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Just-n-examiner on new count system

By Lawrence B. Ebert, Esq.

The just-n-examiner blog talks about "how" the USPTO is handling the new count system:

For a while, examiners' production will be tracked under both the old and new count systems, with the examiner being graded based on whichever system works to their advantage. My guess is that they'll allow examiners that luxury only until the end of this fiscal year, so we'll have about 7 1/2 months to adapt the conduct of our examination to the new system.

Two comments to the post give some further insight:

**The bigger issue though is how the incentives work after final:

New system
----------
Allowance: 0.5
First RCE: 0.5 + 1.75 for next cycle = 2.25 total
Second RCE: 0.5 + 1.50 for next cycle = 2.00 total
First RCE/Allowance = 4.5
Second RCE/Allowance = 4

Old system
----------
Allowance: 1
First RCE: 1 + 2 for next cycle = 3 total
Second RCE: 1 + 2 for next cycle = 3 total
First RCE/Allowance = 3
Second RCE/Allowance = 3

RCEs are even more advantageous relative to allowances under the new system, even without taking into account the increased flexibility for choosing which RCEs to work on. Examiners are therefore more incentivized to try and squeeze out an RCE.

**Unfortunately, the production system at the USPTO does not encourage complete examination at the onset despite what is written in the MPEP. Consider the amount of time given to examiners at the EPO for the first examination--I've talked to several examiners there and the EPO examiners get well over twice the amount of time to perform that initial search and examination as what a USPTO examiner gets for the same art. Plus, the EPO examiner can end prosecution via oral proceedings if after a certain amount of time, applicant hasn't claimed any allowable subject matter. The USPTO examiners can't just say, it's been three rounds and you still haven't presented any allowable subject matter in the claims, go to the Board. The EPO doesn't have RCEs though, so that balances things out a bit.

Full post as published by IPBiz on January 30, 2010 (boomark / email).