Growing backlogs at USPTO as Supreme Court tightens standards

With two major patent decisions made today by the Supreme Court, the AP paid a little visit to the US Patent and Trademark Office. And what did the AP reporter find? Patent applications, lots of 'em.

The red folders are everywhere at the U.S. Patent and Trademark Office. Inside are patent applications, stacked on examiners' desks, pushed by the cartload along the underground hallways of the buildings, filed away by the thousands.

The average turnaround is 30 months and the number of pending apps is expected to reach 800,000. The apps keep coming because a US patent is titanium strong protection with the possibility of huge payoffs if you can catch a deep pocket infringer.

Filing a patent is something of a negotiation. Patent attorneys want to get the broadest protection possible. The Patent Office is just trying to make sure their grants meet the standards of novelty and nonobviousness.

"Most patent attorneys will tell you they get a funny feeling if they don't receive an initial rejection," said Dennis Crouch, a visiting professor at Boston University Law School and the founder of a widely read patent law blog. "They feel like they left something on the table and probably could've gotten more."

Nonobviousness was the subject of one of the Court's decisions today. In KSR v Teleflex, the Court found a granted patent was obvious, setting the stage for PTO to do a more rigorous vetting of patents in the future. And sweeping patent reform is in the offing, as Congress moves to make it harder for patent holders to prove their innovation has been illegally copied. One possible change: different processes for different industries.

PTO Commissioner John Doll said the approval process should be customized to address the different needs of different industries. For example, drug companies may not need a patent rushed through since they also are waiting for Food and Drug Administration approval before they can go to market. Electronics firms, on the other hand, are in an industry defined by speed and innovation. They could opt for an accelerated exam, in which a response is promised within one year if initial applications are more detailed. The PTO launched a small program of this type last year.