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AIA Shortening Patent Process, Tackling Backlog of Applications

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The America Invents Act of 2011 was widely and properly acknowledged as one of the most significant overhauls of the country’s intellectual property protection approach since the mid-20th century. Though its signature change may be the shift from the traditional “first to invent” standard to a “first to file” standard, other sections of the law were aimed squarely at increasing the speed and efficiency of the patent application process, particularly for small companies just entering the marketplace, and to help tackle the agency’s notorious backlog of more than half a million unexamined patent applications.

President Barack Obama signed the AIA into law in September 2011, but the law’s key provisions didn’t take effect until March 2013. Since that time, the law’s effects on USPTO efficiency metrics has been decidedly mixed. Data provided by the USPTO’s own data visualization dashboard indicates that as of April 2014, the law may be having its intended effect on some of the key metrics, while others have remained essentially unchanged or even degraded since the AIA came into full force. In the meantime, the USPTO began hiring new patent examination personnel in earnest after the law was passed. It has now hired about 1,500 additional patent examiners, bringing the total patent examination staff up to 8,108 as of April 2014.

All those additional hands and eyes are likely an important reason why the “traditional total pendency” of mainstream patent applications has fallen from a 30-month high of 34 months in March 2012 to the March 2014 level of 27.8 months. (This was followed in April 2014 by a modest uptick to 28 months.) The advent of the “first to file” standard in March 2013 does not appear to have had a significant effect on the rate of decline.

Perhaps reflecting an increased urgency to file patent applications under the new standard, the USPTO’s backlog of unexamined patent applications spiked to 607,482 in March 2013 after having declined steadily for the previous 18 months.

The decline then resumed, and the backlog reached a 30-month low of 584,998 unexamined patent applications in September 2013. The backlog then began to grow again, however, topping 600,000 in January 2014 and reaching an 18-month high of 619,204 in April 2014.

The new, accelerated patent application process for small businesses and individual inventors, on the other hand, appears to be functioning even better than advertised. “Track One,” as the accelerated process is known, promised applicants a resolution of their patent applications within 12 months of filing. As of April 2014, though, it was turning the applications around in just eight months.

It appears, then, that it’s still too early to declare the AIA a success or failure in terms of increased USPTO efficiency, but it’s worth noting that the USPTO has technically been leaderless since before the AIA matured. Former USPTO director David Kappos left the position in January 2013, and it has remained vacant. Deputy director Michelle Lee, a former Google executive, was appointed in December 2013 and has served as the de facto director since that time. Republican Senator Orrin Hatch of Utah recently called upon President Obama to nominate a replacement for Kappos, but how much of an impact the vacancy at the top has had on the USPTO’s daily operations is not clear.

For more on patent quality and the America Invents Act, watch part 1 of our video series here.