The chart above shows the USPTO patent grant rate across a variety of major technology areas. I apologize for the tightness of the lines, but there are several overall trends that are easy to discern. In particular, the general trend reported last week – a drop in grant rate followed by a rise once Director Kappos took charge – is present in each of the major technology areas. In general, you will also see less variance between the technology areas in later years. It is unclear at this point if that coming-together is due more to USPTO practices or to applicant practices or some other unknown factor.
The major outlier in the group is electronic commerce patent applications. Those applications continue to be granted at a rate of < 10%
Regarding the sources: The data primarily comes from the USPTO Chief Economist Alan Marco and his team [LINK]. For each year in the chart, I calculated the percentage of patent applications that were issued as patents (relative to the number disposed-of as either abandoned or issued). Thus, a figure of 70% grant rate would indicate that, of the respective patents that were fully disposed-of during the given time period, 70% issued as patents and 30% were abandoned. If an application is still pending at the end of the time period then it is not counted. Likewise, the applicant’s filing of a continuation application before abandonment/issuance has no impact on the grant rate for the given year. The technology categories here are linked to the NBER technology areas except for eCommerce that I coded (Class 705 and 701/467, corresponding to Art Units in the 3620’s, 3680’s, and 3690’s). Of importance, the data here goes only through disposals made in September 2014.
[…] method patent app[lications] get no respect,” says Patently-O‘s article, according to Richard Beem (patent lawyer). He just says (or whines) that it harms his parasitic […]
Dennis, thank you for the very interesting set of plots. Now, what would be even more interesting is a graph of patent grant rates (necessarily more simply broken down, perhaps along mechanical, electrical, chemical/pharm lines) going back to say, 1950 (earlier — much earlier — if possible). I know there are various presentations of the basic data out there, but comparing grant rates across varying patent regimes (e.g., how to count continuations, divisionals, RCEs etc. and have it make sense across the decades) makes them hard to interpret.
I find it interesting that the fields that seem to cry the most (EE, Computer tech) have the highest grant rates.
Is that cry the most – or cry the most against?
Also, note the “capture” by the art unit that has MOST enjoyed the largest increase in patent grant percentage under the “Kappos” turnaround.
Actually, notice the top two…
[…] Patent Grant Rate By Technology Area – Patently-O […]
I wonder why there is so little innovation in e-commerce?
6,
That’s a good question, assuming it wasn’t tongue in cheek. Note: “eCommerce” is somewhat of a misnomer as it includes Class 705: DATA PROCESSING: FINANCIAL, BUSINESS PRACTICE, MANAGEMENT, OR COST/PRICE DETERMINATION. This includes aspects of running an internal organization, not just the sale of goods.
From John Robertson at the Atalanta Fed: “Business sector labor productivity growth averaged 1.4 percent over the past 10 years. This is well below the labor productivity gains of 3 percent a year experienced during the information technology productivity boom from the mid-1990s through the mid-2000s.”
The hardware is now more than adequate, albeit cheaper. In that case, one would think there would be a demand for innovative business methods. Maybe it is a coincidence, but since 2005, the odds of getting a patent on such an idea are less than 10%. Having obtained one, I don’t think monetizing the result has been very lucrative except in a few headline cases.
Troubled: that is really an interesting comment. It would be interesting to see how the funding of business method start-ups is going.
I would point out again that business methods can be incredibly complicated such as recommendation systems.
This chart definitely doesn’t show the impact of Alice – which, of course, was published in June 2014, and took several months for every art unit outside of 2600 to figure out how to use it.
And the entire period between June 2014 and the end of the year is a wash. The first draft of the Interim Guidance issued in December 2014 – and before then, examiners’ 101 rejections were hopelessly bad. Either the rejection obviously did not meet the legal standard (“applicants’ claims are rejected as reciting an abstract idea… The End”), or they cited a boilerplate mishmash of Alice, Bilski‘s machine-or-transformation test, Freeman-Walter-Abele (“postsolution activity”), and random philosophizing (“anything involving a computer is math, and hence abstract”).
The actual magnitude of Alice – i.e., how many rejections are consistent with the Interim Guidance, and lead to sustained rejections and an actual decision to abandon – will only become apparent now and by the end of the year.
The impact and actual magnitude of Alice is not limited to the computer and software arts.
This has been an obvious point that even the likes of Paul Cole have come to realize.
Stomp.
On.
The.
Gas.
Pedal.
Is this an accurate statement?
What proof do you have that there is little innovation in e-commerce?
Are you trying to equate patent grants with innovation?
