According to the statistics of the United States Patent and Trademark Office, the allowance rate of US patent applications can reach 60.3%, calculated by dividing the number of applications allowed by the number of applications disposed in the current fiscal year, including the abandonments for requests for continued examination (RCEs) in the disposals.

The allowance rate seems not low. Upon seeing these statistics, are you slightly tempted to apply for a US patent?

However, let’s not be overly optimistic.

This does not mean that there is such a high probability of allowance for US patent applications submitted directly with domestic priority.

This is because when applicants or their authorized agents handle US patent applications, they often follow the same approach as they would for domestic patents, overlooking the practical differences in patent examination procedures between the two systems. This often results in applicants being relegated to the status of “outsiders” who merely benefit from the high US allowance rate.

Characteristics of US Patent Practice

Stronger Search Efforts in the US Patents Examination

In the US patents examination of novelty and inventive step，when the examiner determines that the distinguishing features are disclosed or taught by the existing technology, it is necessary to have precise search evidence to support the determination. Even for the dependent claims, the examiner will basically compare them one by one and provide detailed examination opinions.

However, in the examination procedures of other countries, there are differences in the actual search efforts compared to the US. When examining dependent claims, the examiner will not provide as detailed opinions as for independent claims, but will comment in a more general manner.

From this perspective, the US examination has stronger search efforts.

Therefore, whether a US patent application is likely to be granted ultimately depends on whether the novelty and inventiveness of the technology to be protected is prominent enough.

More Prominent “Obstacles to Grant” in US Patent Practice

Apart from focusing on novelty and inventive step, applicants must not overlook the impact of issues 112 and 101 on the grant of US patents!

The US is particularly strict in examining these two issues, and even the impact of issues 101 and 112 on the number of grants is no less significant than novelty and inventiveness.

Compared to the US patent examination, there are fewer cases of eligible subject matter, specification support, or clarity issues in the patent examination of other countries.

Therefore, if risk prevention measures for issues 112 and 101 are ignored, even the most substantial US patent application may find it difficult to obtain a grant!

The Necessity of a Shift in Patent Thinking

If you can successfully transition from a domestic patent mindset to a US patent mindset, obtaining a US patent may indeed become easier.

With an understanding of the aforementioned practical differences, by adjusting your approach and preemptively addressing issues 101 and 112, you can not only avoid these problems but also leverage the strong search efforts of the US to make your patent documentation more likely to be technically recognized by US examiners. This transition could transform you from an “outsider” to a “player” with a high allowance rate in the US.

This is due to the fact that, as mentioned earlier, US patent examination requires stricter literature search evidence to support their conclusions of novelty and inventiveness.

In contrast, in the patent examination processes of other countries, issues influenced by examiners’ subjective factors may be more apparent.

As is well known, changing a person’s subjective mindset is much more difficult than arguing objective facts based on evidence.

Similarly, it is undoubtedly more challenging to convince an examiner to change their subjective opinion without any basis compared to pointing out errors in their conclusions by combining reference documents.

Therefore, from this perspective, if the technical solution does indeed have innovation, the stronger search efforts in the US are not necessarily a bad thing.

In the final analysis, is it easy to obtain a US patent? This requires us to look beyond the superficial and delve into the essence.

To obtain a US patent, not only genuine technology is needed, but also the localization of patent thinking is essential. We must consider US patent issues from the perspective of US patent examination practices.