The big news in the annual report from the U.S. Patent and Trademark Office out today: it takes longer than ever to get a patent these days, and the backlog in patent applications continues to grow at an alarming rate.
Average “pendency”—as the patent office calls the waiting period from application to issued patent—is now 31.9 months, up even from last year’s dismal performance at 31.1 months. And the backlog—the number of patent applications waiting in the queue—grew by more than 100,000 from last year,to 1,112,517. When you go to apply for a U.S. patent, in other words, there will be more than a million applications ahead of yours needing review, and it is likely to take more than two-and-a-half years to make it through the process.
The fact is, even these gloomy overall numbers don’t tell the whole story. The backlog is considerably worse in many high-tech sectors, where applications are often highly technical and complex. What’s more, in many of these sectors, the pace of change is so fast that they arguably have the greatest need for swift patent protection. As the chart below shows, the wait for a patent in biotechnology is approaching three years, and in software and communications it is getting closer to four years. Michael Kirk, director of the American Intellectual Property Lawyers Association, has previously told me that increasing pendency rates cast “a cloud of uncertainty over the marketplace.”
| High-Tech Field | Avg. Patent Backlog (in months) |
| Biotechnology | 34.3 |
| Chemical and Materials Engineering | 34.4 |
| Software | 42.9 |
| Communications | 43.1 |
| Semiconductors | 26.5 |
Of course, as is the case with many government reports, news of the patent backlog isn’t exactly highlighted in the patent office’s Annual Performance and Accountability Report for Fiscal Year 2007. The figures above, for instance, are contained on page 112 of the report, buried in a mountain of stats. They were far behind such important information as the fact that workers at the U.S. Patent office raised $1.3 million for charity in FY2007 (p.12); that more than 3,000 patent office employees work from home at least one day per week (p.13); that electronic filings of patent applications tripled last year to 49.3% (p.17); and that it took the Patent Office an average of 13 days to reimburse workers’ travel payments (p.50).
In a departure from previous years, this year’s report doesn’t even give the figures for the past year’s pendency in given sectors. Fortunately, I happened to have past reports on hand. It might come as no surprise to learn that the average pendencies are up in most of these sectors. The bottom line is this: for so-called utility patents that make up the bulk of the patent office’s important business, applications last year hit a record high—while the patent office actually issued fewer utility patents than last year. The result is a growing backlog that ought to give any innovator pause. Here’s the graph one doesn’t see in this year’s report. I had to pull the numbers out and make it myself:
