Patently-O Bits and Bytes

• Like everyone else, patent attorneys like to clean their desks for the weekend and are less productive on Mondays. The chart to the right shows the percentage of patent of patent applications filed on each day of the week. (My data is from a sample of 1.4 million published patent applications filed 1999 to 2007). With the advent of electronic filing, patent attorneys are now able to file on Sunday. For published applications filed in 2007 about 1 out of every 250 was filed on a Sunday. (0.41%).
• Patent Reform Act: Senator Kyl has introduced S.3600.
• Hal Wegner Reports:
  • No pay raise for judges this year
  • PTO Budget: $2.1 billion
  • Six supreme court petitions may be decided within a week:
    • Nuijten (patentability of a signal)
    • Translogic (constitutionality of BPAI appointments)
    • Echostar (expert issues)
    • Monsanto (patentability of seeds)
    • IR v. IXYS (timing of appeals)
    • Samsung v. Rambus (sanctions)
• Biomedical Patent Management Corp. v. California Dept. of Health Services (state immunity) is still awaiting the views of the Administration.
• Can someone explain the various curves and bumps from the graph below?

Comments

[Kurt]

This seems a bit counterintuitive, given that provisional anniversaries that fall on a weekend would be bumped to the following Monday. Combine that with the common practice of filing as close to the end of the 1-year provisional period as possible, I would expect Monday to be busier for applications.

[Michael F. Martin]

You have a bimodal distribution in the period before publication, with a lump at 6 months and a lump at 18.

The first lump at 6 months is probably mostly for the applications either filed abroad 12 months before their filing in the U.S.

The second lump at 18 months is for the applications filed for the first time in the U.S.

[Wolfcastle]

For the time to publication chart I would guess:

1. The small rise between 3 to 6 months is primarily from publication of continuations.

2. The sharp rise at 6 months is from applications that claim priority back to a provisional filed almost exactly a year earlier.

3. The more gradual rise between 6 and 18 months is do to non-prov. applications that with filing dates substantially earlier than 1 year after a provisional.

4. The sharp rise at 18 months is from applications that don't claim priority.

5. The slow rise beyond 18 months is primarily from non-published applications issuing as patents.

[patent leather]

What's so hard about the bottom chart to figure out?

The 6 month bump comes from applicants who wait until the last minute to convert their provisionals to utility (or file U.S. counterparts to foreign applications). The PTO will never publish an application before 18 months from the earliest priority date, but the date an application actually published does seem to lag 1-4 weeks (seemingly random, I guess based on the processing queue) after the exact 18 month expiration date, explaining the "jagged bump." The 18 month bump is similar (applications with no priority claim). After 18 months, applicants sporadically may decide to rescind a nonpublication request, explaining the rise from 18+ months. It takes about 3 months to process a publication, explaining the flat 0-3 month portion. From 3 months to 6 months, applicants are claiming priority to applications filed more than one year ago.

Why the curve is arc-shaped instead of linear from 6 to 18 months might be the most difficult to explain, but perhaps when converting provisionals, attorneys are more inclined to wait than do so early.

[patent leather]

Dennis, in addition to the day of the week, another interesting (but useless) chart to make is the time applications are filed. I wonder if there would be a spike right before midnight.

[Andrew Dhuey]

The Supreme Court granted cert. in 10 cases today, but none of the six patent cases in Hal Wegner's list (above) is among them. We won't know for certain until Monday's order, but it looks like all of these will be denials.

Still no word from the Office of the Solicitor General re their views on Biomedical Patent Management Corp. v. California. The court gave them no firm deadline, so it's unclear when they will file their brief.

[Malcolm Mooney]

"The Supreme Court granted cert. in 10 cases today, but none of the six patent cases in Hal Wegner's list (above) is among them. We won't know for certain until Monday's order, but it looks like all of these will be denials."

Nobody could have predicted that.

[AllSeeingEye]

Another snarky comment - who could have predicted that?

