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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 the BigPatentData examiner tool 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

ExaminerAr UnitAppeal BriefsAnswer Rate
CHERRY, EUNCHA P2872210
PAN, DANIEL H2183280
YOHANNES, TESFAY2441230
PARK, JUNG H2411342
ANDREWS, LEON T2411432
HONG, JOHN C3726303
ZHAO, WEI2475553
TRUONG, BAO Q2875244
WANG, BEN C2192254
SCHILLINGER, ANN M3774744
SHEHNI, GHAZAL B2436244
HO, ANDY2194484
LABAZE, EDWYN2887224
LAU, TUNG S2863874
BEKIC, LILYANA2915254
BLEVINS, JERRY M2883424
KENDALL, CHUCK O2192695
MORRIS, PATRICIA L1625525
TRUONG, CAMQUY2195345
MARTINEZ, DAVID E2181326
KIFLE, BRUCK1624306
BRITT, CYNTHIA H2117296
DONNELLY, JEROME W3764267
JEAN, FRANTZ B2454287
PATEL, CHANDRAHAS B2464387
NGUYEN, DANNY2836277
TRINH, MINH N3729697
WESTBROOK, SUNSURRAYE3612258
WILLIAMS, ROSS A3714688
RAYMOND, EDWARD2857248
NOORI, MASOUD H2855238
BUI, HANH THI MINH2192358
CHEN, CATHERYNE1655449
NGUYEN, DUNG T2871559
JOHNSON, SONJI N2887219
HONG, MICHAEL HYUN2426219
RAHMAN, SABANA2156229
SEYE, ABDOU K2194229

Answered at least 90% of 20+ appeal briefs

ExaminerAr UnitAppeal BriefsAnswer Rate
BYCER, ERIC J217322100
NORMAN, SAMICA L369723100
HOSSAIN, FARZANA E24822596
CHEN, SHELLEY36632696
STANCZAK, MATTHEW BRIAN37113196
TSENG, CHARLES26133096
BADER, ROBERT N.26142195
BEEBE, JOSHUA R37452495
MA, TIZE26134393
LUBIN, VALERIE36262692
FLORY, CHRISTOPHER A37625392
TERRELL, EMILY C26893992
YOON, KEVIN E17352491
GOLDBERG, IVAN R36244591
GOLOBOY, JAMES C17714090
HARRIS, DOROTHY H26253390
ENIN OKUT, EDU E17273190
BARTLEY, KENNETH36934190
BIRKHIMER, CHRISTOPHER D21362190
BADAWI, ANGIE M21723090
MACKALL, LARRY T21312290
MEINECKE DIAZ, SUSANNA M36837290
NGUYEN, THU V24522290
YANG, JAMES J26835390
TRA, ANH QUAN28423190
TSVEY, GENNADIY26483290
SMITH, CHAIM A17923090
SCHNIREL, ANDREW B26253090
POTRATZ, DANIEL B24912290
SADLER, NATHAN21392190

1 thought on “30% of Appeal Briefs Result in an Allowance or Reopening of Prosecution

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