The USPTO Goes to Washington

Last week, the U.S. Senate Judiciary Committee held its oversight hearing regarding the U.S. Patent and Trademark Office (USPTO). New USPTO Director Andrei Iancu testified (see his written statement here), for the first time in his new official capacity. It was an interesting hearing–a video recording of the hearing is available here (starting at minute 16).

Director Andrei Iancu, U.S. Patent and Trademark Office

There was critical commentary at the hearing regarding post-grant proceedings at the Patent Trial and Appeal Board (PTAB) under the America Invents Act (AIA), which some argue results too frequently in invalidation of patents, and thereby creates an imbalanced system that does not sufficiently protect patent owners. Senator Coons stated: “In the past decade, there have been a variety of actions … which have had the cumulative effect of significantly weakening patent rights…. One cause is the impact of the new post-grant proceedings at the USPTO before the Patent Trial and Appeal Board …. [T]he current review system is systematically biased against patent owners based on statistics from its first five years.” Senator Coons also mentioned new legislation he had introduced, the STRONGER Patent Acts, which he describes as “aligning PTAB standards to district court standards, better accounting for the fact that issued patents have already gone through a significant examination by a governmental agency.”

Although much of the hearing focused on patents, there was also some discussion of trademarks, with some interesting facts and statistics about the Trademark Office. Last year, about 600,000 trademark applications were filed, an increase of about 12%. Historically, average annual increases in trademark applications are between 6-8%. But the rate of growth is predicted to significantly increase in the future. As of this month, filings have increased 15% since last year. And over the next eight years, annual growth is expected to average 10%. According to Director Iancu, the biggest driver of the increase has been a rise in filings from China, which currently represent 10% of new filings. By 2023, filings from China are expected to represent a third of all filings.

This heavy growth in trademark applications has required significant hiring increases at the Trademark Office, with 232 new Examining Attorneys hired in the past five years, resulting in a total of about 580 Examining Attorneys currently. If the expected growth trends continue over the next five years, Director Iancu anticipates over 300 new hires will be required, growing the number of Examining Attorneys to over 900.

Finally, Director Iancu noted that the Trademark Office met or exceeded all trademark pendency and quality targets last year. Most trademark applications are pending for less than the targeted goal of 12 months, from filing through registration (or other final action or abandonment), with the average being about 9.5 months. The Trademark Office is also meeting its target of issuing a first action on pending applications between 2.5 – 3.5 months after filing, with the average being 2.7 months. More interesting statistics and budgetary data are available here.

It is reassuring to hear the Trademark Office is exceeding its pendency targets (particularly in light of the staggering number of new applications last year–600,000–among 580 examiners). Sometimes it feels like things take longer than they should during prosecution, but in light of this heavy volume, one can develop a greater appreciation for how quickly things are able to move.

What did you think of this oversight hearing on either the topics of patents or trademarks? Any thoughts?

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