How USPTO Examiner Type Affects Patents: Part 1

Law360 (May 15, 2020, 5:32 PM EDT)

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Patent procurement at the U.S. Patent and Trademark Office is affected by the type of examiner.

We gathered data from the LexisNexis PatentAdvisor database for each year from 2009 to 2019, for examiners in each of eight nondesign Tech Centers at the USPTO. Examiners are categorized into three different types, and the data shows that certain types of examiners allow disproportionately more and examine disproportionately more U.S. patents each year than other types of examiners, resulting in few allowing many, and many allowing few.

The LexisNexis PatentAdvisor patent prosecution analytics database provides a qualitative measurement for each examiner at the USPTO, known as the examiner time allocation. The ETA measurement is a proprietary calculation based on a number of factors for each examiner: allowance rate, all issued patents, all abandoned applications, all pending applications, and years of service with the USPTO.

By considering more than just allowance rate, the ETA measurement is able to take into consideration pending applications and does not penalize examiners for abandonments.

The ETA measurement is a unitless unbounded positive number with values starting at 0.1. Each examiner is placed into one of three categories based on their ETA measurement: green, yellow or red.

Green examiners have an ETA of 0.1 to 2.5, typically grant over 150 U.S. patents per year, and typically examine applications that have a short prosecution length.

Yellow examiners have an ETA of 2.6 to 5.9, typically grant between 15 to 150 patents per year, and typically examine applications that have a medium prosecution length.

Red examiners have an ETA of 6.0 or more, typically grant less than 15 U.S. patents per year, and typically examine applications that have a long prosecution length.

Using the LexisNexis PatentAdvisor database, we gathered the number of green, yellow and red examiners for each of the eight nondesign Tech Centers for years 2009 to 2019. The following Figure 1 illustrates the percentage of green, yellow and red examiners for each year for these eight nondesign Tech Centers, where the total for each year is 100%.

Over the period, the percentages of green and yellow examiners have diverged from approximately 40% each to approximately 35% and 45%, respectively, and have an average of 37% and 44%, respectively. The percentage of red examiners has been relatively constant over these years around 20% and has an average of 19%.

Figure 1: Percentage of Examiners by Examiner Type

figure 1 percentage of examiners by examiner type

Figure 2 illustrates the percentage of U.S. patents that each type of examiner issued over the same time period. As can be seen, the percentage of all U.S. patents that were issued by green examiners is over 50% and is more than those issued by the yellow and red examiners.

Over the time period, although the difference in the percentages of U.S. patents issued by green examiners and yellow examiners has narrowed, the average percentages of U.S. patents issued by green examiners and yellow examiners are approximately 60% and 35%, respectively. In contrast, the percentage of U.S. patents issued by red examiners has remained around 5% over the time period, which is also the average percentage for red examiners for the period.

Figure 2: Percentage of U.S Patents by Examiner Type
figure 2 percentage of US patents by Examiner Type

The metric of a “fair share” percentage for each examiner type is introduced here to quantify the impact of the type of examiner on the number of U.S. patents being issued by that examiner type. The fair share percentage is calculated by determining the difference between the percentage of U.S. patents and the percentage of the examiner type and then dividing this difference by the percentage of the examiner type.

If the fair share percentage is 0%, this indicates that the examiner type is allowing as many patents as there are of that type of examiner and that the examiner type is doing their “fair share” of issuing U.S. patents. If the fair share percentage is greater than 0%, this indicates that the examiner type is allowing more patents than there are of that type of examiner and that the examiner type is doing more than their “fair share” of issuing U.S. patents. If the fair share percentage is less than 0%, this indicates that the examiner type is allowing less patents than there are of that type of examiner and that the examiner type is doing less than their “fair share” of issuing U.S. patents.

Figure 3 illustrates the fair share percentage of U.S. patents that each type of examiner issued over the time period. As can be seen, green examiners have a consistently higher positive fair share percentage of around 60% and also have an average fair share percentage of 60%. In contrast, yellow and red examiners have a consistently lower negative fair share percentage.

