Bonum Certa Men Certa

Glimpse at Patent Systems Across the World: Better Quality Control at the USPTO Post-America Invents Act (2011), Unlike the EPO Post-Battistelli (2010)

The pendency at the USPTO stands at around five years, as scrutiny has been increased

AIA Patents
Image credit: Professor Dennis Crouch, Patently-O



Summary: While the EPO reportedly strives to eliminate pendency and appeal windows altogether (rubberstamping being optimal performance as per the yardstick du jour), the USPTO introduces changes that would strengthen the system and shield innovation, not protect the business model of serial litigants

PATENT systems across the world vary, but they're streamlined/unified by various programs which enable litigation across nations and entire continents. We've covered some of these programs here before and half a decade ago we wrote numerous articles about the vision of a global patent system, at times citing leaked diplomatic cables that had been published by Wikileaks. 'National' patent offices are actually not so national and the 'European' Patent Office isn't really about Europe (some of its member states, for example, are not in Europe). The same is true in the UK-IPO, which is going 'to bed' with Facebook right now (surveillance, censorship and propaganda site from another continent). Here is a new MIP article on patent litigation trends in Russia. It's not often that we hear about Russian plaintiffs in European, Australian or American courts; domestic policy there probably does not incentivise pursuing patents in other countries (especially NATO members), either. As we shall show in a later article, China is increasingly going abroad for litigation, albeit it wasn't traditionally the case (the West wrongly assumed all China could do was knockoffs or 'piracy' [sic] as the think tanks label it).



"It's not hard to envision the beneficiaries of a global patent system and their actions."Days ago IP Kat wrote about the Rhodia v Molycorp "patent jurisdiction tussle," to quote the author's headline. Here is some background for the uninitiated: "Rhodia is the exclusive licensee of the UK and German designations of a European patent entitled "Ceric Oxide and method for production thereof, and catalyst for exhaust gas clarification". Rhodia commenced infringement proceedings in the English High Court alleging that the English domiciled Defendant, Molycorp, had infringed the UK and German designations of the patent." Here we have a reminder of the unifying patent factor which does not even necessitate a so-called 'unitary' patent. Do we really need a 'globalisation' of patent systems? That is a rhetorical question of course. It's not hard to envision the beneficiaries of a global patent system and their actions.

One country dominates the world's patent systems (including the EPO where it's ranked number one) and that country is not China, albeit it's by far the largest population in the world. "In today’s free-trade environment, the USITC’s role is somewhat counter — protecting of U.S. industry," Patently-O wrote the other day about the ITC, guardian of large US corporations, a nationalist body which has the word "international" in its name/acronym. To quote Patently-O, the "USITC Procedure sets up the USITC as the party prosecuting the case rather than the patentee. As such, the agency is the named respondent and will be represented by the Solicitor’s Office. I expect that the patentee BriarTek will also weigh-in. The patent at issue is U.S. Patent No. 7,991,380 and covers an emergency satellite communication system. The asserted claims were found invalid as anticipated and/or obvious. That holding was then affirmed on appeal by the Federal Circuit."

"Suffice to say, calls to abolish CAFC altogether increased in recent years."Well, the Court of Appeals for the Federal Circuit (CAFC), as we noted here repeatedly, is an exceptionally abusive court which not only bypasses constitutional issues but also works for large corporations and for patent lawyers rather than the public (or justice). Simply put, it's corruptible. Suffice to say, calls to abolish CAFC altogether increased in recent years. And speaking of CAFC, MIP says: "The Federal Circuit has provided some guidance on the issue of 180 days’ notice of launch in a recent biosimilars ruling, in Amgen v Apotex, but practitioners say there will be a lot more litigation before the patent dance is fully clarified" (we are not optimistic).

About the USPTO Patently-O wrote that "Patent Filings Rising Slowly," according to figures plotted by Professor Dennis Crouch. Is this a case of the more, the merrier? Well, for patent lawyers surely it is merrier (more profitable). Here is what Crouch wrote about it:

The chart above shows USPTO application filings for non-provisional patent applications as well as RCE’s. Both have been on the rise for many years. The filing numbers appear to have continued to rise since implementation of the America Invents Act, although at a slower rate (acceleration has slowed). The USPTO expects that applications filed today will receive a first action within 16 months.


