Thursday, February 28, 2008

Patent allowance rate 44% in fiscal 2007 [?]

In prepared testimony for an oversight hearing before the SUBCOMMITTEE ON COURTS, THE INTERNET AND INTELLECTUAL PROPERTY COMMITTEE ON THE JUDICIARY on 27 Feb. 08, USPTO Director Jon Dudas stated:

Mr. Chairman, as we look to the future, we will make every effort to improve on our
successful record in fiscal year 2007. Our patent examiners completed over 362,000
patent applications in 2007, the largest number ever, while maintaining for the second
year in a row an examination compliance rate1 of 96.5 percent, the highest in a quarter of
a century. The allowance rate for patents is currently 44%. This is in contrast to
allowance rates in excess of 70% just eight years ago.

IPBiz notes that it is not totally clear whether the 44% relates to fiscal 2007 [as does the 362,000 number]
or for some other time period. There is no doubt the allowance rate has been going down in
the last few years.

Dudas also noted: With full access to our fee collections, the USPTO hired 1,215 patent examiners in FY
2007. We plan to hire 1,200 patent examining professionals each year through 2013.

Of the attrition rate issue, Dudas did mention the GAO report and noted:

1. The USPTO's attrition rate is lower (8.5%) than the average attrition rate for
Federal workers (11.2%).
2. The average attrition rate for USPTO patent examiners with 0-3 years experience
is 15.5%. The average attrition rate for USPTO patent examiners with 3-30 years
experience is 3.95%.
3. The attrition rate of patent examiners with 0-3 years experience, though
measurably higher than the rest of the patent corps, appears to be well below the
attrition rate experienced by similarly situated entities hiring more than 1,000
engineers in a year.
4. Examiners with the highest production requirements have the lowest attrition
rates, and the examiners with the lowest production requirements have the highest
attrition rates. In fact, 70% of all work in FY 2007 was done by examiners with 3
or more years of experience who exceeded their production goals by an average
of 8% and had an average attrition rate of 3.95%.

Dudas discussed peer-to-patent:

On June 7, 2007, the USPTO released details of a pilot project that could help expedite
and improve the examination process in computer technologies. The Peer Review Pilot
gives technical experts in computer technology, for the first time, the opportunity to
submit annotated technical references relevant to the claims of a published patent
application before an examiner reviews it.
When patent examiners have the best information in front of them, they are more likely to
make the correct decision. Examiners, however, have a limited amount of time to find
and properly consider the most relevant information. This is particularly true in the
software-related technologies where code is not easily accessible and is often not dated or
well documented.
The pilot is a joint initiative with the Community Patent Review Project (CPRP),
organized by the New York Law School 's Institute for Information and Policy. The pilot
began on June 15, 2007, and runs for one year.
Technical experts in the computer arts registering with the CPRP website review and
submit information for up to 250 published patent applications. To ensure a broad cross
section of computer technology is reviewed, no more than 15 applications are allowed
from any one person or organization.

To date, 57 applications have been volunteered to participate in this pilot from over 15
different corporations and independent inventors. Over 170 pieces of prior art have been
submitted to the 45 applications that have published so far in the pilot.

--> Of post-grant review (opposition), Dudas said:

Consistent with USPTO recommendations, pending patent modernization legislation
includes provisions to establish new post-grant review procedures at the USPTO. The
provisions are intended to improve upon existing administrative reexamination
alternatives and provide a quicker, lower cost alternative to expensive litigation in
reviewing patent validity questions. Such procedures would complement rather than
displace ongoing quality-focused initiatives at USPTO.

The USPTO has suggested to Congress that the legislation, as currently drafted, be
revised to more closely align with the post-grant review proposal drafted by the USPTO.

The USPTO proposal and both pending bills establish a post-grant review procedure
under which any person may request the USPTO to cancel as unpatentable any claim of a
patent within 12 months after issue or reissue. While the House and Senate bills vary as
to a second window of opportunity for challenging a patent, the USPTO supports
establishment of a second window that would open for a period of six months after a
petitioner receives notice from a patent holder alleging infringement and shows
substantial economic impact.

[Text of prepared testimony]

See 2/27 post at PatentDocs: House Subcommittee Holds USPTO Oversight Hearing


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