5 Best Metrics for Predicting Examiner Behavior

Will an interview lead to an allowance? Should you appeal? Is it time to abandon? How long is too long between filing and the first office action? As an experienced patent professional, you know that predicting examiner behavior is key to finding the shortest path to an allowance, but without the right data, you’re just guessing.

Here are five metrics you can find in Juristat Analytics to help you better understand your examiner, and leverage that for a more successful prosecution.

1. OA to allowance rate

With Juristat’s examiner analytics, you can get an idea of both the time and costs that will go into prosecuting an application.

For instance, if you search for examiner David Parsley in the Juristat app, you’ll see right off the bat you’ve got about a 50/50 chance of an allowance. But digging deeper, into your examiner’s analytics can show you how many OAs it will take to get to an allowance.

In the case of Examiner Parsley, it takes an average of 3.2 office actions to get to an allowed application, based on our latest data.

This provides great insight into whether or not you should proceed or abandon an application that has little likelihood of allowance.

2. End-loading rate

The USPTO has an official term for examiner procrastination - end-loading. With Juristat, you can track examiner procrastination and how the probability of them granting an allowance changes (positively or negatively) at the end of the quarter.

We define an examiner’s end-loading rate as the percentage of i) notices of allowance (NOAs) and ii) adverse office actions completed by the examiner in the last 3 weeks of the quarter minus 3/13ths. (Why 3/13ths? We subtract those because we would expect an examiner who is guilty of zero end-loading to file 3/13ths of their OAs in the last 3 weeks of a 13-week quarter.)

Understanding examiner end-loading behavior can help you make more strategic prosecution decisions, getting you closer to an allowance and, ultimately, saving money for your client. Let’s say, for example, you discover your examiner becomes substantially easier at the end of the quarter, and they have a high allowance rate on interview. Well, it may just be worth picking up the phone to have an interview in the next few weeks.

3. Effect of interview on allowance rate

Sometimes a conversation with an examiner can be productive. Interviews provide an opportunity to discuss the application with its examiner, giving clarity, resolving issues, and ensuring a better understanding of the application for both parties. Attorneys also enjoy the added benefit of observing an examiner’s reaction, creating amendments in real time, and directly responding to areas of confusion. An effective examiner interview can reduce the pendency and associated costs of the application process by eliminating subsequent office action rejections.

Though interviews are a relished opportunity for direct communication with an examiner, the success of the interview still depends on the receptivity of that examiner. An examiner may not react favorably to these interviews, relying instead on their initial understanding to make final judgment.

So is an interview worth your time? Based on this analysis of examiners who love (and hate) to interview, it certainly seems like it. But, if you happen to work with one of our less receptive examiners, an interview could be bad news for your application. By checking the easy-to-understand examiner reports from Juristat, you will quickly know whether an interview is your best path to an allowance.

4. Time between filing and disposition (and other key events)

Knowing the average time it takes your USPTO examiner to take an application from filing to disposition, among other key events, can help your patent strategy on many fronts. 

If your assigned examiner tends towards a lengthy process, that data can help you manage client expectations, and give you a heads-up that you might want to look for ways to expedite the process.

If you’re handling multiple patent applications at a time (and really, who isn’t?), understanding the average time to first office action, disposition, and time between appeals and PTAB decisions and more can help prioritize your workload and allocate resources efficiently. Applications that are expected to move faster may require more immediate attention. Applications that are way past the examiner’s average might be candidates for abandonment. 

5. Effects of a continuation

Understanding the estimated probability that an application will be assigned to a new examiner or a new art unit based on the examiner you have when a continuation is filed can help you make strategic decisions in your prosecution process.

Knowing you may face a new examiner or art unit, you may choose to include more detailed explanations and arguments to educate a new examiner about the case in order to ensure a timely prosecution. If the probability of a new examiner or art unit is high, you can use that data to consider different strategies.

With Juristat’s industry-leading analytics that includes every USPTO examiner, you can predict the behavior of your assigned examiner and overcome even the most difficult prosecution. Want to see how Juristat can protect your strategy from the unknown? Schedule a demo today.