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Second, the adverse effects of review delays for startups should help inform reform proposals targeted at accelerating the review process at the patent office. The USPTO has historically faced budgetary constraints that limit its ability to allocate more resources to patent reviews. The constraints force the agency to make choices among various priorities, including speeding up reviews and improving review quality (Hegde 2012). Our findings suggest that the benefits of speeding up reviews can be immediate and substantial, particularly for small inventors whom the patent system is intended to protect.

The modern patent system is complex. In theory, it delivers private benefits and costs to patentees but also generates positive and negative spillovers through many distinct channels, thus making it impossible for any single empirical study to definitively establish the overall welfare consequences of the patent system. Despite the abundance of evidence highlighting the spillover effects of patent rights (e.g., Grilliches 1984; Jaffe 1986; Heller and Eisenberg 1998; Moser 2005; Williams 2013; Galasso and Schankerman 2015; Sampat and Williams 2015), empirical evidence of the direct private benefits of patents to their owners remains scarce.

Nuclear war. Climate change. Pandemics that kill tens of millions. These are the most viable threats to globally organized civilization. They’re the stuff of nightmares and blockbusters—but unlike sea monsters or zombie viruses, they’re real, part of the calculus that political leaders consider everyday. And according to a new report from the U.K.-based Global Challenges Foundation, they’re much more likely than we might think. In its annual report on “global catastrophic risk,” the nonprofit debuted a startling statistic: Across the span of their lives, the average American is more than five times likelier to die during a human-extinction event than in a car crash. Partly that’s because the average person will probably not die in an automobile accident. Every year, one in 9,395 people die in a crash; that translates to about a 0.01 percent chance per year. But that chance compounds over the course of a lifetime. At life-long scales, one in 120 Americans die in an accident. The risk of human extinction due to climate change—or an accidental nuclear war—is much higher than that. The Stern Review, the U.K. government’s premier report on the economics of climate change, estimated a 0.1 percent risk of human extinction every year. That may sound low, but it also adds up when extrapolated to century-scale. The Global Challenges Foundation estimates a 9.5 percent chance of human extinction within the next hundred years. And that number probably underestimates the risk of dying in any global cataclysm. The Stern Review, whose math suggests the 9.5-percent number, only calculated the danger of species-wide extinction. The Global Challenges Foundation’s report is concerned with all events that would wipe out more than 10 percent of Earth’s human population. “We don’t expect any of the events that we describe to happen in any 10-year period. They might—but, on balance, they probably won’t,” Sebastian Farquhar, the director of the Global Priorities Project, told me. “But there’s lots of events that we think are unlikely that we still prepare for.” For instance, most people demand working airbags in their cars and they strap in their seat-belts whenever they go for a drive, he said. We may know that the risk of an accident on any individual car ride is low, but we still believe that it makes sense to reduce possible harm. So what kind of human-level extinction events are these? The report holds catastrophic climate change and nuclear war far above the rest, and for good reason. On the latter front, it cites multiple occasions when the world stood on the brink of atomic annihilation. While most of these occurred during the Cold War, another took place during the 1990s, the most peaceful decade in recent memory: In 1995, Russian systems mistook a Norwegian weather rocket for a potential nuclear attack. Russian President Boris Yeltsin retrieved launch codes and had the nuclear suitcase open in front of him. Thankfully, Russian leaders decided the incident was a false alarm. Climate change also poses its own risks. As I’ve written about before, serious veterans of climate science now suggest that global warming will spawn continent-sized superstorms by the end of the century. Farquhar said that even more conservative estimates can be alarming: UN-approved climate models estimate that the risk of six to ten degrees Celsius of warming exceeds 3 percent, even if the world tamps down carbon emissions at a fast pace. “On a more plausible emissions scenario, we’re looking at a 10-percent risk,” Farquhar said. Few climate adaption scenarios account for swings in global temperature this enormous. Other risks won’t stem from technological hubris. Any year, there’s always some chance of a super-volcano erupting or an asteroid careening into the planet. Both would of course devastate the areas around ground zero—but they would also kick up dust into the atmosphere, blocking sunlight and sending global temperatures plunging. (Most climate scientists agree that the same phenomenon would follow any major nuclear exchange.) Yet natural pandemics may pose the most serious risks of all. In fact, in the past two millennia, the only two events that experts can certify as global catastrophes of this scale were plagues. The Black Death of the 1340s felled more than 10 percent of the world population. Eight centuries prior, another epidemic of the Yersinia pestis bacterium—the “Great Plague of Justinian” in 541 and 542—killed between 25 and 33 million people, or between 13 and 17 percent of the global population at that time. No event approached these totals in the 20th century. The twin wars did not come close: About 1 percent of the global population perished in the Great War, about 3 percent in World War II. Only the Spanish flu epidemic of the late 1910s, which killed between 2.5 and 5 percent of the world’s people, approached the medieval plagues. Farquhar said there’s some evidence that the First World War and Spanish influenza were the same catastrophic global event—but even then, the death toll only came to about 6 percent of humanity. The report briefly explores other possible risks: a genetically engineered pandemic, geo-engineering gone awry, an all-seeing artificial intelligence. Unlike nuclear war or global warming, though, the report clarifies that these remain mostly notional threats, even as it cautions: [N]early all of the most threatening global catastrophic risks were unforeseeable a few decades before they became apparent. Forty years before the discovery of the nuclear bomb, few could have predicted that nuclear weapons would come to be one of the leading global catastrophic risks. Immediately after the Second World War, few could have known that catastrophic climate change, biotechnology, and artificial intelligence would come to pose such a significant threat. So what’s the societal version of an airbag and seatbelt? Farquhar conceded that many existential risks were best handled by policies catered to the specific issue, like reducing stockpiles of warheads or cutting greenhouse-gas emissions. But civilization could generally increase its resilience if it developed technology to rapidly accelerate food production. If technical society had the power to ramp-up less sunlight-dependent food sources, especially, there would be a “lower chance that a particulate winter [from a volcano or nuclear war] would have catastrophic consequences.

