measure of whether the USPTO is lowering its standards is the number of broad claims versus narrow claims in a patent. As well as the number of prior art examples cited in the patent, by definition if the prior art describes an aspect of the patent, that aspect is not patented, it is cited as a reference to what the patent DOES NOT cover.

  • Like...below zero? Hey, wait a minute! I need to patent that!

  • Note - I blame poor journalism for these, not the study authors. Also, as a disclaimer, I am a patent attorney (as a further disclaimer, I am not your patent attorney, and this is not legal advice).

    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 [patentlyo.com], 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

    • Re: (Score:3, Informative)

      by Anonymous Coward

      As a patent examiner I'll throw in here too. There has certainly been a palpable shift in how we are encouraged to process cases over the last few years. It has much less to do with president 'X' and more to do with the current director of the PTO. Each one that comes in has their own priorities. From 2005-2009 the heavy focus was on quality. For examiners this translated into avoiding errors from the QA department. Every allowance submitted by an examiner is reviewed by QA while only a random sample of rej

  • Examiner viewpoint (Score:1)

    by Anonymous Coward

    From the viewpoint of an Examiner here's what happened:

    1 - The allowance rate was artificially low in the Bush years because the appointed director implemented a "quality" system where all allowances were subject to stricter scrutiny, but rejections were not. When you can get written up and indeed fired because someone who doesn't actually Examine your technology glances at something and says "oh that's obvious" then you have to spend a few hours (which you have to make up in production later) explaining w

  • Where does that leave my patent of exchanging oxygen and carbon dioxide across a thin, moist barrier in a rhythmic process?

  • The article made it sound like this more about the patent office being faster at responding to applications (even when rejecting them). And, faster rejections mean there's less likelihood of the filer abandoning their project. There was some dispute, but the counterargument in the article didn't wash w/ me.

  • The patent office has been hiring 1,000-1,500+ examiners a year for the past few years. While an increased allowance rate is one factor, when the Office has trippled in size since 2001, its hard to ignore the effects of more examiners.

  • What everyone was wondering was not why the backlog declined; we were wondering why the standards fell.

  • In the late1990s I worked in the research division of $large_corporation. Said corporation filed for a lot of patents, a few of which the researchers even considered patent-worthy (we had lots of lawyers who insisted on patenting everything). One day we got a chance to talk to an ex-USPTO staffer, and asked him about some should-never-have-issued patents in the area we worked in ("should never have issued" meant that they were patents on existing technology, for example one was on something that was at the

  • ..is that there is a fundamental interest for US companies in general and the US government to grant patents to those companies as much and as easy as possible.
    Foreign companies have also found that the courts in US in patent cases doesn't seems to be impartial to the fact that one part is of US origin and the other not.

    There is maybe no difference in this to many other country's patent offices but as US legal and economical muscles is so strong they have such an advantage that they have no reason to change

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