We have now reached the half-way point of FY2013. It’s time to review PTO numbers again.
The following is a comparison of the PTO’s numbers from March 2013 with the end of FY2012 (at my last numbers update). Time to refer again to the PTO’s Data Visualization Center to see how things are going.
First Action Pendency – 19.2 Months
At the end of FY2012, first action pendency was 21.9 months. That number is a significant improvement. That’s a 12% drop in the first six months of the year.
“Traditional” Total Pendency – 31.1 Months
Traditional pendency is down from 32.4 months in September. The 4% reduction continues to demonstrate progress in this area.
Application Pendency with RCEs – 38 Months
This represents a 3.5% reduction since September and a drop of 1.4 months. 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 – 607,482
This number is virtually unchanged during FY2013, down from 608,283. The PTO had this number down to 593,339 at the end of February. The huge spike in new filings to beat the first-to-file transition, however, brought the number back up.
Patent Application Allowance Rate – 51.1%, 68.8%
The first number counts RCE filings as abandonments, while the second number does not, but counts them as continuing prosecution. These numbers are only slightly changed from 51.4% and 68.2%, respectively, in September. The nearly 17% difference between the two numbers is, however, troubling. Especially considering the next number.
RCE Backlog – 111,274
At the end of FY2012, the PTO reported 95,200 applications with RCE filings that awaited action; at the end of FY2011 that number had crept up to 63,487. That represents a 17% increase during FY2013 and a 75% increase over the last two years. Not good . . . Rather than apportioning blame, perhaps trying to find a solution is the best answer.
Number of Patent Examiners – 7,842
This number is unchanged from 7,837 in September. The PTO is facing another budget crisis due to sequestration. This number will probably fall.
Pendency from Application Filing to Board Decision - 87.9 Months
The crisis at the Board continues to get worse and shows no signs of abating. This number continues to climb–from 85.9 months in September. 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 now has significantly greater responsibilities with the beginning of the new post-grant review proceedings.
At the end of February, the Board had 26,459 pending appeals from ex parte application prosecution, a number virtually unchanged during FY2013. 4,695 new appeals were filed since September (a pace for 11,268), which is on pace for a 9.4% reduction from FY2012. Meanwhile, the Board disposed of 4,720 cases during FY2013 (a pace for 11,328), an increase of 14% from FY2012!
In other types of cases, 152 inter partes review cases have been filed, 14 trials instituted and 3 concluded. 15 transitional business method cases were filed with 5 trials instituted. 10 new interferences were declared, with 26 concluded, leaving the Board with 37 still to be decided. 46 new ex parte reexamination cases were filed, with 41 being disposed. 27 such cases remain pending. 82 inter partes reexaminations have been filed. The Board has decided 67, leaving an inventory of 79 cases pending.
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.
To exacerbate these issues, fee diversion appears to be back. Even though the PTO is funded by user fees, it is being required to cut funding and transfer fees to other agencies. This is not permissible and must end. More details are available here and here.