Patent Statistics in the GAO Report

The GAO just released a report on patent litigation: IP: Assessing Factors That Affect Patent Infringement Litigation Could Help Improve Patent Quality (GAO-13-465).
In this report, the GAO states that “The implication as of now, the year 2013, is that half of all issued patents are software-related, and that the PTO is issuing about 2200 software patents a week.”

Aharonian, in a pointed screed addressing the GOA report, points out that this is inaccurate. He provides a graph of software and non-software electrical patents issued weekly.

As the graph shows, the number of software patents per week (blue line), as of 2012, is about 1100, half of the GAO figure.  Further, little has changed in decades in the relative number of software and non-software electronics patents (red line). So not only are software patents not the majority of issued patents, they are not even the majority of issued Electronics patents. That the two lines much correlate reflects the fact that software is part and parcel of technology, so intimate with the rest of the Electronics arts that software patent numbers fluctuate with economic forces that affect patent filings. He notes that his data is based on a few assumptions on what characterizes a software patent.  

However, the GAO’s assumption is based on a combination of “a number of entire patent classes that PTO economists have said are most likely to include patents with software-related claims, and this includes method patents. For the list of these classes.” (GAO paper, footnote 27).

The problem, of course, is that there are no “exclusively software” classes. So if an entire patent class is counted, it is extremely likely to include non-software cases as well.

Aharonian concludes his screed by offering to provide all of his data to the GAO, if requested. And even offering to release his software and databases to them, to enable them to recreate and verify his numbers. I hope that the GAO takes him up on his offer.