[AllSeeingEye]

The more interesting substance of the refusal of cert in the above patent case is the possible refrain in the apparent cold war that was fomented between the Supremes and the Federal Circuit with regard to patent cases based on the shoddy treatment of the Federal Circuit by the gobbledygook KSR opinion and a recent line of Supreme Court patent jurisprudence, eBay ???? Festo??? Pfaff???? that should be embarrassing. We can only hope that the Supremes have realized not only that they were heavy handed in KSR, but they may be ill-equipped to deal with the vagaries of patent law, and have withdrawn somewhat from their eagerness to take on these complex cases for which the Federal Circuit was specifically chartered.

[Andrew Dhuey]

AllSeeingEye, it's easy and common to read too much into a denial of cert. Take Translogic, for example. Congress corrected the problem prospectively, so even if the Supreme Court disagrees with the CAFC on the merits, there is little reason to grant cert.

I haven't studied Nuijten and Bilski much, but a denial of the Nuijten petition could simply mean that the court would rather take up Bilski. And that's just guesswork on my part. The point is, it's almost always guesswork on why the Supreme Court denied cert.

[AllSeeingEye]

You're probably right Andrew, but you can't deny the palpable hostility that seems to be building between the Federal Circuit and the SC (see the text of Judge Michel's talk at Harvard Law School, where he defends the TSM test as not being as rigid as the SC suggested and notes that no one asked for an en banc review of TSM). And correct me if I'm wrong, but decisions like the one in Festo do not exactly belie a deep understanding of patent practice on the part of the SC.

[Another AnonPatent Atty]

It is actually a graphical hommage to National Cash Register.

[Lowly]

"Dennis, in addition to the day of the week, another interesting (but useless) chart to make is the time applications are filed. I wonder if there would be a spike right before midnight."

I'd think there is a bigger spike around 5-6pm, right before the paralegals who actually do the filing go home for the day. I know that my paralegal is responsible for many many 5pm filings.

[John Whitaker]

I understand the bumps at 6 and 18 months, and the relatively smooth (almost logarithmic) curve between 6 and 18 months, but I really don't understand why there appears to be applications still getting published out at 30 months from filing. I guess the reason the chart doesn't go all the way to 100% is because of requests not to publish. But why would apps be getting published at 30 months? Just ridiculous delays by the PTO? Continuations would be published very shortly after they were filed because they claim priority to an earlier date, so that doesn't explain it. It's a mystery.

[MaxDrei]

Mr Whitaker, do we know what Dennis means by "its publication"? What if the data reveal when "the case" is first published and includes those cases that first publish as an issued patent. I don't see that the data exclude such publications. Do you?

[grumpyoldpatentlady]

Seems to me that there could be some data collected and presented that would be perhaps slightly more useful than days of the week for filings -- or months to publication.

[Bob Hodges]

Regarding the bump at 18 months, a nonprovisional application with no priority claim can be published beginning at 18 months after filing.

As for the applications that remain unpublished after 18 months, all nonprovisional applications SHOULD always be published on the Thursday following the 18-month date, but the PTO is not always efficient enough in processing. Also, if the application has informalities or missing parts, delay by the applicant in resolving these will delay publication. Also, the applicant could file a nonpublication request that they later rescind (near or after the 18-month date, for example). Finally, if the PTO puts a security hold on the application, it will not be published. If the PTO later lifts the security hold, then the application could be published late. All of these issues of delay also can explain the publications occurring between 6 months and 18 months and between 4 months and 6 months (there are additional reasons for publications during these periods, which are discussed below).

Regarding the bump at 6 months, a nonprovisional application with a priority claim can be published beginning at 18 months after the earliest priority date. Because many nonprovisional applications are filed at or near 12 months after the first priority application, the 6-month date is 18 months after the earliest priority date for these applications. The publications between 6 months and 18 months (and beyond) for some of these applications can be for the reasons discussed above. In addition, if the nonprovisional application is filed closer than 12 months to the filing date of the first priority application, the date that is 18 months from the earliest priority date will fall after the 6-month date.

