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Earlier this week, IP Watchdog, one of our favorite IP blogs, posted a killer piece about the accuracy of the data behind Patent Advisor’s patent examiner reports. If you haven’t checked it out yet, please make sure you do so here: Allowance Rates for Art Units Examining Business Methods

At the same time, this blog post sparked a lot of great comments, to which we’d like to respond in one singular location. Our comments are below.

In response to the data provided for Art Unit 3622:

“Actually, the news for Group Art Unit 3622 is not so good. Here is a breakdown of their history of allowances:

As you can see, about 2000 of their allowances show up as occurring before the year 2000…and only granted cases were published during that period. A more accurate grant/abandonment ratio would be in the range of 800/2500. So I would not let them off of the hook yet.

And the real story with GAU 3622 in my mind is less about what they are doing and more about what they are not doing. Check out this build-up of cases where an RCE has been filed but the next office action has not yet issued:

“

In response to a comment from Chad questioning the conclusions drawn from the analysis, and stating that the numbers can’t draw the whole conclusion of an art unit itself:

“Chad – I agree with you completely….statistics can be misleading. Let’s go beyond the allowance rate in 3689 for a moment. Let’s look at their year-over-year balance of patented cases…versus abandoned cases…versus pending cases. Here is that graph:

A couple of things to note here. First, look at all of the cases that are STILL pending. Note that pending cases are shown in this graph as being assigned to the year in which they were filed. Personally, I tihnk this plays into the extremely low allowance rate. There are dozens upon dozens of applications filed before 2005 that have STILL not reached a final conclusion. It stands to reason that applications often give up in this art unit (thus having a negative impact on the allowance rate).

There have only been about 101 applications EVER allowed by 3689. Let’s look at how long it has taken to get a patent in those cases. Here is data relevant to that question:

Note that these are AVERAGE times to obtain a patent. Thus, on average it takes more than six and one-half years to get a patent in 3689. Again….that is on average. There is a table showing that if you file an RCE in this unit, you very well maybe looking at waiting 2 years for the next office action:

Next, let’s look at how many of the 101 allowed applications required an appeal before grant. That data is here:

Yes, it’s true. More than half of the cases ever allowed required an appeal. In fact, if you dig a little deeper, you find that 15 of the appealed cases included multiple cycles through the appeal process during the same prosecution cycle. And it is also important to consider this:

Applications are winning the appeals at the Board almost all of the time.

One thing that has seemed odd to me when it comes to 3689 is this:

This leads me to believe that applicants are not fighting TOO hard or TOO long before they give up. But I think that is due in large part to this:

On Average applicants are waiting 5 years before abandoning the application. And they are only getting a couple of office actions and maybe one RCE into prosecution before they give up.

I agree that the SPE here is not a bad person. I personally have never bought into the theory that she is commanding a “no patents allowed” policy. I give her the benefit of the doubt. I think maybe they are so far behind that it has become nearly impossible to grant any patents. Is it her fault? Are they drawing out the process on purpose? I don’t know…and I refuse to speculate on those kinds of things. But I do know this. The facts show that there art unit it very very broken. Regardless of whether or not good intentions are being refused patents wrongly by way of practical procedural refusal to grant rather than substantive refusal, corporations are pouring millions of dollars down a black hole here.

Should the patent office not be telling them about the statistics in the art unit where have been assigned rather than allowing them to keep wasting their money? Maybe the PTO should say…sorry… your app has been assigned to 3689…you probably won’t get a patent…and if you do… it is likely to require at least several years of prosecution…and will more than likely require filing a notice of appeal.

I give the patent office the benefit of the doubt…I always do. Let’s schedule a webinar and I will show you page after page of analysis demonstrating where they are doing a great job. But it is really hard to defend them when it comes to 3689. I can tell you think, though. I have dug into ALL of the other art units. And there are only a small handful that behave like 3689. So rest assured that this situation is not indicative of the performance of the rest of the USPTO. – Chris, chris@patentcore.com”

In response to Ron Katznelson’s comment discussing further data for Art Unit 3689:

“Ron – As to your first point, this is not exactly what you said but here is some interesting data regarding the use of Section 101 rejections by Art Unit 3689 in first, non-final and final office actions:

As to your second question, Gene’s data generally does NOT count an abandonment when an RCE is filed. We track each application to its ultimate disposition and assign the granted of abandoned designation at that point. So, the answer is no, the number of abandonments is not artificially high for that reason.

Please consider exploring http://www.patentadvisor.net. With a free trial, you can see the complete statistical breakdown of AY 3689…and every examiner in it…the same for essentially any other art unit. We also have similar data available for law firms, corporations, and attorneys.

Our organization is not about pointing fingers at the patent office…we are about providing useful facts for the benefit of EVERYONE in the patent acquisition ecosystem.

Come check us out! – Chris Holt”