Posts Tagged: "Art Unit"

Are you drunk? No, seriously… are you drinking scotch and whiskey with a side of crack cocaine while you “examine” patent applications? (Heavy emphasis on the quotes.) Do you just mail merge rejection letters from your home? Is that what taxpayers are getting in exchange for your services? Have you even read the patent application? I’m curious. Because you either haven’t read the patent application or are… (I don’t want to say the “R” word) “Special.”

If I were a patent examiner that hadn’t issued patents for years I wouldn’t want anyone to know that either. Similarly, if I were a Supervisory Patent Examiner (SPE) in an Art Unit that routinely only issued patents after a long drawn out appeal process that resulted in the Board overturning the rejections I wouldn’t want the public to know about that either. Sadly, this type of gaming exists at the Patent Office. There are examiners who only rarely issue patents and Art Units that openly tell patent attorneys that they don’t issue patents unless ordered to do so by the Board. Knowing that this happens, which is supported by hard data, makes it impossible to tolerate the anti-patent zealots who routinely opine about just how easy it is to get a software or business method patent issued. Really? You have to be kidding!

Reed Technology and Information Services Inc., a part of the LexisNexis® family and a provider of content management services, announced earlier today that it has joined forces with PatentCore. You may recall that PatentCore is a publisher of online Patent Office analytics, which for the first time has given the patent bar and public a snapshot look at what goes on inside the Patent Office Art Unit by Art Unit and patent examiner by patent examiner.

The biggest myth about patent appeals is that that the examiner usually wins. The Patent Trial and Appeal Board (“Board”) posts that it reverses examiners only one out of every three decisions —33%. That number is accurate, and reflects the percentage of reversals among Board decisions. But another number is more helpful — 75%. That is the rough percentage of reversals among all appeals—not just Board decisions. The difference arises because not all appeals result in a Board decision. In fact, the vast majority of appeals (80%) never reach the Board. The Board’s 33% number has nothing to say about this invisible sea of patent appeals.

In this final installment of my interview with Peggy Focarino, Commissioner for Patents, we discuss the examiner count system, production and Art Units and Patent Examiners that do not issue patents. What can the Office do about rogue Examiners and rogue Art Units? Does the Patent Office even understand this is a problem? Focarino was enormously candid, and it is clear to me that senior management at the USPTO know they have a problem and are working to create fixes.

What these numbers tell you is if your application is in Art Unit 3622 or 3689 you are in for a long wait to obtain a patent. The numbers also show that if you carry the case all the way through appeal there is quite a high success rate for applicants; 66.7% when in Art Unit 3622 and 71.4% when in Art Unit 3689. It is hard to know for sure what is going on in Art Units 3622 and 3689, but one number jumps out at me as particularly alarming. In Art Unit 3689 nearly 4 out of 5 of the applications they allow require the applicant to hop on the appeal track.

Early in my career, I encountered a series of approximately 20 patent applications that were assigned to a small number of different art units. During the time it took to bring the cases to resolution, I kept detailed notes of my experiences prosecuting each case. It eventually occurred to me that the information I’d collected might be useful to other prosecutors working with the same examiners and/or art units. I wondered whether my colleagues, by reviewing my notes and gaining insight from my experiences, might be able to accomplish resolution more effectively and efficiently. However, the subjective and anecdotal nature of my notes limited their practicality. Recognizing that fact, I began to consider strategies for facilitating ways in which practitioners could more effectively share their prosecution experiences with one another.