When patent practitioners first began using patent data to improve their performance in patent prosecution, they would usually look to USPTO patent examiner statistics for insight. The drawback to exclusively relying on patent examiner statistics, however, is that those statistics are typically based on career averages. Although useful to some extent, career averages, such as the average number of office actions an examiner issued for each patent application examined, provide no information as to how an examiner’s decisions have evolved over time, and they sometimes fail to reflect how an examiner might behave in current situations. Additionally, circumstances beyond an examiner’s control, such as when a patent applicant abandons an application, reflect poorly on career averages and make examiners appear more difficult than they actually are. Being human, patent examiners learn and grow with experience, and, as a result, their behaviors also evolve over time. Moreover, it is only fair to size them up based on factors that are within their control.

To help more accurately predict patent examiner behavior based on current situations, LexisNexis® IP developed Examiner ETA™ . Part of the LexisNexis PatentAdvisor® patent prosecution platform, ETA™ is a sophisticated patent metric that takes into account each examiner’s USPTO experience and decision trends to help better predict how each patent examiner will handle their next case. Each patent examiner’s ETA is driven by examiner behavior, and not by patent applicant actions, to help patent practitioners better understand who they are up against. With so many advantages, ETA is shaking up how patent professionals view patent prosecution altogether.

New Perspective #1: Patent Examiner Difficulty

Out with the old ways, and in with the new. USPTO patent examiner allowance rates can provide a solid high-level understanding of examiners’ historical decisions, but ETA cuts straight to predicting an examiner’s next moves. Presented as a straight-forward numerical value on the PatentAdvisor platform, the lower the ETA value, the more favorable an examiner is likely to be. If numbers are not your thing, PatentAdvisor even assigns a color code to help you identify easy (green) examiners, moderate (yellow) examiners, and difficult (red) examiners so you can devise effective approaches for better USPTO outcomes.

New Perspective #2: Prosecution Length

“How long is this going to take?” said the patent client. A patent examiner’s historical prosecution times are, once again, just the average amount of time the examiner spent on every USPTO patent application that came across their desk. As patent examiner’s gain confidence through experience, their prosecution times tend to decrease. Additionally, patent applications that receive fewer office actions and require less interaction with examiners move through the process more quickly. A patent examiner’s ETA takes into account changing experience levels as well as how quickly examiners move through patent applications on their docket. Green ETA examiners are typically on the faster end of the spectrum, while red ETA examiners on the opposite end require more time and attention.

New Perspective #3: Art Unit Favorability

Evaluating your assigned patent examiner is great, but what information can you gather before your patent examiner is revealed? A single patent application could potentially be assigned to any of several USPTO art units, depending on the underlying technology. PatentAdvisor users have access to patent metrics for entire art units, including the proportions of patent examiners in each art unit in terms of green, yellow, and red ETA examiners – this information is presented in PatentAdvisor as a Lottery Map™ . Before you file your patent application, be sure to use PatentAdvisor to determine which potential art units give you the best chance of being assigned to a favorable patent examiner, and then use that information to strategically draft your patent application to improve your chances of being assigned to that art unit.

The answer is right in front of you – PatentAdvisor ETA will help you see it. Based on a proprietary algorithm that takes into account more than just a patent examiner’s past, ETA has emerged as the most predictive patent metric yet, and it continues to shift perspectives towards more effective and efficient patent strategies.

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PatentAdvisor, the first-ever data-driven patent strategy tool, provides a systemic approach to crafting an effective prosecution strategy. Understand why certain patent applications take longer than others to reach allowance—then use that knowledge to devise better patent prosecution strategies.

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