We have now reached the end of FY2012. It’s time to review PTO numbers again.
The following is a comparison of the PTO’s numbers from the end of June 2012 (at my last numbers update) with the end of FY2012 (September 2012). Time to refer again to the PTO’s Data Visualization Center to see how things are going.
First Action Pendency – 21.9 Months
At the end of FY2011, first action pendency was 28 months. In June, it dropped to 22.6 months. The 0.7 month progress since June isn’t huge, but the 6.1 month drop during the year is excellent! That’s nearly a 22% drop in the course of a single year.
“Traditional” Total Pendency – 32.4 Months
Traditional pendency is down from 33.5 months in June. The 3.3% reduction of over a month is good. This number has been trending downward and represents good work by the PTO.
Application Pendency with RCEs – 39.4 Months
This number was at 40.0 months in June. We’ve finally gotten this number under 40 months, but need to continue to do better. This represents a 1.5% reduction since June and a drop of 1.5 months since FY2011 (3.7%). This is progress, but the increasing number of RCE filings (and appeals) makes this number look better than it actually is.
Applications Awaiting First Office Action – 608,283
The PTO continues its steady, impressive performance in working through the backlog. At the end of June, the backlog of unexamined applications was 632,981. Since then, the backlog has decreased another 3.9%. This is a very positive trend for the PTO. This is where the office seems to be making the most progress.
Patent Application Allowance Rate – 51.4%, 68.1%
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 50.4% and 67.2%, respectively, in June. 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 nearly 17% difference between the two numbers is, however, troubling. Especially considering the next number
RCE Backlog – 95,200
At the end of FY2010, the PTO reported 40,939 applications with RCE filings that awaited action; at the end of FY2011 that number had crept up to 63,487. That represents a 50% increase during FY2012 and a 133% increase over the last two years. Not good . . .
Number of Patent Examiners – 7,837
This number is up from 7,280 in June. 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 – 85.9 Months
The crisis at the Board continues to get worse and shows no signs of abating. This number continues to climb–from 85.5 months in June. 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. The Board will have significantly greater responsibilities with the beginning of the new post-grant review proceedings.
At the end of FY2012, the Board had 26,484 pending appeals from ex parte application prosecution, a 0.8% reduction since June! Unfortunately, that’s still a 10.5% incrase for the year. 12,433 new appeals were filed during the fiscal year, which is down from 13,501 filed during FY2011; that’s a 7.9% drop. Meanwhile, the Board disposed of 9,912 cases during FY2012, an increase of 35.9% from FY2011’s 7,292 such cases!
In other types of cases before the Board, the number of new interferences was 56 compared to 64 during FY2011. The Board disposed of 62 cases, while concluding only 51 during FY2011. The number of new ex parte reexam appeals filed was 115, fewer than the 125 filed during FY2011. Meanwhile, the Board decided 119 of these cases, as its inventory dropped from 26 to 22 during the year.
The other area of significant increase is inter partes reexams. While 114 appeals were filed in FY2011, 162 were filed during FY2012, a 42% increase. The Board has decided 149 cases, after having decided only 86 last year.
The PTO is doing a good job on the front end. Significant progress is being made on first office action pendency. The problems begin, however, once an application reaches a final office action. RCE filings are skyrocketing. Many or most of these are the result of examiners forcing them on applicants. This is very inefficient and increases application cost and pendency significantly.
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. 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.