Applicants have to accept their share of responsibility for quality and backlog problems 24 Nov 09
Justin Gray and Hal Wegner have produced a study looking at the increasing percentage of all USPTO patents being granted to the 150 leading recipients. In 1999, they point out, the top 150 received 37% of all grants, by 2008 that figure had climbed to 45% - and that, remember, is as the overall number of grants has climbed significantly.
Gray and Wegner project that in the near future the proportion will rise to 50%. They also contrast the amount of patents being awarded to companies in the electronics and communications sectors with those that are granted to life sciences companies. To get into the top 10 in the former category, you had to have received over 1,450 USPTO patents in 2008; whereas to make the top 10 in the latter, 100 was all that you needed. Gray and Wegner also point out the growing influence that non-US patentees have in the top 150. From a European perspective, it is noteworthy that almost all the big non-American patentees are from Asia; just three German companies (Infineon, Siemens and Robert Bosch) and Philips, from the Netherlands, make it from the EU.
Essentially none of this is much of a surprise. I think everyone who takes an interest in these things realises that a relatively low number of applicants dominate the flow of traffic not only to, within and from the USPTO, but also at most major patent offices across the world. What I would like to see is a study that contrasts applications with grants; in other words what kind of conversion rates do applicants have? For example, how many applications did IBM have to submit in order to get the 4,169 grants it received in 2008 and how many applications does the company have going through the USPTO at any one time?
This information will help us to work out just how much time examiners spend dealing with applications from the top 150 companies. In the debates about patent quality and backlogs, most of the emphasis seems to be placed on patent offices themselves to find a solution to any issues that there may be. But surely applicants themselves - especially the high volume ones - have a major responsibility too. The more applications there are, the longer they are and the more complicated they are, the more difficult is the job examiners have to do, the more pressure they are going to be under and the more likely they are either just to say no or to wave something through that they should not.
We know that most of the patents granted to IBM, Samsung, Microsoft, Sony et al are going to end up valueless and unexploited; while it is not possible in every case to know this in advance of submitting an application, I find it difficult to believe that there are not more cases in which it is possible to make a pretty decent guess. The problem is that too many companies do not wish to invest time and money in doing this, or they just want to pile up patents as trophies to parade before shareholders and the media.
It seems to me that there is a lot more the corporate world could be doing to ensure that examiners at the USPTO and other offices are able to do their jobs as effectively as possible. "Do we really need this and why?" surely have to be essential questions for every company and their attorneys to ask about every patent application they ever submit to any patent office. I could be wrong, but my belief is that far too few of them do so at the moment. Until they do, however, what right do they have to complain about quality and delays?
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