Patent rejection statistics say: “The probability of failing at the patent office is much higher than that of receiving the patent.”
There are 88.6 % chances that you won’t get a patent on your invention.
“Your patent application is rejected!!” – No inventor wants to hear this!
But the hard truth is many inventors face rejection at the patent office. Either because their invention is not new or deemed obvious. The figure below shows patent rejection statistics for patent applications filed between 2017 – September 2020. 21.28% rejections were because the invention was found non-novel or not new (102 Type). 46.95% rejections were because the invention was found obvious due to a combination of two or more prior arts (103 Type).
Let’s Read The Inventor’s Mind
Is my idea new? Maybe…
I need to find out if someone has created a product like my invention…
Let me do a quick check on google.
……. Search in progress……..
After 15 minutes……
…….No matching results found!……
So cool, no one thought about it until now!! Yayyyy!
Let me get a patent on my invention.
Hopefully I can sell it for a good price $$$$
Let me take some help from an IP community on the internet.
……after some googling and help……
Yay! Patent application filed.
“Your patent application is rejected!!”
Oh No :(, all $$$$ went for a waste.
Would you apply for a patent if you knew that there are 88.6% chances that you won’t get it?
Probably not, alternatively, you would want to look for ways to succeed at the patent office! A few ways could be checking if:
- something similar to your invention already exists in the market.
- someone has already patented that invention.
- someone has described an invention like yours in public.
With all this information either you would drop the idea of patenting or refine your invention.
Finding this information could be challenging. In this post we have shared a solution that can increase your chances of success at the patent office.
Before that let’s take a look at the data about issuance rate at the patent office.
Probability Of Receiving A Patent
The other day, I came across a research paper by Yale University, What is the Probability of Receiving a U.S. Patent?, published in Yale Journal of Law and Technology in Issue 1 of 2015.
Authors of the paper:
- Deepak Hegde, Associate Professor of Management at Yale University,
- Dr. Alan Marco, Chief Economist at the USPTO, &
- Michael Carley, Senior Data Analyst at T-Mobile.
The authors dived into the issuance rate at the USPTO.
Deepak et al studied 2.15 million utility patent applications filed between 1996 and 2005 and examined until June 30, 2013. The key highlight of their study is the continuous decline in allowance rate with each year.
In 1996 about 70% patent applications turned to a patent which by 2005 fell to 40%.
Further, their study points out that the chances of a patent application to get pogranted in the first go – First-Action Allowance – is only 11.4%. In other words, there are 88.6% chances that a patent application will be rejected by the examiners at the USPTO.
You might be wondering what’s the first action allowance? Don’t let the jargon bother you. The first-action allowance means the patent got granted in the first go itself.
To top it off, the situation is even worse for the inventors at small companies – companies with less than 500 employees. Their first-action allowance rate for inventors from small US companies or individual inventors was only 9.3% during the period while the inventors from large US companies had a slightly better first-allowance rate of 10.7%. Their foreign counterparts fared well, however, due to a possible reason that they file only most important patent applications in the US.
Further, there is a considerable gap of 15.8% in the allowance rate between Large (75.3%) and Small corporations (59.5%) in the US. Another striking finding of the study is that the application filed by small inventors in the biomedical domain has bleak chances of receiving a grant.
Reasons For Rejection Of The Patent Application
One plausible reason for the high rejection rate is that inventors are not aware of the existing prior art. By prior art we mean that the invention like yours exists. Either as a product in the market or as a concept disclosed in a patent or in a non-patent document. The patent rejections statistics where the popular rejection is USC 35 103 confirms this.
102 Type Rejection
The examiner gives 102 type rejections when he finds an exact prior art invalidating claims of a patent application.
103 Type Rejection
The examiner gives 103 type when he combines two or more references to prove an invention disclosed in a patent application as obvious.
Is It The Time To Rescue The Rescuer?
Increase in number of rejections shoot up the time to get a patent and also the patent filing cost. This discourages small companies, and especially startups and individual inventors that don’t have a big budget. To top it off, even if a patent is granted, its chances to make money remains slim.
One of the main reasons for the rejection is existing prior art that proves either the invention is ‘not new’ or ‘obvious’. Hence, it’s time to better equip inventors to be successful at the patent office.
A Possible Solution
Thus, if there exists a smart tool that is capable of making an inventor aware of other solutions/references that already exist and could lead to his invention deemed obvious or non-novel, he would be in a better position to make a go or no–go decision. He may share this detail with his attorney for consultation which may lead to a claim amendment before filing an application or other similar strategy.
Such an intelligent tool could have capability to clear the cloud of uncertainty from the patent filing sky. It could facilitate well-informed data backed patent filing strategies which have potential to bring down the patent prosecution cost, time, and number of rejection.