Intellectual Property Law Blog

When Will the Patent Office Issue Patent #20,000,000?

July 9th, 2018

By John D. Simmons and Dennis J. Butler

When Will the Patent Office Issue Patent #20,000,000?On June 19th, the US Patent Office issued its ten millionth patent, to Raytheon, just over three years after it issued the ninth millionth patent to WiperFill Holdings, LLC. It took 200 years for the total number of U.S. patents to reach 5 million. Samuel Hopkins, a Philadelphian, was granted the first U.S. patent on July 31, 1790, for an improvement “in the making of Pot ash and Pearl ash by a new Apparatus and Process” and patent number 5,000,000 was issued about 200 years later on March 19, 1991, to a trio of scientists who created a means of using E. coli bacteria to produce ethanol. Twenty-seven years after the five millionth patent issued, the number of granted patents doubled again.  Odds are, the number will double again in less than ten years.

These burgeoning numbers come at a time of widespread challenges to the validity of recently issued patents stemming from inter partes reviews (IPRs) enacted as part of the America Invents Act (AIA) (see our blog post from May 21) and from court rulings, including the U.S. Supreme Court’s rulings restricting patent eligibility (Alice Corp. v. CLS Bank International, Mayo v. Prometheus, etc.)  Following Alice, claimed subject matter is only patent-eligible if it adds an inventive concept beyond “well-understood, routine, conventional activity previously engaged in by researchers in the field.” Prior to Alice, “anything under the sun that is not made by man” was patent eligible except that laws of nature, natural phenomena, and abstract ideas. These attacks on the validity and patentability of inventions have had a limited impact on inventors thirst for patent protection.

Despite the challenges posed by IPRs and courts, the number of patents issued and filed continues to grow.  Why?  Technology advances are accelerating, technology and computers are increasingly complex, and everyday devices are more functional and interactive (think, the Internet of things).  There are also more people developing innovations. Keep in mind that patents are filed not just to allow commercialization, but as a part of a defensive strategy to build a fence around currently protected inventions.

Although the raw numbers are increasing, the pace of filing applications may be slowing in the United States.  According to the World Intellectual Property Organization, from 2015 to 2016 the number of patent applications in the U.S. grew by 2.7%.  Worldwide patent applications grew by 8.3% during the same period and patent applications in China grew by 21.5%. Consequently, the U.S. share of total worldwide patent applications fell from 20.4% in 2015 to 19.4% in 2016, while China’s share grew from 38.1% to 42.8%.

The current administration has been slow to address the downward trend of patenting, but the appointment of the new Director of the USPTO shows promise that patent filings and growth may be back on an upward trend.

 

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