The timing of reexaminations is especially important because a large percentage (around 30%) are associated with co-pending litigation. The chart above reports on the current status of ex parte reexaminations as of June 5, 2009. The vertical axis measures the percentage of reexaminations that have been completed – i.e., cases where either a reexamination certificate has been issued or the reexamination was otherwise terminated. The horizontal axis groups the data by filing year of the reexamination.
The prosecution history of these files shows that on average, the PTO issues a first non-final rejection within about one year of the filing of the reexamination (360 days). For reexaminations filed 2001-2004, the average pendency is just over three years (1120 days). This average will increase as the still-pending reissues are eventually completed.
In September 2009, I will be speaking on reexamination issues at the IPO annual meeting in Chicago.
why the big drop in 2008?
Posted by: curious | Jul 06, 2009 at 05:07 PM
"why the big drop in 2008?"
That's because the pendency period is greater than 1 year, and not much time has elapsed since 2008 ended. The bar for each year will grow towards 100% as time passes.
Posted by: Just Visiting | Jul 06, 2009 at 05:32 PM
Since, as you note, "a large percentage (around 30%) are associated with co-pending litigation" [and these are generally the most publicly and privately important reexaminations] it would be very useful to have separate statistics for them.
The cumulative total number of reexaminations delayed for more than 3 years indicated here would seem to confirm views that the PTO is operating reexaminations far too slowly to meet normal District Court litigation deadlines, thus significantly defeating that intended purpose. {Especially since the faster disposals are undoubtedly mostly UNcontested reexaminations.}
Also, it would be useful to have pendancy statistics for inter partes reexaminations separate from ex parte reexaminations.
Posted by: Paul F. Morgan | Jul 06, 2009 at 05:43 PM
Your use of the term "pending reissues" suggests that most reexaminations are combined with reissues.
Posted by: Alan | Jul 07, 2009 at 01:57 AM
I agree with Paul. It would be helpful to see separate statistics for both 1) ex parte reexaminations with co-pending litigaiton and 2) ex parte reexaminations where co-pending litigation is actually stayed pending the outcome of the reexamination to see whether the PTO moves more quickly in these instances.
Posted by: Commenter | Jul 07, 2009 at 09:11 AM