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Mo’ money, less scrutiny: Why higher-paid examiners grant worse patents

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As people get better at their jobs, it’s logical to assume they’re able to perform their work more efficiently. However, a new study suggests that when it comes to issuing patents, there’s a point at which the higher expectations placed on promoted examiners actually become a detriment.

The study used resources from the National Center for Supercomputing Applications to analyze 1.4 million patent applications against a database of patent examiner records, measuring each examiner’s grant rate as they moved up the USPTO food chain. What the researchers found essentially, according to a University of Illinois News Bureau article highlighting the study, is:

“[A]s 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. In particular, ‘obviousness’ rejections, which are especially time-intensive, decrease.”

Source: Michael D. Frakes and Melissa F. Wasserman / National Bureau of Economic Research

Each step up the payscale results in allocations of 10 to 15 percent less time to review applications. Those at the highest pay level have about half the allocated time as those at the bottom. (Although, more technically challenging areas do warrant more time overall. For example, GS-7 pay-grade examiners assessing artificial intelligence applications are allotted 45.1 hours per patent compared with 19.7 hours for those assessing compound tools applications.)

Source: Michael D. Frakes and Melissa F. Wasserman / National Bureau of Economic Research

The researchers actually analyzed multiple facets of the patent applications they studied, including “the number of prior art references listed in each issued patent that emanate from the examiner rather than the applicant, along with the share of all prior art references attributable to the examiner.” They also conducted nuanced examinations of other factors that might affect grant rates, including the numbers or years examiners spent on the job and greater authority to issue patents without supervisory approval.

The full paper, written by Michael D. Frakes (Northwest University School of Law) and Melissa F. Wasserman (University of Illinois School of Law), is available online as a working paper from the National Bureau of Economic Research.

But the long story, short is this: There’s a certain minimum time it takes to thoroughly review a patent application, no matter how good the examiner is. Drop the allotted time below that threshold, and watch all sorts of should-be invalid patents get granted. And all sorts of seemingly crazy lawsuits follow.

Feature image courtesy of Shutterstock user alexskopje.