For the third and final entry in our series of studies on appeals data at the USPTO, we will now take a look at the examiner level, studying all examiners at the USPTO to uncover those who were appealed the most and least.
Appeal success rates vary widely from examiner to examiner, so what we really wanted to find out was which examiners are appealed the most and whether that is influenced at all by the perceived difficulty of getting that examiner overturned on appeal. We assumed that examiners who are appealed the most should have very high appeal success rates for applicants, while those appealed the least should have very low appeal success rates for applicants. At Juristat, we consider an examiner being reversed or affirmed in part a success for an applicant, while an examiner being affirmed is a loss for an applicant.
Below are the top ten most appealed and the top ten least appealed examiners. The examiners are ranked by the percentage of their applications where the applicant responded to at least one office action with a notice of appeal. Please hover over the graphs for more information about each examiner.
For the most appealed examiners, the range of the percentage of appealed applications is wide, ranging from 27.6% on the low end to 40.2% on the high end, a range of 12.6 percentage points. One particularly compelling aspect of the data we found is that half of the top ten most appealed examiners are in tech center 2100, which handles computer architecture, software, and information security. The range of the percentage of appealed applications for the least appealed examiners is much lower, at a range of only 1.2 percentage points. Unlike the most appealed examiners, the least appealed examiners were spread fairly evenly across the USPTO, rather than being concentrated in one technology center.
Using Juristat's Examiner Reports, we then calculated the appeal success rates for the same examiners to test our hypothesis that the most appealed examiners would have high appeal success rates, while the least appealed examiners would have low appeal success rates. We calculate appeal success rates by dividing the number of instances of appeal wins by the total number of instances of appeal wins and losses for a particular examiner. See the graphs below for our findings.
What we found after calculating examiner success rates surprised us. The average appeal success rate for the most appealed examiners is 77.7%, while the average appeal success rate for the least appealed examiners is 75.1%. While this does tend to confirm our original hypothesis, the appeals success rate for the most appealed examiners is only 2.6 percentage points higher than for the least appealed examiners, making the difference rather negligible.
While there are many avenues available for dealing with an adverse examiner decision, with appeals usually being the most expensive and time-consuming, the fact that an examiner is not appealed often does not indicate that appeals from that examiner are usually unsuccessful. What this study indicates to us is that many applicants may be missing out on a successful appeals strategy. Of course, the decision to appeal an examiner's decision is complex and rests on a number of factors. Juristat's Examiner Reports can help give practitioners the peace of mind in knowing that they have chosen the best strategy for their clients.