While the negative fair share percentage for yellow examiners has increased from -36% to -9% most recently, the average fair share percentage for yellow examiners is -20%. For red examiners, the fair share percentage has ranged between -80% and -70% with an average of ‑75%. As such, the fewer number of green examiners are allowing disproportionately more U.S. patents, and the greater number of yellow and red examiners are allowing disproportionately less U.S. patents.

Figure 3: Fair Share Percentage of U.S Patents by Examiner Type
Figure 3: Fair Share Percentage of U.S Patents by Examiner Type

In addition to considering the U.S. patents issued by each examiner type, the number of annual dispositions (applications patented or abandoned) by each examiner type can also be reviewed. Figure 4 illustrates the percentage of disposed U.S. patent applications by examiner type.

As can be seen, the percentage of all disposed applications by green examiners is more than those by the yellow and red examiners. Over the time period, the percentages of disposed applications by green examiners and yellow examiners has narrowed from around 55% and 35%, respectively, to around 47% and 43%, respectively, while the percentage of disposed applications by red examiners has remained at or below 10% over the time period. For the period, the average percentages of disposed applications for green, yellow and red examiners are 52%, 39%, and 9%, respectively.

Figure 4: Percentage of Disposed U.S. Patent Applications by Examiner Type
Figure 4: Percentage of Disposed U.S. Patent Applications by Examiner Type

Figure 5 illustrates the fair share percentage for disposed U.S. patent applications by examiner type. As can be seen, similar to the fair share percentages from Figure 3, the green examiners again have a consistently higher positive fair share percentage of approximately 40% and an average of 38%. In contrast, yellow and red examiners have a consistently lower negative fair share percentages of around -10% and -50%, respectively, and average fair share percentages of -11% and -51%, respectively, as well.

Compared to the fair share percentages in Figure 3, the fair share percentages of the green examiners are less, and the fair share percentages of yellow and red examiners are higher. This change indicates that the amount of abandonments affects the fair share percentages, but that the green examiners still have a consistently higher throughput of examining applications than the yellow and red examiners.

Figure 5: Fair Share Percentage of Disposed U.S. Patent Applications by Examiner Type
Figure 5: Fair Share Percentage of Disposed U.S. Patent Applications by Examiner Type

Next, using the data collected and described above, the distribution of the examiner types across the eight nondesign Tech Centers is explored. The following Figure 6 lists the eight nondesign Tech Centers of the USPTO and includes the average percentage of all patents that each Tech Center issued over the period from 2009 to 2019 (where the sum is 100%).

Further, for each Tech Center over this period, Figure 6 provides the average number of examiners and the average percentage of all green, yellow and red examiners. In addition, the figure includes the types of inventions that each Tech Center examines.

Figure 6: Eight Nondesign Tech Centers at the USPTO From 2009 to 2019
Figure 6 Eight Nondesign Tech Centers at the USPTO From 2009 to 2019

Figure 7 illustrates the number of examiners across the eight nondesign Tech Centers at the USPTO from 2009 to 2019. Over this time period, Tech Center 2800 had the most examiners and had more than twice as many examiners as Tech Center 1600, which had the least number of examiners.

Figure 7: Examiner Distribution Across Eight Nondesign Tech Centers
Figure 7 Examiner Distribution Across Eight Nondesign Tech Centers

In terms of the patents issued per year from 2009 to 2019, Figure 8 illustrates the percentage of patents issued by each of these eight Tech Centers in each year. As can be seen, the percentages for seven Tech Centers were clustered in the range from 5% to 15% each year, and the percentages for the outlier Tech Center 2800 decreased over the period from 31% to 23%.

Figure 8: Percentage of Patents Per Tech Center
Figure 8: Percentage of Patents Per Tech Center

As to the percentages of green, yellow and red examiners for each Tech Center, five Tech Centers — 1600, 1700, 2100, 2400 and 3700 — exhibit a similar pattern. Figures 9, 10, 11, 12 and 13 below illustrate the percentages of green, yellow and red examiners from 2009 to 2019. As can be seen, each Tech Center has nearly half yellow examiners, and the remaining green and red examiners at around 30% and 20%, respectively, or around even at 25% each.

