September 30 marked the end 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 September 2011 with June 2011 and September 2010.
First Action Pendency – 28 Months
First action pendency continues to increase at the PTO. In June, first action pendency was 27.2 months, while at the end of FY2010 it was 25.7 months. Thus, it is taking 2.3 months longer to get a first office action now than a year ago. The PTO is working to clear the oldest applications, but it appears to be slipping on numbers like this one. A nearly 9% increase in time to first action is not a good sign.
“Traditional” Total Pendency – 33.7 Months
Traditional pendency has been fairly flat, up from 33.6 months in June, but down from 35.3 months at the end of FY2010. Good progress was made early in FY2011, but it has now flattened out.
Application Pendency with RCEs – 40.9 Months
This number, like traditional pendency, saw good progress early in FY2010, but flattened out towards the end. It was at 42.6 months at the end of FY2010, but at 40.6 months at the end of June. Since June, the time has increased by 0.3 months. A short term goal should be to get this number under 40 months; anything over 3 years is too long.
Applications Awaiting First Office Action – 669,625
The PTO continues its impressive performance in working through the backlog. At the end of FY2010, the backlog of unexamined applications was 708,535 and at the end of June it was 695,086. That’s a 5.5% reduction for the year and a 3.7% reduction for the quarter. This comes despite the fact that application filings were up for the year.
Patent Application Allowance Rate – 48%, 64.4%
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 47% and 63.4%, respectively, in June. At the end of FY2010, the numbers were 45.6% and 61.1%, respectively. While these numbers continue to show slow, steady improvement from earlier record low numbers, 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 – 6,690
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 been steadily falling from the high of 6,846 in February and from 6,775 in June. For the year, the number of examiner is up by 562 from 6,128 last September, a 9.2% increase in the size of the examining corps.
Pendency from Application Filing to Board Decision - 81.4 Months
This crisis continues to get worse. This number continues to climb–from 80.3 months in June and 76 months last September. That’s up 1.4% since June and a 7.1% increase during FY2011 to over 6 3/4 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.
At the end of FY2011, the Board had 23,963 pending appeals from ex parte application prosecution, up 35% during FY2011 from 17,754. During FY2011, 13,501 new ex parte appeals have been filed, a 9% increase from last year. Meanwhile, the Board has disposed of 7,292 such cases, about 2% more than FY2010.
In other types of cases before the Board, the number of new interferences is also up from 52 to 64, a 23% increase from FY2010. The Board is 51 cases compared to 50 in FY2010. The number of new ex parte reexam appeals filed during FY2011 was down from 158 to 125. Meanwhile, the Board decided 173 of these cases, cutting its inventory from 74 to 26 such cases. It made good headway here.
The other area of significant increase is inter partes reexams. While 44 appeals were filed in FY2010, 114 were filed during FY2011, a pace for a 159% increase. After disposing of 30 last year, the Board decided 86 during FY2011. Clearly, inter partes reexamination proceedings are now being more widely used that Congress realizes.
The incredibly shrinking PTO backlog is a really good sign, but most other numbers are not keeping pace. There is no concomitant decrease in pendency to first office action or total pendency. These numbers will hopefully follows once the PTO gets the oldest cases out of the way.
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 81.4 months is not. The PTO is working hard to try to hire more judges and patent attorneys to work on this situation, but Congress added to its workload as well. The Board will soon need to deal with post grant oppositions and other procedures from the America Invents Act.
To truly fix these issues, Congress must end fee diversion permanently and permit the PTO to be fully funded so that it can be fully staffed to meet users’ needs. Unfortunately, due to partisan politics and budget crises throughout the government, it missed the opportunity to do so this time around. The patent community should continue to pressue congress to keep its hands off the PTO’s money.