Everyone is going green! And in this case, “going green” has nothing to do with our planet.
Ever since LexisNexis® IP launched PatentAdvisor ETA™, the most predictive patent prosecution metric yet, patent professionals are striving to have their patent applications examined by “green” patent examiners (the color code that represents patent examiners with low Examiner ETA™ values and who are the most likely to grant patents in little time and with less expense). Each USPTO patent examiner’s ETA is a numerical value calculated based on many factors and the overall circumstances surrounding your patent application’s examination. Although the way each ETA is quantified is complex and proprietary, it is important for patent professionals to understand some of the more important considerations for determining examiner difficulty, and why it is beneficial to have their patent applications end up in the hands of a “green” patent examiner.
Patent Examiner Experience
There is a strong correlation between the number of patent applications a patent examiner has reviewed and a patent examiner’s allowance rate. After analyzing USPTO patent data using LexisNexis PatentAdvisor®, we now know that patent examiners who are newer to the USPTO typically grant a smaller number of patents than their more experienced counterparts. This is most likely due to an increase in comfort level and confidence in decision-making that comes with time and experience. Nevertheless, your assigned patent examiner’s experience level is an important factor in predicting the amount of rejections and other obstacles you are likely to face in prosecuting your patent application.
Examiner Prosecution Times
The amount of time a patent application remains pending depends on:
1. The amount of correspondence that is generated by a patent examiner (e.g., issued objections and rejections, RCE filings, etc.)
2. The amount of time a patent applicant takes to respond to their patent examiner’s correspondence (i.e., are they promptly responding or are they taking their time?).
While a patent applicant’s actions are out of a patent examiner’s control, an examiner’s patent prosecution times are often linked to the patent examiner’s overall difficulty level. Patent examiners whose historical patent data show long prosecution times should be approached with caution, and further investigation is needed to determine the reason for the extended prosecution lengths.
Patent Data Trends
A patent examiner’s historical patent statistics can help predict future decisions, but relying solely on a patent examiner’s career statistics can result in unfair bias. Patent examiners evolve over time, and the way they examine patent applications and their views and opinions tend to change. The way a patent examiner approached a problem early in his or her career may be very different than how they approach it now. That is exactly why it is important to pay attention to an examiner’s recent patent data trends as well as their pending portfolio. PatentAdvisor™ is the only tool that factors in an examiner’s pending portfolio. It would be a shame to misjudge a patent examiner’s difficulty based only on his or her past.
Finding the Right Climate for Your Patent Application
The PatentAdvisor patent analytics platform not only provides users with access to patent examiner analytics, patent prosecution analytics and proprietary metrics (such as ETA), PatentAdvisor also helps patent professionals identify the USPTO art units that provide the best chance for being assigned a “green” patent examiner. The exclusive new ETA Distribution™ visual shows users the proportion of “green” patent examiners in each art unit, and the exclusive Lottery Map™ shows users how likely it is that their patent application will be assigned to a “green” patent examiner in that art unit (based on the number of “green” examiner’s and how many patent applications each patent examiner reviews). By using LexisNexis PathWays™ and being able to know the makeup of each art unit prior to filing, patent professionals can strategically draft their patent applications so they are assigned to tech center groups with the best climate and highest chances of being assigned to a “green” patent examiner.