Office Actions

Although not necessarily any indication of quality, the length of non-final office actions has been increasing over time – shifting from an average of 7.5 pages in 2003 to 10.7 pages in 2009. The chart below – shows that the increase has been relatively steady over the past six years based on a sample of 8400 non-final office actions from patent applications filed 2001–2007. (Page count includes cover page and summary).

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What is the cause of this rise?

89 thoughts on “Office Actions

  1. Then you misunderstood what I said in my earlier post. What I meant was that, in my example, you should object to claim 2 as not further limiting claim 1. When you do this, it is an indicator that you may be able to make a prior art rejection for claim 2 even though you can’t make one for its parent claim 1, because the scope of claim 2 is not narrower than (or the same as) claim 1.

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  2. Hey, 6, could you explain why I’m wrong? Thanks.

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  3. Good answers all, except for the guy that threw in an “objection” into the realm of the “rejectable”.

    I keep getting these claims.

    1. A method of making x.
    2. The product made by the method of claim 1.

    And of course the 2nd one is never allowable because the method in 1 never imparts anything special to the structure.

    Stop filing these types of claims please guys. All it does is make me have to call you before issue and demand the claim’s cancellation based on nothing but common sense/knowledge and your inability to demonstrate any special structural feature to the product given by the method. And of course you always cancel the claim.

    Just give it a rest you know? One less claim for you to type, and one less claim for me to read.

    “If you’re working 10 hours per day, that minimizes your commute to 4 days per week.
    Telework and it’s down to 3 days per week. Hotel, 1 day per week.”

    I don’t think you understand him. He’s saying he comes in every day (5 days a week) for 10 hrs I do believe.

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  4. If you’re working 10 hours per day, that minimizes your commute to 4 days per week.
    Telework and it’s down to 3 days per week. Hotel, 1 day per week.

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  5. To XMNR | Jul 16, 2009 at 10:43 AM:
    If I moved back to where I lived before I came to NOVA, I would be able to afford a four-bedroom house with a pool–without the DC-area locality pay. In NOVA, all I can afford is a basement with the locality pay. I could find a nice house I could afford, but I don’t want hour-each-way commutes when I have to work 10 hours a day to make the numbers. Living in DC is lousy; there’s no getting around it.

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  6. “Can a dependent claim be rejected where the independent claim is allowed?”

    Yes, in cases where the dependent claim should also be objected to under 37 CFR 1.75(c) as not being further limiting.

    1. A method of manufacturing a thingy, comprising attaching a widget to a sprocket.

    2. A method comprising painting red the thingy produced by the method of claim 1.

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  7. “If the PTO were to move to a low cost of living city, wouldn’t the examiners’ salaries be reduced under the “locality pay system”?”

    I understand that this is part of the reason for the 2-days(hours) reporting requirement for hotel-ers. By requiring reporting to the Office, the duty station remains Alexandria and locality pay is not an issue.

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  8. “So guys, let’s take a vote.

    Can a dependent claim be rejected where the independet claim is allowed?”

    Another scenario: A provisional does not support a combination having elements only described in the non-provisional. The effective filing date for the dependent claim, therefore, is later than the independent claim having the earlier date. An intervening reference can be used to reject the dependent claim, but not the independent claim.

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  9. “Can a dependent claim be rejected where the independet [sic] claim is allowed?”

    Sure, if the dependent claim is indefinite. E.g., “2. The method of claim 1 wherein the step of heating the batter further comprises.”

    Were you asking about art rejections?

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  10. Surely there is rise in the page length of non-final office action in last few years. There are several reasons for this, the first and foremost is that there is a lack of expertise in drafting. Secondly, there maybe crucial information missing from a patent application which could be helpful to the authorities and thus this relieves them of the burden of being mechanical during a review of the same application. This may be solved if one approaches professionals to draft one’s non-final office actions. PatentExpress is a site specifically designed for the needs of inventors who wish to draft the responses to their office actions themselves.

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  11. Yes, an element in an independent claim can be in means-plus-function format and the dependent claim can add enough structure to that element so that it is no longer in mpf format and therefore is entitled to a different interpretation.

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  12. “So guys, let’s take a vote.

    Can a dependent claim be rejected where the independet claim is allowed?”

    Yes. If the dependent is a product-by-process claim, there are instances where the independent process claim might be allowed and the dependent product claim is rejected.

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  13. So guys, let’s take a vote.

    Can a dependent claim be rejected where the independet claim is allowed?

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  14. “PTO has recently cut ALL overtime, not to mention rumors flying about possible “furloughs.”

