United States: U.S. Patent & Trademark Office Pending-Patent-Application Backlog at Historic Proportions

In the Performance and Accountability Report for Fiscal Year 2005, the U.S. Patent and Trademark Office (USPTO) reported 406,302 patent applications were filed in fiscal 2005, while only 165,485 patents were granted. Even when considering the disposals, (e.g., abandonments) the total number of pending applications has now reached 885,002. According to Under Secretary of Commerce for Intellectual Property Jon Dudas, "In 2005, the number of patent application we received continued to grow at a rapid pace. Our office now receives many patent applications on CD-ROM, containing millions of pages of data. In short, the volume and complexity of patent applications continues to outpace current capacity to examine them. The result is a pending—and growing—application backlog of historic proportions. Patent pendency—the amount of time a patent application is waiting before a patent is issued—now averages more than two years. In more complex art areas, such as data-processing, average pendency stands at more than three years."

While the USPTO met its 2005 goal of 31 months for all Patent Examining Technology Centers, Technology Center 2100 (architecture, software and information security) and Technology Center 2600(communications) each had a patent pendency above 42 months. The report also reflects that, based on internal USPTO statistics from the Office of Patent Quality Review, the USPTO failed to meet its 2005 quality goal of a 4 percent error rate and instead reported an error rate of 4.6 percent.

To address the patent application backlog, the USPTO hired a record 978 examiners in 2005 and plans to hire another 1,000 examiners in 2006.

In July of 2005, The USPTO also created a new Central Reexamination Unit to handle all new ex parte and inter partes reexamination requests. In 2005, 524 ex parte reexamination requests were filed with 176 known to have related litigation, and 59 inter partes reexamination requests were filed with 20 known to have related litigation.

In order to reduce patent pendency, petitions for special status to advance examination may be filed in appropriate cases, such as when infringement is present, a prior art search can be or has been conducted, or where the inventor is of advanced age.

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