23 July 2017

The USPTO Art Groups That Are Patent Application Purgatory

Reaching HandsA very common question asked by patent applicants is ‘how long will it be until I receive a patent?’  The usual legalese answer to this is, of course, ‘it depends’.  But upon what does it depend?  Some of the factors are within an applicant’s control, such as whether they request examination at the earliest opportunity (in jurisdictions where a separate examination request is required), whether they request expedited/accelerated examination (where it is possible to do so), and how quickly they respond to office actions, pay required fees, and so forth.  But after taking all of this into account, there is still a great deal that is beyond the control of the applicant.

Additional factors that can delay grant of a patent include the backlog of applications in the relevant patent office, the nature of any objections raised by the examiner, and the difficulty of overcoming the objections – either due to their inherent merit, or to the determination of the examiner to maintain the objections in the face of the applicant’s best efforts to present amendments and persuasive arguments.  After all this, however, if the applicant perseveres and is looked upon kindly by the fates, a patent will eventually issue.  But how long after filing will that happen?

The US Patent and Trademark Office (USPTO) has a goal of reducing the average value of what it calls ‘Traditional Total Pendency’ (TTP) to 20 months by 2019.  The TTP is defined as the time between the patent application filing date (which is the date of national phase entry in the case of an international application under the Patent Cooperation Treaty) and ‘final disposition’, i.e. issued as a patent or abandoned.  According to data that can be viewed via the USPTO’s Data Visualisation Center Patents Dashboard, the TTP as of June 2017 is 24.7 months.  However, this number really does not tell the whole story for many applicants.

For one thing, this TTP metric does not take into account applications in which a Request for Continued Examination (RCE) has been filed.  An RCE is typically necessary where an applicant has not managed to secure allowance of an application following a second round of examination, but is not ready to give up and abandon the application.  In many technical fields, the filing of at least one RCE in the course of examination is extremely common.  When RCEs are taken into account, the TTP sits at around 32 months.

Furthermore, ‘average pendency’ characterises the complex process of examination, which occurs across applications in all fields of technology, using just a single statistic, which can be very misleading.  As I will show in this article, average pendency (inclusive of RCEs) varies from 22 months in the fastest examination group to more than 57 months in the slowest (and that is assuming that a patent ever issues at all).  Additionally, the distribution of application pendency varies enormously between different technology groups.  In the slowest group, over an eighth of all applications that ultimately issue as patents take more than eight years to do so.  If your application ends up in that particular cohort, it is of little comfort to know that the average pendency in the group is less than five years!

For rapid processing of your US patent applications, the best fields to be in include semiconductor device fabrication, vehicular technology, telecommunications, and pharmaceuticals.  The worst (perhaps unsurprisingly) include fintech and e-commerce, genetic technologies, and surgical methods and devices.

Source of US Pendency Data

To evaluate application pendency, I used the USPTO’s Patent Examination Data System (PEDS) to download bulk patent data current as of 4 July 2017.  From this I extracted information for all patents issued over the two year period between 1 July 2015 and 30 June 2017, including the USPTO Art Unit in which each application was examined, and original US filing or national phase entry date.  This enabled me to calculate the length of time each application was pending prior to grant, and to obtain pendency statistics at an overall level, as well as down to individual Art Units, if desired.  The total size of this data set is 544,758 records (i.e. over half a million issued patents).

The statistics I am computing differ from those on the USPTO Patents Dashboard in that I am looking only at cases in which a patent was actually issued, whereas the USPTO data is based on all disposals, including abandonments.  This makes sense for the USPTO, because they are interested in how quickly applications are moved out of the system, by whatever means.  For applicants, however, it is often more relevant to know how long the application process is likely to take, assuming that a patent is ultimately granted.

Despite this difference, however, I note that the overall average total pendency in my data set is 32.05 months, which is almost identical with the USPTO’s 12-month rolling average of TTP (including RCEs) through June 2017, of 32.1 months.

Breaking it Down by Technology

A glance at the USPTO’s Patents Dashboard would lead applicants to believe that they can expect a patent to issue, on average, around 32 months after filing, or in around 25 months if they are able to secure allowance within two Office Actions, and thus without filing an RCE.  However, whether this is a realistic expectation depends very much upon the field of technology to which the application relates – something over which an applicant has very little control, unless they are going to choose their industry of operation, and/or target market, based primarily on expected patent pendency, which is hardly a practical approach to business!

In order to look more closely at technology dependence, I broke the pendency data down into Art Groups, i.e. the groups of 10 consecutively-numbered Art Units within the USPTO’s Examination Technology Centers that deal with applications relating to very similar technologies.  The organisation of Art Groups can be found on the USPTO’s Patent Technology Centers Management page, while a mapping between US Patent Classifications and individual Art Units is available on the page Patent Classification: Classes Arranged by Art Unit.  In the charts below, I have summarised the subject matter covered by each Art Group very briefly – this is intended to be indicative, but not a substitute for the more detailed information on the USPTO web site.

