June 30, marked the end of the third quarter of FY2011 for the PTO. Time to refer again to the PTO’s Data Visualization Center to see how things are going. The numbers below are comparisons of the numbers at the end of June 2011 with March 2011 and September 2010.
First Action Pendency – 27.2 Months
The PTO is either getting really squeezed by the congressional budget crisis or is concentrating all its efforts on clearing the oldest applications because this number is up from 25.3 months in March and 25.7 months in September. It is taking nearly 2 months longer to get a first office action since March. This is not good.
“Traditional” Total Pendency – 33.6 Months
The PTO does continue to make some progress on this number, as it is down from 33.9 months in March and 35.3 months in September. That’s about 18 fewer days of pendency since the March numbers. It hasn’t been this low since February 2009.
Application Pendency with RCEs – 40.6 Months
This number is encouraging. The PTO dropped the number from 41.6 months in March and 42.6 months in September. Hopefully, they can get it under 40 months soon. While the number is the lowest since July 2009, that still well past 3 years to get a patent.
Applications Awaiting First Office Action – 695,086
Here’s where the PTO is making some real hay. The agency has now reached its FY2010 goal of a backlog of less than 700,000, and this dispite indications that filings are up 4% this year. The number is down from 708,912 in March, or nearly 2%.
Patent Application Allowance Rate – 46.5%, 63.1%
The first number counts RCE filings as abandonments, while the second number does not, but counts them as continuing prosecution. These numbers are up from 46.2% and 62.9%, respectively, in March. While these numbers continue to show slow, steady improvement, they also continue to demonstrate that many patents are allowed by forcing applicants to file RCEs that are not allowed initially. This is another area where the PTO could significantly improve efficiency.
Number of Patent Examiners – 6,775
The budget crisis has stopped the PTO from the hiring that permitted a large influx of new examiners at the beginning of the fiscal year. Instead, the number has dropped from 6,840 in March, but is still up significantly from the 6,128 in September.
Pendency from Application Filing to Board Decision - 80.3 Months
And here’s where the current crisis at the PTO lies. This number continues to climb–from 78.6 months in March and 76 months in September. That’s up 2.2% since March and a 5.7% increase during FY2011 to over 6 1/2 years. This is not acceptable, as new technologies become obsolete prior to getting a patent or decision by the Board. The PTO hired a number of additional patent judges and attorneys to deal with this issue, but the sharp increase in the number of appeals filed has made tackling this an impossibility. Now, Congress wants to assign the Board more work.
At the end of June, the Board had 22,926 pending appeals from ex parte application prosecution, up 29% during FY2011 from 17,754. So far this year, 10,318 new ex parte appeals have been filed, which is on pace for an 11% increase from last year. Meanwhile, the Board has disposed of 5,146 such cases which is on pace for 3.8% fewer than FY2010.
In other types of cases before the Board, the number of new interferences is down slightly (from 52 to a pace for 49). The Board is deciding about the same number each month as are newly docketed. The number of new ex parte reexam appeals is down (from 158 to 140). The Board is deciding these cases at a faster rate, cutting its inventory from 74 to 46 such cases.
The other area of significant increase is inter partes reexams. While 44 appeals were filed in FY2010, 72 have already been filed during FY2011, a pace for a 118% increase. After disposing of 30 last year, the Board has already tackled 59 during FY2011, on pace for a 162% increase. Clearly, inter partes reexamination proceedings are now being more widely used that Congress realizes.
The PTO must come up with a plan to deal with its crisis at the Board. Applicants deserve the ability to get a final agency decision on a patent application within a reasonable time frame, which 80.3 months is not. The backlog is slowly decreasing; we can only assume that the first action pendency will as well once the PTO clears more of its oldest applications.
To truly fix these issues, Congress must permit the PTO to be fully funded so that it can be fully staffed to meet users’ needs.