The Biden-Harris Administration, including the USDA and the USPTO, recognizes the importance of innovations in the seed and agricultural space, including ones that will mitigate climate-related disruptions to our food and agricultural systems. With more choices, and plant varieties tailored to local circumstances, farmers may gain potential revenue. In addition, diversifying variety development and production of seeds and other planting stock will make supply chains less vulnerable to disruption, give incentives to new market entrants to compete, and establish a fairer and more competitive market. 

The investment in innovation in the seed and agriculture industry is made possible in part due to our intellectual property (IP) laws. The foundations of these laws were written into the U.S. Constitution by our nation's founders, and innovators can utilize patents and plant variety protection to recoup and benefit from their investments during the limited terms provided. Indeed, USDA started its life as the then Patent Office's Division of Agriculture, which for the first decades of our country distributed free seeds to farmers to promote agricultural production. Seeds were recognized over time as part of the IP system through the Plant Variety Protection Act of 1970 and more recently through a series of court cases that recognized the availability of utility patents for seeds. 

Additionally, companies should keep in mind that not all applications may be suitable for this program because of the procedural constraints (such as the maximum of 20 claims, the stringent restriction requirement, etc.). For example, if a company is interested in an omnibus patent application with a large number of claims of wide variety, this program may not be the best option for a company. Companies should also keep in mind that if there are prolific inventors in a company, only a maximum of five of the applications naming them as inventors can be filed with a Petition to Make Special under this pilot program. So an internal tracking of inventorship is crucial.

The U.S. Patent and Trademark Office (USPTO) has implemented the Semiconductor Technology Pilot Program in a stated effort to incentivize intellectual property protection for certain semiconductor manufacturing innovations. This action

is commensurate with the objectives of the government’s 2022 CHIPS and Science Act, including boosting research and development in the semiconductor area and revitalizing the domestic semiconductor manufacturing industry to gain a global competitive advantage. The USPTO press release states that this program is designed to “encourage innovations that increase semiconductor device production, reduce semiconductor manufacturing costs and strengthen the semiconductor supply chain.”

The Economic Impact of Delay in the Patent Application Process

The aforementioned inefficiencies might delay the grant of a patent by creating additional requirements for applicants and patent examiners. A study recently conducted by Joan Farre Mensa and published by the United States Patent and Trademark Office (USPTO) found that “delays in the patent examination process significantly reduce firm growth, job creation, and innovation, even when a firm’s patent application is eventually approved.” The study looked at 45,819 first time patent applications filed since 2001 at the USPTO by U.S. startup firms in the pharmaceutical, bio-chemical, and other industries. For data, the study used USPTO’s internal databases, which have detailed review histories for all patent applications, and a variety of financial databases containing employment, sales, funding, and growth data for the subject firms. Using a regression analysis, Farre Mensa’s study analyzed the effect of patent review delays on firm growth.

