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Presentation
New Insights and Characterization of Patenting Trends in the United States
Southern California Law Associations Intellectual Property Spring Seminar, June 8-10 (2007)
  • Ron D Katznelson
Abstract

This presentation shows the historic shifts in patenting trends at the USPTO and reviews the prevailing patent enforcement trends. It shows that continuation applications have had an ever-increasing share of patenting activities and that unlike original applications that arrive at the rate of new invention disclosures, continuations’ filing rate are dominated by the demand for legal patent claim protection, following the growth rate of new products introductions. It is shown that patent applicants’ increased relative propensity to apply for continuation claims is related to the general historical trend of the shortening product lifecycle and accelerated obsolescence. An accompanying phenomenon to accelerated product obsolescence is that patent claims have gradually diminishing lifetime. It is suggested that, to a large degree, continuations facilitate an observed outcome in which U.S. patents are more likely to contain claims that are better matched to actual products and innovations in the market. In this regard, related evidence suggests that U.S. patents are more immune to patent lifetime erosion than foreign patents, for which no continuations are allowed.

On the patent enforcement front, this study is the first to suggest and provide evidence that there is an overall shift in patents’ scope characteristics over the last thirty years. It is shown that, on average, adjudicated patents have claims of gradually diminishing breadth relative to alleged infringing activities in the market and the accumulating prior art record. It is suggested that patent continuations contribute to such trend, which is in fact economically more optimal for private and public welfare. Contrary to assertions of the U.S. patent system critics, evidence is mounting to indicate that the numerical growth in patenting is a natural and non-abusive phenomenon and that, on average, private patent rights are not overbroad and are in fact less likely to suppress downstream innovation. Furthermore, it is shown that contrary to the critics’ alarming cry of “Patent Litigation Explosion”, the growth in the number of patent lawsuit filings was substantially lower than that of trademark lawsuit filings. As an indicator of commercial activity, the relative number of patent lawsuits has not changed much. Patent lawsuits in 2005 were 1% of all Federal civil lawsuits - the same percentage as that recorded in 1975.

From this analysis emerges a model of patenting trends that has profound implications for the patent system of the 21st century. It predicts that due to shortening product lifecycles, innovators will pursue claims for their inventions in non-original patent applications at rates that will gradually approach or surpass their invention disclosure rates in original applications. This natural economic trend could not be slowed-down by setting limits on the number of continuations or claims per application because applicants would resort to parallel multi-application prosecution. It is shown that the USPTO has failed to predict or react to the growth in patent applications and that the solutions are to provide it with more resources to adequately do its exponentially expanding job and to transition to a patent system based on examination-on-request rather than automatic examination.

Publication Date
June 10, 2007
Citation Information
Ron D Katznelson. "New Insights and Characterization of Patenting Trends in the United States" Southern California Law Associations Intellectual Property Spring Seminar, June 8-10 (2007)
Available at: http://works.bepress.com/rkatznelson/8/