The following is a comparison of the PTO’s numbers from the end of FY2011 with the end of January. This is mid-quarter for the PTO, so the numbers won’t exactly match up to other updates. Time to refer again to the PTO’s Data Visualization Center to see how things are going.
First Action Pendency – 22.8 Months
First action pendency has seen a rapid reduction during FY2012! At the end of September, first action pendency was 28 months. In January, it dropped under 2 years for the first time in recent memory! This is an 18.6% reduction and is a good sign of things to come.
“Traditional” Total Pendency – 33.9 Months
Traditional pendency has been fairly flat, up from 33.7 months in September. Good progress was made early in FY2011, but it has now flattened out. Presumably, this will improve since first action pendency has improved so dramatically.
Application Pendency with RCEs – 40.6 Months
This number, like traditional pendency, saw good progress early in FY2010, but flattened out towards the end. It was at 40.9 months at the end of FY2011. A short term goal should be to get this number under 40 months; anything over 3 years is too long. The 40 month goal seems elusive.
Applications Awaiting First Office Action – 657,378
The PTO continues its impressive performance in working through the backlog. At the end of FY2011, the backlog of unexamined applications was 669,625. By January, the backlog was reduced by another 1.8%. It’s not a dramatic decrease, but is a good sign.
Patent Application Allowance Rate – 49%, 65.8%
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 48% and 64.4%, respectively, in September. 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 – 6,815
This number is up from 6,690 at the end of FY2011. It’s still tough for the PTO to budget properly with no guarantee that fee diversion won’t continue. In February and March 2011, there were a few more examiners, but the number is nearing an all-time high.
Pendency from Application Filing to Board Decision – 81.9 Months
This crisis continues to get worse. This number continues to climb–from 81.4 months in September. It’s not a huge increase, but any increase here is unacceptable. 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 January, the Board had 25,498 pending appeals from ex parte application prosecution, up 6.4% from the end of FY2011. Through January, 4,078 new appeals were filed during the fiscal year, a pace for 12,234. During FY2011, 13,501 new ex parte appeals have been filed, so the filings are expected to show a 9.4% decrease. Meanwhile, the Board has disposed of 2,543 through January, a pace for 7,629, an increase of 4.6% from FY2011’s 7,292 such cases.
In other types of cases before the Board, the number of new interferences is fairly steady with 22 through January compared to 64 during FY2011. The Board has already disposed of 23 cases, while concluding only 51 during FY2011. The number of new ex parte reexam appeals filed through January is 39 (a pace for 117), slightly fewer than the 125 filed during FY2011. Meanwhile, the Board decided 51 of these cases, cutting its inventory from 26 to only 14 such cases. It made good headway here.
The other area of significant increase is inter partes reexams. While 114 appeals were filed in FY2011, 70 have already been filed through January. This is on pace for a 84% increase. The Board has decided 40 through January.
The incredibly shrinking first action pendency, along with the decreasing PTO backlog is a really good sign, but most other numbers are not keeping pace. There is no concomitant decrease in 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 81.9 months is not. It seems that the current answer is a significant increase in the appeal fees. 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.