More from this month’s “Advanced Patent Law Institute” at the USPTO: John Love, the USPTO’s Deputy Commissioner for Patent Examination Policy, and Hon. Michael Fleming, Chief Adminstrative Patent Judge of the Board of Patent Appeals and Intereferences, presented some interesting statistics:
the allowance rate for U.S. patent applications has declined from over 70% in 2000 to just above 50% in 2007;
requests for continued examination have increased 10-fold in the past 5 years;
the number of appeals filed after final rejections almost doubled between 2006 and 2007 (from 1357 appeals in filed 2006 to 2511 filed in 2007).
Most patent applicants will not go through the expense of filing an appeal unless they truly believe that their case has merit. So how often are appeals successful? The odds are about 50-50. Statistics for 2007 show that in most technology fields, the BPAI affirms the examiners about 50% of the time. Notable exceptions are in TC 1700 (Chemicals and Materials) and TC 2900 (Designs), where 2007 affirmance rates were 68% and 75%, respectively. Note that these numbers do not consider cases where the BPAI does not rule on an appeal, such as situations where an Examiner reopens prosecution after reading an appeal brief. Presumably, appellants’ success rates would be a good bit higher if those situations were considered.
Another interesting statistic from John Love of the USPTO: over 50% of the USPTO’s examining corps are examiners that the USPTO hired within the past 3 years.