Wednesday, March 18, 2009

It's Official: More than 1/2 of Examined Patent Applications Rejected at Top 3 Patent Offices

THe EPO issued a press release yesterday, announcing that filings for 2008 dropped by 3.6%. More importantly, the EPO went on to point out that the grant rate for European patents dropped for the first time to less than 50%. More specifically, the grant rate for 2008 was 49.5%, as compared to 51% for 2007.

Alison Brimelow, President of the EPO, comments:

The purpose of patents is to facilitate economic benefits for society by creating legal certainty in the market. We therefore need to continue to ensure quality in the patenting procedure. Some efforts in this respect are now beginning to bear fruit: The practice we introduced in 2004 of informing applicants early in the process of their prospects of obtaining a patent visibly encourages companies in many cases to abandon their applications. Subsequently, the strict application of patentability criteria by our patent examiners has led to more refusals to grant a patent. These are important steps to ensure the relevance of the patents entering the innovation process.

The EPO's announcement means that the allowance rate at each of the trilateral offices will be below 50% -- with the EPO at 49.5%, the JPO at 48.9%, and the USPTO at 42%. Taken collectively, the average rate of allowance stands at 47.5%.

While various interested parties continue to claim that overburdened patent offices are allowing patents "of dubious quality" as a regular course of business, the statistics keep showing that this has not been the case for at least for the last year.

Read the EPO announcement here (link)

See Joff Wild, "EPO allowance rate falls beneath 50% for the first time" (link)

See also Gene Quinn's post "Perspective of an Anonymous Patent Examiner" (link), where a PTO examiner comments:
This “reject, reject, reject now” policy is encouraged by management’s policy of issuing a written warning on an examiner’s permanent file for allowance error percentage above 10%. While this may seem high, if you only allow 20 cases a year it is no problem for quality to find some kind of error in your cases, especially when they aren’t experts in your art. Additionally, there is a lack of motivation to get cases allowed, because there is no incentive for the examiner to do the extra work required to arrive at claim language which can be allowed.

2 Comentários:

MaxDrei said...

I'm sceptical. My gut feeling is that most applications (>80%) in which Applicant pays to enter the EPO come through to issue. My suspicion is that a greater number of PCT cases, these days, never enter the EPO regional phase yet the EPO still counts them as "not granted". Recall that the EPO computer clocks all of them, and gives them an EPO number, as soon as they are filed, anywhere in the world. Ask the EPO how many apps fall by the wayside, after they enter the EPO and it will surely be a percentage much less than 50. I don't want anybody thinking, when contemplating filing at the EPO a request for examination on the merits, that there's a 50:50 chance of a refusal decision. Then again, it's the EPO that issues most of the ISR's, so you could say that the EPO is getting its refusals in, before ever the PCT app leaves its international phase. Well done the EPO.

Marcus said...

The Australian Patent Office had a similar practice of allocating filing no's for all PCT apps. This practice has sensibly been changed recently, so that application no's are only allocated when the National Phase is entered. Perhaps the EPO should consider this too.


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