    Everyone (or nearly everyone) is suffering now. My spouse just took a 20% pay cut and an extra 80 commuting miles each day.

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  15. I’m getting 24 page actions that fail to recite specifically half the dependent claims (e.g., maybe 8 of 20 claims specifically treated), and which meander around misunderstanding the art and the law, and are frequently so poorly written in places that no one in the office can figure out what was intended.

    That is to say, S.S.D.D.

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  16. “Primaries start at a base salary of $107854, and they get significant overtime and bonuses.”

    It typically takes about 4-5 year to reach primary status, and in case you haven’t heard, PTO has recently cut ALL overtime, not to mention rumors flying about possible “furloughs.”

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  17. “If the PTO were to move to a low cost of living city, wouldn’t the examiners’ salaries be reduced under the “locality pay system”?”

    No. Presumably, some are already “hotelling” from places like Florida, Texas, etc., although it’s not clear how they’re able to meet the requirement for coming in to the Office twice/biweek. Examiners are on a separate GS pay scale than the “general” federal govt GS scale and it is not tied to locality, so the pay would be the same.

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  18. If the PTO were to move to a low cost of living city, wouldn’t the examiners’ salaries be reduced under the “locality pay system”?

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  19. From: link to patenthawk.com

    “I’m not persuaded on point #3. You say that “Examiners are paid less than engineers and less than patent agents.” Have you seen examiner salaries lately?

    Primaries start at a base salary of $107854, and they get significant overtime and bonuses. Primaries that are Expert Examiners can make up to $173470 with bonuses (3% SAA, $5000 per quarter on FG). SPEs make roughly $140000 to $165000 with bonus, and they don’t even do any real work. On top of all this the market value of a GS-14 or GS-15 examiner’s (with many years of experience) retirement annuity is somewhere on the order of $1.0 to 1.6 million.

    How many engineers or agents are making that kind of money?

    Posted by: Mike at October 29, 2008 7:13 PM

    That said, I left to become an agent. You can’t pay me enough to work for such incompetent fools.

    Posted by: Mike at October 31, 2008 6:31 AM

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  20. “Query — would the PTO be able to attract new quality examiners if it were in a very un-cosmopolitan city like Richmond?”

    LOL

    Have you met many examiners? They’re not exactly a cosmopolitan bunch.

    Nobody fresh out of engineering undergrad takes a patent examining job in order to cultivate their cosmopolitan nature. Nobody.

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  21. Small and medium size cities do not offer the employment opportunities for spouses of examiners.

    I understand the problem. Expensive cities like SF, SD, SJ and LA have similar problems with teachers, fireman and so forth who have difficulty affording housing in good neighborhoods.

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  22. Or move the USPTO to Idaho, Montana, Nevada, Arizona, New Mexico, North Dakota, South Dakota, Nebraska, Wyoming, Oklahoma, Iowa, West Virginia… heck, just somewhere cheaper than DC, I think is the point.

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  23. >>Plus, we’d all have great housing right out in >>midlothian or west end.

    6: you and MM will have to live together in a one room shake with Sponge Bob Square Pants playing continuously on 12 video monitors arranged in a circle around the room with only rice krispy treats to eat.

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  24. Yes, the PTO should be moved to Anacostia.

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  25. Plus, we’d all have great housing right out in midlothian or west end.

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  26. Mary, I know plenty of people just out of school from Richmond. Richmond has produced a good number of new examiners and a good many of them woulda been cool in Richmond.

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  27. If I were the new director, I would make it a priority to try and move the PTO to a place that isn’t so crowed and expensive.

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  28. >>Query — would the PTO be able to attract new >>quality examiners if it were in a very un->>cosmopolitan city like Richmond?

    I would think so. The people who took the jobs would be more interested in buying houses and raising families and might stay with the PTO for a long time. And might take the jobs because they want to be an examiner.

    I think not making enough money to buy a house makes the job not seem very unattractive to a lot of people.

    Plus, the examiners would be respected members of the community.

    I think a city like Richmond would be a very good place for the PTO.

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  29. Query — would the PTO be able to attract new quality examiners if it were in a very un-cosmopolitan city like Richmond?

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  30. Mystified — another good reason for the PTO to print the expiration date on the first page of the patent

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  31. “Also saw another case awhile ago where the maintenance fee was paid after expiration date per terminal disclaimer–but that was just a fee payment, so I guess it might have just been accepted by the office without review.) Do Applicants really want to pay for this kind of work by their attorney/agents??”

    maybe provisional rights under 35 U.S.C. § 154(d) available? or maybe someone wanted something with John Doll’s signature on it to hang on the wall of their lavatory. who knows.

