Countless times over the past decade I have received a call from an Examiner eagerly looking to “make a deal” so that she could get a much needed “count” before an internal USPTO deadline. This led me to wonder whether getting a patent is like buying a car? Should we be waiting until the end of the month to haggle?
Is getting a patent like buying a car? Is the end of the month the best time to haggle?
To look into this, I graphed the allowance rate by day of year for allowances between 215 and 2017.
In the graph above you can see a very well-defined biweekly cycle. Its not clear (to me) whether there is an actual count deadline every two weeks or whether this is just an artifact of the way allowances are processed in the USPTO (if anybody knows, please chime in!). In any event, given that the peaks in allowance rate are so frequent (every two weeks) and their amplitudes so consistent, it seems unlikely an examiner would be willing to allow something she otherwise would not just to get an extra count ahead of a particular deadline.
So in terms of ways to get leverage during patent prosecution, trying to game the internal USPTO deadlines seems like a questionable technique — probably best to just take the “let’s make a deal calls” as they come and focus your energy elsewhere.
A much higher-leverage prosecution technique is to tailor your prosecution strategy to your particular examiner and art unit.