I’m not understanding the point here
Pretty sure it was a joke.
Sometimes hard to tell on here…
As many astute observers have pointed out, there is something very odd about rising allowance rates in view of (1) a significant number of hotly contested “sky will fall” Supreme Court cases tightening up the requirements for validity and eligibility and (2) an exponential (100 fold? 1000 fold?) increase in accessible information about the prior art.
One reasonable explanation is that the PTO is a largely captured agency which does backflips to please its “clients”, ignoring or side-stepping laws which would seem to curtail its power to grant certain patents while it zealously embraces any decision — however dubious — that would improve its ability to provide a “pleasing result.” The public interest is shoved aside in favor of the interests of the string-pullers who look forward to a lucrative private sector career performing the same “innovation is patents!” shuffle while shilling for the same patent-luvvin’ clients they coddled at the PTO.
In practice, the game for many years is that the office has identified a “hot technology” in the information processing sector (compooters! the internets! robots! drones! personalized medicine! 3-D printers) and flushes logic, common sense and sane policy down the tubes in an effort to please the armies of grifters with their awesome patent litigation schemes for “monetizing” the PTO’s incompetence. And monetization schemes, of course, is most of what the public gets from this incompetent sausage factory. But, hey, it’s all going to “trickle down” right? Sure it is.
Captured agency…
Bwahahahahahahahahaha.
What a chump.
Well, anon, it has an advisory committee since ’99 exclusively composed of applicants. It uses words like “customers” when speaking of applicants. It has no measures in place to determine whether it is issuing valid patents.
What does all of this imply?
Of captured, then captured by whom?
See post 1.1.
There may be “an exponential .. increase in accessible information about the prior art.” [and there definitely is in the total amount of prior art]. But there has not been a corresponding increase in the prior art searching or reading time available to examiners.
You don’t need a corresponding increase in time – all you need is the best prior art. Anything cumulative and any other non-pertinent factor need not be dealt with, eh?
“As many astute observers have pointed out”
It has been NEITHER “many” nor “astute.” It has been a small number of like-minded anti-patentists. What these people choose to “not remember” is the very purpose of the patent system to begin with: innovation begets MORE innovation – not less.
There is NOT a Charles Duell type of zero-sum total innovation possible, and the “Well it looks like we have invented everything possible” mindset is CLEARLY wrong.
“The public interest is shoved aside”
There is that tinf01l hat thing going on again…
Funny you never seem to want to address the dichotomy that you are against the form of innovation MOST accessible to that same “public” that is expressly NOT the scheming controlling ultra-rich that you want to dem0n1ze.
Why is that?
“flushes logic, common sense and sane policy down the tubes”
Scream the Red Queen: I have defined these things to be what I mean them to be when I mean them to be what I want them to be.
Never mind actual history, actual facts and actual law. Those things are just mere inconveniences for Malcolm and his Belieb system.
“with their awesome patent litigation schemes”
Because the tail of the flea on the tail of the dog known as the boogeyman of “Oh NOES, Litigation” and actual enforcement of rights is just so “horrendously bad” (at least for the Infringers’ Rights groups)….
“ is most of what the public gets from this incompetent sausage factory”
Funny then that you seem to always miss one of my main memes – and never seem to want to agree with me that the problem that needs focus is NOT the “awesome C R P” that you always peddle, but rather, a focus on doing the EXAMINATION job right the first time.
Why is that?
“But, hey, it’s all going to “trickle down” right? Sure it is.”
Where does this “trickle down” thing come from? NO ONE has ever put that argument up on these boards.
Do you really need me to post the definition of strawman and connect the dots to this bogus (class warfare) type of position that you alone have erected so that you can knock it down?
Maybe – just maybe – you want to take a moment and reflect just how the data here CONFIRMS my views and wrecks yours.
Of course, that would take some inte11ectual honesty and might make you put aside that short script of yours and come up with some original thinking.
The PTO is so captured its not even debatable at this point.
We refer to applicants as “customers”
DC: The major outlier in the group is electronic commerce patent applications. Those applications continue to be granted at a rate of < 10%
And 95% of those are junk that shouldn’t have been granted.
Question: how many thousands of these patents are we talking about since 2009?
If it were a functioning system, we’d see a dramatic plunge in that “art unit” when the 2015 numbers are calculated (of course, we already should have seen such a plunge in light of Prometheus …. but, hey, the PTO was “confused”).
