USPTO Examiner Expectancies
By: Michael A. Leonard II
At the USPTO, Examiners receive different amounts of credit time (called “expectancies”) based on their position and the technology that is being examined. Technologies that the USPTO believes to be more complex to examine receive more credit hours per disposal and technologies that are believed to be less complex (such as many simple mechanical inventions) receive fewer credit hours per disposal. Having a brief understanding of the system may help Applicants to understand the time pressures on a given Examiner, and perhaps why many primary Examiners seem to prefer to issue short Office Actions.
The formula is as follows:
expectancy / position factor = actual expectancy per disposal
The expectancy is based on the class of the technology being examined. For instance, class 264 receives 20.1 hours of examining time per disposal. After changes to the USPTO count system announced last year (more on the count system changes may be found Here), the first disposal (first iteration of prosecution, including first Office Action, any additional non-final Actions, final Office Action and disposal, such as RCE, abandonment or allowance) is worth 2 counts. The second iteration following an RCE is worth 1.75 counts and all subsequent iterations following additional RCEs are worth 1.5 counts.
The position factor is based on the pay grade of the Examiner, which increases with position seniority. We have been informed that the position factors are as follows:
To see the effects of the formula, let’s take class 264 as an example and look at a junior Examiner with GS-7 versus a full signatory primary Examiner with GS-14.
For the junior Examiner, the formula is 20.1 hours / 0.7. This means the Examiner initially gets roughly 28.7 hours (14.4 per count) for the first disposal, 25.1 hours (12.5 per count) following a first RCE and 21.5 hours (10.8 per count) following all subsequent RCEs.
For the primary Examiner, the formula is 20.1 hours / 1.35. This means the primary Examiner only receives 14.9 hours (7.5 per count) for the first disposal, 13.1 hours (6.5 per count) following a first RCE and 11.3 hours (5.7 per count) following all subsequent RCEs.
Naturally, it would be expected that anyone working in any position would become more efficient over time. However, from a GS-7 junior Examiner to a full signatory primary, an efficiency gain of 93% is expected.
From the lowest Examiner grade to the highest, the swing is even more extreme. The GS-5 Examiner receives 36.5 hours for the first disposal. However, an expert Examiner only receives 13.4 hours for the first disposal, a 272% increase.
Given a difficult case, it is easy to see how a primary could take more time to prepare a first Action than he or she receives credit for. At times, a primary Examiner’s remarks in an Office Action may be short and/or a prima facie case may not be made against all claims, particularly dependent claims. Given the time pressures on the position, it is easy to see why this may be the case. This gives rise to questions regarding whether some adjustments to the expectancies schedule would be beneficial.