Has patenting got easier?
Over the past week I’ve had a run of three notices of allowance for US patent applications; each one without a single office action.
This could mean that the USPTO has become easier to obtain patents from. It could be that the I have claimed too narrowly.
I suspect neither of the above. It is just a fluke.
Over the years I have obtained a number of patents without office actions for various inventions, including a method of making seamless underwear for Delta.
Two of the cases that were allowed last week are for very complex cutting edge microelectronic components. They were filed directly in the US, and we did not do any specific searches, since there is a lot of research in the field, and much may have been filed over the previous 18 months, without anything publishing, but the inventor is very experienced. I have obtained over 40 patents for various inventions he’s had over the years. Not all went smoothly though, and in a couple of cases, competitors got there first and we were not able to obtain anything. In this instance, he was expecting complicated office actions and was pleasantly surprised. The third is for a less ground-breaking technology. It was a national phase of a PCT where we had a clean ISR and IPRP so we were expecting it might sail through examination. However, the International search was not done by the USPTO and it certainly could have hit a prior art reef of recently filed patent applications that were not available to the international examiner.
Although drafting errors can give rise to clarity and other formal objections, the main problem to overcome in office actions is generally prior art. If the invention is sufficiently different from what others have done, and there is no subject matter bar, it can sail through examination. I suspect that immediate allowance is rarer for software type inventions where 101 type objections are common.
So though in these instances it was more the result of the inventions being clearly different from the prior art, where a patent issues easily, it is worth double checking whether a divisional or continuation-in-part would be useful. What seems to be true though, is that patents issuing are of tremendous value for start-ups and others looking to raise funds.
Where prosecution is trivial, the costs of obtaining the patent are generally low. I have no doubt lost some potentially lucrative prosecution fees, but the applicants should be come back with further inventions.