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Monday Feb 24, 2014

Message From Janet Gongola, Patent Reform Coordinator: Update On The Frequency, Compliance, And Content Of Preissuance Submissions

Since the preissuance submission provision of the AIA went into effect seventeen months ago, members of the public have been able to submit prior art into another’s pending patent application if certain minimal requirements are satisfied.  The Office has received a total of 1,414 preissuance submissions (also referred as “third-party submissions”) as of January 17, 2014.  The submissions have arrived in all technology centers with the largest number in TC1700, which includes areas related to mechanical engineering, and the fewest in TC 2400, which includes areas related to electrical engineering.  Figure 1 below shows the distribution of submissions across technology centers. 

 

Number of Submissions Per Technology Center

Figure 1

Proper Preissuance Submissions

Most third-party submissions received as of January 17, 2014, have met the eligibility requirements and been categorized by the Office as proper.  Figure 2 below shows the percentage of proper and improper submissions, and Figure 3 below shows the proper submissions categorized by technology areas.  The most common reasons for non-compliance relate to a failure to meet the timing, concise description of relevance, and signature requirements.  Statistics show, however, that the number of improper submissions is leveling off, and in turn, that the number of proper submissions is rapidly increasing.

 

Total Preissuance Submissions

Figure 2

 

Number of Proper Submissions per Technology Center

Figure 3

 

Distribution of Documents in Proper Preissuance Submissions

In the total number of proper preissuance submissions received as of January 17, 2014, the public presented 3,339 documents for consideration by the Office.  Figure 4 below shows the submitted documents categorized by type.

 

Submitted Documents for Proper Cases

Figure 4

 

Third-Party Submission Usage by Examiners

When the Office receives a compliant preissuance submission in a particular application, the examiner must consider the submission as a matter of course.  For the submissions made as of January 17, 2014, examiners have relied upon the prior art contained in them to make a rejection in 12.50% of the impacted applications.  Figure 5 below depicts all the applications where a rejection issued after a proper submission was received.  Additionally, in the applications where rejections were made based upon the art contained in a preissuance submission, the examiner rejected 50% of the time for obviousness under 35 U.S.C. 103; 18% of the time for anticipation under 35 U.S.C. 102; and the remainder of the time for both obviousness and anticipation.  Figure 6 below features the applications having rejections using third-party submissions broken down by the type of rejection under the statute.  Lastly, with respect to the type of rejection made after receipt of a proper third-party submission, most were First Actions on the Merits followed by Final Rejections.

 

Applications with Office Actions after receipt of Proper Third-Party Submission

Figure 5

 

Applications having Rejections (by Statute) and Using Third-Party Submissions

Figure 6

Crowdsourcing

The public has shown interest in locating potential prior art for submission to the Office by utilizing crowdsourcing Web sites, such as Ask Patents by Stack Exchange.  Indeed, members of the public have been posting requests for prior art in published applications on these sites.  The Office feels confident that the number of proper third-party submissions will continue to increase as users become more familiar with the ability to make such submissions as well as the resources available to locate prior art such as crowdsourcing.  The Office will continue to monitor the number third-party submissions and periodically update statistics on these filings.

 


 

>> Link to data displayed in charts above.

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