Despite Increased Hiring, Design Patent Application Backlog Builds

Author: Robert C. MacKichan III
Editor: Stephanie M. Sanders

During the February 4, 2016 Patent Public Advisory Committee (PPAC) Quarterly Meeting, the USPTO’s Patent Operations Update projected a record number of design patent application filings this fiscal year based on the 12,104 applications it has received since October 1. The projection of just under 40,000 design patent application filings for FY2016 would continue a five year run of year-over-year increases in filings, from less than 30,000 applications filed in FY2010.

Along with the increase in filings, the number of unexamined design patent applications has continued to rise. The Office reported 40,738 unexamined design applications as of December 31, 2015—approximately twice the inventory of unexamined applications at the end of FY2010. A similar trend was reported for First Office Action “pendency”—the average number of months from the design application filing date to the date a First Office Action is mailed. First Office Action pendency as of December 2015 was 13.7 months with a total average pendency of 20 months. As shown in the graphic below (taken from the Patent Operations Update slide deck), this is a significant increase from a total pendency around 13 months at the end of FY2011.

Design First Action Pendency and Total Pendency 2011-2016

In various reports and presentations in the past year, the USPTO has announced sharp increases in hiring examiners in Technology Center 2900, its unit dedicated to design patent examination. In April 2015, TC 2900 Director Robert Olszewski projected a headcount of approximately 170 design patent examiners by mid-2015, up from less than 100 in 2010. The impact of recent design examiner hiring efforts will hopefully have a positive impact resulting in a waning backlog and improved pendency, as the examiners complete their training.

In the meantime, applicants with an interest in reducing delay should consider filing a Request for Expedited Examination of a Design Application under 37 C.F.R. § 1.155, which is available by submitting an additional fee and additional application materials, including a privately-conducted search report. The pendency for design examination on this so-called “Rocket Docket” averaged just 3.2 months in FY2015, making expedited examination a valuable tool where market conditions require prompt design protection.

Information about the Patent Public Advisory Committee Meetings can be found here. Additional data is available on the USPTO’s Design Patents Data Visualization Dashboard.


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