Dr. Tu, associate professor of law at West Virginia University, investigated the prosecution of every US patent issued over the last decade. The results are discussed in Luck/Unluck of the Draw: An Empirical Study of Examiner Allowance Rates an article forthcoming in the Stanford Technology Law Review. It appears that the article which Patently-O cited here has struck a nerve receiving 173 comments in Patently-O as of tonight.
This article supports that the final outcome of a patent application depends on the examiner as much as the applicable law, the merit of the invention, and the skill of the inventor(s) and patent attorney in preparing and prosecuting the application.
In this article, Dr. Tu identifies two populations of examiners that may be harming the USPTO: (1) some senior examiners (e.g., 5+ years in the PTO) that tend to act as a “rubber stamp” by allowing
patents with little review and/or minor or no amendments to the claims; and (2) some junior examiners (e.g., less than 5 years in the PTO) that reject many “good” patent applications.
Dr. Tu notes the USPTO has an incentive system that generates these different populations of examiners.
Copyright © 2012 Robert Moll. All rights reserved.
