Questions about patent application pendency, backlog, and quality are not new. An article in the June 1930 issue of Popular Science Monthly is entitled “The Patent Office Has Become A National Disgrace.” The article came to my attention from Professor James G. Conley of Kellogg School of Management, Northwestern University.
The article refers to the Patent Office as being “[u]ndermanned, out of date, with inadequate equipment . . . with facilities designed for the needs of years ago.” As of the writing of the article the PTO had a backlog of 118,000 patent applications and was receiving about 2,000 new applications per week. Only four years earlier, the backlog had been 41,000 applications. Compare this to the 466,147 filed in fiscal year 2008, nearly 9,000 per week (a nearly 450% increase) and the 1.2 million application backlog (an increase of more than 1000%). The article decries the nearly 45% of applications that took longer than two years to obtain a patent.
The article also recognizes the problem of “secret prior art” with the backlog. There was no pre-grant publication in 1930. A new applicant’s invention may already be described in one of the 118,000 applications that had not yet issued as a patent.
The patent application filing fee in 1930 was $20, along with a $20 issue fee (about $250 each in 2009 dollars). Compare that with the $1,090 filing fee, $1,510 issue fee, and $300 publication fee today. One improvement today is the ending of fee diversion. In 1930, the Patent Office made a profit of $6 million, but was unable to use the money to increase its productivity. The PTO was stuck with only the funding allocated to it by Congress.
The article also talks about the state of the examining corps in 1930. There were 650 examiners (compared to over 6,000 today). Eight to ten of the examiners resigned each month, with a 50% turnover every two and a half years. At the time, examiners were required to pass a two day examination, understand French or German, have training in reading mechanical drawings, have three years of college courses in physics, chemistry, or mechanical engineering, and have completed math courses through differential calculus. Becoming an examiner also required a physical examination.
New examiners were paid $2,000 per year (about $25,000 in 2009 dollars). In order to become the head of an examining division, the examiner had to have a law degree. Most patent examiners were new college graduates looking to use the position as a stepping stone to a career in engineering or patent law, where they could make significantly more money. Thus, attrition was a worse problem than it is today.
The article also gives anecdotal evidence of poor examination leading to poor patent quality. The article refers to a situation where an inventor had his patent invalidated because an examiner had not found a particular piece of prior art that should have been discovered during the search phase of the examination; and this after waiting over two years to get his patent!
The article continues by noting that the problem was only going to get worse. The PTO granted more patents from 1920-1930 than it did from 1789-1889. Patent, trademark, and design applications in 1929 numbered 114,496. In 1930, this number had increased about 12%, with a 100% increase in the number of trademark applications. The article’s author recognized that this increase in the amount of available prior art for searching makes the job more difficult as time goes on.
The author concluded by urging readers to write to their congressmen for patent relief. He urged them to tell Congress to update and expand the PTO’s facilities and increase the number of examiners significantly.
It is interesting to note that the more things change, the more they stay the same.