To better understand the impact of interviews on prosecution outcomes, we leveraged Juristat’s industry-leading patent analytics database to examine allowance rates, interview rates, interview timing, and examiner preferences. The analysis revealed some surprising, and sometimes counterintuitive, trends.
The findings were discussed during a recent webinar presented by Senior Vice President of Revenue Francesca Cruz. Cruz was joined by a panel of experts, including Joseph Monaghan (Patent Counsel at Volvo Group), Greg Huffman (Associate General Counsel at Nielsen), and Vincent Shier (Partner at Brown Rudnick), to discuss this data, as well as share insight into the interview policies of top companies and the data-backed strategies they deploy in their own patent practices.
One of the most striking data points revealed in the analysis was the impact of interviews on allowance rates. Looking at non-provisional applications disposed after January 1, 2018, with at least one office action, we found that interviews with USPTO examiners increase allowance rates by as much as 9 percentage points.
This statistic alone highlights the tangible impact that interviews can have on moving an application toward approval. It is important to note that this isn’t an isolated data point—the data we’re seeing here is over time, showing the consistent impact interviews have on allowance rates.
Despite this trend, interviews at the USPTO aren’t as prevalent as one would expect.
An examination of applications disposed since January 1, 2015, with at least one office action, found that only roughly one-third of patent applications have an official interview on record.
Here, you see a steady trend of fewer than 33% of patent applications containing an official interview.
This was the finding that most surprised webinar panelist Greg Huffman from Nielsen. “The one thing in the statistics that stood out to me was that 30% usage rate,” said Huffman. “Out of all applications with at least one office action. There's only 30% that have an interview throughout that patent lifecycle, and it's interesting that it hasn't really changed much over the past 10 years, either.”
Additionally, a live poll conducted during the webinar revealed that attendees aligned with these findings. More than half of the poll respondents said they interview in only about 30% of their cases.
Given the clear benefit to allowance rates, this relatively low adoption rate suggests that many practitioners may be missing out on a valuable opportunity to improve their outcomes.
One may choose not to interview for several reasons, such as associated costs, extra workload, client preferences, data informing you otherwise, or past experience. In the live polling, 43% of respondents cited the last point, past experience, as the main factor they consider when choosing not to interview.
Huffman and the other panelists acknowledged that timeline pressure is a considerable factor when deciding whether to interview. Our analysis shows that knowing when to conduct interviews can significantly improve your prosecution strategy.
Not only can interviews improve allowance rates overall, but the specific timing of the interview can prove even more beneficial.
Our analysis shows that interviews conducted earlier in the prosecution process—specifically within the first two office actions—have a more significant impact on allowance rates than those conducted later.
Here, we see that allowance rates for applications with interviews bested those without at each stage of prosecution, most notably early in prosecution.
For applications disposed after one office action and including an interview, the allowance rate is 97%. The allowance rate without? Just 78%. The trend of a ten or more percentage point spread continues through the fifth office action. After which, the difference begins to shrink.
However, the data also suggests that interviews are more often used as a last resort. The analysis found that applications are more likely to include interviews after four office actions, which, as we saw in the data above, is actually less effective than earlier interviews.
As you can see here, earlier in prosecution, for applications disposed between 0-2 office actions, an interview only occurs in 18% of applications. For those disposed between 2-4 office actions, the prevalence of interviews increases to 33%. For those disposed between 4-6 office actions, interviews become more of the norm, occurring in 52% of applications. The prevalence continues to increase as more office actions are issued.
Despite the proven success of early interviews, it appears that most are still waiting to interview until later in the prosecution timeline. Joseph Monaghan from Volvo warns against not making time for interviews, challenging that “you don’t have time to not do interviews.”
“We see that by having these interviews, you're avoiding future office actions; you're avoiding further work.” Monaghan shared. “Interviewing means putting more effort upfront, but it streamlines everything else that comes after that.”
Monaghan also added that, when evaluating outside counsel performance, if there are cases where they are getting to a fifth or sixth office action, and there haven’t been any interviews, that’s a “huge red flag.”
“My philosophy is [interview] early and often, and I think that we have seen results from implementing that.”
The effectiveness of interviews varies significantly across USPTO art units. Some see dramatic improvements in allowance rates following interviews, while others show only marginal benefits.
For example, in 3749, you have a potential increase in allowance rate of 60 percentage points if you choose to interview. But in 2457, your allowance rates dip by 15 percentage points if there is an interview.
This variability underscores the importance of tailoring your interview strategy to the specific art unit handling your application. The advanced filtering capabilities available in Juristat allow you to tailor your approach based on specific statistics that closely mirror your unique situation.
Another key insight from the data is that the success of interviews can vary significantly depending on the examiner handling the case. Some examiners show a much higher allowance rate following interviews, while others remain relatively unaffected.
This suggests that practitioners should consider examiner-specific tendencies when deciding whether to schedule an interview.
“When you see things like an examiner having a +60% differential between whether or not they're going to allow a case… that was most shocking to me when I saw this data,” Vincent K. Shier from Brown Rudnik shared. “The extreme differences that you can really see from one tech center or art unit to even on an examiner level. Using analytics as a portion of an examination strategy or to help understand the efficiencies is a very powerful tool.”
By analyzing examiner data from Juristat, patent practitioners can make informed decisions about when an interview is likely to yield results and tailor their approach to the specific examiner’s preferences or habits.
(And remember to read our previous analysis of examiners who love (and hate) to interview and subscribe to our newsletter to be alerted of future analyses.)
The key findings from the analysis include:
By understanding the timing, analyzing examiner-specific performance metrics, and approaching interviews with a data-driven strategy, patent practitioners can improve their chances of securing patent allowances and save resources by avoiding prolonged prosecution.
Our expert panelist Vincent K. Shier from Brown Rudnik summed it up nicely: “The interview process is a scalpel versus a sledgehammer.”
Employing an interview at the right time, in front of the right examiner, in the right art unit can make a big difference.
For those looking to dive deeper into the data and learn more about incorporating interviews into their patent prosecution strategy, be sure to watch the full recording of our webinar or schedule a demo today.