Predicting the Future: When Will U.S. Patent 9,000,000 Issue?

The United States Patent and Trademark Office is poised to issue U.S. Patent No. 8,000,000, which is scheduled to happen on Tuesday, August 16, 2011. See U.S. Patent Office Closing in on Patent No. 8,000,000.

A comment to the aforementioned article caught my attention and captured my imagination.  Mikk (@ comment 2) jested saying: “Very interesting, we can start bidding when we will see US Patent No. 9,000,000…” This got me to thinking — when exactly can we expect U.S. Patent 9,000,000 to issue?  Then my mind wandered to Office pools and I heard the immortal words of Fred Flintstone: “Bet, bet, bet, bet, bet….”  So I thought it might be a little fun to engage in some speculation.

So let the speculation begin on when U.S. Patent No. 9,000,000 will be issued!  I pick Tuesday, May 24, 2016.

So how do I arrive at Tuesday, May 24, 2016 for a likely issue date for U.S. Patent No. 9,000,000?  Well it starts with the fact that the highest numbered U.S. patent to be issued at the close of Fiscal Year 2010 was U.S. Patent No. 7,805,766, which issued on September 28, 2010. On August 9, 2011, the highest numbered U.S. patent issued was U.S. Patent No. 7,996,916. Therefore, through the first 45 weeks of FY 2011 there were 191,150 utility patents issued, which corresponds to an anticipated 220,884 utility patents issued for the entirety of FY 2011.

During Director Kappos’ first full year as Director of the USPTO, FY 2010, there were 207,915 utility patents issued. Adding the FY 2010 total with the estimated total for FY 2011 and that raises the number of issued utility patents from October 1, 2009 through September 30, 2011 to a total of 428,799 utility patents granted. This corresponds to a two year average of approximately 214,399.5 utility patents issued.

There seems to be little to no interest in Congress to adequately fund the USPTO, which is in and of itself a sad statement. See Patent Reform Back to Senate After Labor Day.  What this suggests is that is little reason to anticipate a large scale draw down in the backlog that could be achieved through aggressive hiring of new patent examiners.

Notwithstanding the Congressional indifference to the plight of the Patent Office, there does seem to be great interest on the part of Team Kappos to accelerate the number of patent applications handled in a year, coupled with a more traditional USPTO philosophy of issuing patents if any allowable matter can be identified and the applicant is willing to take suitably narrow claims as determined by a review of the prior art. Thus, there is reason to believe that Team Kappos will continue to push the envelope in a Scotty from Star Trek kind of way (i.e., “I’m giving her all she’s got, Captain!”).

So what does this mean in terms of when we can anticipate U.S. Patent No. 9,000,000 to issue? It is probably best to talk about ranges. If we take the two FY average and assume that approximately 214,400 utility patents will be the new normal, that would mean we would get to No. 9,000,000 in approximately 4.664 years, which would roughly to reaching the next milestone sometime toward the end of April 2016.

If we are to assume that Director Kappos stays through the next million utility patents to be issued and is able to continually squeak more production out of the examining corps at a rate similar to the improvement in FY 2011 over FY 2010 (i.e., with an additional 12,969 utility patents issued compared to the previous year) that suggests we might reach the 9,000,000 milestone in as early as 4 years, 4 months and 5 days, which would be sometime the end of December 2015.

If, on the other hand, we assume that the same rate of increase to reach the next million issued utility patents as with respect to the last million issued utility patents (i.e., approximately 89% of the time to reach the next million compared with the previous million), that suggests the end of the first full week of July 2016.  If we assume it will take the same length of time to reach the next million issued utility patents as the previous million issued utility patents that puts 9,000,000 sometime just past the middle of February 2017.

Of course, there are some pretty big assumptions here, particularly given that during the Dudas Administration the average number of issued utility patents was closer to 160,000 per fiscal year. Along that line of consideration, there there is absolutely no guarantee that Director Kappos will be around through the issuance of another million utility patents, and whoever takes over (if he doesn’t stay) could shift the USPTO back to a Patent Denial Authority.

With the necessary acknowledgements (or caveats) in the previous paragraph, since the founding of the Federal Circuit there has only been increased interest in obtaining a U.S. utility patent, which has been coupled with varying degrees of increased output in terms of issuing utility patents. Since we moved from 3,000,000 to 4,000,000 issued utility patents there has always been a decrease in the length of time to the next million issued utility patents, so all signs point to a likelihood in a decrease in the length of time to reach 9,000,000 compared with the time it took to reach 8,000,000.

So what is your guess for when U.S. Patent 9,000,000 will issue?  Predict away!

PAST AND FUTURE SCENARIOS

Below is a table showing the milestone U.S. utility patents and how long it took to reach that milestone from the previous milestone.  The issue date of U.S. Patent 8,000,000 is still forthcoming, so it is represented in the green line.  The various possible scenarios I have played out for U.S. Patent 9,000,000 are shown in red.