Backlog is a historical funding problem stemming from congress, not quantity of applications

Fee Diversion The backlog and application pendency problems can be attributed largely to the glaring mismatch between the resources and capacity of the USPTO and its significant workload. The USPTO needs more examiners, more review board members, more money to pay its employees and an upgrade of its outdated technology infrastructure. Despite the agency’s best efforts, however, Congress has made these goals unachievable. The USPTO has been a self-supported agency since 1990, meaning that all expenses needed to run the agency must come from income generated in the office. This in itself is not problematic, and the USPTO has generally taken in more than enough in patent application fees to support itself. The problem lies in Congress’s diversion of fees from the USPTO. Instead of allowing the USPTO to keep and utilize all of the fees that it collects, Congress has, through its annual appropriations process, diverted significant amounts of money from the USPTO to other, unrelated federal programs. Since 1990, Congress has diverted some $800 million USPTO fees. Patent experts and commentators have long targeted fee diversion as a significant factor in causing the USPTO’s inability to keep pace with the number and complexity of the applications that it now receives. A Report of the National Academy of Public Administration estimates the current backlog of unexamined patent applications is in fact the direct result of fee diversion. The report estimates that if the USPTO had not experienced fee diversion, then the average application pendency time would have averaged slightly over 21 months as compared with the 30 months to 40 months that it currently takes to process a patent application.