Intellectual Property: Survey of U.S. Patent Examiners (GAO-16-478SP, June 2016), an E-supplement to GAO-16-479 and GAO-16-490

This is an e-supplement to GAO-16-479 and GAO-16-490. It provides the results of closed-ended questions from GAO's web-based survey of a stratified random sample of 3,336 eligible patent examiners at the U.S. Patent and Trademark Office (PTO) as of May 2015. The survey was fielded from August to November 2015, and its questions measured examiners' perceptions of (1) PTO's approach to patent quality, (2) challenges PTO faces in finding relevant prior art (e.g., prior patents, patent applications, or non-patent literature), and (3) how PTO might improve patent quality and its prior art search capabilities. We received responses from 2,669 eligible examiners, for an 80 percent response rate. Appendix I of GAO-16-479 and of GAO-16-490 provide more detail on our methodology.

The survey results can be accessed from the Table of Contents links below. Results are also available for download as a comma-separated values (.csv) file.

We administered the survey to a stratified random sample of patent examiners from across eight of the technology-based subject matter groups, referred to as technology centers, into which PTO examiners are divided. We excluded examiners employed at PTO for less than 1 year and defined nine strata by technology center, with one technology center separated into two strata. Specifically, technology center 3600 (Transportation, Construction, Electronic Commerce, Agriculture, National Security and License and Review) includes a diverse set of technologies, including transportation, construction, agriculture, and business methods. We separated the art units—subunits of a technology center—focused on electronic commerce and business methods (collectively referred to as business methods) in light of recent legislation and court decisions related to business methods.

This e-supplement presents the survey results in aggregate form so that individual examiners cannot be identified by their responses. Because we used a probability procedure based on random selections, our sample is only one of a large number of samples that we might have drawn. Since each sample could have provided different estimates, we quantified the sampling error and express our confidence in the precision of our particular sample's results at a 95 percent confidence interval. We also analyzed nonresponse bias to (1) assess whether any factors were associated with examiners' propensity to respond and (2) allow our analysis of respondents to properly reflect the sampling universe of eligible examiners. To adjust the sampling weight for potential nonresponse bias, we used standard weighting class adjustments based on the sampling strata and the examiners' years of experience at PTO. We present the survey results using the nonresponse adjusted weights, which are generalizable to the eligible population of examiners. To account for the complex sample design, we used survey software in our analyses to produce appropriate estimates and confidence intervals. Summary results for each survey question are provided, along with results by technology center and by the General Schedule (GS) level of the examiners. We selected three categories of GS levels—less than GS-13, GS-13, and greater than GS-13—because examiners at these levels have different responsibilities and authorities when examining patent applications. Specifically, examiners at the GS-14 level or above are generally primary examiners who may accept or reject a patent application without additional review; most examiners below the GS-14 level are junior examiners and must have their actions reviewed by a more senior examiner; and at the GS-13 level, some examiners are in the process of becoming primary examiners.

Responses to open-ended survey questions are generally not included in this e-supplement so that individual examiners cannot be identified by their responses. Additionally, parts of some closed-ended questions in the survey are not included because they cannot be interpreted without their associated open-ended responses. However, the e-supplement does report the results of one open-ended question, survey question 3. This question asked examiners approximately how many hours they spent per patent application on prior art searches in the past quarter, when preparing the original First Action on the Merits, the means by which examiners initially notify applicants about the patentability of their inventions. Examiners provided a variety of open-ended responses. Some respondents chose to provide a range, such as "5 to 10," while others provided a single number for hours spent per application on prior art searches. Some examiners also provided responses that did not clearly indicate the approximate hours per application spent on prior art searches in the past quarter; we excluded those responses. Where possible, we coded responses to reflect a range of numbers by assigning a low and a high value; when a single number was provided, we coded that number as both the low and the high value. A second analyst verified the initial analyst's coding. We checked the sensitivity of results overall, within strata, and within GS level categories. Results were not statistically different when using the low value, midpoint (average between low and high values), or high value of a range. As a result, we present results for question 3 based on the midpoint.

We conducted our work from November 2014 to June 2016 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

A more detailed discussion of our objectives, scope, methodology, and agency comments on the draft reports are contained in our reports entitled Intellectual Property: Patent Office Should Strengthen Search Capabilities and Better Monitor Examiners' Work, GAO-16-479 (Washington, D.C.: June 30, 2016) and Intellectual Property: Patent Office Should Define Quality, Reassess Incentives, and Improve Clarity, GA0-16-490 (Washington, D.C.: June 30, 2016).

Abbreviations

• AFCP 2.0- After Final Consideration Pilot Program
• Alice- Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 134 S. Ct. 2347, 189 L. Ed. 2d 296 (2014).
• CPC- Cooperative Patent Classification
• EAST- Examiner's Automated Search Tool
• eSTAT- examiner statistics
• FAOM- First Action on the Merits
• GS- General Schedule
• IDS- information disclosure statement
• IT- information technology
• IPR- Inter Partes review
• NPL- non-patent literature
• OACS- Office Action Correspondence Subsystem
• PCT- Patent Cooperation Treaty
• PE2E- Patents End-to-End
• PGPubs- pre-grant publications
• PLUS- Patent Linguistic Utility Service
• PTO- U.S. Patent and Trademark Office
• RCE- request for continued examination
• TC- technology center
• WEST- Web-Based Examiner Search Tool

Explanation of groups for survey results

Table of Contents

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