What are the chances of getting a patent granted?

“Data! Data! Data! I can’t make bricks without clay!” – Sherlock Holmes

Since 2015 it’s been getting easier to get a patent granted in Europe. As of 2018, statistically you have a 70.81% chance of getting a patent granted for your invention. The reason I know this is that rather than relying on gut feeling, I decided to take a look at what the data actually says. Using my programming skills, I analysed the European Patent Register to see how many European patents in 2018 had a status of granted, and how many applications left examination without being granted (i.e. applications which had been refused, withdrawn, and deemed withdrawn).

What I found was that in 2018, 126,055 applications had a status as granted, 6,101 applications had a status as refused, 9,439 applications a status of withdrawn and 36,425 applications had a status of deemed withdrawn. To put it another way, the allowance rate in 2018 was 70.81%. This allowance rate varies depending on the technology you are working in, so if you are thinking of filing a patent and want to know how likely it is to be granted, do get in touch.

What is also interesting is that I also did this analysis for each year of the last five years, as shown in the graph below. There is a clear trend – it is getting easier to get a patent granted in Europe.

What are the chances of getting a patent granted.JPG

Who is the best patent attorney? Part II - what effect does their work have?

How effective is your European Patent Attorney? One consequence of the European Patent Office’s drive for ‘Early Certainty from Search’ is that Examiners are now reacting to most substantive letters[1] filed by a European Patent Attorney much more quickly. For example, in 2016 out of the 183,825 substantive letters filed by patent attorneys with the EPO only 5% (10,059) are now still awaiting a response from the EPO.

This makes it easier to see how effective an attorney’s prosecution work is before the EPO - in response to these 183,825 letters, the EPO issued 68,451 notifications indicating that an application is approved for grant (i.e. Rule 71(3) EPC communications). So, the average European Patent Attorney in 2016 was 37% effective as 37% of the attorney letters filed in 2016 resulted in a 71(3) being issued.

I also checked if there is a skew in favour of the different technology groups: as it turns out there is:

A         HUMAN NECESSITIES - 33,729 letters sent; 37% resulted in 71(3) being issued. 

B          PERFORMING OPERATIONS; TRANSPORTING - 24,028 letters sent; 44% resulted in 71(3) being issued. 

C         CHEMISTRY; METALLURGY - 30,165 letters sent; 35% resulted in 71(3) being issued 

D         TEXTILES; PAPER - 2,030 letters sent; 43% resulted in 71(3) being issued 

E          FIXED CONSTRUCTIONS - 5,518 letters sent; 43% resulted in 71(3) being issued

F          MECHANICAL ENGINEERING; LIGHTING; HEATING; WEAPONS; BLASTING - 14,568 letters sent; 45% resulted in 71(3) being issued 

G         PHYSICS - 33,723 letters sent; 29% resulted in 71(3) being issued 

H         ELECTRICITY - 40,064 letters sent; 37% resulted in 71(3) being issued

 

It is clear from this that it is harder to get a 71(3) issued for patent applications with a ‘G’ technical classification. One reason for this appears to be that this category includes the ‘G06’ sub-category for computer implemented inventions. Of the 14,430 letters sent to the EPO in relation to patents classified as ‘G06’ only 21% resulted in 71(3) being issued. I know from my own experience and from my peers that this is something that has been long suspected, but the size of the jump – which is over 50% – from 21% to the average of 37% is surprising.  

It is also very clear from my analysis that addressing patentability objections prior to the grant of a patent application is not commodity work in Europe. Results vary from one practitioner to the next. For example, I found that 43% of the letters I wrote back in 2016 lead to a 71(3) being issued. Most of the work I did was in the H (Electricity) and G (Physics) technical categories, so my results are negatively skewed by technology. 

 I would therefore strongly advise right holders to monitoring the effectiveness of letters to the EPO as it is a key performance metric in assessing performance of your European Patent Attorney. 

To measure the effectiveness of a response, simply record how the Examiner reacts to the response. The Examiner can react by approving the application for grant, raising further objections, or in the case of a summons to a hearing. If you keep a record of this information you can see what effect your attorney’s letters are having on progressing an application to grant. 