Similar to the Petition to Make Special, the Green Technology Pilot Program prioritizes applications that fall within specific categories, such as inventions based on environmental quality, energy conservation, development of renewable energy resources, and greenhouse gas emission reduction." In May 2010, the USPTO announced a revision to the pilot program that eliminated the narrow eligibility criteria for expedited processing under the original program.53 The USPTO originally limited inventions in certain classifications in order to assist the USPTO in balancing the additional workload and allocating resources.54 Because the USPTO balanced the workload with other mechanisms and denied applications that would have otherwise qualified for the program, the USPTO determined that the classification requirement was unnecessary. 55

Most commonly, the Patent Office’s examination problems are attributed to the resource constraints faced by the Patent Office—finite resources, a high volume of patent applications, and difficulty hiring a large number of high-quality examiners.89 Examiners thus only have approximately twenty hours per application for all of the tasks of examination: reviewing the application, conducting a prior art search, comparing the prior art to the claimed invention, drafting one or more office actions, responding to the applicant’s arguments, evaluating any amendments, and potentially holding an interview with the applicant’s attorney.90 Even patent examiners acknowledge this amount of time is insufficient for a quality examination.91 Insufficient examination time is likely to generate patent grants for claimed inventions that fail the statutory criteria of patentability because the presumption of patentability means that the patent issues unless the examiner, within the time allotted, can establish and explain its unpatentability.92

The US Patent and Trademark Office’s newly expanded program aimed at accelerating patents for climate mitigation technology is critical to garnering the funding necessary to advance the clean energy transition, researchers say.

The PTO’s extension of its Climate Change Mitigation Pilot Program comes at a time of striking juxtaposition. While energy alternatives to fossil fuels have become more mainstream than ever—with renewable energy on track to supply 44% of American electricity by 2050—scientists warn that barriers to global adaptation persist, namely insufficient financing.

The USPTO continues to prioritize the development of ecosystems that can unlock IP to create jobs and solutions by translating that IP to the market across sectors, including key technology areas such as healthcare, manufacturing, and climate resilience. The USPTO has built tech transfer into its 2022-2026 strategic plan, making it one of the five overarching goals driving the USPTO's work to “bring innovation to impact for the public good”.[2] As explained in the strategic plan, the USPTO is focused on driving innovation for long-term economic growth, supply chain resiliency, prosperity, and national security. Getting IP-protected goods and services into the hands of those who can benefit from them via the marketplace is a critical component of U.S. innovation, inclusive capitalism, and global competitiveness.

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Identifying inherent fraud risks affecting the program. The USPTO has taken steps to identify inherent fraud risks from the universe of potential vulnerabilities facing the trademark register, including threats from various sources. USPTO officials described two different types of fraud schemes in the trademark system: filing mills and criminal groups. Filing mills are a common scheme in which companies file thousands of trademark applications, without any actual use, to receive trademark registrations that can subsequently be resold for a profit to those seeking access to the U.S market on ecommerce websites. Another common scheme involves criminal groups posing as the USPTO to fraudulently request money from trademark owners or steal client account information. According to USPTO officials, most of the agency’s current fraud monitoring activities are ad hoc and include monitoring internal sources like the TMscams@USPTO.gov inbox, where applicants, registrants, and attorneys that have encountered potentially fraudulent behavior can submit complaints to the agency, and external sources like trade publications such as the World Trademark Review. Agency officials said that the high volume of trademark applications and constantly changing fraud schemes make assessing fraud risks to the trademark register difficult, especially with limited resources.

It is out of deep concern for the for the future innovative capacity for the United States that I submit the following brief comments regarding the Board of Patent Appeals and Interferences’ Rules of Practice in Ex Parte Appeals, Advance Notice of Proposed Rulemaking, published on December 22, 2009. I am commenting in the capacity of a prolific inventor, with numerous issued patents and patent applications, as a consultant to inventors and investors in innovation, as an investor, and as a concerned citizen.

