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26 February 2018Patents

Drew Hirshfeld: boosting quality and quantity at the USPTO

As China continues to dominate global patent applications, accounting for nearly the entire growth in filings from 2015 to 2016, the US’s experience represents more of a trickle than a flood.

Over the past five years, there’s been a consistent 1% annual growth in the number of utility applications filed.

This growth has tracked with the office’s modelling projections, enabling it to plan and hire the correct number of utility examiners, says Drew Hirshfeld, patent commissioner at the US Patent and Trademark Office (USPTO).

Since the actual number of filings has closely matched the modelling projections, the office has been able to lower total pendency from almost 35 months at the end of 2010 to just over two years at the end of 2017.

“In contrast to the 1% per year growth in utility application filings, there has been a little over 7% per year growth in design application filings over the last five years,” explains the patent commissioner.

He believes that the USPTO’s acceptance of international design applications under the Hague Agreement beginning in May 2015 may have had some impact on the growth in filings.

The larger than expected growth has impacted pendency, which has increased from 13.5 months in 2010 to 18.7 months in 2017.

Problem pages

With a higher workload to contend with, the USPTO faces clear challenges in examining applications at its previously speedy pace. The increased pendency may also suggest the office is being as careful and as diligent as always, but are inventors happy? Not all of them.

US Inventor, an organisation dedicated to improving the patent system, has voiced concerns about the USPTO.

In August last year, the organisation protested against the Patent Trial and Appeal Board (PTAB). The reasons for the protest included “many inventors” being denied patents and others being caught in “neverending multimillion-dollar legal battles against giant corporate infringers”.

Paul Morinville, founder of US Inventor, claims that the results of efforts to control quality have been to not issue patents in examination and then to invalidate those patents already issued in the PTAB “if they become commercially valuable inventions”.

He adds that if there are efforts underway to fix this, the efforts must begin with issuing patents under the statutory requirements that already exist and end with upholding the patents that have been issued.

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