The United States Patent and Trademark Office is tasked with reading and reviewing patent applications to determine those applications which qualify for patent protection. Each application is reviewed by a specific patent examiner who should apply the standards of patentability in an even, fair, unbiased and consistent manner. This task requires the examiner not only to be internally consistent with the applications she reviews, but consistent with the behavior of other examiners within the same art unit. I find this may not be the case. I find two distinct populations of examiners that may be harming the patent system. The first population may be acting as a “rubber stamp” by allowing patents with little to no review and/or amendments to the claims. In contrast, the second population may be rejecting too many “good” applications that meet the patentability standards. In this article, I argue that the incentive system may play a role in creating these two distinct populations of examiners. Additionally, I propose a holistic pre-grant prosecution history review of both low and high allowance rate examiners to ensure a more consistent application of patentability rules.
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