Pressed for time, examiners grant more patents

A recent study from the University of Illinois (UI) suggests that time constraints imposed on patent examiners is allowing more "on the margin" patents to be be granted, likely because they receive less scrutiny. This makes sense. If patent examiners are alloted less time, they are unable to reject patents under Section 102 (novel) and especially Section 103 (non-obviousness), which require tedious search for prior art and judgment, as I discussed in another blog post (and in class).

It's no surprise that faster work means poorer results, especially for patents. I mentioned in a previous blog post that during David Kappos's tenure as director of the patent office, the backlog of patent applications decreased but the approval rate for patent applications increased by 20 percent, suggesting that the patent office may have lowered its standards to process the backlog.

Moreover, the study claims that this trend impedes the performance of promoted examiners, who are expected to spend less time reviewing and work faster. Thus, higher-ranking examiners are more lenient at granting patents than are lower-ranking examiners.

From the UI press release:

The researchers found that an examiner’s promotion to each subsequent step-up in pay equated to a 10- to 15-percent decrease in the number of hours allocated to review a patent application...as an examiner is given less time to review an application, they become less inclined to search for prior art, which, in turn, makes it less likely that the examiner makes a prior art-based rejection.

On the plots of examiner rank level and grants, the grant rate consistently increases with increasing rank, from GS-7 (mid-level) to GS-14 (top-level). Likewise, the share of obviousness rejections consistently decrease with increasing rank.

While I suspect that the grant rate increases could be due to another factor, like greater confidence, the consistency with the obviousness rejections is particularly damning. All other things equal, I would assume that an experienced examiner would be more adept at creating a claim to obviousness from prior art, and in fact make more obviousness rejections. Thus, I think that the decrease in obvious rejections is more likely caused by time constraints.

I assume the examiner could change during the application process. Does the study account for patent applications that were originally objected to by one examiner and then accepted after changes by another examiner? Is it possible that the patent office would assign these responses to higher-ranking examiners? If so, the higher-ranking examiner might appear to be more lenient while the persistence of the applicant is the underlying cause. However, I think the patent examiner doesn't change frequently, and assume that the study would have otherwise controlled for it (hopefully).

Regardless, the inconsistency alone between grant rates and obviousness rejections among different examiner levels suggests that patent examination is unfair. If my patent application is assigned to a lower-ranking examiner, according to the study, I will be less likely to be granted a patent than a hypothetical competitor whose patent application is assigned to a high-ranking examiner.