4 Chi.-Kent J. Intell. Prop. 108 (2004-2005)
Patent Grant Rates at the United States Patent and Trademark Office

handle is hein.journals/jointpro4 and id is 108 raw text is: <--- 4 CHI.-KENT J. INTELL. PROP. 108 --->
Lawrence B. Ebert
© 2004, Chicago-Kent Journal of Intellectual Property
In recent proposals for patent reform made by the Federal Trade Commission and by the National Academy
of Sciences, there has been discussion of the possibility that the grant rate of patents by the United States
Patent and Trademark Office [USPTO] is high compared to that of other industrialized countries, including
that of Japan and those of Europe. This discussion began with papers of Quillen and Webster that
suggested that the grant rate might be as high as 97% and more reasonably is at least 85%. Although the
actual grant rate at the USPTO is typically in the range 62% to 68%, Quillen and Webster suggested the
higher numbers based on an analysis of continuing applications (including continuations, divisionals, and
continuations-in-part). The present paper suggests that the analysis of Quillen and Webster is flawed both
legally and methodologically, and that recent work by Clarke, which places the corrected grant rate at less
than 75%, is more accurate.
There has been recent discussion of the need for reform in the United States Patent Office.1 In the draft of
its recent report, A Patent System for the 21 st Century, the National Academy of Sciences, in discussing
issues of patent reform, stated:
A second reason for concern about changes in quality is that according to recent estimates U.S.
patent approval rates are higher than officially reported by the USPTO and higher than in Europe
and Japan. In a recent study, Quillen and Webster (2001) argued that calculations of allowance
rates from USPTO reported numbers of applications filed, abandonments, and total allowances or
issued patents have led to a consistent underestimate of actual allowance rates because the
calculations did not take into account the effect of U.S. continuation practice. 2
The draft further stated: the committee believes that high acceptance rates, especially if increasing over
time relative to comparable rates in other industrialized countries would be reason to look more closely at
examination quality.3
The concern about high allowance (acceptance) rates is misplaced because the reported enhanced grant rate
is inaccurate, both from a legal and a methodological perspective. Substantively, it is untrue from a legal
viewpoint that all continuing applications reflect repeated attempts to claim the same invention. Although
I Brenda Sandburg, Reinventing the patent system; National Academy of Sciences adds voice to chorus on
fixing patent litigation, 128 The Recorder 1 (April 20, 2004); Neil Munro, Off-Limits, 36 The National
Journal 1 (May 8, 2004) [Sandburg and Munro articles available on LEXIS]; Arti K. Rai, Engaging Facts
and Policy: A Multi-Institutional Approach to Patent System Reform, 103 Colum. L. Rev. 1035 (2003).
2 Stephen A. Merrill, Richard C. Levin, and Mark B. Myers, A Patent System for the 21 st Century, page 43,
draft available at http://books.nap.eduicatalog/10976.html.
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