“So while you are at it President Obama, order the Patent Office to issue a patent UNLESS there is a reason to deny it.”

That is what the USPTO does. The Patent Law States, 35 USC 102: “[a person] is entitled to a patent, unless…” That is what examiners are trained to do – that is the standard to which they are held. This Gene Quinn is coming in from left field somewhere.

The real, true allowance rate – that is to say, the number of inventions filed resulting in a number of issued patents – is 62% for 2008 according to the USPTO. It still follows the declining trend, yes, but the allowance rate is not nearly as bad as assumed.

Here are some other factors that have not been addressed, that are fairly recent changes, both inside and outside IP:

~the ability to patent business methods (I do not know what their allowance rate is, but the legal basis for such patents has just occurred in this decade) – this controversial, and booming, portion of applications might have an effect, in combination with other issues.

~ the economy – some businesses have given up on patent applications, even those having allowable subject matter indicated, whether due to financial constraints, or claims that are too narrow to justify the expense, etc.

I recognize the ebb and flow of patent law interpretation. Although most examiners followed the tenets outlined in KSR ever since Graham v. Deere, the TSM-based obviousness analysis enforced by the subsequent Federal Circuit decisions were showing their effect during the boom of allowance rates in the late 90s through the mid 2000s.

Removing the RCE disposals, we actually see an allowance rate of 79% in 1999, 2000 and 2001, while the allowance rate was over 75% from 1998 through 2004. That’s higher than the “historical” 60% to 70% mentioned in the article.

Now with more complete and accurate information, may I suggest that this is most likely a natural, cyclic shakeout from inflated allowance rates that people have become accustomed to, now compounded by the economic crisis?

To follow-up on your comments regarding the allowance rate, the establishment of a procedure for requesting continued examination (RCE) of a patent application came about from the from the American Inventors Protection Act of 1999, effective as of May 29, 2000, and applied to utility and plant applications filed on or after June 8, 1995.

From the USPTO graph, the allowance rate has been in free fall since about that time. I’m not convinced, however, that the two are related. Prior to 2000, one could have filed an unlimited number of continuation applications — each with its own serial number and each with its own allowance or abandonment.

I do think that there are plenty of other variables involved in the current practice.

As you mentioned:

“There are worthless applications; there are time constraints and there are quality constraints. There are variations in how the law is interpreted; there are variations in prosecution procedures; there are variations among employees and their training. All of these things contribute to an allowance rate that may vary significantly with time.”

I think that may explain the variation seen before about 2000. I don’t think it could explain the precipitous drop since that time.

Stephen

Thanks for your thoughts. You raise some good points. I agree that R&D can’t survive without patent protection. I also agree that the backlog will force applicants to seriously consider what is worth filing rather than filing for everything under the sun. I think everyone would like to see fewer frivolous patents. Unfortunately, I’m also seeing applicant’s abandon applications that they probably shouldn’t abandon purely out of frustration.

I would disagree that issued patents tied together with terminal disclaimers are necessarily claiming obvious variants of the same thing, although that’s certainly the case with some patents.

I would also disagree that the USPTO can do only so much. I think that if the USPTO needs to charge a higher fee in order to handle its workload, then that would seem more appropriate than insisting that applicants merely file fewer applications.

Stephen