However, we have ended up forming a view that the USPTO's goals, in terms of reduction of the backlog of pending applications, and achieving and maintaining low pendency time, are quite attainable. Furthermore, the increase in size of the examining corps proposed in the Strategic Plan is more than adequate to achieve these goals. A number of current proposals, pilot programs and other initiatives are all likely to have a positive impact.
Over the 2009 calendar year, approximately 456,000 utility patent applications were filed at the USPTO. Of these, some 240,000 (ie over half) were of foreign origin. While the total number of applications filed in 2007 and 2008 was almost identical, the number of those that were foreign-originating was 215,000 and 225,000 respectively.
In 1963 the proportion of patents granted to foreign applicants was 18%. In 2008 this figure hit 50%, and based on current filing rates we can expect this figure to continue to grow.
It is clear that in a globalised economy, the health and efficiency of the US patent system is of concern not only to US residents, but to the whole world. We demonstrated previously that the now-defunct "Final Rules", seeking to restrict continuations, requests for continued examination (RCE), and overall claim numbers, struck directly at the applicant behaviours having the greatest impact upon the USPTO's ability to reduce the backlog. However, they would have achieved this at the expense of sacrificing some of the genuine needs of users of the patent system.
Director David Kappos is therefore to be commended for abandoning the Final Rules, and seeking to address the backlog of over 700,000 applications awaiting a first office action in a variety of more creative ways. His consultative approach to the process is also admirable. (On this point, we note in passing that the public meeting on the proposed three-track examination process is to be held this Tuesday, 20 July 2010, and will be simultaneously webcast - details here.)
The United States is one of the few jurisdictions in the developed world that has historically provided applicants with very little control over the progress of their patent applications. Relatively accessible expedited examination procedures are available in a number of patent offices, including those of Europe and Australia. Additionally, in jurisdictions with a seperate examination request requirement (eg Australia, Canada, Europe, Japan, China, South Korea) applicants may elect to file an early request for examination, rather than waiting for the deadline to do so (which arises between three and seven years from filing, depending on the national laws).
Until the advent of recent initiatives, such as the various Patent Prosecution Highway (PPH) programs, the Green Technologies initiative and Project Exchange, the only available avenues for acceleration of processing were generally considered to be either excessively onerous, or unreasonably prejudicial to applicants' interests, or both.
REDUCING THE BACKLOG
Ultimately, however, the backlog of applications can only be reduced and then, more importantly, kept at bay, if there are enough examiners to handle the overall workload. At the end of fiscal year 2009, the USPTO employed 6,143 examiners. The recently-released Draft USPTO Strategic Plan for FY 2010-2015 proposes hiring 250 "IP-experienced" examiners in FY 2010, and a further 1000 in each of FY 2011 and 2012. However, with the attrition rate in FY 2009 being around 500 examiners, unless this can be successfully addressed as well, it is possible that the size of the examination corps by the end of FY 2012 may be no more than about 7,500. This does not seem, on its face, like enough to cope with a 700,000 application backlog.
Simple Queueing Model
We have described a simple model of the USPTO backlog as a queueing system, in which the filing of new applications represents "arrivals" to the queue, and the disposal of applications by the examining corps represents "service" of the queue. In this respect, both "arrival rate" and "service time" are statistically-distributed, but at any given point in time each has a mean value that depends, in the simplest case, on the rate at which applicants are filing new applications, and the size and efficiency of the examining corps.
In our simple model, we proposed treating RCEs as new arrivals, on the basis that the filing of an RCE effectively restarts the Examiner's clock for processing of the application. Our own experience suggests, as one might expect, that the Examiner does not have to do as much work after an RCE as prior to a first action on the merits, due to being already familiar with the application. However, this probably does not alter the general utility of the model, since the result may be simply to bring the effective average service time down a little.
Parameters of the Model
In order to apply the model, we need to know, during some representative period:
- the number of new applications filed;
- the number RCEs filed; and
- either the average service time (ie aggregate time spent by an examiner from picking up an application for the first time, until abandonment or the filing of an RCE by the applicant) or the number of services completed (ie allowances and Final Actions leading to rejections or RCEs).
A more difficult statistic to obtain is the average "service time", ie total time spent by an Examiner on each application. In their book The Patent Crisis and How the Courts Can Solve It Dan Burk and Mark Lemley use a number of sources to arrive at a likely figure of around 18 hours, although it would appear that the time varies significantly depending upon the technology, perhaps between 9 hours and 32 hours (Burk and Lemley, p 23 n 10).
Based on these estimates, and assuming that examiners have other responsibilities in the Office, we might assume that the service rate is about two applications per week per examiner. With 6,143 examiners. this results in a total average service rate of 12,285 applications per week.
Following the alternative "number of services" approach, the total number of utility patent disposals for FY 2009 was around 485,000. Again adding to this the 174,000 "services" that led to RCEs, the total is 659,000, equivalent to 12,800 applications per week, or 2.06 per examiner per week.
Both approaches therefore give roughly the same result, which gives us some confidence that our assumptions are reasonable, and that we are not missing any significant data.
Both figures are also higher than our estimated arrival rate of 12,150 per week. Since this "excess capacity" can be used to address the backlog, we would expect to see the total number of applications awaiting examination to be slightly reduced over this period.