Computer & Communication Industry Association

Patent Prosecution by the Numbers – USPTO v. EPO

January 7 article posted on the Intellectual Asset Management website alerted readers to a shortage of patent attorneys authorized to prosecute patents before the European Patent Office (EPO).  The EPO is an organization that provides streamlined search and examination functions on behalf of the patent offices of the individual member countries.  For example, an applicant seeking patent protection in England, Spain and Germany, may file a single application with the EPO, which will then grant patent protection on behalf of those designated countries.

According to the article, the entire European Union currently has only 9250 licensed patent attorneys authorized to prosecute patents before the EPO.   With a total population of 500 million people, this works out to one patent attorney for every 54,000 people.  By comparison, there are currently over 39,000 people in the United States who may prosecute patents before the U.S. Patent and Trademark Office (9722 patent agents and 29482 patent attorneys).  Taking the U.S. population of just over 307 million into consideration, that’s a ratio of just about one patent professional for every 7,800 people.

Perhaps the short fall in the number of patent attorneys in Europe is not a pressing issue due to a lower number of patents to file at the EPO.  In other words, one potential reason for having nearly one-third less patent attorneys is that the demand for patent applications is simply not as high.  In investigating this hypothesis, we looked at the total number of patent applications filed in the USPTO compared to the EPO.  See Figure Y.  We focused solely on utility patents, choosing not to account for design patents (which are not actively examined by the EPO), and plant patents (which stands on tenuous legal grounds in Europe).

As the figure shows, the USPTO receives a significantly higher number of patent applications compared to that of the EPO.  Over the past ten years, the ratio has wavered slightly, but typically the USPTO receives approximately three times as many applications as the EPO.  So, it’s not surprising to see such a significantly higher number of patent attorneys in the United States.

Due to the unavailability of numbers showing how many patent professionals were present in each corresponding year, we looked at the most current data available to provide a rough estimate of the average number of patent applications filed per patent professional.  In the United States, the over 485,000 applications were filed by 39,000 patent professionals, leading to roughly 12.4 applications each.  By contrast in Europe, over 146,000 applications were filed by 9250 patent attorneys, leading to an average of 15.8 applications filed per attorney.

While the original article’s assertion that Europe’s has a glaring need for patent attorneys does have some merit in light of the large population in the continent, the applications filed at the EPO don’t overwhelming support this.  Certainly, the stats show that European patent attorneys on average are working harder then their American counterparts, but the demand for patent protection in Europe has simply not met the same demands as the United States to justify a call to significantly boost the European patent attorney ranks.

But, one thing that the European patent community could do is beef up the number of patent examiners at the EPO.  While the number of patent applications filed with the EPO has steadily risen since 1999, the number of patent examiners has not.  See Figure X.  Since 2004, the EPO has added only approximately 500 patent examiners to address the growing mountain of applications filed in that office.  In the same time frame, the USPTO has increased its examining corps by nearly 2500!

One of the current criticisms levied at the USPTO, is that there are insufficient numbers of patent examiners to give each patent application the time and attention it needs for a thorough examination.  Generally speaking, this has consequently affected the quality of the applications being issued by the USPTO, and is perhaps one factor attributable to the rise of the patent troll.

The United States has been proactive in hopes of addressing this issue, by increasing the number of patent examiners the USPTO has hired.  While part of the reason for the increase is to stem the attrition caused by departing employees, the increased hiring of new patent examiners also seeks to tackle the backlog of applications piling up at the USPTO.  The number of patent applications filed in the United States has nearly doubled since 1999; a fact that is creeping closer to reality in Europe as well.

Thus, the problem that may potentially plague Europe: a decrease in patent quality leading to patent trolls popping up across the Atlantic; may still be resolved with adequate attention paid to the matter.  More patent examiners, or increased efforts to retain the current and experienced examiners, would go a lot further to improve the patent system in Europe than adding more patent attorneys.