Patent Law

Appeallusion - Part II

By Gary Odom and Jordan Kuhn

As previously reported, the current affirmance rate of the USPTO Board of Patent Appeals and Interferences (BPAI) yields the illusion of high-quality examination at the PTO. Let's glance at rates that better demonstrate the unfortunate reality.

In his notice-and-comment letter on the proposed appeal rule, David Boundy explores horrifying numbers obtained by Freedom of Information Act (FOIA) request:

The overwhelming majority of appeals arise out of examiner error, not applicant error. Attachment D is a spreadsheet calculating affirmance rates, based on statistics available on the Board's web page and obtained by FOIA request, showing that examiners are affirmed less than 20% of the time - an error rate of 80%.¹⁵ Other studies have shown examiner error rates of 90%.¹⁶ No other organization would tolerate this kind of error rate, let alone blame its customers for its own errors as the PTO has done in the last two years' rulemakings.

¹⁵ The rise in affirmance rate for FY 2006 may be due to the "Pre-Appeal Review" program. The number of rejections vacated and reversed in this program are not reflected in the statistics obtained. Thus, the FY 2006 statistics overstate the number of affirmance.
¹⁶ AIPLA's letter on the Continuations Rule, http://www.uspto.gov/web/offices/pac/ dapp/opla/comments/fpp_continuation/aipla.pdf at page 11.

From Attachment D:

Commenting on Appeallusion, Boundy provides a summary of his findings:

Examiners are affirmed about 20% of the time - that is, examiners must concede (or are found to have committed) error (procedural or substantive) about 80% of the time.

This is a far cry from the 59% affirmance rate the PTO is touting. Granted, Boundy's numbers are only through 2006, when the PTO was bragging about a 43.7% affirmance rate as opposed to the current 59%, but regardless, the semi-respectable 43.7% in reality translated down to a despicable 24%.

Patent examination quality unveiled!

Thanks to David Boundy at Cantor Fitzgerald for the tables and analysis.

Full post as published by The Patent Prospector on March 11, 2008 (boomark / email).