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Text of the page (random words):
ant to understand how the production system at the pto works and when the job is easier or harder for example the first 2 months are very easy if you have the capacity to arrive on time and remain awake during lectures the early months of the academy do not present a high pressure environment the next five or six months are still spent in the academy but you also have some examining time which means that you do actually examine cases and send out office actions however the only things you are really responsible for are a showing up on time for classes and b doing enough first actions to meet whatever minimum percentage of production your trainer expects of you when i looked into taking the job i spoke to examiners who had been there for at least a couple of years a recurring theme was that there is a period in which an examiner must produce enough first actions to meet production while simultaneously responding to amendments for free i e no counts this is actually a point at which many examiners quit because they find themselves working unpaid overtime just to meet production if they meet production at all however at some point an examiner starts getting enough allowances abandonments and requests for continued examination such that only half or a quarter of her counts are coming from first actions on new applications and the job becomes much easier of course if the examiner does not continue doing first actions on new applications the pipeline will dry up and that rough period will have to be endured yet again to get an idea of how this works potential examiners should understand something about how production works at the uspto examiners get one count for a new first action on the merits for an application and for a disposal a disposal can be an abandonment applicant has decided to no longer pursue a patent an allowance the office agrees that the application meets the statutory standards and will be issued as a patent or an rce request for continued examination applicant has decided to pay a fee to continue prosecuting the case after the examiner has sent a final office action examiners also get one count for an examiner s answer if applicant appeals and two counts for a first action allowance every examiner has a certain level of production he must keep in order to be fully successful at his job this is dependent upon what gs level you are as well as what technology you examine technically production is computed based upon balance disposals but it is easier to think about things in terms of counts so i ll explain from that perspective let s take a hypothetical examiner who must do ten counts per biweek if this examiner works five days a week that means he must do one count every day when he first starts working on applications the only counts he can get are from new first actions so our hypothetical examiner must read and understand the specification and claims check that the claims are for statutory subject matter check that the claims are enabled and definite and then search for prior art that would read on the claims as presented after this search the examiner may determine that the claims are patentable convince his supervisor of same and then write up a notice of allowance this would give him two counts more likely the examiner will find art that reads on the claims or some combination of art the examiner believes would be obvious to one of ordinary skill in the art to combine to arrive at the claimed invention or formal issues that require revision before allowance in that case the examiner receives one count an examiner s production may be lowered based on other time he receives for staff meetings lectures etc which lower the total number of examining hours for the two week period and thus reduce the number of counts he is expected to produce proportionately this actually does make a big difference but for simplicity s sake this examiner gets no other time he s cranking out a count per day sending out non final first actions on the merits applicant has three months to respond which may be extended to six months so somewhere between three and six months of examining the examiner starts getting amendments now the examiner has to reply to these and he has to reply to them within two months of receiving them more likely than not he will be receiving just as many amendments back as he sent out first actions he does not get counts for responding to the arguments or amendments from the attorney so at around 8 10 months into the job the examiner if he started out producing at 100 must now do one new action per day plus one amendment depending on how good a job the examiner did on the first action and how confident he is in arguing amendments might take very little time or very long possibly as long as doing a whole new first action depending upon a range of factors for an examiner who was struggling to meet production in the time he had this can be killer now i don t mention this because i want to scare potential examiners or because i want sympathy from attorneys and agents rather this is just one phase of the job that examiners must go through a crucible that tests the will and training of the new examiner some people quit because they can t see the light at the end of the tunnel there is light however as you get better at the job you become better able to recognize allowable subject matter and you get better at presenting your arguments for allowances that means that your response to an amendment suddenly earns you a count i know attorneys hate to hear this but the more final office actions you send out the more abandonments and rces you are likely to receive abandonments give you a single count rces give you a count when applicant sends in the paperwork it is an abandonment count another count when you respond just like a first action and another count when you dispose of the application i don t want to stir the pot on the touchy issue of rces my point is that by the year or year and a half mark examiners should be getting more counts coming in from those responses to amendments that previously seemed like such a strain it s called building up your pipeline i m probably going to do a follow up post on this topic highlighting what can go wrong from an examiner s perspective to disrupt this process for those of you still out there thanks for reading relativity author relativity posted on january 17 2009 leave a comment on rough patches graduation today was our graduation congressman conyers was kind enough to attend and speak at our ceremony as did under secretary dudas and deputy under secretary peterlin congressman conyers was presented with an honorary certificate of completion of the patent training academy i may add some more details to this post later but it isn t as though there was new information conveyed relativity author relativity posted on january 14 2008 21 comments on graduation re who trains whom jpe has an interesting post about how examiners are really trained via the attorneys and agents who respond to our office actions i don t have quite as much to say on the matter as jpe does but i figured i would contribute my little bit of experience to the discussion the first thing i want to address however is jpe s suggestion that the burdens of the production system cause quality to go down i m not sure this is necessarily the case to a large extent it depends on the trainers we initially have and the