After the patent examiner issues a decision (an ‘office action’) on a patent application, the applicant has the right to an ‘interview’ with the examiner. The interview can be in person, by video or by telephone. During Covid-19, in-person interviews are out, but video and telephone interviews are available. In the interview, the applicant can speak directly with the examiner, show the examiner models and documents, introduce the inventor(s), explain proposed amendments, explain prior art, hear the objections and positions of the examiner, and discuss resolution of patent claim rejections or objections.
The most important function of an interview is to educate the examiner about the invention and to clear up any misunderstandings about either the invention or the position of the examiner. The interview also is the applicant’s opportunity to look the patent examiner in the eye and to negotiate directly with the examiner. I believe that interviews are valuable to allow the examiner to meet the inventor(s), so that the examiner perceives the inventor(s) as a human being rather than as a name on a page.
I find examiner interviews to be very useful in reaching a resolution on questions of patentability and in mutually convincing both the examiner and the applicant that a patent should issue and what the scope of that issued patent should be.
The USPTO’s Director, Andrei Iancu, discussed examiner interviews in his blog on December 23, 2020. Director Iancu noted:
Interviews can lead to a better understanding of an applicant’s invention, bridge gaps between the examiner and applicant, and serve as an effective mechanism for facilitating agreement and furthering prosecution. Recent data shows that applications with at least one interview had an allowance rate 10% higher than those with no interview, demonstrating that interviews are an effective tool to place claims in a condition for allowance. This statistic is especially meaningful, as interviews most commonly occur when rejections or objections are pending and the path to allowability is not immediately clear. (Emphasis supplied).
10% higher allowance rate with an interview. That’s huge. Overall, the USPTO allowance rate is about 65%, which includes both patents issued with an interview and patents issued without an interview.
In sum, it’s official – examiner interviews are effective. Will an interview result in an issued patent in every circumstance? Of course not – but where an examiner interview is appropriate, it can mean the difference between receiving an issued patent and losing the applicant’s investment in the patent application and in the invention.
— Robert Yarbrough, Esq.