How Many Patents? — Janet Freilich

Post by Janet Freilich

I often get asked how many U.S. patents exist and are in force. People’s instinct on this varies wildly. So, to celebrate the achievement of a milestone patent number, I wanted to write about the nine millionth U.S. patent, which issued on April 7th, 2015. Dennis Crouch from Patently-O estimates that three million U.S. patents are currently in force, which seems about right to me.

U.S. Patent No. 9,000,000 is titled “Windshield Washer Conditioner” and claims “a system and method of collecting and conditioning rainwater and other moisture, such as dew, from a windshield of a vehicle and utilizing the collected fluid to replenish the fluids in the windshield washer reservoir.” The familiarity and ordinariness of the technology’s application exemplifies the message in John Golden’s recent article that, although we perceive patents as predominantly high-tech,

[t]ens of thousands of patents issue each year in a subset of Industrial Age technology classes that includes, for example, “Animal Husbandry”; “Apparel”; “Baths, Closets, Sinks, and Spittoons”; “Boots, Shoes, and Leggings”; “Cutlery”; and “Metal Working.”

My second thought on hearing about the grant of the nine millionth patent is that the number of patents in force is extremely large, and it drives home the challenges of providing good notice in the patent system. Since there is no easy way to index or search through most patents, it is exceedingly difficult (if not impossible) to know if one is infringing a patent. In some industries, firms simply ignore patents, because it is less expensive to pay damages ex post than to do patent clearance searches ex ante. Larger numbers of patents exacerbate this problem. Christina Mulligan and Timothy Lee provide an excellent description of the problem of patent clearance searches in their article on Scaling the Patent System. One sentence in particular drives the problem home: “In software, for example, patent clearance by all firms would require many times more hours of legal research than all patent lawyers in the United States can bill in a year.”

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