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  32. Hey, examiners–I’m looking at a pending application that just got a restriction requirement this month, but claims priority back to a nonprovisional filed in 1988. Present app was filed in 2006, so term should be over. Not seeing any PTE/PTA apps or other reason why Appt would keep prosecuting. Question is, (why) will the PTO keep issuing actions where term is over? I don’t get it.

    (Also saw another case awhile ago where the maintenance fee was paid after expiration date per terminal disclaimer–but that was just a fee payment, so I guess it might have just been accepted by the office without review.) Do Applicants really want to pay for this kind of work by their attorney/agents??

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  33. NOVA is like no where else in the country. It floats on government money. And is filled with highly educated people. Opportunity is everywhere.

    The problem with the PTO being in NOVA is that it is too expensive for their salaries. If the examiners received a living allowance as the military transfer do, then they would be happy.

    But, the economics aren’t there. The PTO should move to a less expensive city. Maybe Richmond. Somewhere close enough to DC that DC is a day trip, but cheap enough that the PTO examiners would be seen as valuable contributors to the local economy and could purchase nice houses with their salaries.

    As it is, the salaries for examiners is measger ccompared with the cost of living. And being poor anywhere is not fun.

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  34. Mary Prosecutor (paraphrasing): “DC is great . . . blah, blah, blah”

    I think the point here is that it’s all relative – some people love DC, others don’t. The biggest drawback I see is the insane cost of living here, $300,000+ for a townhouse?!. Even on a six-figure salary in DC, you’re not exactly “living it up”, 100K in DC is probably equivalent to 60K/65K for any other mid-size US city after factoring in the cost of living. The same PTO salary (whatever the GS level might be) buys a helluva lot more pretty much anywhere in the US except maybe the places you’ve already mentioned (NYC, SF, etc.) – with the extra money you’re not paying on rent or your 300,000+ townhouse, you could easily travel to NYC (or even DC) several times a year if you need “culture”.

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  35. Anderson: I feel compelled to put in my two cents worth. You say that the DC area is “just a swamp with a bunch of embassies.” While I live on the West Coast now, I spent fifteen or so years in the D.C. area, first in law school and then in private practice. Single for many years and then married. It is an exciting place to live and work and go to school. Plenty to do. Granted the middle of summer can be hot and humid but it can also be hot and humid then in NYC, for example. More culture in DC probably than any other U.S. city except NYC. While public transportation is better in NYC than DC, it is better in DC than in LA, for example. NOVA public schools have a good reputation and so do the public universities/colleges in VA. If you couldn’t find a very wide diversity of restaurants then you probably didn’t leave your apartment very often. There are plenty even within a (long) walk of the PTO. Housing can be expensive in NOVA but it also is in NYC, SF-Silicon Valley, LA, OC and SD. I am sorry that you could not find a way to enjoy your time in DC/NOVA.

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  36. The PTO is the best job I have ever had; but living in NOVA is by far the worst quality of life, and I’ve lived in several metro areas on both coasts before coming here. DC/NOVA is not a cosmopolitan city, just a swamp with a bunch of embassies. I’ve lived in real cosmopolitan cities. Reducing attition is simple: make it 2/3 of what it is now across all GS levels. This will hurt pendency in the short term, but it will lead to more people staying and making it to primary. This will reduce the burdens on primaries, since they wouldn’t have to waste time by training a junior who won’t stick around/get retained. It would eventually result in most examiners being primaries who can handle higher production. I believe this would reduce pendency in the long run, but as W. Edwards Demings said, too often the urgent outweighs the truly important. It is my understanding that when the current production/workflow system was put in place in the 1970s, fully successful was 70%, and it is now 95%. Just go back to 70%, and people will stick around; at least it would remove the excuse of wanting to get off production. Someone who couldn’t handle 70% probably shouldn’t be here anyway. It will also reduce the incentive to become a SPE/SPRE/QAS/agent/attorney and get off production. Too many people, including very good ones, are trying to figure out how to get off the treadmill–I view that as a clear sign something needs to be changed.

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  37. In my area, 20 pages is typical, with 30 happening often. 40-60 pages is not unheard of.

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  38. My average length of rejection for an independent claim is 3-4 pages. It’s because of a) the relatively long length of independent claims; and b) it’s more reasonable for me to reject it with 4 references I can easily find in 10 minutes than with 2 references it would take me 6 hours to find.

