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March 11, 2008

Appeallusion - Part II

As previously reported, the current affirmance rate of the USPTO Board of Patent Appeals and Interferences (BPAI) yields the illusion of high-quality examination at the PTO. Let's glance at rates that better demonstrate the unfortunate reality.

In his notice-and-comment letter on the proposed appeal rule, David Boundy explores horrifying numbers obtained by Freedom of Information Act (FOIA) request:

The overwhelming majority of appeals arise out of examiner error, not applicant error. Attachment D is a spreadsheet calculating affirmance rates, based on statistics available on the Board's web page and obtained by FOIA request, showing that examiners are affirmed less than 20% of the time - an error rate of 80%.15 Other studies have shown examiner error rates of 90%.16 No other organization would tolerate this kind of error rate, let alone blame its customers for its own errors as the PTO has done in the last two years' rulemakings.

15 The rise in affirmance rate for FY 2006 may be due to the "Pre-Appeal Review" program. The number of rejections vacated and reversed in this program are not reflected in the statistics obtained. Thus, the FY 2006 statistics overstate the number of affirmance.
16 AIPLA's letter on the Continuations Rule, http://www.uspto.gov/web/offices/pac/ dapp/opla/comments/fpp_continuation/aipla.pdf at page 11.

From Attachment D:

Commenting on Appeallusion, Boundy provides a summary of his findings:

Examiners are affirmed about 20% of the time - that is, examiners must concede (or are found to have committed) error (procedural or substantive) about 80% of the time.

This is a far cry from the 59% affirmance rate the PTO is touting. Granted, Boundy's numbers are only through 2006, when the PTO was bragging about a 43.7% affirmance rate as opposed to the current 59%, but regardless, the semi-respectable 43.7% in reality translated down to a despicable 24%.

Patent examination quality unveiled!

Thanks to David Boundy at Cantor Fitzgerald for the tables and analysis.

Posted by Mr. Platinum at March 11, 2008 8:51 AM | Prosecution


There is no lie that PTO (mis)management will not tell in its efforts to avoid obeying the law.

Thanks to David for exposing this one particular lie.

Posted by: JD at March 11, 2008 1:22 PM