30% of Appeal Briefs Result in an Allowance or Reopening of Prosecution

As promised  last week, here is a more detailed breakdown of what happens after an appeal brief, examiner answer, or reply brief.

~15% of appeal briefs yield an allowance and ~15% result in reopening prosecution

In 2017, reply briefs were filed after 80% of examiner answers (a 10 year high)

A reply brief is almost always followed by a board decision

As noted in this post, the dip in 2018 is because most appeal briefs filed in 2018 do not have a decision yet. So far in 2018 there are 27 abandonments vs. 65 decisions. For comparison, 2017 had 47 abandonments and 3428 decisions.

The events in the appeal timeline were pretty consistent across technology centers in 2017

The rates of answer, reopening, and allowance vary significantly among art unit groups

Notes for this chart:

• The clear outlier, 1750, has a very small sample size (it seems 1750 was combined into another art unit because it is not listed on the USPTO website).
• Highest rate of reopening was 24% in 3670 “Wells, Earth Boring/Moving/Working, Excavating, Mining, Harvesters, Bridges, Roads, Petroleum, Closures, Connections, and Hardware.”
• Lowest rate of reopening was 3% in 3690 “Business Methods – Finance/Banking/ Insurance.”
• Highest rate of allowances was 29% in 2110 “Computer Architecture” and 2660 “Digital Cameras; Image Analysis; Applications; pattern Recognition; Color and Compression; Enhancement and Transformation.”
• Lowest rate of allowances was 7% in 1780 “Miscellaneous Articles, Stock Material, Adhesive Composition, Fabrics” and 3750 “Fluid Handling and Dispensing” (ignoring 1660, which is plants).

As with many aspects of prosecution, the response to an appeal brief is highly dependent on the particular examiner

Even within a particular art unit, there is a lot of variability as to what percentage of appeal briefs result in an answer, allowance, or reopening. Use BigPatentData Examiner Statistics to see the stats for your particular examiner. The first table below shows examiners with at least 20 appeal briefs (since 2000) that have answered less than 10% of them. The second table shows examiners with at least 20 appeal briefs that have answered at least 90% of them.

Answered less than 10% of 20+ appeal briefs

Examiner	Ar Unit	Appeal Briefs	Answer Rate
CHERRY, EUNCHA P	2872	21	0
PAN, DANIEL H	2183	28	0
YOHANNES, TESFAY	2441	23	0
PARK, JUNG H	2411	34	2
ANDREWS, LEON T	2411	43	2
HONG, JOHN C	3726	30	3
ZHAO, WEI	2475	55	3
TRUONG, BAO Q	2875	24	4
WANG, BEN C	2192	25	4
SCHILLINGER, ANN M	3774	74	4
SHEHNI, GHAZAL B	2436	24	4
HO, ANDY	2194	48	4
LABAZE, EDWYN	2887	22	4
LAU, TUNG S	2863	87	4
BEKIC, LILYANA	2915	25	4
BLEVINS, JERRY M	2883	42	4
KENDALL, CHUCK O	2192	69	5
MORRIS, PATRICIA L	1625	52	5
TRUONG, CAMQUY	2195	34	5
MARTINEZ, DAVID E	2181	32	6
KIFLE, BRUCK	1624	30	6
BRITT, CYNTHIA H	2117	29	6
DONNELLY, JEROME W	3764	26	7
JEAN, FRANTZ B	2454	28	7
PATEL, CHANDRAHAS B	2464	38	7
NGUYEN, DANNY	2836	27	7
TRINH, MINH N	3729	69	7
WESTBROOK, SUNSURRAYE	3612	25	8
WILLIAMS, ROSS A	3714	68	8
RAYMOND, EDWARD	2857	24	8
NOORI, MASOUD H	2855	23	8
BUI, HANH THI MINH	2192	35	8
CHEN, CATHERYNE	1655	44	9
NGUYEN, DUNG T	2871	55	9
JOHNSON, SONJI N	2887	21	9
HONG, MICHAEL HYUN	2426	21	9
RAHMAN, SABANA	2156	22	9
SEYE, ABDOU K	2194	22	9

Answered at least 90% of 20+ appeal briefs

Examiner	Ar Unit	Appeal Briefs	Answer Rate
BYCER, ERIC J	2173	22	100
NORMAN, SAMICA L	3697	23	100
HOSSAIN, FARZANA E	2482	25	96
CHEN, SHELLEY	3663	26	96
STANCZAK, MATTHEW BRIAN	3711	31	96
TSENG, CHARLES	2613	30	96
BADER, ROBERT N.	2614	21	95
BEEBE, JOSHUA R	3745	24	95
MA, TIZE	2613	43	93
LUBIN, VALERIE	3626	26	92
FLORY, CHRISTOPHER A	3762	53	92
TERRELL, EMILY C	2689	39	92
YOON, KEVIN E	1735	24	91
GOLDBERG, IVAN R	3624	45	91
GOLOBOY, JAMES C	1771	40	90
HARRIS, DOROTHY H	2625	33	90
ENIN OKUT, EDU E	1727	31	90
BARTLEY, KENNETH	3693	41	90
BIRKHIMER, CHRISTOPHER D	2136	21	90
BADAWI, ANGIE M	2172	30	90
MACKALL, LARRY T	2131	22	90
MEINECKE DIAZ, SUSANNA M	3683	72	90
NGUYEN, THU V	2452	22	90
YANG, JAMES J	2683	53	90
TRA, ANH QUAN	2842	31	90
TSVEY, GENNADIY	2648	32	90
SMITH, CHAIM A	1792	30	90
SCHNIREL, ANDREW B	2625	30	90
POTRATZ, DANIEL B	2491	22	90
SADLER, NATHAN	2139	21	90