Patent backlogs at USPTO and EPO: Systemic failure vs deliberate delays

Abstract

This paper first describes the so-called patent backlogs and assesses the extent to which they might affect the examination process in major patent offices. Second it puts forward that the root causes of these backlogs in Europe and in the US are different. The backlog at the United States Patent and Trademark Office (USPTO) is three times larger than one at the European Patent Office (EPO) and is essentially due to very low fees and a weak rigor of the examination process. The observed long pendency at the EPO is more due to applicants’ strategic filing behaviors that aim at delaying the grant date, as it marks the start of high expenses due to translation requirements and multiple validation or renewal fees. Since the root causes of backlogs diverge between EPO and USPTO, their cure should also be different.