Examiner Characteristics and Patent Office Outcomes

Abstract

In this paper, we show that there are important differences across patentexaminers at the U.S. Patent and Trademark Office (USPTO), and that theserelate to the most important decision made by the USPTO: whether or not togrant a patent. We find that more experienced examiners, and those whosystematically cite less prior art, are more likely to grant patentapplications. These results are not encouraging as a matter of publicpolicy. But they do point to human resource policies as potentiallyimportant levers in patent system reform.

What Is a Patent Worth? Evidence from the U.S. Patent “Lottery”

“…We find that neither the characteristics of the applicant (in columns (1) and (2)) nor the characteristics of the application (in column (3)) predict the leniency of the examiner to whom the application was assigned, consistent with quasi‐random assignment. More experienced and more senior examiners are more lenient, all else equal (column (4)), consistent with previous evidence reported by Lemley and Sampat () and Frakes and Wasserman (), but this correlation does not invalidate our instrument to the extent that more experienced and more senior examiners are assigned applications quasi‐randomly, as our findings in Table suggest…”

“…The precise details of the assignment process vary from art unit to art unit. For example, Lemley and Sampat () report that some art units assign patents based on the last digit of the (randomly assigned) application serial number, while other art units use a “first‐in‐first‐out” rule whereby the application with the earliest filing date is assigned to the first available examiner. Importantly, however, the various assignment mechanisms used by the USPTO are consistent with our identifying assumption that applications are assigned to examiners quasi‐randomly (i.e., randomly with respect to application or applicant quality).…”

Patents and the Success of Venture‐Capital Backed Startups: UsingExaminer Assignment to Estimate Causal Effects

“…As initially suggested by Cockburn, Kortum and Stern [], this can lead to considerable heterogeneity across patent examiners: there may be as many different patent offices as there are patent examiners. One type of patent examiner heterogeneity has been documented in recent work by Lemley and Sampat [] and Frakes and Wasserman []: more senior examiners cite less prior art and are more likely to grant patents…”

“…The validity of this type of instrumental variable strategy rests on whether assignment to examiners is as good as random. While the Unites States Patent and Trademark Office (USPTO) does not disclose how patents are allocated to examiners, studies by Lemley and Sampat [] and Sampat and Williams [] provide qualitative and quantitative evidence suggesting that the assignment of applications to examiners is plausibly exogeneous conditional on application year and technology type (USPTO art unit). Righi and Simcoe [] find no evidence that broader or more important applications are assigned to specific examiners but they show that examiners often specialize in particular technologies even within USPTO art units.…”

The Failed Promise of User Fees: Empirical Evidence from the U.S. Patent and Trademark Office

“…Although very little empirical work has been done focusing on understanding the determinants of PTO decision making, some empirical research has been done exploring the role of examiner heterogeneity in explaining patent‐processing outcomes (Cockburn et al. ; Lemley & Sampat ; Mann ). In one recent Agency‐specific empirical study, Hegde () discusses how the PTO's appropriations process with Congress—including the diversion of funds from the Agency—may leave the PTO subject to a risk that it will have insufficient funds to accommodate the examination of an unanticipated inflow of examinations.…”