How USPTO Examiner Type Affects Patents

May 20, 2020

Originally published on Law360.com

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Michael Sartori, a partner, and Matt Welch, an associate at Baker Botts, LLP used data from LexisNexis PatentAdvisor® to complete an analysis on ten years of examiner data from the eight non-design Tech Centers at the USPTO. The gathered data focused on important milestones in the life cycle of a U.S. patent application. In the article series, the impact of the type of Examiner is explored for each of the milestones through historical trends and counter-intuitive results. Their analysis covered in the first article finds that certain types of examiners at the USPTO allow and examine disproportionately more U.S. patents each year than other types of examiner, resulting in few allowing many patents, and many allowing few patents.

In this second article of the series, the Examiner type is shown to double the effort by an applicant to obtain a patent.  This doubling effect surprisingly appears in a number of the metrics we explored over the time period, including the allowance rate, the average number of Office Actions, pendency, and several other metrics.

The type of examiner can greatly affect the options available to an applicant once a final office action has been sent by the examiner. Results are evident in the response to after-final amendments, the submission of requests under the After Final Consideration Pilot Program 2.0, the filing of requests for continued examination, and the appeals to the Patent Trial and Appeal Board.

This is the final article in a four-part series. The first part discussed the examiner types (so-called green, yellow and red examiners) and their effect on the number of patents issued each year. The second part explored the relationship between the examiner types and the effort required to obtain a patent, and the third part covered how examiner type affects after-final practice. Summing the data over the time period, patents examined by green examiners are litigated eight times more than patents examined by red examiners. Since more patents are issued by green examiners than yellow and red examiners and more by yellow examiners than red examiners as discussed in part one of this series, one might expect more litigated patents to show a similar relationship, which indeed occurred as shown in Figure 1.