How often do you get 5 minutes into an office action and you start thinking “here we go again, another idiot patent examiner that has no clue and is just trying to pad his/her stats!” I bet most of us patent prosecutors have that thought way more than we would like to admit (except, of course, on a rare first action allowance — then the examiner “get’s it” ). The fact of the matter is that most examiners are not idiots, and most are not trying to game the system.
So how can we separate the wheat from the chaff? What metrics could we use to objectively assess a patent examiner? Not only to justify or dispel our initial knee-jerk reactions, but also so that we can tailor our responses to their tendencies and get our clients better patents in a more-efficient manner. In this post and my next I am going to look at some examiner metrics I find useful. I would love to hear others’ suggestions in the comments (good ideas may be incorporated into the next revision of the bigpatentdata examiner metrics tool).
Allowance rate cuts right to the chase: does this examiner allow applications or not. If an examiner’s allowance rate is high relative to her peers, it may be worth an extra response or an interview to get that allowance. If an examiner has a very low allowance rate, perhaps proceeding to appeal sooner will be the better move (BUT, be sure to check out her appeal statistics first). Although there are a number of ways allowance rate can be measured, on bigpatentdata.com it is the number of allowed applications divided by the total number of allowed and abandoned applications. Abandonments for an RCE are not counted as abandonments.
Considering all examiners (both active and inactive) who have examined at least 100 applications filed since 2010 (the most experienced 75% of examiners), the average allowance rate is 71%, and the median allowance rate is 77%. The highest allowance rate seen in the wild is a perfect 100% by examiner Brij B. Shrivastav (154 applications allowed and 0 abandoned across art units 2831, 2858, and 2866):
The lowest possible allowance rate of 0% is also present in the data, with eleven examiners holding that distinction. Among them, Derek Jessen has the most abandonments (68) with no allowances:
Actions per (Final) Disposal
This is the number of actions (here actions include: restrictions, non-final rejections, final rejections, Examiner’s Answers, and Ex-Parte Quayle actions) divided by the number of applications in which the actions were taken. Actions per disposal can tell you a lot about whether an examiner is efficient at getting to an allowance or an abandonment, or if she generates lots of actions that don’t meaningfully advance prosecution. On bigpatentdata.com this is further broken down into actions per allowed application and actions per abandoned application to help assess whether allowances are quick and abandonments drawn out, or visa versa.
The examiner with the fewest actions per disposal (0.21) is Hieu T Vo:
The examiner with the most actions per disposal (4.42) is Peter Ludwig (note also that, on average, an allowance from Mr. Ludwig takes 4.51 actions vs 3.95 for an abandonment):
Relation between Allowance Rate and Actions per Disposal
As suggested by the previous two figures, is a strong negative correlation between allowance rate and actions per disposal. This is shown explicitly in the figure below.
Allowance rate is strongly negatively correlated with actions per allowance (correlation coefficient = -0.75) and moderately negatively correlated with actions per abandonment (correlation coefficient = -0.58). The correlation is stronger for examiners with higher allowance rates and weaker for examiners with lower allowance rates. Whether or not your examiner is one of the outliers can inform how to respond to that examine . For example, if your examiner has a high allowance rate and a relatively high number of actions per allowance, it may be worth filing a response after final or RCE to get that allowance rather than appealing. Conversely, if your examiner has a low allowance rate and relatively low number of actions per allowance, your examiner may be prone to digging in her heels and an appeal may be the better option. Of course, all of this should be considered in conjunction with the Examiner’s appeal statistics, which will be discussed in my next post.