After the Supreme Court ruled confusingly in a pair of patent cases, the Wall Street Journal’s technology blog noted the increasing number of patent application filings and posited five reasonable explanations for the increases. From the point of view of a patent attorney, there is at least one quibble and a couple of additions to the Journal’s list.
First, the Journal explains that “people value patents more,” and notes that valuation is reflected in the lively secondary market that has developed for patents.
Second, the Journal notes the development — likely old news to anyone reading this — of “patent trolls” that may be indirectly increasing the number of patent filings by, for example, increasing the value of patents on the secondary market.
Third, the Journal says that “America has changed” by moving R&D spending away from manufacturing industries and into other areas, so that now patents are as integral to business investment as “plants or distribution used to be.”
Fourth, the Journal observes that there are “more patents per R&D dollar” than ever, explaining that “[t]he amount of money being spent on research and development isn’t rising as fast as the number of patents filed.”
Fifth on the Journal’s list is “computer technology,” as “[c]omputer and electronic patents have been responsible for much of the growth in patents, accounting for 54% of the grants in 2012, double what it was in 1992.”
The quibble, at least in the pedantic eyes of one patent attorney, is the faux pas of conflating issued patents with filed patent applications in a number of those points. A relationship exists between the number of patents that issue and the number of patent applications that were filed in the past, but a surge in applications filed may not necessarily lead to a corresponding surge in issued patents. For example, should the Supreme Court rule in the next week that software cannot be patented, a large amount of the currently pending application backlog may never issue as patents at all.
There are two additions to the the Journal’s list that may only be apparent to those of us who file and prosecute patent applications.
To begin with, substantive patent law, the rules of the Patent Office, and the practice of examiners within the Patent Office all increasingly encourage more applications to be filed instead of fewer. Under our newish first-to-file system, a delay to sweep a range of related ideas into a single overarching patent application may now lead to a loss of patent rights altogether if someone else files their application first. If you do file an application that even arguably seeks to cover more than one invention, the first substantive communication you receive from the Patent Office will likely require you to pick one of the inventions for that application and requiring you to file a second (or sometimes a third and a fourth) application to cover the other inventions if you want to protect those too.
In addition to the law encouraging more patent application filings, filing a U.S. patent application has become logistically easier and easier. Notwithstanding the Great eFiling Outage of ’14, and not ignoring the difficulty of using the Patent Office electronic filing system even when it is functioning, those of us who practiced in the Old Days of All Paper Filings can attest that the current, somewhat antiquated, system makes filing an application far easier than the prior, extremely antiquated system. Meanwhile, technology is not the only factor making patent application filing easier — the increasing harmonization of patent laws around the globe and the development of common practices and expertise of attorneys in navigating the processes established by those harmonized laws also makes filing a patent application in the U.S. easier for the rest of the world than ever before.
None of these factors seem likely to lessen soon, so, barring an unexpected decision from the Supreme Court, the rate of patent application filings should be expected to continue to climb. If increasingly every competitor has filed patent applications, the key may become filing the right patent applications.