Patent Door Shutting Tighter?

Just how hard is it to get a software related patent nowadays, anyway?  Reports have been coming into my office from the various patent attorneys assigned to my projects indicating that, particularly in regards to software patents, it appears to be getting even tougher to land one.  

I was on the phone with one of our patent lawyers today and was told "We are having trouble landing this particular patent even though the examining attorney for the Patent Office said that he personally wanted to give us the patent. He told me that his supervisor just won't let him give us the patent. Evidently there is a new clamp down on software patents."

Well. Here's what the evidence suggests.  Looking at patent applications as a whole, and not just separating software patents from the entire cloud of pending patents, we know that the number of patents being filed has not dropped overall.  And, currently, there are about 800K patents waiting to be reviewed by the Patent Office. So business at the Patent Office remains brisk.

However, the number of patents granted has been dropping. 

Since we know that patent filings remain steady, the drop off in "allowances" is really shocking.  Check out the following chart, up to date as of 2005. 


PatentlyO2006059.jpg


But check out this chart, which shows the supposed success rate of the Patent Office to meet their "goals."


(if you cannot see the image below follow this link )


bak2006dec22_clip_image002.jpg


The Patent Office has been concerned about issuing "bad patents."   There are several indications in various Patent Lawyer blogs that examiners have told others that they are being pressured by supervisors to push back on the issuance of patents.  The Patent Office has bragged in public that the number of patents granted has dropped.  But isn't it a good thing for new technology to be rewarded with the issuance of patents?


If the Patent Office's goal is to reduce the number of patents issued, they are certainly meeting that goal.  In Feb of 2008, the Director of the Patent Office remarked, in a prepared statement to the Chairman of the Subcommittee on Courts, the Internet and Intellectual Property Committee on the Judiciary: 



Mr. Chairman, as we look to the future, we will make every effort to improve on our 
successful record in fiscal year 2007. Our patent examiners completed over 362,000 
patent applications in 2007, the largest number ever, while maintaining for the second 
year in a row an examination compliance rate1 of 96.5 percent, the highest in a quarter of 
a century. 
The allowance rate for patents is currently 44%. This is in contrast to 
allowance rates in excess of 70% just eight years ago. 


The question then becomes: just how hard will it be to obtain a patent in the next year and the years to follow?  Here is a PDF copy of a Business Week report that sheds even more light on the current problem regarding the Patent Office. 





 

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