Further Evidence That Examiners Can Be Incentivized To Improve Patent Quality

Patent Progress has previously covered the research of Profs. Wasserman and Frakes regarding structural incentives at the USPTO that affect examiner behavior.  A new paper in the AIPLA Quarterly Journal, written by Eric Blatt and Lian Huang (both former examiners), examines another area in which examiner incentives affect behavior—the Signatory Authority Review Program.

Primary Examiners and Signature Authority

Patent examiners fall into a variety of categories, but one major distinction is between junior examiners, who require supervision, and primary examiners, who have the authority to sign off on most decisions without further review.

In order to move from junior examiner to primary examiner, examiners undergo the Signatory Authority Review Program (SARP), a nearly two-year process during which the examiner’s work is subjected to significantly increased review.  In particular, a substantial portion of an examiner’s office actions are reviewed for errors. Completion of each stage of the SARP is tied to having a sufficiently low error rate. If the examiner fails to complete the SARP, they don’t receive signatory authority—nor do they receive the accompanying promotion and salary increase.

Review Produces Higher Quality Decisions

As it turns out, having your work double-checked and a promotion tied to that error checking incentivizes better performance.  Blatt and Huang looked at examiner allowance rates before, during, and after the SARP, confirming both the general increase in allowance rate with seniority that was previously described by Frakes and Wasserman, as well as a specific decrease in allowance during the supervisory review period.

That graphic illustrates that the enhanced quality review which occurs during the SARP produces a 16% dip in allowance rate per action, dropping from approximately 32.5% to around 27.5%, before rebounding when the program ends.  (The graph includes a roughly 200 day filter window, which delays when the decrease shows up and causes the illustrated allowance rate to rise prior to the end of the program.)

More Than Just Increased Review

The increase in examination quality isn’t due purely to the increased review.  Examiner work is reviewed in a number of ways, described in the article. The key difference between SARP and other USPTO quality review programs is that the SARP ties the review outcome to the examiner’s personal incentives in a meaningful way.  

Other USPTO review programs lack this tie and don’t exhibit the same impacts on examination quality.  For example, every examiner receives an annual review of at least four of their decisions by their supervisor.  However, when calculating their error rate, the examiner’s error rate is calculated based on the total number of decisions they issued, not the number reviewed.  Even if every single one of their four reviewed decisions exhibited significant errors, an examiner who works at the average rate of 73 final determinations would be reviewed as exhibiting an error rate under 5.5%—a “commendable” rating.  Because these annual reviews appear to lack any impact on an examiner’s personal incentives, they also appear to lack any impact on examiner behavior.

Reforming Patent Office Incentives

The USPTO has undertaken a number of reforms in the past decade intended to improve patent quality, such as reforms to the “count” system that is used to judge examiner productivity.  The Blatt/Huang research suggests there’s more to be done. Meaningful review, tied to the examiner’s own personal interests, could help ensure that the patents issued by the USPTO are “highly reliable”—a major goal of the USPTO’s draft 2018-2022 Strategic Plan.

Joshua Landau

Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues.  Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.

Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues.  Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan.  Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.

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