Dennis,
I am still trying to get an answer to a question I asked with the last batch of statistics. Inventors often don’t think ahead and just want to know what are my chances of getting a patent, meaning at least one patent. 70% is probably too high. Assume for the sake of illustration that all applications are subject to a restriction requirement. Usually, applicants elect one species and pursue that to the end before filing a divisional. If unsuccessful, everything is abandoned. If successful, then a divisional is filed. In spite of Examiners justifying the restriction with the need to search other art, usually, the second divisional is successful. Thus, taken to the limit, every allowed application has an allowed divisional. To fix ideas, assume 65 applications are filed and 30 are abandoned but 35 result in the allowance of two divisionals. In that case, the allowance rate appears to be 70% but the chances of getting a patent are 35/65 = 54%.
My guess is that 54% is on the pessimistic side, but would it be possible to refine the data? It may be difficult because one would have to check each allowed application to see if there is an allowed parent, if any, to be able to eliminate double counting of divisionals and continuations.
I’ll see if I can answer that.
[I]nventors …. just want to know what are my chances of getting a patent, meaning at least one patent.
Competent attorneys who aren’t out to simply take the client’s money (because “money!”) will answer the question this way: the likelihood of getting a patent depends critically on whether there is a patent-worthy innovation.
MM,
That’s true, but most inventors are convinced they have the greatest invention since sliced bread.
And competent litigators will say “the likelihood of successful litigation depends critically on whether there is liability.”
And competent defense attorneys will say “the likelihood of successful acquittal depends critically on whether there is reasonable doubt.”
And competent financial planners will say “the likelihood of asset growth depends critically on whether the assets gain value.”
There’s a reason people usually want skilled advisors, rather than merely competent ones, regardless of how sage the latter may sound while saying nothing useful.
Given the data here and what we know about the operation of the PTO and the larger patent system, if there is an actual patent-worthy innovation at issue, the odds of getting at least one patent are close to 100%. That’s my experience. The “innovators” who don’t get any patent are pretty much invariably (and only) the ones who don’t deserve any patent. Everyone else ends up with a patent, even if it’s not the industry-dominating “instant billionaire” patent that he/she lays awake dreaming about. And in most instances where the self-described “inventor” doesn’t get the patent, or ends up with a patent that has inherent fatal flaws, a competent patent attorney could or should have been able to advise that person of that likely result before any pen was ever put to paper.
MM,
How successful have you been with your patent applications. Is it really close to 100%? I would like to ask for an example of a patent worthy invention, but realize it would blow your cover.
Troubled – the “100% of effort to patent” is not what Malcolm is claiming (here).
His “point” is that at least one patent can be obtained is 100%.
Of course, what he neglects to point out is that it has ALWAYS been ultra easy to obtain a patent of that type** – always. The point he neglects is that type** is simply NOT worth having, and that such makes up far far far less than 5% of any valuable patent claim.
**that type being the ultra easy to work around, so deeply pictured, picture claim that while perhaps “valuable” in the tiniest sliver of the innovation universe, has no bearing on what passes as innovation in the grand “scheme” of things. This of course is mirrored by his oft-intimated view that the patent system exists solely for the “but-for” types of innovation – a view that no reasonable person holds.
… I will add that this is not to be confused with the patent strategy that I had shared long ago in obtaining a quick and easy patent of that type and properly having a chain of continuations established to fight for a more proper depth of coverage.
Of course, this type of thinking is exactly why I panned Paul Morgan on the other thread, and rather dubiously “earned” a post censored for want of a lack of “politeness” when that very “politeness” was neither earned nor warranted.
But let us all suffer for lack of thinking – that is (apparently) the ec(h)osystem desired. Let us all enjoy that swagger as we march up lemming hill.
“anon” that type** is simply NOT worth having,
Odd that clients would ask, then, what the odds are of obtaining one.
Even odder: that clients continue to seek patents that narrowly cover their actual products (which also, presumably, have no value).
This is a wonderful hole you’ve begun for yourself, “anon.” Please do keep digging!
There is no “hole” Malcolm, because your overly narrow views on value simply do not reach the true state of why we have patents and why the ladders of abstraction are used for over 95% of patents that have any value.
My position stands correct – your reply is an abject FAIL.
Thanks for playing.
Doesn’t this presuppose that MM actually has clients?
Seriously, if you were a client of MM’s, how happy would you be to see how much time he spends on a board such as this? In fact, how can he even perform patent prosecution, given the amount of time he spends here?
And — heaven forbid! — your invention actually involves a processor. My reading of MM’s reasoning is that no invention involving a processor should be patentable. (I could easily be wrong — maybe MM’s reasoning does not extend that far. I honestly don’t have the time to read much of what MM posts. I can’t get here that much, as I’m doing too much patent work. Plus, once a post starts calling people names, I lose interest.)