The ‘Best’ and ‘Worst’ Art Groups for Average Pendency

The 20 ‘fastest’ Art Groups, i.e. those having the lowest average pendency, are shown in the chart below.  For Art Groups 2820 (i.e. Art Units 2821-2829, covering semiconductors/memory) and 3610 (covering vehicular technology), the average pendency, including cases with RCEs, is just 22 months.  Art Group 1760 (chemical compositions), ranked 20, has an average pendency of 31 months, i.e. almost on the overall average as indicated on the USPTO Patents Dashboard.
Lowest Pendency AGs
At the other extreme are the 20 ‘slowest’ Art Groups, i.e. those having the highest average pendency, shown in the further chart below.  Art Groups 3680 (business methods) and 3620 (e-commerce) are by far the worst, each having an average pendency of around 57 months.  As I have previously shown, these are also (with Art Group 3690, which is in fifth place on the chart below) the Art Groups that have, since the US Supreme Court’s Alice decision in June 2014, produced among the worst overall outcomes for applicants, in terms of rejection rates.  The 20th slowest Art Group, 2480 (recording/compression) has an average pendency of around 38 months, considerably higher than the overall USPTO average of 32 months.
Highest Pendency AGs
There are 69 Art Groups in total, of which 47 have average pendencies that are above the 32-month overall USPTO average.  Furthermore, as the above charts show, there is significant variance in pendency across the majority of Art Groups, with most having a standard deviation of around half the mean value.

Widely Variable Pendency in Different Art Groups

To further illustrate the wide variation, the chart below shows the distribution of application pendency across all Art Groups combined (black curve), as well as for a selection of individual Art Groups, namely:
  1. 3680 (business methods), which has the highest average pendency;
  2. 1630 (genetic technologies), which has the highest pendency outside of business methods and software, being ranked 6th on the ‘worst’ list;
  3. 2860 (measurement/sensing/testing) which has the 18th highest average pendency, but which is unusual in having a standard deviation in pendency lower than many Art Groups on the lowest pendency list; and
  4. 2820 (semiconductors), which has the lowest average pendency.
Pendency Distribution
With the exception of Art Group 2860, all of the distributions in the chart above are skewed such that a significant number of applications have pendencies that are substantially greater than average.  For example, in the case of Art Group 3680 (which has an average pendency of 57.4 months), the median pendency is 50 months, and around 57% of applications that result in granted patents are pending for less than the average period.  However, this reflects a distribution with a very long ‘tail’, and around 13% of all patents granted in Art Group 3680 have been pending for over eight years!  On the positive side, this suggests that despite the challenges of securing patents in the ‘business method’ space, in at least some cases perseverance does pay off eventually.

Art Group 2860 is an extremely unusual case.  For some reason, the pendency of applications in this Art Group is less skewed towards long periods than others in the high pendency set.  As a result, the median is equal to the mean, at 38 months, i.e. half of all applications assigned to this Art Group remain pending for longer than average.  On the other hand, 98% of all patents issued from this Group do so with six years, which is slightly better than in the overall distribution, and much better than any other Art Group in the bottom 20.

Overall across all Art Groups, 70% of patents are issued within three years of filing, however this metric varies significantly between different Art Groups.  For example, in Art Group 2820 (the grey curve in the chart above) 70% of patents are issued within just 25 months, whereas in Art Group 3680 the 70% threshold is not crossed until the six year mark.  In many Art Groups, a majority of applications remain pending for longer than the overall average.  For example, in Art Group 3680, 76% of applications remain pending after 32 months.  In Art Group 1630 the figure is 60%, and in Art Group 2860 it is 65%.

Conclusion – It Still Depends!

The USPTO may well be driving down pendency, and is quite likely on-track to achieve its goal of 20 months average TPP by 2019.  However, this process is highly selective and technology dependent.  There is ‘low-hanging fruit’ in Art Groups covering mature technologies for which a large number of applications is filed, and applicants are less likely to require one or more RCEs (which are not included in the target metric anyway).  By targeting these Art Groups, overall average pendency can be reduced.

On the other hand, there are a number of Art Groups in which average pendency remains excessive, at 36 months and more.  Furthermore, the pendency distributions are mostly long-tailed, such that a significant proportion of applications remain pending for substantially longer than average.  Knowing that the USPTO is driving its official pendency metric down to less than 22 months is of little comfort to an applicant in the field of genetic technology whose application in one of the 25% or so in Art Group 1630 that actually remains pending for 53 months or more.

Thus, while many applications in some technology areas can reasonably expect a speedy disposition, there are certain fields of technology in which applications are sent to the purgatory of Art Groups having an average pendency well above the overall average.  For the sake of applicants in these fields, the USPTO should be trying to reduce pendency across the board, and not just on average.  Contrary to na├»ve intuition, these are not the same thing.

In the meantime, the answer for an applicant wanting to know how long it will take to obtain a US patent remains, ‘it depends’.

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