United States Patent and Trademark Office

USA

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• Category: USA

The United States Patent and Trademark Office (USPTO) is known for granting large numbers of software patents.

According to a 2004 paper by Bessen and Hunt, the USPTO approves about 70 software patents per day. (see page 47) Other sources have said that in 2006 the USTPO granted just over 40,000 software patents, which is 110 per day, seven days per week.

The USPTO is an agency of the US government's Department of Commerce.

Specifically excluded

In the USA, according to the USPTO, "...it has been held that the laws of nature, physical phenomena and abstract ideas are not patentable subject matter."

Examination guidelines

• 1996: Examination Guidelines for Computer-Related Inventions (The date, 1996, is given by Martin Goetz but the document itself does have a date - I don't know how we'd verify if this is still the 1996 version or if this link now points to an updated version)
• 2007: new guidelines were issued, raising the standard for obviousness, following the ruling in KSR v. Teleflex (2007, USA)
• 2009, 2010: Interim guidelines were issued following the CAFC's decision on in re Bilski, and further interim guidelines were published following the Supreme Court's decision in Bilski v. Kappos. See: USPTO 2010 consultation - deadline 27 sept. (As of October 2010, final revised guidelines are not yet available) (There's an interesting article about the change in "obviousness" here)

Key people

The Director of the USPTO, since August 2009, is David Kappos. Kappos previously worked for IBM as vice president for intellectual-property law.

Quality declining, allowance rate increasing

Despite the USPTO's public comments about improving examination, it appears the real change is that quality has actually dropped. A 2013 study found that the "allowance rate" increased by 20% from 2009 to 2012. By 2014, 92% of patent applications were being approved. (54% are approved on the first request, the others are approved after being refiled with changes.)

This confirms that legislation such as the America Invents Act are so watered-down and corrupted that they have no positive effect. Reform doesn't work; we need to exclude software from the patent system.

Examiners stuck for time

Examiners in the USPTO have on average 20 hours to examine each application.

Procedural notes

More info sought: there is an "Office of First Filing" and an "Office of Second Filing".

Accessing application documents

There are three ways to access USPTO application documents:

• USPTO's Patent Examination Data System (requires non-free JavaScript)
• USPTO's Bulk Data Storage System
• Google's Bulk Downloads for USPTO Patent Petition Decisions (until 2015)

Related pages on ESP Wiki

• USA patents courts and appeals
• Who decides if software patents exist
• Criteria for patentability
• 1994 USPTO software patent hearings
• Legislation in the USA - the USPTO interprets the legislation
• USPTO 2010 consultation - deadline 27 sept
• Suggestions for the USPTO in 2013
• Continuation patent

External links

• http://uspto.gov - the USPTO's website
• The USPTO's PAIR system for checking the status of applications
• Manual of Patent Examining Procedure (MPEP)

USPTO documents

• http://des.uspto.gov/Foia/ReterivePdf?system=BPAI&flNm=fd20072130-10-04-2007-1 "There is no authority that we know of which permits software per se to be considered statutory [patentable subject matter]."
• The USPTO's accelerated patent procedure
• http://www.patentlyo.com/patent/2009/08/interim-guidelines-on-statutory-subject-matter.html - A third-party article linking to the USPTO's guidelines on interpreting the Bilski Particular machine or transformation test

Third party documents

• http://www.bitlaw.com/source/soft_pats/final.html
• http://www.bitlaw.com/software-patent/patentable.html
• A 1981 patent claims to be the first USA software patent, May 2009, Wired
• Graph of number of software patents granted by the USPTO per year
• KSR, patent obviousness and USPTO practice, 29 Sep 2010, ipeg
• USPTO: Software Composition Inventions are Unpatentable under §101 unless they Clearly Disavow that the Storage Mechanism is a Transitory Wave or Signal, 27 Aug 2013, Patently-O