Tuesday, June 29, 2004
In recent proposals for patent reform made by the Federal Trade Commission and by the National Academy of Sciences, there has been discussion of the possibility that the grant rate of patents by the United States Patent and Trademark Office [USPTO] is high compared to the grant rate of other industrialized countries, including that of Japan and those of Europe. This discussion began with papers of Quillen and Webster that suggested that the grant rate might be as high as 97% and more reasonably is at least 85%. Although the actual uncorrected grant rate at the USPTO is typically in the range 62 to 68%, Quillen and Webster suggested the higher numbers based on an analysis of continuing applications (including continuations, divisionals, and continuations-in-part). It is likely that the analysis of Quillen and Webster is flawed both legally and methodologically, and that recent work by Clarke [Robert A. Clarke, U.S. Continuity Law and its Impact on the Comparative Patenting Rates of the U.S., Japan, and European Patent Office, 85 J. Pat. & Trademark Off. Soc'y [JPTOS] 335 (2003)], which places the corrected grant rate at less than 75%, is more accurate.