We have now reached the three-quarters mark in FY2012. It’s time to review PTO numbers again.
The following is a comparison of the PTO’s numbers from the end of January 2012 (at my last numbers update) with the end of June 2012. Time to refer again to the PTO’s Data Visualization Center to see how things are going.
First Action Pendency – 22.6 Months
At the end of FY2011, first action pendency was 28 months. In January, it dropped under 2 years for the first time in recent memory at 22.8 months! In the 5 months since then, pendency has been fairly flat, dropping by less than a week, or about 0.9%.
“Traditional” Total Pendency – 33.5 Months
Traditional pendency has been fairly flat, down from 33.9 months in January. The reduction of about 2 weeks is about 1.1% of the total time.
Application Pendency with RCEs – 40.0 Months
This number was at 40.6 months in January. We’ve gotten to the elusive 40 month goal, but need to continue to do better. This represents a 1.5% reduction since January.
Applications Awaiting First Office Action – 632,981
The PTO continues its steady, impressive performance in working through the backlog. At the end of January, the backlog of unexamined applications was 657,378. Since then, the backlog has decreased another 3.7%. This is a very positive trend for the PTO.
Patent Application Allowance Rate – 50.4%, 67.2%
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 49% and 65.8%, respectively, in January. 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 is making slow, steady progress. The new after final intiative could help this as well.
Number of Patent Examiners – 7,280
This number is up from 6,815 in January and represents a significant spring/early summer hiring blitz. It’s still tough for the PTO to budget properly with no guarantee that fee diversion won’t continue. This appears to be an all-time high for number of patent examiners.
Pendency from Application Filing to Board Decision - 85.5 Months
The crisis at the Board continues to get worse and shows no signs of abating. This number continues to climb–from 81.9 months in January, to now over 7 years! 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. Soon, the Board will have significantly greater responsibilities with the beginning of the new post-grant review proceedings.
At the end of June, the Board had 26,686 pending appeals from ex parte application prosecution, up 4.7% since January. Through June, 9,625 new appeals were filed during the fiscal year, a pace for 12,833. During FY2011, 13,501 new ex parte appeals have been filed, so the filings are expected to show a 4.9% decrease. Meanwhile, the Board has disposed of 6,902 through June, a pace for 9,203, an increase of 26.2% from FY2011′s 7,292 such cases!
In other types of cases before the Board, the number of new interferences is fairly steady with 46 through June compared to 64 during FY2011. The Board has already disposed of 48 cases, while concluding only 51 during FY2011. The number of new ex parte reexam appeals filed through June is 82 (a pace for 109), fewer than the 125 filed during FY2011. Meanwhile, the Board decided 88 of these cases, as its inventory from 14 to 20 such cases since January.
The other area of significant increase is inter partes reexams. While 114 appeals were filed in FY2011, 133 have already been filed through June. This is on pace for a 55.6% increase. The Board has decided 116 through June, after having decided only 86 last year.
Conclusion
After making good progress during FY2011, the descreases in pendency have remained steady. Hopefully, once the new influx of examiners are trained and ready to go, this number will continue to decrease.
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. 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. The patent community must continue to pressue congress to keep its hands off the PTO’s money.
