Wednesday, February 15, 2006

Have patent grant rates increased by 80% in the last ten years; another law review disaster

Footnote 2 of Kimberly Moore's Worthless Patents, 20 Berkeley Tech. L.J. 1521, states: Each year the number of patents issued rises substantially. See id. (showing that patent grant rates have increased by 80% in the last ten years).

The cite ("id.") is to a page of USPTO data. For utility patents:

In 1994, there were 189,857 apps and 101,656 grants. (53.5%)
In 2004, there were 356,943 apps and 164,293 grants. (46.0%)

The patent grant rate, based on the data cited by Moore, declined between 1994 and 2004. One wonders if Moore, or the cite checkers at Boalt, ever bothered to check footnote 2. The evidence would suggest not.

See also L.B. Ebert, Things Are Not Always What They Seem to Be, Intellectual Property Today, October 2005.

The full footnote 2 is a bit strange:

Each year the number of patents issued rises substantially. See
id. (showing that patent grant rates have increased by 80% in the last ten years). The PTO does not seem to be able to keep pace with the rise in application filings. See Victoria Slind-Flor, Bar Reacts to Bezos Patent Reform Plan, Nat'l L.J., Mar. 27, 2000, at A1 (quoting Representative Coble: "If everyone would keep their grubby hands off the PTO's fees, the agency could hire and retain
even more examiners to ensure that only quality patents are issued.").
Alternatively, perhaps the lower grant rate reflects a PTO which has become more selective (stricter) in applying patent requirements.

Huh?? The beginning of footnote 2 talked about an INCREASE in patent grant rates but by the end of footnote 2 there is discussion of the LOWER grant rate. What is going on here?

The first sentence of the paper states: Each year the United States Patent and Trademark Office (PTO) receives 350,000 patent applications n1 and grants approximately 180,000 patents.

One of the conclusions of the paper:

The data permit some generalities. For example, patentees obviously
rush to patent before ascertaining meaningful estimates of the expected return of any given technology. The identification of this rush to patenting in the present U.S. patent system is important. If the rush is substantial in our present first-to-invent patent system, it would likely be exacerbated if the U.S. adopted the first-to-file system of every other country. This major reform proposal is under nearly constant consideration. A further implication of these
data and the identified patent rush is that the current system of
patent examination by the PTO may in fact be optimal. Although the current system is heavily criticized, it would be inefficient for the PTO to spend more time evaluating worthless applications. n79

Ref. 79 is indeed Lemley's Rational Ignorance, and Moore does not cite Kesan's work or criticisms of Lemley's work.


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