Figure 9: Percentage of Examiners by Examiner Type for Tech Center 1600
Figure 9: Percentage of Examiners by Examiner Type for Tech Center 1600
Figure 10: Percentage of Examiners by Examiner Type for Tech Center 1700
Figure 10 percentage of examiners by examiner type for tech center 1700
Figure 11: Percentage of Examiners by Examiner Type for Tech Center 2100
Figure 11 Percentage of Examiners by Examiner Type for tech center 2100
Figure 12: Percentage of Examiners by Examiner Type for Tech Center 2400
Figure 12 Percentage of Examiners by Examiner Type for Tech Center 2400
Figure 13: Percentage of Examiners by Examiner Type for Tech Center 3700
Figure 13 Percentage of Examiners by Examiner Type for Tech Center 3700

Figure 14 illustrates the percentages of green, yellow and red examiners for Tech Center 2600. The percentages of green and yellow examiners were the majorities with similar percentages at around 45%, while the percentages of red examiners decreased from 12% to 7%.

Figure 14: Percentage of Examiners by Examiner Type for Tech Center 2600
Figure 14 Percentage of Examiners by Examiner Type for Tech Center 2600

Figure 15 illustrates the percentages of green, yellow and red examiners for Tech Center 2800. For the first five Tech Centers discussed above, the yellow examiners were the majority, and for Tech Center 2600, the green and yellow examiners were the majority. However, for Tech Center 2800, green examiners are the majority and by a considerable amount hovering around 70%.

In addition, referring to Figures 7, 8 and 14, Tech Center 2800 contributes the most to the number of patents issued each year by the USPTO, due to the significant number of green examiners. The percentage of yellow examiners increased over the period from 20% to 27%, and the percentage of red examiners decreased over the period from 7% to 4%. Compared to the others, Tech Center 2800 has the greatest number of green examiners percentagewise and the least number of red examiners percentagewise.

Figure 15: Percentage of Examiners by Examiner Type for Tech Center 2800
Figure 14 Percentage of Examiners by Examiner Type for Tech Center 2600

Figure 16 illustrates the percentages of green, yellow and red examiners for Tech Center 3600. Compared to the prior six Tech Centers, the percentages of the examiner types have been around the same over the period in the range of 29% to 38%. While the number of yellow examiners was greatest for most of the years, the number of red examiners overtook the number of green and yellow examiners in 2018.

Figure 16: Percentage of Examiners by Examiner Type for Tech Center 3600
Figure 16 Percentage of Examiners by Examiner Type for Tech Center 3600

To summarize the distribution of the examiner types across the Tech Centers from 2009 to 2019, green, yellow and red examiners are a significant percentage in each Tech Center. Further, the data shows that the type of examiner is distributed similarly in five Tech Centers: 1600, 1700, 2100, 2400 and 3700. These five Tech Centers have more yellow examiners than green and red examiners, which are either about the same percentagewise or more green examiners than red examiners.

For Tech Center 2600, the number of yellow and green examiners are about the same and are more than the red examiners. For Tech Center 2800, the number of green examiners far exceeds the number of yellow and red examiners. For Tech Center 3600, the number of green, yellow and red examiners are about the same.

In conclusion, patent procurement at the USPTO is affected by the examiner type, which can be categorized as green, yellow and red examiners. For each year from 2009 to 2019, the data shows that the fewer in number green examiners allow disproportionately more U.S. patents and examine disproportionately more U.S. patent applications each year than the more in number yellow and red examiners.

Further, each of the eight nondesign Tech Centers has a significant percentage of each examiner type, but the distribution of the examiner types is not the same over the Tech Centers. As such, these Tech Centers contribute in different disproportionate ways to the issuance of patents and examination of applications by the USPTO.

The effect of the examiner type will be further explored in three more articles. In part two, the amount of effort to prosecute an application is shown to be impacted by the examiner type. In part three, after-final practice based on examiner type is explored. Finally, in part four, the impact of the examiner type is shown to be evident in patent litigation results as well.

Michael Sartori, Ph.D., is a partner and Matt Welch is an associate at Baker Botts LLP.

The authors wish to thank Chris J. Hong, Brendan O’Callaghan and Dr. Linlin Cao at Baker Botts for their assistance in gathering the analytical data.

Law360 is owned by LexisNexis Legal & Professional, a RELX Group company.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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