Do we need to shorten the patent approval process? - Embedded.com

Do we need to shorten the patent approval process?

The patent process, from application to issuance, seems to run on geological time. One horror story clocks in at seven years. What's up with that? And will it get better?

Once again the U.S. Patent and Trademark Office (USPTO) statistics tell a tale that inventors have known for some time, namely that the time it takes for a patent application to weave its way through the USPTO patent examination process is increasing, particularly in technically complex fields such as processors.

Some interesting tidbits from the FY 2006 USPTO annual report include:

  • The number of new applications in FY 2006 was 443,652, up 8% from FY 2005.
  • The number of pending applications was 1,077,042, up 21% from FY 2005.
  • The average pendency was 31.1 months, up 7%, from FY 2005.

In other words, the number of applications being filed is increasing, and the number of pending applications is increasing, logically leading to an increase in the pendency period of new applications.

While the general pendency of patent applications at the USPTO is increasing, some complex technologies are the millstones that tilt the general averages in the wrong direction. Computers and digital processing system technologies definitely hurt the averages.

While numerous technology classifications for inventions are related to computers, one particular class covering “electrical computers and digital processing systems: processing architectures and instruction processing (e.g., processors),” known as class 712, illustrates trends related to processor design. Class 712 covers:

“a particular arrangement that includes at least one of the following means: A) components of an individual complete processor, which may be formed on a single IC; B) components of a complete digital data processing system; C) plural processors; or D) plural digital data processing systems; wherein the particular arrangement further includes at least one of the following functions:

  1. Processing instruction data for specific processor architectures;
  2. Accessing or retrieving instruction data of a fixed or variable length from a buffer or other memory and shifting the instruction data to align it with a physical boundary of a buffer or other memory;
  3. Locating and retrieving instruction data for processing;
  4. Determining via internal hardware, firmware, or software operations the meaning of operation codes, control bits, or operands of instruction data;
  5. Dispatching instruction data for execution (e.g., designating a register after resolving data conflicts);
  6. Dynamically testing instruction data and operands to assess conflicts related to data or hardware-resource availability (e.g., identifying data dependencies or utilization conflicts, attempting to resolve such dependencies or conflicts, or both);
  7. Dynamically controlling the execution, processing, or sequencing of instruction data within a processor.”

U.S. Pat. No. 7,149,882 (the '882 patent) is an example of an Intel patent that's categorized in class 712. The '882 patent was issued December 12, 2006 and descended from an original application filed December 19, 1995. The '882 patent is titled “Processor With Instructions That Operate On Different Data Types Stored In The Same Single Logical Register File.” Claim 1 of the '882 patent reads:

“A processor comprising: a decode/execution unit to execute instructions that specify scalar floating point operations in a stack-referenced manner and instructions that specify packed data operations in a non-stack referenced manner; and a memory unit, coupled to the decode/execution unit and including a plurality of physical registers, to store state for the scalar floating point operations and to store state for the packed data operations, wherein changes to the packed data state appear in the floating point state and changes to the floating point state appear in the packed data state.”

For applications filed in class 712, the statistics indicate that while the number of applications in the class has remained relatively constant over the past four years, the pendency period, or the time from application filing to patent issuance, has increased. For the sample of patents that we studied, the pendency period increased from an average of about 44 months in FY 2005 to about 48 months in FY 2006. This is in contrast to the 31.1-month average pendency of all patent applications, as discussed above. Therefore, not only does it take longer for a class 712 application to issue (approximately 17 months longer), the pendency period for such applications is increasing at a faster rate (7% on average versus 10% for class 712 applications).

Other statistics of interest include maximum pendency. For the applications in the sample we studied, the patent application that took the longest to issue in 2005 had been pending for 84 months. Unfortunately, the patent application that issued in 2006 with the longest pendency had been pending for 93 months!

Fortunately, the news is not all bad. It appears that the USPTO's efforts to reduce the backlog of patent applications by hiring 1,218 examiners in 2006 is gaining some traction. For example, the number of issued patents in class 712 is up almost 16% over 2005. This is significantly higher than the total number of issued patents overall, which increased by almost 11%.

For the immediate future, however, inventors need to realize that patent applications in the processor-technology field currently take an average of at least four years to issue, and it's unlikely to get shorter. While it is the USPTO's intention is to reduce the pendency of patent applications, no one knows how long it will take to reduce the backlog, or even if the USPTO's plan will keep up with the current filing trends.

David Dawsey, PE, Esq., is a patent attorney and partner at the law firm of Gallagher & Dawsey Co. LPA in Columbus, Ohio. You may contact him via the firm's website at www.Invention-Protection.com.

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