Many of the rules in the above referenced document will have a profoundly negative impact in invention and innovation in the US, especially on its economy and its innovative capacity, as well as on its capacity to attract and benefit from new innovative talent. The time and resources simply do not allow me to adequately address all of these negative effects in detail, however a few rules in particular are worth close examination:

A second objective in furtherance of the USPTO's constitutional mandate is to issue high-quality, valid patents that will incentivize innovation." A low-quality, invalid patent hampers innovation if inventors avoid developing new inventions for fear of infringement liability or the inability to secure a license.24 Presumably, the more time a patent examiner spends searching and analyzing the prior art during examination, the more likely he or she will issue a valid patent. However, public scrutiny of the backlog may put pressure on overworked examiners to examine an application quickly, potentially in less time than is ideally needed to produce a high quality patent.25 To balance these competing forces, the USPTO needs examination procedures that speed up the examination process to address the backlog, while maintaining or improving overall patent quality. The developers of the current and proposed prioritization procedures discussed in this Note designed the procedures to put applications in a specific order and to reduce exanunation time. In addition to ordering applications and reducing examination time, prioritization procedures could also incorporate protocols designed to improve patent quality

4. Strategic Reasons - Patents as Poker Chips & Ballistic Missiles

A shift in the paradigmatic value of patents has also increased the number of applications. Traditionally, the patent grant has been recognized as "an efficient method of enabling the benefits of research and development to be internalized, this promoting innovation and technological progress.""'9 However, patents are often sought for reasons far removed from recouping R&D investment costs and product commercialization. '7Applications are filed for a diverse number of strategic reasons. Patents are routinely treated as poker chips, facilitating the bargaining for technology necessitated by the interdependence of the Information Age. In addi-tion, firms increasingly seek to amass broad and overlapping patent rights as a means to threaten competitors when bargaining fails.

The United States meanwhile remained in second place in 2023, with 55,678 filings, marking a far steeper decline of 5.3 percent from a year earlier.

All things being equal, one would expect that the coronavirus pandemic would have the same or similar effect on patent application filings in all countries and would not cause a decrease in U.S. patent application filings while causing an increase in worldwide patent application filings.

While the coronavirus pandemic initially caused adjustments in budgeting, workforce and workplace attendance, it seems that something before the pandemic caused a decrease in the number of patent applications that were filed in the U.S. back in 2017, while worldwide patent applications increased by 5.8% in the same year.

At the same time, there was a 2% drop in the number of U.S. patent applications filed in 2020 and a minor drop of 0.4% in U.S. patent applications filed in 2021, according to preliminary data.

In recent years, the United States Patent and Trademark Office (USPTO) has taken strides to reduce, on average, the duration of time between the filing of a patent application and either abandonment or issuance (also referred to as “patent pendency”).

The USPTO has hired hundreds of new patent examiners to replenish manpower lost during the pandemic and indicates plans to increase examiner hires steadily through 2026. USPTO, Fiscal Year 2022: Congressional Justification, 37 (2021) Various changes in the assignment of applications to art units and pre-issuance processing have been made to shorten the overall timeline of an application. Commentators point out that that USPTO has even changed the criteria by which examiners are evaluated, now placing greater weight upon examiners’ ability to advance prosecution.

The United States Patent and Trademark Office (USPTO) recently proposed a significant change to the rules governing terminal disclaimers. The USPTO says that the rule change would “promote innovation and competition,” but is more likely designed to reduce the backlog of cases at the USPTO regardless of the cost to innovators, who will end up with weaker patents if they result from continuation applications with terminal disclaimers.

Competitors of patentees will sometimes utilize the teaching of a patent but, to avoid infringement, design around the claims of the patent. Patentees often file patent applications based on an original patent (called “continuation practice”) to cover products designed in this manner. Continuation applications are sometimes rejected on the basis of “double patenting,” particularly if the patent office sees the continuation application as merely an attempt to extend the term of the original patent. Terminal disclaimers, which limit the patent term to the expiration date of the original patent, are frequently employed in response to such double patenting rejections.

As the end of 2022 approaches, important changes are coming to the trademark prosecution process before the United States Patent and Trademark Office (“USPTO”). Trademark practitioners and applicants must be aware of the new deadline, effective December 3, 2022, and how it may impact trademark applications and prosecution strategies.

The new deadline shortens the deadline to respond to office actions issued on or after December 3, 2022, from six months to three months. However, USPTO will allow trademark applicants to extend the deadline for an additional three months if the applicant files for an extension prior to the expiration of the three-month deadline and pays a $125 extension fee.