America Invents Act (AIA), with PTAB in particular, has served to introduce some new quality control (potential slowdown and greater pendency to be expected), albeit at too slow a pace as PTAB needs to be expanded to be able to deal with more than just a couple of thousands of patents per year (such workload keeps growing fast).

Patently-O wrote another article exclusively about AIA in which it's said:

Although more than three years have passed since the changeover date, most new patents still fall under the old-rule. This long transition period is explained by the reality that most patents that issue claim priority to a prior patent filing document such as a foreign priority filing, international PCT application, US provisional application or parent non-provisional US filing. Once the non-provisional application is filed, patent prosecution process still that typically takes around three years. This results in an average pendency from priority filing to issuance of around five years.


The chart there shows that, even though there's a patent litigation slowdown (we'll expand on that in a later article), problems are far from over. There's a capacity problem and there's growing demand. An article by Zachary Kinnaird (posted on his behalf by Professor Jason Rantanen), a patent attorney with International IP Law Group, looks at the number of patent practitioners. He shows some fancy charts and notes: "The number of practitioners removed from the USPTO database reveals a practitioner percentage removal trend that can be seen as a retirement estimate for patent practitioners. This trend shows that the longer a practitioner has had a registration number, the more likely they are to have retired, or otherwise been removed, from the roster.

"The health of the patent system worldwide is oftentimes improving, except at the EPO where patent quality declines* (more on that later today) and human rights are routinely violated.""The chart below shows the percentage of patent practitioners who still remain registered on the USPTO roster as a function of each practitioner’s year of registration. The further to the right, the more recently the practitioner earned their registration number."

Not much can be deduced from this (the way it's presented is not too helpful), unless one is interested in a sob story which serves the party line of the patent microcosm, or the industry associated with patent activity as opposed to production of merchandise, software, etc.

The health of the patent system worldwide is oftentimes improving, except at the EPO where patent quality declines (more on that later today) and human rights are routinely violated. As a European national I am sad and ashamed to see what was once the best patent system in the world becoming one of the worst and most notorious (unless one asks the EPO's mouthpieces). Battistelli tramples everyone and everything. ____ * Pressured examiners, unskilled (new) examiners and expensive appeals (short duration, very high fees) in an already-understaffed department make the entire process applicants-friendly at the expense of long-term reputation (which made the EPO appealing and worth the exceptionally high prices).

Recent Techrights' Posts

Debian Developer at Sirius Was Under the Wrong Impression That Staff Must Check or Should See E-mail All the Time (24/7 Work Attention is an Occupational Health Hazard)
My personal and professional experience with a Debian Developer (DD) at work
Techrights More Productive Than Ever Before
Today we finally crossed the 1,900-page milestone
Europe's Adoption of GNU/Linux, by Country (Now About 6%)
in Switzerland, for instance, adoption of GNU/Linux has been profoundly low
Not Only Has Adoption of Windows Vista 11 Flatlined/Plateaued, Now It is Going Down!
Did many people delete Vista 11 and install GNU/Linux instead?
 
