Deja vu all over again in the "patent grant rate" saga?
This new blog post titled “Another depressing year for patent law?” says a lot about how practitioners in the US view the USPTO. Watch how this US patent lawyer, Lawrence B. Ebert, quoting Larry Downes as saying: “On just one day in November, for example, over 200 new patent lawsuits were filed, as plaintiffs rushed to beat a change in federal procedure that could require more specific claims. Most were from companies that buy up patents of dubious quality and use them to extract nuisance settlements from actual innovators.”
Is this what Europe is hoping to achieve? We wrote thousands of articles about the USPTO and we have great (and growing) fear that those same disasters (and patent predators) will reach Europe. Some already do
Aside from the observation that the text beginning "Watch how..." is not a complete sentence, one notes that the filings on November 30 were in anticipation of different pleading requirements after Form 18 was removed from the appendix of the Federal Rules. Going forward, pleading complaints in US patent cases needs to more specific.
Of humor, even an episode of "The Good Wife" [KSR] referenced this matter. [As one bit of trivia, Larry Downes and LBE are both University of Chicago Law, '93]
**Other text in the article was of interest:
The last point suggests to us that the Team Battistelli-led EPO is gradually emulating the notorious USPTO (very deeply involved in and dominated by large corporations, with terrible grant rates).
The "terrible grant rates" link is --http://www.vox.com/2014/5/5/5682926/getting-patents-is-preposterously-easy-under-obama -- which in turn leads one to
-- http://arstechnica.com/tech-policy/2013/04/study-suggests-patent-office-lowered-standards-to-cope-with-backlog/ --, an article by Timothy B. Lee on Apr 7, 2013 6:45pm EDT, which begins:
When David Kappos announced his resignation as head of the United States Patent and Trademark Office (USPTO) late last year, one of his most touted accomplishments was a significant reduction in the backlog of pending patent applications. Kappos' fans have attributed this to the hiring of hundreds of additional patent examiners.
But 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.
Presumably, this "new study" refers to Patent Applications and the Performance of the U.S. Patent and Trademark Office, 23 Fed. Cir. Bar J. 179 (2013) (with Cecil D. Quillen, Jr. and Ogden H. Webster).
The link for this article on the Cotropia website is to an article by Cotropia:
Patent Applications and the Performance of the U.S.
Patent and Trademark Office
Christopher A. Cotropia
University of Richmond, firstname.lastname@example.org, with the recommended citation:
Christoper A. Cotropia, Cecil D. Quillen, Jr. & Ogden H. Webster, Patent Applications and the Performance of the U.S. Patent and
Trademark Office, 23 Fed. Cir. B.J. 179 (2013).
A footnote mentions previous publications by Quillen and Webster in this area:
See Cecil D. Quillen, Jr. & Ogden H. Webster, Continuing Patent Applications and
Performance of the US. Patent and Trademark Office, 11 Fed. Cir. B.). 1 (2001) [hereinafter
Quillen I]; Cecil D. Quillen, Jr. et al., Continuing Patent Applications and Performance of the
U.S. Patent and Trademark Office-Extended, 12 Fed. Cir. B.). 35 (2002) [hereinafter Quillen
II]; Cecil D. Quillen, Jr. &Ogden H. Webster, ContinuingPatentApplicationsandPerformance
ofthe U.S. Patent and Trademark Office-Updated, 15 Fed. Cir. B.J. 635 (2006) [hereinafter
Quillen III]; Cecil D. Quillen, Jr. & Ogden H. Webster, Continuing Patent Applications and
Performance of the US. Patent and Trademark Office-One More Time, 18 Fed. Cir. B.J. 3 79
(2009) [hereinafter Quillen IV]. See Quillen IV, at 380-83 and accompanying notes, for an
overview of these previous Articles.
The 2013 article makes no reference whatsoever to published criticisms of the Quillen/Webster methodology.
IPBiz referred to the third Quillen/Webster paper [ Continuing Patent Applications and Performance of the U.S. Patent and Trademark Office--One More Time, 18 FED. CIR. B.J. 379 (2009). ] in a 2014 post Patent "Quality", again and included a reference to a paper showing the errors of the Quillen/Webster approach:
LBE, Comment on "Patent Grant Rates at the United States Patent and Trademark Office" , 4 Chi.-Kent J. Intell. Prop. 186 (2005), with text
we suggest that Quillen and Webster's elevated grant rates arise from a flawed numerical approach.
**Separately, Lemley and Sampat wrote in the "rubber stamp" paper: We find that the PTO rejects a surprisingly high percentage of patents. While more than
two-thirds of all applications result in at least one patent, a significant number of applications are
rejected and then finally abandoned by the applicant.
which includes a footnote:
We thank Lawrence Ebert for raising this concern. Lawrence Ebert, More on Patent Grant Rate; the USPTO Is NOT a Rubber
Stamp, IPBIZ, Aug. 2, 2007, http://ipbiz.blogspot.com/2007/08/more-on-patent-grant-rate-uspto-is-not.html.