As of 2022, the United States Patent and Trademark Office (USPTO) reported an overall patent allowance rate of approximately 62%, meaning that about six out of ten patent applications were ultimately granted. You can increase your odds of success by conducting a novelty search before you file. This helps you focus on inventions with a realistic chance of obtaining a patent, saving both time and money.
I typically recommend starting with a free, self-conducted novelty search to get an initial sense of the landscape. Once you’ve done that, hiring a patent attorney to confirm your findings is a smart move.
Allowance Rates Across Technology Centers
Allowance rates vary significantly among different USPTO technology centers:
- Tech Center 2100 (Computer Architecture and Software): Approximately 77%.
- Tech Center 2400 (Networking, Multiplexing, Cable, and Security): About 81%.
- Tech Center 2600 (Communications): Approximately 84%.
- Tech Center 2800 (Semiconductors/Memory, Circuits/Measuring and Testing, Optics/Photocopying, Printing/Measuring and Testing): Around 85%.
- Tech Center 2900 (Design): Notably high at 97%.
- Tech Center 3600 (Transportation, Construction, Electronic Commerce, Agriculture, National Security, and License and Review): Approximately 72%.
- Tech Center 3700 (Mechanical Engineering, Manufacturing, and Medical Devices/Processes): Around 70%.
How is the Allowance Rate Calculated?
The allowance rate measures the percentage of patent applications the USPTO grants relative to the total number of applications reaching a decision stage. Rather than considering all filed applications, it is calculated based on allowed applications over total disposals. Here’s a breakdown:
Allowance Rate = (Number of Allowed Applications) / (Total Disposals)
Where:
- Allowed Applications: The number of applications receiving a Notice of Allowance, indicating approval for a patent grant.
- Total Disposals: The sum of all final actions taken by the USPTO, which includes:
- Allowances: Applications granted a patent.
- Abandonments: Applications abandoned by applicants, often after multiple rejections.
- Other Disposals: Cases that are withdrawn or dismissed.
Using disposals rather than total applications filed ensures that the allowance rate reflects applications where the USPTO has taken a final action. This calculation excludes applications still under examination, offering a clearer view of success rates for completed cases.
Why Not Include All Filed Applications?
Including all filed applications would artificially lower the allowance rate because it would include applications still awaiting examination or decision. This wouldn’t accurately represent the USPTO’s final determinations.
Significant Inflection Points in Allowance Rates
Several key events have influenced USPTO allowance rates over time:
- 2007-2010: Following the KSR v. Teleflex Decision
- In 2007, the Supreme Court’s KSR v. Teleflex decision broadened the standard for obviousness, causing a decline in allowance rates as more applications were rejected on obviousness grounds.
- 2010-2014: Post-Bilski and Alice Decisions
- The Bilski v. Kappos (2010) and Alice Corp. v. CLS Bank (2014) decisions introduced stricter standards for patent eligibility, especially affecting software and business method patents, which led to a decrease in allowance rates in technology centers focused on these areas.
- 2019: Revised Patent Subject Matter Eligibility Guidance
- In 2019, the USPTO released revised guidelines clarifying the Alice/Mayo framework. This led to increased allowance rates, especially in technology centers previously challenged by eligibility issues.
Attorney Allowance Rate: A Misleading Metric
A common question from new clients is, “What percentage of your applications get allowed?” However, this question may not fully reflect an attorney’s effectiveness because allowance rates can be influenced by how narrowly claims are drafted. To boost allowance rates, an attorney could draft narrower claims that are more likely to avoid rejections but offer limited protection.
If an attorney emphasizes a high allowance rate, it’s important to ask whether the claims are broad or narrow. A more insightful question is, “What is your claiming strategy—broad or narrow?” There are pros and cons for each. That would be the correct answer. No one size fits all strategy exists. It truly depends on the goals of the inventor or startup. If the attorney says that there is only one strategy – going broad all the time, then you know that this attorney’s experience is limited. There’s no single correct answer, but this question can help you filter out the good from the bad.