Patent practitioners often approach the patent process as if all patent examiners at the United States Patent and Trademark Office (USPTO) will examine their patent application similarly. In reality, though there are procedural and substantive guidelines that all USPTO patent examiners must abide by, much of patent examination is left up to the interpretation and discretion of the human mind assigned to determine the patentability of your claimed invention. Of course, reasonable minds may differ in opinions, which means that who is examining your patent application can significantly impact the difficulty you will have in obtaining a patent.
Not All Patent Examiners are the Same
When patent prosecution’s human element is considered, we start to understand how the circumstances surrounding patent examination can impact the likelihood of the application being granted. For example, a fairly inexperienced patent examiner may be more hesitant to issue patents because they would rather “play it safe” than grant an overly broad patent. A senior patent examiner, on the other hand, may be quicker to grant a patent because they are confident in their interpretations after spending many years evaluating patentability. Going even further, a patent examiner’s willingness to grant a patent may increase or decrease over time based on the positive or negative experiences they have as a result of their decisions.
The difference among patent examiners becomes even more apparent when we access individual USPTO patent examiner statistics using the patent analytics available in LexisNexis PatentAdvisor®. PatentAdvisor™ users can view examiner analytics for any examiner in the USPTO. These analytics include the examiner’s case load – current and past, appeal statistics, the types of rejections a patent examiner typically issues and the duration of time a patent application spends in patent prosecution when assigned to a particular patent examiner. Zeroing in on examiner statistics provides us with deep insights about each patent examiner. Additionally, the new proprietary metric, PatentAdvisor ETA™, is the single most informative predictor of patent examiner behavior. ETA™ uses a complex algorithm integrating historical and circumstantial data to help us reliably predict the difficulty of a patent examiner.
Not All Art Units are Equal
In addition to the differences between individual patent examiners, the groups of patent examiners, or art units, who specialize in different types of patents vary greatly in their makeup of “easy” to “difficult” examiners. The way in which a patent application is drafted and an invention is presented determines which art unit is assigned to examine a patent application, and therefore, drafting a patent application to increase the chances of it being assigned to a relatively “easy” art unit can improve your patent application’s chances of being approved.
For example, imagine you have invented a substance that can be used as a dye but is also harmless to ingest. Because of its characteristics, you can frame your invention in a few different ways – as “food coloring,” a “food additive,” or, more generally, a “coloring agent.” Below, we see that each framing option is likely to place your patent application in a different art unit with significantly different patent examiner makeup and chances of being assigned to a red, yellow or green examiner.
“Food Coloring”– Most Likely Examined by Art Unit 1780
“Food Additive” – Most Likely Examined by Group Art Unit 371
“Coloring Agent” – Most Likely Examined by Group Art Unit 1760
More importantly, the exclusive ETA Distribution™ allows us to easily see that each of the three related art units have vastly differing numbers of patent examiners who present low, moderate, or high levels of difficulty to patent applicants (shown under “ETA DISTRIBUTION” as being green, yellow or red). Additionally, the exclusive Lottery Map™ illustrates the likelihood of your application being assigned to a green, yellow, or red patent examiner. In our example, framing your invention as a “coloring agent” gives you the greatest chance of being assigned an “easy, or green,” patent examiner (39.5%), while presenting it as a “food coloring” means that you are more likely to receive a “difficult, or red,” patent examiner than one who is considered “moderate” or “easy.”
The patent examiner assigned to your case arguably plays the biggest role in determining your patent application’s fate. The in-depth patent analytics provided by PatentAdvisor provide you with the tools and insight you need to determine the difficulty of an individual patent examiner and to help you determine what actions you need to take to improve your chances of having your patent granted in the most efficient manner.
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