Agency’s inability to keep pace undermines American
First of two parts
Alexandria, Va. — On a campus of boxy office buildings nine miles
outside Washington, D.C., some 6,300 patent examiners hold the nation's economic
future in their hands.
The next Google. The next iPhone. The next Viagra.
All could be fueled by inventions awaiting the 20 years of protection
afforded by a U.S. patent - if only the patent examiners could catch up.
But they can't. The federal system of granting patents to businesses and
entrepreneurs has become overwhelmed by the growing volume and complexity of the
applications it receives, creating a massive backlog that by its own reckoning
could take at least six years to get under control, the Journal Sentinel has
Amid the worst downturn since the Great Depression, the U.S. Patent and
Trademark Office could be seen as a way to jump-start the economy. Instead, it
sits on applications for years, placing inventors at risk of losing their ideas
to savvy competitors at home and abroad.
The agency took 3.5 years, on average, for each patent it issued in 2008, a
Journal Sentinel analysis of patent data shows. That's more than twice the
agency's benchmark of 18 months to deal with a patent request.
The total number of applications waiting for approval, more than 1.2 million,
nearly tripled from 10 years earlier.
The Journal Sentinel also found:
• Under a practice that Congress authorized a decade ago, the Patent Office
publishes applications on its Web site 18 months after the inventor files them,
outlining each innovation in detail regardless of whether an examiner has begun
considering the application. The system invites competitors anywhere in the
world to steal ideas.
• For more than a dozen years starting in 1992, Congress siphoned off a total
of $752 million in fees from the Patent Office to pay for unrelated federal
projects, decimating the agency's ability to hire and train new examiners.
• As its backlog grew, the Patent Office began rejecting applications at an
unprecedented pace. Where seven of 10 applications led to patents less than a
decade ago, fewer than half are approved today - a shift that a federal appeals
judge termed "suspicious." The same judge calls the agency "practically
• Staff turnover has become epidemic. Experts say it takes at least three
years for a patent examiner to gain competence, and yet one examiner has been
quitting on average for every two the agency hires.
• Patent activity, a widely accepted barometer of innovation, is showing
exponential growth in increasingly competitive economies such as China, South
Korea and India. As developing economies strive to commercialize and protect
their technologies throughout the world, they add tremendously to the U.S.
Patent Office's workload.
• In many cases, applications languish so long that the technology they seek
to protect becomes obsolete, or a product loses the interest of investors who
could give it a chance at commercial success. "Patents are becoming commercially
irrelevant to product life cycles," said John White, a patent attorney and
For an American start-up company, a patent application is often the only
asset, which creates a Catch-22: Start-ups often need a patent in order to get
funding; yet without that funding, entrepreneurs can't afford the mounting fees
and legal costs to keep the patent application alive or to fend off