Do Heightened Quality Incentives Improve the Quality of Patentability Decisions? An Analysis of Trend Divergences During the Signatory Authority Review Program

This Article analyzes divergences in decisionmaking trends while examiners undergo the Signatory Authority Review Program (the “Program”). The Program is the process by which examiners are promoted to the position of Primary Examiner; it represents a unique period in an examiner’s career during which she is subject to substantially heightened quality incentives. This analysis suggests that examiners may respond to heightened quality incentives by increasing the quality of their patentability decisions, even as they must simultaneously increase quantitative production due to reduced time allotments. Specifically, the authors find that examiners on the Program tend to reduce the rate at which they issue allowances. Whereas previous studies have shown that production incentives tend to bias patentability decisions in favor of allowance,21 this Article finds that heightened quality incentives may tend to mitigate this bias. This analysis further finds that examiners on the Program issue relatively more second action non-final rejections (SANR) and that they provoke fewer applicant appeals. These findings are important insofar as they demonstrate, for the first time, that heightened quality incentives may induce examiners to measurably increase the quality of patentability decisions, even as quantitative productivity requirements are simultaneously increased.

Eric D. Blatt and Lian Huang

AIPLA Quarterly Journal

Spring 2018

External Link