    So you end up with… A teaches 1; A doesn’t teach 2, 3 ,4, 5, 6, 7, 8; B teaches 2, 3; A/B doesn’t teach 4, 5, 6, 7, 8; C teaches 4, 5; A/B/C doesn’t teach 6, 7, 8; D teaches 6, 7, 8; And a thorough paragraph of obviousness rationale inserted therebetween for each additional ref.

    Whereas the same rejection with 2 refs would a quarter the length.

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  39. “why do I get such lousy rejections?”
    Garbage in, garbage out. Try taking more time to write a good spec and claims.

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  40. “seriously, do you really want short office actions that ignore claim elements and also ignore entire sets of dependent claims?

    I didn’t realize that addressing every element of every claim results in a lousy office action.”

    Young examiner-jedi, you have yet to learn that, much like a delta-blues singer’s big-legged woman, patent attorneys just can’t be satisfied. Give in to the dark side… REJECT the light side…

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  41. “but those experienced examiners who are hotelers are not available to closely mentor the newbie examiners and to conduct personal interviews with applicants.

    (there are many places a lot worse than Northern Virginia to live)”

    Interviews can be conducted via telephone, and there are a lot better places to live than “NOVA” too.

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  42. but those experienced examiners who are hotelers are not available to closely mentor the newbie examiners and to conduct personal interviews with applicants.

    (there are many places a lot worse than Northern Virginia to live)

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  43. “Maybe eliminate the stoodpid reporting requirement for hotelers and expand the hotelling program nationwide – i.e. outside the over-priced and over-rated s-hole that is Northern Virginia.”

    My bud is going to hotel and he is buying a place in PA near DE. My other already hotelin bud is buying a place in VE. He’s lookin at some long commutes imo.

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  44. “What should the PTO due to remedy the retention problem?

    Any suggestions, examiners?”

    Maybe eliminate the stoodpid reporting requirement for hotelers and expand the hotelling program nationwide – i.e. outside the over-priced and over-rated s-hole that is Northern Virginia.

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  45. seriously, do you really want short office actions that ignore claim elements and also ignore entire sets of dependent claims?

    I didn’t realize that addressing every element of every claim results in a lousy office action.

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  46. In case anyone missed my point, I think it would be useful to compare Final Office actions issued in 2009 with those form 2003 to see if they literally contain the same text, plus a little more. I think it likely that a lot of the Finals in the sample are just the same cut and paste rejections of previous Finals in the sample.

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  47. The examiner is writing a longer and more detailed explanation in later non-final office actions due to the increasing likelihood of appeal.

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  48. The first thing I thought was that the increased number of second and third Final office actions has led to more cut and paste from previous office actions, with a little more added each time.

    I see I am not alone.

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  49. Gideon Pope: I call that the “now that I have seen it I like it” rejection.

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  50. Paul writes; “a negative correlation between examiner experience and examination quality.”

    What should the PTO due to remedy the retention problem?

    Any suggestions, examiners?

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  51. Srsly, I have to wonder about those chinese guy’s production reqs.

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  52. You mean the OAs i get from senior examiners are not standard?

    The ones that read,

    “Ref A shows element X and Q in object Y.”
    “Ref B shows element P in object Y.”
    Therefore it would have been obvious to combine A and B to arrive at the claimed invention because an artisan would have wanted to incorporate [some advantage] from Ref A into Ref B.

    ?

    No?

    11 pages long? Some Chinese Examiners write novels.

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  53. “SPEs now require examiners to individually reject each claim rather than group them. An examiner gets away with a little grouping, but not that much anymore. I learned under one of the oldest SPEs in the office and he used to reject applications in a few paragraphs with a broad 1-20 grouping, etc. Some mechanical still do, due to their insane production requirements.”

    I do that, but some AU’s don’t allow it as much.

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  54. See the PTO quality study “Examiner Characteristics and the Patent Grant Rate” by Professors Mark Lemley and Bhaven Sampat, published around February of this year, which [sadly] confirms [in their view] the above comments about a negative correlation between examiner experience and examination quality.

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  55. As to the comments about junior examiners, on average, having longer office actions and senior examiners, on average, having shorter actions, I agree 100%.

    The worse Office Actions I see are from primary examiners. They cite a paragraph or two, ignore whole swaths of claim language (and even entire claims), and call it a day.

    The worse actions I have ever seen have come from primaries. At least junior examiners attempt to put in the effort because they know their work will be evaluated. However, a not insubstantial amount of primaries, knowing that they’ve got free reign, abuse their signatory authority.

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  56. To echo earlier comments.

    Cutting and pasting is the major reason — cutting and pasting the claim language is one, but the biggest source of bloat is cutting and pasting from the cited references.

