How has sequestration affected the PTO’s production? It’s time to review PTO numbers again.
The following is a comparison of the PTO’s numbers from June 2013 with March 2013 (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 – 18.3 Months
At the end of March, first action pendency was 19 months, and was 21.9 months at the end of FY2012. That number is a significant improvement. That’s a 16.4% drop in the during the fiscal year. The PTO continues to make significant improvements in this area.
“Traditional” Total Pendency – 29.8 Months
Traditional pendency is down from 31.1 months in March and 32.4 months at the end of FY2013. This is the first time in recent memory that traditional pendency is under 30 months. The 8% reduction during the year continues to demonstrate significant progress in this area.
Application Pendency with RCEs – 37.1 Months
This number is down from 38 months in March and 39.4 months in September. 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 – 591,785
This number is down from 607,482 in March and represents the lowest number in recent history. Even after the huge spike in new filings to beat the first-to-file transition, the PTO has worked to reduce this number.
Patent Application Allowance Rate – 52.1%, 69.4%
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 51.1% and 68.8%, respectively, in March. The 17+% difference between the two numbers is, however, troubling. Especially considering the next number.
RCE Backlog – 100,403
Believe it or not, this number is also finally declining. At the end of march, it was at a near high of 111,274. At the end of FY2012, however, 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. Some progress is being made, and it needs to continue.
Number of Patent Examiners – 7,740
Here’s where sequestration starts to take its toll. This number is down from 7,842 in March. The PTO is facing another budget crisis due to sequestration. This number will probably continue to fall.
Pendency from Application Filing to Board Decision - 87.3 Months
The crisis at the Board continues, although the number is actually down from 87.9 months in March. That’s only about an 18 day improvement of the course of 7+ years (2,657 days!). 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 May, the Board had 26,019 pending appeals from ex parte application prosecution, a drop of 440 since March. 7,333 new appeals were filed since September (a pace for 11,000). Meanwhile, the Board disposed of 7,798 cases during FY2013 (a pace for 11,697). They’re keeping pace here, but having a hard time denting the backlog.
In other types of cases, 261 inter partes review cases have been filed, 86 trials instituted and 6 concluded. 28 transitional business method cases were filed with 12 trials instituted. None of these has yet concluded. 31 new interferences were declared, with 36 concluded, leaving the Board with 48 still to be decided. 68 new ex parte reexamination cases were filed, with 76 being disposed. 14 such cases remain pending. 126 inter partes reexaminations have been filed. The Board has decided 108, leaving an inventory of 82 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 stabilizing, but at a very high rate. 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 has still not come up with a plan to deal with its crisis at the Board. Sequestration has really tied its hands. Applicants deserve the ability to get a final agency decision on a patent application within a reasonable time frame. The PTO was working hard to try to hire more judges and patent attorneys to work on this situation, but Congress added to its workload as well.