feedback we get during the training process for some students in the academy this is the most in depth and detailed analysis of their office actions that they will ever receive from a supervisor other trainers really only look for formal matters and leave the training to the attorneys because lectures are addressed to students in all arts we tend to learn the material in the abstract while we were given some exercises specific to our arts we have to learn to apply what we ve learned through writing real office actions so i m not sure that its necessarily the production system per se that makes doing quality work difficult it s trying to figure out how to apply all this stuff to claims and limitations that are quite unlike what we ve seen in lecture in general i would say that students judge the quality of their actions or lack thereof by a few different standards what does your trainer or ta say about it what does the mpep say about it alternatively what did your trainer or ta tell you the mpep says about it did applicant amend substantially or did he just change a few words what is the tone of the response i ll just say a few words about the last one tone some responses are very shall we say firm about the job the examiner has done many new examiners are easily worried by the arguments they receive from attorneys and if the tone is harsh even if complying with rule 3 they question whether or not their actions are reasonable but there s a problem the examiner in training will then take that application to someone else trainer ta primary spe etc who may then tell the examiner that the attorney s arguments are incorrect if the other examiner s analysis seems reasonable the new examiner now feels as though he has been bullied so now he s less likely to respond to that severe tone when he comes across it in the future good examiners welcome good arguments of course it helps us to do our jobs better and sometimes teaches us to never do something the way we did it before unnecessarily combative arguments can often have the reverse of the desired effect i don t mean to imply that such replies are common or predominant they represent a small percentage of the replies i receive and while the right answer is to always treat each application on its merits and to do the most legally correct job possible it is also true that examiners are only human author relativity posted on january 8 2008 4 comments on re who trains whom proficiency we had the proficiency exam today i haven t had any posts in a while mainly because we haven t been having lectures the move to the tc is soon however the week of the 7th and i should have more to report then relativity author relativity posted on december 19 2007 15 comments on proficiency workshop today we had an amendment workshop in which we got some practice materials for those of us who haven t yet responded to amendments author relativity posted on december 6 2007 leave a comment on workshop prepare yourself today we had another mpep preparatory session although this one was more general and aimed at improving our test taking ability overall we went over some questions discussed answers and heard about strategies that would help us locate the answers more quickly when we actually take the proficiency exam the exam is scheduled for late december now before the holiday relativity author relativity posted on december 3 2007 leave a comment on prepare yourself 131 part ii today was part two of our 131 affidavit lectures one of the things that strikes me as incredibly interesting about the lectures on 131s is that it doesn t seem to be straightforward perhaps i should explain when we first started learning about 102 rejections one of the important points that was drilled in was that 102 b is a statutory bar whereas 102 a and e can be overcome by swearing behind the reference submitting an affidavit saying that the invention was actually conceived created before the 102 reference it was a simplified explanation as was necessary to convey the important points to us however i always felt like there was an implied just right before the phrase swearing behind it wasn t until i was reading another forum or blog and someone mentioned that it wasn t in fact so easy to swear behind a reference that i started to wonder if my assumption was incorrect apparently it was towards the end of the lecture today we got some tips on avoiding 131 affidavits why avoid them they cost lots of money for applicant they are non trivial to file our presenter pointed out that when the examiner cites only a 102 e or a reference in the rejection the implication is that the reference is the best art available and that the date is what stands in the way of patentability it would be frustrating to applicant to have them spend lots of money on the 131 only to come back with a 102 b or well reasoned 103 indicating that there was not in fact allowable subject matter thanks for the comments on the last post btw i do appreciate the insights relativity author relativity posted on november 20 2007 2 comments on 131 part ii briefly note lay person explanation below note 2 spam got so bad in the comments that i had to move to new spam blocking software if your comments aren t being posted in a timely fashion send me an email and let me know i ll try to find your comment and unblock it if it s a regular problem i ll try to find another solution we had a lecture on appeal briefs today it was especially interesting in light of the proposed rules package as mentioned on just n examiner s blog to the presenter who asked yes this was the class with the blogger yes i was there today and yes you did a fine job presenting thank you for taking the time out to speak with us i haven t mentioned it in a while but i still do appreciate the work of the speakers who come to talk to us for the most part they are energetic people who seem to enjoy both teaching and the subject matter i think we went into just enough detail for an intro to the topic we covered the periods for reply what is required and optional for an appeal brief and the very basics of the examiner s answer since writing an examiner s answer is going to be so far off into the future for most of us it probably wouldn t make sense to go into to too much more detail than we did today i do have a question about pre appeal briefs for the practitioners out there i see a lot of comments on jpe s site about the cost of appeal briefs only to have examiner s reopen prosecution after the brief has been filed in our class we discussed the pre appeal brief option which seems to allow applicants to provide a very short pre appeal brief which would be reviewed by a panel to see if prosecution should be reopened or if the case should go to the board is this option used do practitioners find it to be effective from my naive perspective it makes me wonder why there s still a problem with examiners reopening prosecution after an appeal brief layperson explanation when an examiner rejects claims twice applicants can appeal to the board of patent appeals and interferences this is applicant s first avenue for judicial relief if applicant feels that the office is not properly rejecting their claims when applicants want to appeal they are required to submit an appeal brief which is very very costly for applicant examiners then must write an examiner s answer in reply to the appeal brief relativity author relativity posted on november 19 2007 5 comments on briefly stop interfering we had two lec...