The following is a comparison of the PTO’s numbers from September 2013 with June 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 – 18.2 Months
At the end of June, first action pendency was 18.3 months, and was 21.9 months at the end of FY2012 (and 28 months at the end of FY2011). That number is a significant improvement. That’s a 16.9% drop in the during the fiscal year. The PTO continues to make significant improvements in this area.
“Traditional” Total Pendency – 29.1 Months
Traditional pendency is down from 29.8 months in June and 32.4 months at the end of FY2012. The number was over 35 months at the beginning of FY2011. The 10.2% reduction during the year continues to demonstrate significant progress in this area.
Application Pendency with RCEs – 37.1 Months
This number is unchanged from June, but is down from 39.4 months at the end of FY2012. 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 – 584,998
This number is down from 591,785 in June and represents a continued drop from 608,283 at the end of FY2012. 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 – 53.5%, 70.7%
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 52.1% and 69.4%, respectively, in June. The 17+% difference between the two numbers is, however, troubling. Especially considering the next number.
RCE Backlog – 78,272
Believe it or not, this number is really dropping. At the end of June, it was at 100,403. 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. Progress is being made, and it needs to continue. Perhaps the After Final Pilot Program is working as examiners churn fewer RCE filings?
Number of Patent Examiners – 7,931
Perhaps the PTO has overcome sequestration? This number is up from 7,740 in June and is at its highest level ever. How will the government shutdown affect this number?
Pendency from Application Filing to Board Decision – 88.5 Months
The crisis at the Board continues, as the pendency is up from 87.3 months in June. We are now at over 7 1/3 years from filing to Board decision. 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 August (the Board doesn’t have its September numbers available yet), the Board had 25,697 pending appeals from ex parte application prosecution, a drop of 322 since May. 9,980 new appeals were filed since September (a pace for 10,887). This is down from FY2012 when 12,433 new appeals were filed. Meanwhile, the Board disposed of 10,767 cases during FY2013 (a pace for 11,746). They’re keeping pace here, but having a hard time denting the backlog.
In other types of cases, 458 inter partes review cases have been filed, 150 trials instituted and 37 concluded. 399 of these cases remain pending. 48 transitional business method cases were filed with 12 trials instituted. 3 of these have been concluded. The first post grant review petition was filed in June and was disposed of without trial. Similarly, the first derivation petition was filed in June with no decision yet. 43 new interferences were declared, with 49 concluded, leaving the Board with 47 still to be decided. 97 new ex parte reexamination appeals were filed, with 101 being disposed. 18 such cases remain pending. 202 inter partes reexaminations have been filed. The Board has decided 151, leaving an inventory of 115 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 seem to be dropping somewhat, but the rate is still pretty high. 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. Applicants deserve the ability to get a final agency decision on a patent application within a reasonable time frame. The Board’s added workload with numerous types of proceedings for it to decide has made things more congested. Presumably, if the proceedings work well, there may be many more filed in the coming months and years. This could make things even worse. Appeals must be decided more quickly.