To attorneys the advice is that, although there is no doubt that post grant issues are more interesting and have a far higher profile than mere bread and butter per-grant prosecution, if a patent never gets granted it can never be used. So, never forget your bread and butter work – it’s more visible that it has ever been before.

[1] i.e. amendments before examination (e.g. Rule 161 EPC responses) and examination responses

The Munroe doctrine on destroying novelty

Us patent attorneys are always a little bit nervous about doing google (or bing) search to see if an idea is novel - have we, on doing the search, disclosed the idea to the company that owns the search engine? This is only a problem in theory and I have no knowledge of such a search causing a problem. But I recently came across a new angle on this via Randall Munroe’s excellent xkcd web comic and now I’m even more scared - if you do a google search for something in a small village, could you inadvertently destroy the novelty of an idea through ‘leaking’ the idea to another user in the village via their browser’s predictive text assuming that because they are geographically close to you they want to search for something similar? Best be safe and use a search engine that doesn’t track you (I’m using DuckDuckGo).

Willem Einthoven's patent

Have you seen today’s @GoogleDoodles? It’s in honour of Willem Einthoven who improved ECGs and received the Nobel Prize in medicine for it. Today would have been his 159th birthday. The fun bit for me is that Willem also filed a patent - given that a improvements to an ECG made it much better at detecting faint signals and did so responsively, he thought it might improve wireless radios. It didn’t. Not all inventions are created equal…

Who is the best patent attorney?

I think I am. However, I fear I’m not alone in that belief. In fact every European patent attorney I have worked with thinks that they are the best - there are excellent patent attorneys in Ireland and each of them have good reasons for thinking this. I’d be disappointed if they didn’t.

But, and this has always bugged me, how do we measure how good a patent attorney is? Even worse (to quote Lord Kelvin) “if you can not measure it, you can not improve it”. So with no way of objectively measuring how I was serving my clients, there was no way I could find to improve my service to them. Indeed, this question is one of the reasons I set up Inventorship - to use objective measurements to improve performance.

So I’m delighted to have taken my first small baby step in public to this end - from now on each email I send has feedback buttons, to make it easier to get feedback on how I’m doing. I want you to have a better experience with us than you would with any other patent firm, and our unique bonus system is based on your feedback - so we’re motivated to give you the best possible service.

And, like a proud parent, I want to show off my new baby - click here to send me an email so I can reply :-)

Why collect Intellectual Property?

Nine year ago in Ireland, a railway viaduct over Malahide Estuary collapsed. Thankfully, no one was hurt, but it was a close run thing. On evening of August 21, 2009 as a train was crossing the viaduct, the train driver noticed that something had fallen off the bridge. After crossing and setting up a warning to prevent other trains from crossing the viaduct, the train driver walked back along the track. He discovered to his horror that the bridge he had just passed over had collapsed. The foundations of one of the pillars supporting the viaduct had been scoured away.

As is often usual with human error, there were multiple mistakes and missed opportunities that lead to a rush hour train going over a (very) unsafe viaduct. For example - the foundations of viaduct were susceptible to scour and (even worse) former employees of the rail company knew this. An excellent article by Sean Brady in Engineers Journal sets this out well:   

http://www.engineersjournal.ie/2018/05/15/lessons-malahide-viaduct-collapse/

The IP angle is close to the end - 'By 2009, it appears that the knowledge and information relating to the scour susceptibility of the Malahide Viaduct resided in the heads of a number of individuals who had left the division, rather than in a formal system that was accessible to the engineers responsible for the structure.'

Which finally brings us to the lesson in all of this - if you don't have a formal system for collecting the useful stuff in the heads of your staff (otherwise known as intellectual property or IP), each nugget of IP generated by an individual will leave in their head when they leave your firm - aside from your firm leaking value, it can also cause catastrophic failures. If you do have a formal system for collecting your staff's IP, it stays with your firm. We can even help you file patents for the good stuff...