Turn to the Patent Data
While traditional patent statistics provide valuable information about your patent examiner, such as how many office actions she typically grants or the percentage of applications she has allowed to issue in the past, the best predictor of a patent examiner’s difficulty, by far, is PatentAdvisor ETA™. ETA is a proprietary metric that quantifies an examiner’s difficulty by interpreting several sources of data. Low ETA values are assigned to patent examiners who are fast to issue allowances, while a higher ETA indicates patent examiners who are slow to grant patents. Any patent examiner with an ETA value of six or more is labeled in the most difficult patent examiner class, and is assigned a “red” status to communicate their difficulty to PatentAdvisor™ users.
Consider Your Examiner Amongst His or Her Peers
Being assigned a “red” patent examiner is not the end of the world. In reality, “red” patent examiners can vary greatly from one another and there are several options for dealing with your assigned patent examiner. The first action that should be taken once you have been assigned a patent examiner is to size up your patent examiner’s difficulty against the other patent examiners in the same art unit to help you understand what options are available to improve your situation.
The ETA Distribution™ shows the number of patent examiners of each difficulty level in a specific art unit (green examiners being the easiest, yellow examiners being of moderate difficulty and red examiners being the most difficult). Additionally, the Lottery Map™ shows the likelihood of being assigned to an examiner of each difficulty level. After reviewing both the ETA Distribution and Lottery Map for your examiner’s art unit, if you have been assigned a red patent examiner but were statistically likely to receive a less difficult patent examiner then you may wish to take action to place your application in the hands of a less difficult patent examiner. If your odds of receiving a more applicant-friendly examiner are minimal, it may be time to consider what actions you can take to overcome the examiner you have been assigned.
Take Action Based on the Circumstances
As mentioned, “red” patent examiners can vary greatly from one another. For example, a red patent examiner with a lower ETA value, such as an ETA of 7, is likely to issue less Office actions than a red patent examiner with an ETA of 42. Though each patent examiner is difficult when compared to green or yellow patent examiners, an examiner with an ETA of 7 ETA may be much more receptive to various actions taken by a patent applicant than a patent examiner with an ETA of 42.
In either case, it is important to look back on your assigned patent examiner’s patent statistics to determine what actions are available. Lower ETA patent examiners are often more receptive to holding an interview and may even be likely to grant patent applications after an interview is conducted. High ETA patent examiners may not respond well to interview, and in that case it may be best to save the time and expense involved with holding an interview and to explore other options, such as filing a continuation with substantially modified claims that would cause the application to be assigned to a different art unit altogether. With LexisNexis PatentAdvisor, users have all of the information they need to determine what course of action is best for their patent application, and they are given the insights they need to move their application efficiently through the patent process.
PatentAdvisor, the first-ever data-driven patent strategy tool, provides a systemic approach to crafting an effective prosecution strategy. Understand why certain patent applications take longer than others to reach allowance—then use that knowledge to devise better patent prosecution strategies.