Academic journal article Texas Law Review

The Idiosyncrasy of Patent Examiners: Effects of Experience and Attrition

Academic journal article Texas Law Review

The Idiosyncrasy of Patent Examiners: Effects of Experience and Attrition

Article excerpt

I. Introduction

In recent years, problems with the U.S. patent system have garnered attention from scholars and policymakers of all types. Concerns about the competitiveness of U.S. industry undergird worries that the Great Recession will linger as long as the 1990s downturn in Japan.1 It is no coincidence that a Congress that has remained at loggerheads on most aspects of economic policy could reach a consensus on the enactment of the Leahy- Smith America Invents Act of 2011,2 by far the most important statutory reform of U.S. patent law since 1995. Yet, despite Congress's long- overdue attention to patent law, it is unlikely that the statute will resolve the troubling quality issues that have dogged the system for years. Prominent critics of the patent system argue that a decades-long decline in the quality of patents undermines the effectiveness of the system.3 Some go so far as to insist that poor-quality patents cause a drag on the competitiveness of the national economy.4 Those concerns are prominently displayed in the Supreme Court's spring 2012 decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc.,5 which emphasized the Court's view that the Federal Circuit has gone so far in liberalizing patent policy as to inhibit the pace of innovation.6

As concerns about systemic failure have come to the fore, attention in recent years increasingly has focused on the role of examiners in this process. If examiners differ from each other in how they approach applications, then they introduce arbitrariness into the process. In that vein, remarking on notable levels of examiner idiosyncrasy, Iain Cockburn, Samuel Kortum, and Scott Stern notably quip that "there may be as many patent offices as patent examiners."7 In a recent paper in the Review of Economics and Statistics, Mark Lemley and Bhaven Sampat follow Cockburn, Kortum, and Stern, arguing that applications examined by those with more experience are more likely to be granted than applications examined by those with less experience.8

At the same time, during the tenure of David Kappos as Director of the Patent and Trademark Office (PTO), the PTO has taken vigorous steps to limit attrition among the examination corps, hoping to improve the quality of examiner work by increasing the tenure of examiners.9 Among a variety of quality-of-life initiatives designed to enhance the attractiveness of the position,10 the PTO has, for the first time, initiated plans to open satellite offices around the country, hoping to improve the attractiveness of long- term PTO employment.11 Plans to open an office in Detroit are well advanced12 and Denver seems not far behind.13 An overwhelming focus of the initiatives has been to decrease the increasingly large backlogs that have plagued the office for years; increasing the pace of examination thus has become a major goal of the PTO administration.14

This Article offers a deeper look at examiner idiosyncrasy. The combination of a hand-collected data set of examiner patent portfolios with the National Bureau of Economic Research (NBER) patent data set and internal PTO data about examiner education facilitates a richer analysis of examiner variation and its causes than anything in the existing literature. Part II describes the existing literature, the background of this project, and the model of the examination process on which the Article builds. Part III summarizes the data collection. Part IV presents the results, and Part V briefly concludes. The Article reaches three important conclusions:

* The existing literature overemphasizes the importance of experience, largely because it fails to consider the importance of attrition and tenure differences among examiners that relate to their total career in the office. The Article documents a substantial relation between the tenure of an examiner and the attributes of the patents approved by the examiner. Thus, from the first months of work, the output of examiners who will stay in the office the longest differs markedly from the output of examiners whose stay in the office will be the shortest. …

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