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Are U.S. Patent Filings Plummeting Due to Eligibility Uncertainty?

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As I mentioned in my last post, many believe the reason allowance rates remain high in the face of subject matter eligibility carnage is that applicants are simply no longer filing  applications on technologies that have been most-affected by Alice and Mayo. This week I tried to explore that a bit.

Art Unit Filing Statistics

The first table below shows utility applications (designated as such in PAIR) by fiscal filing year and art unit. The number in each cell is the number of applications filed in that art unit and fiscal year. The color of each cell represents the year-over-year change in number of applications filed (Darkest green = growth of 100% or more; Darkest red = decline of 100% or more).

Utility Applications by Filing Year and Art Unit

I think it is fairly noncontroversial to say that the 3620s, 3680s, and 3690s have been hardest hit by Alice and Mayo. The chart above shows that, indeed, filings in all three are down rather precipitously from their all-time highs in 2013. Other art units for which I have heard many complaints of Alice destruction are the 1600s and 2800s. Filings in those art units is more or less flat from 2013 through 2016 — as are a lot of other art units that have been largely unaffected by Alice.

One thing that jumped out at me in the above chart is art unit group 3790 (Medical Instruments, Diagnostic Equipment, and Treatment Devices). Applications filed there have skyrocketed since 2014. Are these applications that would have previously been filed in other units? I would love to hear from people working in 3790s.

The above observations aside, overall, the above chart is very noisy and simply “eyeballing” it is not going to provide any meaningful answers to our subject matter eligibility quandary. And if you are expecting a rigorous analysis of the underlying data, I am sorry to disappoint you (partly because we need the updated office action data set and partly because there is only so much time in a week that I can spend playing data scientist).

BUT, it is still fun to play with the chart and see the various technologies rise and fall over the years. For example, check out the 1790s (Food, Analytical Chemistry, Sterilization, Biochemistry, Electrochemistry)- they went nuts from 2003 to 2008! And, look at how many of the 2600s went unscathed in 2009 while most other art units saw a decline. Also, what’s up with 1750 (Tires, adhesive bonding, glass/paper making, plastics shaping and molding)? If smartphone screens falls under “glass making” then it looks like we will all be living with shattered screens for many years to come.

PCT Applications by Filing Year and Art Unit

Utility applications in the above does not include PCT applications. The chart below shows just the PCT applications. Interestingly, it seems PCT applications were very consistently down in 2015 across most art units. Maybe someday I’ll take a look at whether these are mostly U.S. applicants or foreign applicants (if mostly foreign, might that say something about foreign confidence in the US patent system?).


Overall Filing Trends at the USPTO

Whether or not subject matter eligibility rejections are the cause, it does seem that filings are down at the USPTO. At the suggestion of @harryv257 I decided to look at filings relative to some economic indicator. I somewhat arbitrarily chose the average closing price of the S&P 500. Specifically, first plot below shows utility applications filed along side S&P 500 closing price.

Utility Applications Filed Compared to S&P 500

The second plot below shows the year-over-year change in number of U.S. utility applications filed and the year-over-year change in the average monthly closing price of the S&P 500.

Change in Utility Applications Filed Compared to Change in S&P 500


Correlation is  not causation, but overall filings are down and they are down a lot in 3600, so it’s seems very plausible that subject matter eligibility uncertainty is deterring applicants from filing in some art units.

Speaking of art units, if you are looking for sample office actions, responses, etc. for a specific art unit or examiner, give the BigPatentData file wrapper search engine a tey. Trying to navigate a particular examiner? For that there is BigPatentData Examiner Statistics.

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