Thursday, November 15, 2018

Should you interview your patent examiner?

We've added new statistics to Patent Bots to help you make better decisions regarding examiner interviews.  For most examiners, their grant rate increases for cases that have interviews over those that don't.  For some examiners, however, their grant rate actually goes down.

Here is an example:

You can see this examiner's grant rate for cases without any interviews, the grant rate for cases with at least one interview, and the benefit from doing an interview (along with the same stats for the art unit and the USPTO).

For this examiner, you are 8% less likely to get a patent if you conduct an interview!  By contrast, the USPTO average is that your chances increase by 15%.

This examiner also seems to avoid doing interviews.  Of the 157 cases before him, only 12 of them have had an interview.  If you have this examiner, you are better off not requesting an interview.

Here is a summary of some other improvements over the previous month:

  • For reference label processing, we process figures in PDF format that include text ( we don't OCR yet)
  • Improvements in our antecedent basis analysis.
  • Better extraction of ref labels so that we don't count things like IP addresses as reference labels.
  • Better handling of multiple dependent claims.

Visualizing Outcome Inconsistency at the USPTO

In an ideal world, your chance of getting a patent allowed is based on the merits of your patent application and independent of the largely random assignment of the patent examiner.  As any patent attorney knows, however, this is not the case.  Some examiners allow patents too easily and others seem predisposed against allowing any patents at all.

This ideal can be described as outcome consistency.  The outcome of a patent application should be largely the same regardless of the assigned patent examiner.  Outcome consistency is needed to ensure fairness.  It is unfair for an applicant to be denied a patent for a worthy invention because it was assigned a hard examiner, and it is unfair to the public for a patent to be granted for an unworthy invention because it was assigned to an easy examiner.  The lack of outcome consistency among patent examiners is a known issue that the USPTO is working on improving, and this article presents visualizations to help diagnose areas for improvement.

The patent application grant rate across the USPTO is 66% (computed as described here).  One would expect that a distribution of examiner grant rates would follow a bell-like curve with (i) the average examiner having a grant rate of 66% and (ii) a reasonably small standard deviation such that most examiners are close to the average.

Here is the actual distribution of examiner grant rates across the USPTO (this is a weighted histogram according to the number of cases handled by an examiner with SPEs excluded):