10x Your Patent Allowance Rate
The 10x Strategy
When filing a U.S. patent application, the examiner assigned to your case can significantly influence the outcome of your application. Getting the right examiner—one who understands the nuances of your invention and is fair in their assessments—can be the difference between a swift, successful patent grant and a prolonged, challenging process.
As seen above, this difference can be as large as going from a 5-7% grant rate to a 90+% grant rate, FOR THE SAME INVENTION.
Unfortunately, you can't just choose your examiner. Even worse, once you get your examiner, you're basically stuck with him. That's why it is important to know how your examiner is selected, and use any method you can to influence this process on the front end. It could increase your chances of getting a patent by 10x.
Which Examiner Do I Get?
The examiner you get is randomly selected from the art unit you get (who has the most cases/largest docket). The examiner you get is random, but the art unit you get is chosen by a patent classification examiner.
This means that inherently there is a lot of luck in the process. Luckily, we have a bonus strategy to guarantee you get a high-allowance-rate examiner in our bonus section below. This strategy does involve filing multiple patents, which not everyone can afford to do.
So if you only have one shot, how do you increase your chances of getting a good art unit?
How To Influence Your Art Unit
The art unit you get is based on the primary class, which is assigned to the patent by the patent classification examiner. A patent can have multiple classes, but only one primary class. The primary class alone determines the art unit.
The primary class selection has guidelines which are outlined in the handbook of classification used by patent classification examiners. What is important is that they are always primarily looking at the claims. One claim is selected that most represents the inventive concept. What are they looking for exactly?
Comprehensiveness
The claim that is selected is just whichever is the most comprehensive. This is the first and usually determinative test that is used to select the subject matter that will determine the primary class for your patent application.
Comprehensiveness simply means the most thorough claim is selected. This may mean containing additional steps, or discussing greater extent of subject matter. It does NOT mean more details.
For example, in a claim for glass windows, a more comprehensive claim might indicate that the glass is curved on the edges and thinner in the middle, NOT mere details such as the glass being a hydrocorate glass.
If the examiner cannot determine which claim to select based on comprehensiveness, they will move on to the second test.
Categories of Subject Matter
The categories of subject matter test is a simple test which chooses the claim that is highest in the order below.
i. Process of using the product
ii. Product
iii. Process of making the product
iv. Apparatus to make the product
v. Materials used to make the product
Summary
Filing the most comprehensive claim first, while making sure that first claim is the highest in the categories of subject matter for your claim set is the best way to aim for a specific primary class that fits your invention, and also target your application to the correct art unit.
By filtering the language you use in this claim and the corresponding description, you can effectively alter which art unit your patent goes into, which can drastically alter your allowance rate. From there, you can file continuations and additional claims, which will almost certainly be looked at by the same examiner due to the USPTO's desire for efficiency.
It just makes sense to have the same examiner look at the same applications, and we can use that to our advantage by getting the first set of claims in front of the right person on the first try rather than having to file a bunch of different applications.
However, there is a way to almost guarantee you get your patent in front of the right person.
BONUS: Shotgun Patent Filings
A shotgun patent filing works just like it sounds, by spraying multiple applications at the same time with altering claim language in the hopes one lands in the right art unit.
While not a great strategy in terms of filing fees, the attorney costs are essentially the same, since most of these applications read mostly the same as one another.
Once one goes into the right art unit, you can file continuations and additional claims to get the same high-allowance-rate examiner over and over again.
P.S. Nobody can guarantee you get a high-allowance-rate examiner. However, with the right attorney, even low percentage examiners DO grant patents sometimes.
Make sure to ask your attorney what they are going to do to make sure you get the best chance at a high-allowance-rate examiner, and what they will do to help you out if luck isn't on your side.
Evan Martin
Evan Martin is an intellectual property attorney with a background in electrical engineering. Evan has worked with hundreds of small businesses, medium sized businesses, and large corporations bringing them from an initial idea to a granted patent.
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