USPTO Backlog: Patent Pendency Out of Control

The average pendency of U.S. patent applications is out of control.  Everyone involved in the industry knows this to be true, but it might be easy to forget just how bad it is at times.  Like so many patent attorneys and agents, I did not practice during the Reagan years.  While I have over 10 years of experience as a patent attorney, that means I did not start practicing until President Clinton was already in his second term, and the Patent Office was already in decline.  During my professional life I have not known a Patent Office that could issue a patent on average in 18 months.  When Ronald Reagan became President he wanted to revitalize the Patent Office, and he successfully accomplished that goal by bringing the average pendency of patent applications down to 18 months.  As you can see from the chart below, this lasted (for the most part) through the Administration of President George H. W. Bush, and almost through the Clinton first term, and then something went horribly bad for the Patent Office, which means that whoever is the next Director of the Patent Office will need to fix a problem that has been brewing for at least 14 years.

The above chart has as its baseline 18 months, which I believe most would believe is about as good as you can reasonably do in terms of an average pendency.  If we can do better, great, but that should be considered the goal; and unfortunately it is a long term goal given the failures of the last 14 years.  What is perhaps even more alarming is that average time it takes to even get an examiner to issue a First Office Action on the Merits (FOAM).  For the last several years in addition to publishing the average total pendency the USPTO has also published the average time it takes to receive an action on the merits, which is represented by the table below:

What this table shows is that the average time it takes to get a first action on the merits is greater than the average time it took to get a patent issued just 10 years ago, and the average time it takes to get a first action is approaching 8 months longer than the optimal time to complete the entire patent process if you believe 18 months to issuance on average should be the goal.  This is absolutely ridiculous!

This is a problem that will only continue to get worse for the foreseeable future, given the budget crisis facing the USPTO has force a hiring freeze, and given the almost unbelievable growth in the number of patent applications awaiting first action and the number of applications still pending (see charts below).

This is particularly disturbing for entrepreneurs and start-up companies who attempt to get funding from investors.  For better or for worse, investors are not always able to make their own independent judgments with respect to the quality of an underlying technology that is the basis for a start-up company.  What this means is that investors typically look for other ways to gauge whether the underlying technology is sound, including looking to the United States Patent Office for some kind of independent verification from a neutral party regarding the merits of the technology.  While the Patent Office cannot and does not vouch for commercial feasibility, when you obtain a patent it should be at least some evidence that the technology or innovation included in the application is unique to some level, at least based on the references that could reasonably be obtained with a competent patent search.

The minute you file a patent application, even a provisional patent application, you have created an asset.  Like other forms of assets, not all patent assets are created equally.  The further you go down the path toward obtaining a patent the more valuable the asset is, and an issued patent, no matter how weak, will be preferable to a pending patent application.  Once a patent issues the underlying technology has received a government stamp of approval as unique, at least to some degree.  Likewise, once a patent has issued the likelihood that additional patents can be obtained as a result of various related patent applications goes up.  But until you get that critical first patent finding funding can be difficult, if not altogether impossible.  Thus, if we really want to help small businesses and start-up companies succeed we are going to have to find a way to get the first patent in a patent family issued relatively quickly.  We can take longer, if necessary, on the remaining related patents, but the first patent must issue quickly.  Obviously it would be most ideal to have all patents issue as quickly as possible, but that first patent needs to issue with all due speed.

Stay tuned for strategies!  I am always thinking and have a few gems (or at least I think they are gems) in store for later this week or early next week.