Over the most recent few decades, the USPTO has continued to grow and evolve in process, people and technology. During the period between FY 2005 and FY 2011, the number of patent examiner’s increased from 4,258 to 6,685 (+57%) (4). By 2014, their numbers had swelled to 8,466, nearly double the headcount in 2005. This growth has largely been driven by a combination of factors including a favorable filing environment over the past two decades coupled with intense technology competition and accelerating innovation by individuals and corporations alike. Over the period between 2004 and 2014, US-generated utility application grant rates have grown from 189,536 to 285,096, a 50% increase. This extends another significant growth trend of just over 76% from the prior 10-year period from 1994-2003.
These increases have placed considerable burdens on the Agency and are further complicated by the practice of Congressional appropriation of fees paid to the USPTO. Since 1992, Congress has diverted almost $1 billion, spending this funding elsewhere. The practice of “fee diversion” has sapped the USPTO of critical funding during this period of hyper-growth, limiting incremental staff hiring and improvements to its processing systems. Many have called fee diversion a tax on innovation. This practice ended with the signing of the Leahy-Smith America Invents Act on September 16, 2011. Today, the USPTO is investing in the development of systems designed to improve examination tools and intended to improve the agency’s ability to handle growth while driving down a working backlog of some 200,000 applications awaiting review.
Regardless of your point of view on the overall history of performance by the USPTO, we must acknowledge that they are a progressive agency. USPTO has a long demonstrated a willingness to experiment with cutting-edge concepts, doing so without government subsidy. Here are just a small number of representative examples from a much broader array of impressive recent programs and experiments:
- 2005 Pre-Appeal Program
- 2008 Expedited Patent Appeal Program
- 2010 Ombudsman Program
- 2011 Full First Action Interview Pilot Program
- 2012 USPTO Patents for Humanity Pilot
- 2015 Collaborative Search Pilot (USPTO/JPO/KIPO)
An interesting graphic on these and other programs currently in use can be found at: https://www.uspto.gov/patent/initiatives/uspto-patent-application-initiatives-timeline
The Agency also works hard to engage and educate the IP community of interest, holding numerous public events during any given year. Examples include an annual “innovation festival” with manufacturing leaders, various intellectual property rights and innovation conferences, quarterly meetings with PPAC – the Patent Public Advisory Committee, and a range of public conferences on patent standards and Patent Office performance to name just a few.
The Electronic Patent, Open Government and the Emerging Analytics Landscape
Along with the adoption of electronic filing just after the year 2000 and a system-wide conversion from paper-based to all electronic-based patents processing, the USPTO has embraced a posture of open government, working to make accessible, vast troves of patent data. For example, a substantial repository of patent data in electronic form provided under contract with Reed Tech is now available to the public for free at https://patents.reedtech.com. As a progressive agency, the USPTO has launched a large number of initiatives in the recent decade designed to take advantage of crowd-sourcing, and collaboration and interaction with public entities to improve patent quality and access to patent information.
Given the acceleration of access to historical patent content, many organizations are now moving to further leverage this data by adopting an emerging array of analytics offerings, with new data solutions designed to assist corporate and legal entities with the management of their patent portfolios. Innovations in patent research, drafting, prosecution, portfolio management, patent monetization, protection/enforcement and litigation, and business intelligence are accelerating, providing these organizations with valuable insights and tools to better deliver value to their customers.
A great example of an emerging technology leveraging the troves of available patent content in predicting the outcomes of patent examination is a tool called LexisNexis PatentAdvisor®. Technologies like this are helping to level the playing field for corporations and applicants alike by facilitating economical decision-making in patent filing and management.
As for leveraging patents to protect your enterprise, there are many views available from which to choose, ranging from making far more money by not revealing your secret sauce as required by patent application, to patents giving you the right to pursue injury, protecting the novelty of your creative investment. Recognizing that there will always be considerable debate about patents, let’s close this article with the following quote:
“Except in very narrow cases, where there’s breakthrough science that needs patent production, worrying about competitors is a waste of time. If you can’t out iterate someone who is trying to copy you, you’re toast anyway.” – Eric Ries