Links 04/03/2024: Old Crisis Looming, UPC Already in Infringement of Article 6 ECHR
Links for the day
The Right to Disconnect (Meme and Very Recent References)
relatively new press
Links 04/03/2024: Techno-Babble in Tech Job Ads and Vision Pro Already Breaking Apart
Links for the day
[Meme] 'Debating' People by Subscribing Them to Lots of SPAM
Rebuttal? No, spam.
From Sexual Harassment of Women to Yet More Cybercrimes
They can be prosecuted
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, March 03, 2024
IRC logs for Sunday, March 03, 2024
Venezuela: Windows Below 70% (Laptops and Desktops), GNU/Linux Up to 7%
It's a lot higher in Cuba
ICYMI: ZDNet Financially Controlled by Microsoft
a history of censoring SJVN's Microsoft-critical articles
Argentina Joining the 4% 'Club' (GNU/Linux on Desktops and Laptops)
Data as ODF
Transparency Sets Society Free
"Convenient delusions" aren't bliss but temporary relief
[Meme] The EPO, Europe's Second-Largest Institution, Which is Contracting With Belarus
Socialist EPO
The European Patent Office's (EPO) Illegal Ban on Mass Communication Gets in the Way of Democracy
The scientific process (patents apply to science) must allow scrutiny, both from within and from the outside
Links 03/03/2024: Depression in Hong Kong, Sex 'Apps' and STIs
Links for the day
Links Gemini 03/03/2024: NixOS and NextCloud, Back Into Ricing
Links for the day
The Debian family fallacy
Reprinted with permission from Daniel Pocock
GNU/Linux Peaking in Europe, Android Measured as Higher or More Prevalent Than Windows
Android topping Windows
For Every Action There's a Reaction
Gates lobbying Modi
Like in Africa, Android Takes Control, Raking in Almost All the 'Chips' in Asia
So Microsoft has no OS majority except in Japan and Russia (and tiny Armenia).
Links 03/03/2024: Goodbye, Navalny (Funeral Reports)
Links for the day
Gemini Links 03/03/2024: A Wild Devlog Appeared and GrapheneOS Ramble
Links for the day
Gemini at 3,800+
total number of known capsules at above 3.8k
Be a Navalny
We salute Mr. Navalny
Mozilla Firefox is Back in ~2% Territories, Jeopardising Its Status as Web Browser to Test/Target/Validate With
Some new stats
[Meme] Russian Standards of Law: The Executive Branch Decides Everything
the president's kangaroo court
Up Next: The Tricky Relationship Between the Administrative Tribunal of the ILO and the European Patent Organisation (EPO)
We've moved from presidents who run a republic by consent to corrupt, unqualified, dictatorial officials who bribe for the seat (buying the votes)
IRC Proceedings: Saturday, March 02, 2024
IRC logs for Saturday, March 02, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Beware Imposter Sites of Techrights (Not Techrights.com or Techrights.org)
Only trust pages accessed through the domains controlled by us
Italy visa & residence permit: Albanian Outreachy, Wikimedia & Debian tighten control over woman
Reprinted with permission from Daniel Pocock
Links 02/03/2024: Actual Journalists Under Attack, More Software Patents Being Challenged
Links for the day
Gemini Links 02/03/2024: NixOS on GPD, Meson Woes
Links for the day
statCounter March 2024 Statistics (Preliminary)
Notice Asia
Links 02/03/2024: More Lawsuits Against Microsoft, Facebook Killing Hard-To-Find News
Links for the day
ZDNet (Red Ventures) Works for Microsoft (Redmond), Many Of Its Pages Are Spam/Advertisements Paid for by Microsoft
Here is the "smoking gun"
Wikipedia Demotes CNET Due to Chatbot-Generated Spew as 'Articles'; It Should Do the Same to ZDNet (Also Red Ventures, Also Microsoft Propaganda)
Redmond Ventures?
IBM Sends Money to Microsoft
Red Hat basically helps sponsor the company that's a attacking our community
The Direction WordPress (GPL) Has Taken is an Embarrassment
it comes with strings attached
When the Cancer 'Metastasises'
We had a red flag
March in Techrights (EPO Litigation and More)
One theme we'll explore a lot when it comes to GNU/Linux is the extent to which communities truly serve communities
Don't Forget to Also Follow Tux Machines
We've split the material
Yandex Usage Has Surged Since the Invasion of Ukraine, Microsoft Fell to 0.7% (It Was 1.7% Before the 'Bing Chat' Hype Campaign)
In Soviet Russia, Bing searches user
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, March 01, 2024
IRC logs for Friday, March 01, 2024
Sellout Completed: Linux Foundation Converging With the Gates Foundation
not a joke
Hitler Rants Parodies on Steve Ballmer
Parody created using clips from Downfall (Der Untergang)
With Windows This Low (27% of the "OS" Market), Steve Ballmer Would Have Thrown Another Chair
The media produced many puff pieces about Nadella at 10 (as CEO), but what has he done for Windows? Nothing.
[Meme] The Naked President
EPO Suffers From Shrinkage
Attacks on the EPC: Reality and Fiction
EPO leaks