The PTO has a new Data Visualization Center to make it easier to see information regarding pendency and other data. Here is a summary of some of the data of note as of August 2010.
First Action Pendency – 26.2 months
The PTO has a goal of 10 months to first Office Action by 2015. At the beginning of FY2010, the pendency was 26.1 months. As of August, the pendency is virtually unchanged at 26.2 months. This number is down slightly from recent months.
“Traditional” Total Pendency – 35.4 months
“Traditional” total pendency does not take into account RCEs or other means of refiling an application. It merely measures from the application’s or RCE filing date to final disposal. The PTO has a goal of 20 month average pendency by 2015. As of August, pendency has risen to 35.4 months, up nearly a year from 34.5 months at the start of FY2010.
Application Pendency with RCEs – 42.8 months
Pendency that includes Requests for Continued Examination and does not count them as abandonments is at an all-time high of 42.8 months, up from 41.2 months at the start of FY2010.
The average pendency for only applications where an RCE is filed is over 5 years at 60.7 months. This is still better than the nearly 6 years required from the parent application filing date for a continuation applications at 71.6 months or for divisional applications 69.4 months.
Applications Awaiting First Office Action – 728,055
The number of patent applications that have been filed that have not yet received a first PTO Office Action is up 0.7% from 722,835 at the start of FY2010 to 728,055. The PTO has brought this number down from early FY2009 numbers where it was over 760,000.
Patent Application Allowance Rate – 45%, 60.2%
The PTO is calculating the allowance rate in two ways. The “traditional” allowance rate counts an RCE as an abandonment. The rate when including RCEs is currently 45%. When not including RCEs as abandonments, the allowance rate is 60.2%. As suspected, the allowance rate has been increasing during FY2010, but is still at a level that is quite low historically. The chart shows the trend for allowance rate during FY2009 and FY2010.
Average Pendency for Applications Receiving a Decision by the BPAI – 76.1 months
A decision that many patent applicants are required to make is whether to appeal a case to the BPAI. For applications getting a final decision on appeal, the average time from application filing date to decision is 76.1 months–closing in on 6 1/2 years! This number is up from 71.7 months at the start of FY2010. The incredible number of appeals being filed is contribuing to this crisis situation.
Number of Patent Examiners – 6,038
The hiring freeze at the PTO dropped the number of examiners from a high of 6,240 in February 2009 to a low of 6,009 in July 2010. The PTO has recently started hiring a few examiners again, focusing on former examiners that have left the office.
Average Actions Per Disposal – 2.4
The PTO is measuring the number of Office Actions per application. Each Office Action (non-final and final) counts as an action, as does an allowance and an abandonment, including abandonments for RCE filings. Thus, an application with a first Office Action, a final Office Action, and an allowance counts as three actions. The PTO has brought this number down from 2.91 in FY2008.
The good news is that the PTO is finally being transparent about its numbers and giving us real data on patent pendency rather than the “traditional” pendency data. The bad news is that these numbers paint a bleak picture. The allowance rate is still extremely low, average pendency is very high at over 3 1/2 years, and it takes nearly 6 1/2 years to get a decision on appeal.
It’s going to take some time for Director Kappos’s intiatives to yield results, but at this point things are not improving. They are getting worse. Lifting the hiring freeze was a first step with several others needed.