You don’t say? The odds of getting a patent are close to 100% once the invention has been found to be actually patent-worthy? We should get Dennis to do some research on this clearly deep and incisive question: after a notice of allowance has been issued, what’s the allowance rate?
Given the data here and what we know about the operation of the PTO and the larger patent system, if there is an actual patent-worthy innovation at issue, the odds of getting at least one patent are close to 100%. That’s my experience. The “innovators” who don’t get any patent are pretty much invariably (and only) the ones who don’t deserve a patent. Everyone else ends up with a patent, even if it’s not the industry-dominating “instant billionaire” patent that he/she lays awake dreaming about. And in most instances where the self-described “inventor” doesn’t get the patent, or ends up with a patent that has inherent flaws that render the patent all but worthless, a competent patent attorney could or should have been able to advise that person of that highly likely result before any pen was ever put to paper.
“render a patent all but worthless”
You use that phrase, but I do not think that you understand what that phrase means.
The ladders of abstraction and having a claim beyond an exacting (and thus easily worked around and thus “all but worthless”) claim is clearly something that you seem not to be able to grasp.
Maybe it’s that canard of yours wanting the optional claim format to be the ONLY “legal” claim format.
Maybe it’s that unwillingness to recognize Prof. Crouch’s own coined term of Vast Middle Ground.
Maybe it’s your ever short-scripted attempts to move goalposts from claims having parts and elements sounding in “mental steps” to wanting to discuss claims ENTIRELY in the mind.
Maybe it’s your canard of a pet theory which is nothing more than the b@nal cannot claim aggregations – which is ALREADY in the doctrine of Claim as a Whole – and applies fully as to ANY type of claim element, by that claim element sounding in “mental steps” or not.
Maybe it’s your inability to recognize what happened in the Act of 1952 and the reaction against the Court and the liberalization of functional language – both WITH the option of 112(f) AND outside of 112(f).
Of course, ALL of these points have been patiently put on the table for dialogue time and time again.
Maybe – just maybe – you want to gird up on your inte11ectual honesty, put aside your drive-by monologue short script and actually engage in a discussion of real law and real facts.
Naturally, I will not be holding my breath.
Somehow (<-sarcasm) around the time of State Street Bank a strange class of patent attorneys arose whose members believe that it isn't their job to use their brains when advising clients. Searching? That's for the PTO. Arguments against validity or eligibility? That's for the PTO. Instead, the primary occupation (indeed: obsession) of these patent attorneys is to endlessly promulgate the absolute worst shoot-yourself-in-the-face arguments for the patentability of everything and anything (e.g., because of “claims as a whole” or some other nonsensical catch-all "argument"). Thus is created a secondary class of gamblers with the money and time to spend on whatever "chance" there is for obtaining a right to sue or threaten whatever deep pockets are out there. Or, heck, if there's a large population of small pockets might as well threaten them, too, because, hey, it's "legal" (Gob bless America!).
Sure, these folks have done very well for themselves by promoting the view that patents on everything are (or should be) sought by anyone and everyone (especially themselves). In large part that’s because their only “product” is litigation and, as willfully ignorant as the USPTO is, it does seem able to detect (some of the time) when one of its “clients” is trying to patent a litigation tactic or an argument for … making patents easier to “monetize”. Another important factor, as well know, is the absence of meaningful sanctions for making d.o.a. arguments.
The damage these people did to the patent system was huge and what we’ve seen thus far is just the tip of the iceberg. More and bigger reforms are coming and the sound of the screeching of these rich, entitled whiners is going to be with us for years to come as the mess is sorted through and cleaned up. Watch and see.
Talk about frantic digging….
Funny, the facts in the picture just don’t support your stale script.
Assume for the sake of illustration that all applications are subject to a restriction requirement.
I’m not sure what art your clients are in, but I probably send out roughly five restrictions a year, a tiny fraction of the cases I work on overall.
A plurality of thresholding units,
I think that is a testament to your admirable restraint, but not typical. The hypothetical was for illustrative purposes and similarly includes continuations. I don’t really know how many patents are divisionals or continuations. Following the LINK above to the PTO was not fruitful. Supposedly, they have data on related applications but the link to the description didn’t work.
The beauty of this chart lies in the eyes of the beholder.
LOL – sure, try to spin this as “beauty” because the facts herein are just “inconvenient for you, Malcolm and the Echoes.
You have just got to do better than that, Ned.
Boo
Yeah
Double
Boo
Yeah
((look what art is riding the Kappos swing back up the most)
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