The US Patent Office is in a deal-making mood. Really. Ever since Director Kappos told his examiners last Fall that “patent quality does not equal rejection,” I have heard many stories about how patent applications that appeared to be stuck in the limbo 0f serial rejections are now being allowed. Those of us who talk about such things online are in agreement that we may be operating in an unprecedented favorable environment of patent allowances. The data bear out this anecdotal evidence: patent issuances are up 35% this year over last year.
My sense of what is happening, which has been confirmed by other experienced patent folks to whom I have spoken, the perspective of the Patent Office has changed. The consensus is the U.S. patenting process is much less adversarial today. In recent years, examiners were effectively told by the Patent Office administration that “there needs to be a reason to allow an application.” This has now changed to “there needs to be a reason not to allow an application.” This is a subtle, but critical, difference. In the former viewpoint, the gate for allowance is closed and needs to be opened prior to letting the applicant pass through. In the latter, the gate for allowance is open and needs to be closed in order to deny an application.
This change in perspective has resulted in many cases tied up in the Patent Office with “bogus” rejections being allowed for no apparent reason. Is it possible that SPE’s (i.e., Supervisory Patent Examiners) are reviewing cases and telling their staff to allow cases where the prior art does not suffice as a suitable rejection? I think this is the case in many art units. Continue reading