Regarding the publication of applications prior to the 6-month date (and the rise beginning at 4 months), a nonprovisional application with a priority claim can be published beginning at 18 months after the earliest priority date. Because some nonprovisional applications are filed with priority dates that are more than 18 months in the past (think continuations and divisionals), these applications will be published as soon as possible starting 4 months after the filing date. The publications between 4 months and 6 months (and beyond) for some of these applications can be for the reasons discussed above. In addition, if the nonprovisional application has an earliest priority date between 12 months and 14 months of the filing, the date that is 18 months from the earliest priority date will fall after the 4-month date. Finally, any of the publications between the 3-month and 18-month dates can be the result of a request for accelerated publication.

I think that explains the entire curve.

[Andrew Dhuey]

It's confirmed -- all six cases on the list above were denied cert.

[Just an ordinary inventor(TM)]

Dear A.S.Eye,

Re: “…decisions like the one in Festo do not exactly belie a deep understanding of patent practice on the part of the SC.”

As Big Dan Everett said in “O Brother Where Art Thou,”
“Once again we find ourselves in agreement.”

[MaxDrei]

Eye, this use of the negative "not", in qualification of the word "belie" confuses me. You appear to be saying that Festo demonstrates the SC's not in want of any deep understanding of patent law. Is that the thought you sought to impart? I rather suspect actually it's the opposite. And Jaoi, forgive me that I don't know the piece you quote from. Maybe it shows you are not agreeing with the Eye, about the SC. But, apart from that qualification, I take it that you are agreeing with the Eye, that it is the evidence of Festo that the SC has a deep understanding of patent law. Whatever you intended, it's fun reading these postings. BTW, on another thread, there's pds going on about too much ambiguity, in Europe of course.

[M. Slonecker]

Mr. Dhuey,

I noted that as well, but what is of interest to me is that at least Echostar and Monsanto involved prevailing patentees.

Still awaiting the SG response in your case, and look forward to reviewing its contents.

[Just an ordinary inventor(TM)]

Incredible you don’t get it MaxDreid,

Here it is:
Festo Sucks with a capital S!, and the Supremes are out of their element when it comes to patent jurisprudence.

[Andrew Dhuey]

Thanks, Mr. Slonecker. It could come any day now. Then again, I've been thinking that for two months now.

[Leopold Bloom]

Max,
You're right. Despite JAOI's rather rude response, ASE (and JAOI, by concurrence) actually said the opposite of what you and I think he meant. However, you should really rent the movie "O Brother, Where Art Thou?" Excellent - Ulysses meets the American South in the 1930's, with fantastic music.

[Just an ordinary inventor(TM)]

Dear Leo,

Again, as Big Dan Everett said in “O Brother Where Art Thou,”
“Once again we find ourselves in agreement” about the movie and especially its music, and even about my rudeness (however, I was taken with what I perceived about Max’s disingenuous obtuseness).

[AllSeeingEye]

Thank you Max for pointing out the vocabulary gaffe. I should have said that the decision in Festo, inter alia, belies an understanding of patent law which, to practitioners, is clearly not present in the SC.

[AllSeeingEye]

In the words of Ulysses Everett McGill: "you two (me and JAOI) are just dumber'n a bag of hammers" and "Say, any of you boys [patent attorneys]? Or, if not [patent attorneys] per se, were you otherwise trained in the metallurgic arts before straitened circumstances forced you into a life of aimless wanderin'?"

[MaxDrei]

Thanks All. I see that I must view the movie. Part of the pleasure of being a patent attorney is that we get to play with words. "Belie" is a nice one, that I look forward myself to using, when the occasion arises, and I'm happy to be reminded of it, in this blog. JAOI is right, that I have an irksome tone on this blog. I want to learn more about how American patent attorneys think, so I can do my job better. So my first priority is to provoke a response. Also, I'm happy we've all of us agreed now, that we're in agreement about Festo.

[AllSeeingEye]

you gotta see the movie Max. George Clooney (and everyone else) is just pure genius.

[Paul F. Morgan]

The above commentators have already well explained the USPTO application publication date curves. I can only wonder if some of the shorter term publications delays may be for PTO initial prcessing delays of continations and divisionals, and if some of the [residual] longer delays beyond 18 months might be due to incomplete, othewise defective, or late-filed applications, especially if petitions thereon were long-pending?