    Many examiners will cite to a reference, e.g., C2, L30-58 and then reproduce that entire cited passage — very easy to puff up the length of an Office Action that way.

    You can take a 8 line claim, reproduce the claim language and then reproduce the entire cited passage and get 2-3 wholes pages worth of Office Action — while all the time not including a single word of original analysis.

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  57. It is interesting to see the comments. Years ago, this was reviewed by the Office and OA length is inversely proportional to experience. Junior examiners write more to see what might stick and hope that they don’t miss anything. Primary Ex’s whittle it down to what they need for negotiation. Some length increase is due to QR, but this is a blip. Production requires brevity, so increased length reflects lack of examiner experience.

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  58. I also agree concerning the cutting and pasting. Sometimes you can tell that they have not even correctly altered the paragraph for each instance where they have copied it and sometimes the paragraph really doesn’t apply as written.

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  59. I would have to agree with others’ comments about seeing more cutting and pasting in Office Actions, particularly of entire pages and paragraphs repeated verbatim from earlier Actions. Sometimes these excerpts are indented as block quotes and clearly indicate that they are a wholesale repeat of earlier text, and sometimes they are not. Maybe using one of those famous plagiarism-detecting software programs on a series of Office Actions would shed some light on this issue (not to suggest that this type of thing is plagiarism, just that some kind of similar software might help identify patterns of repeated text).

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  60. I applaud Ken Brooks’ suggestion.

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  61. In my experience there has been a large increase of the use of what I would call ‘boilerplate rejections’. These normally run to a couple of pages and appear verbatum in each office action I recieve in the chemical area. These seem to have increased the length of office actions I receive.

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  62. It’s because of the mass hiring since 2003 (~1200 new hires per year for the last three years). Junior examiners are required to write a lot more details into their actions, addressing each claim individually and using a lot more boiler plate when applying statutes, so that their SPEs or primary examiners have an easier time of reviewing them. Primary Examiners, who sign their own actions without SPE approval, are much more succinct.

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  63. I believe the length in Office Actions are directly related to the implementation of computerized text editors. In the old days, these Office actions were typed. Now there is cut and paste. I think a more interesting approach would be to undertake an analysis of the Office actions and determine the ratio between text originated by the examiner and text copied from some other source. This will provide a more meaningful statistics, as opposed to length. In short, information is interesting, however, today saying one can obtain information is like being at the beach and saying “Hey! Look! I brought some sand.” Information is nice, but it is knowledge that counts. Please do not confuse the two. By undertaking the aforementioned anaylsis we can start to determine the comparative knowledge contained in Office actions over the years. For this is a true measure of an Examiner’s worth. What knowledge do they impart in an office action?
    Respectfully,
    Ken Brooks

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  64. The near elimination of the short 2 page 102 rejections has boosted the overall average, together with a lot more copy and paste of form paragraphs. The better correlation to draw would be length of action to examiner experience.

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  65. Correlating “quality” with number of pages of an Office Action seems almost on par with correlating “quality” with percent of rejections.

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  66. if an office action is too short, the Examiner is making “conclusory statements,” which of course is wrong.

    if an office action is too long, the Examiner is trying to defend a ridiculous position, which of course is wrong.

    so basically if an Examiner writes a rejection, he is doing a lousy job.

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  67. The sole purpose of this post was to get people to click the link in their email and explain the obvious (and generate traffic / ad revenue). You don’t think Dennis knows the precise reasons already?

    Yes, I succumbed to his seduction as well…

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  68. One thing that takes more space in more current office actions is, after saying [reference] A teaches.., going on to recite all the text elements of the subject claim [even if not all of them actually taught by that reference]. Older office actions would be more likely to simply say that “Claim 1 is obvious under 103 in view of the combination of A and B”

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  69. “Although not necessarily any indication of quality…”

    should read:

    “Although necessarily not any indication of quality…”

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  70. Informed User has got it right. Mind you, the SPEs aren’t reading the rejection for coherence or validity, but they do seem to be checking for form. There are 20 claims, at the PTO approved font size each claim takes about a half page to paste and follow by a randomly selected parenthetical e.g.: (col 5, lines 10-45; Fig 10 and associated disclosure). That gets you to 10 pages.

    Add to that the inclusion of a page or too of 101 rejection form paragraphs or individualized gibberish invoking a guidance memo or “guidelines” and you’re up to 12 or so.

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  71. indefiniteness rejections used to be fairly short and to the point, and now the entire Wands factor analysis is spelled out in detail. That accounts for a lot if it, seems to me.

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  72. I see lengthy form paragraphs quoting the MPEP(that go on for pages), clips of the cited portions of prior art references (images grabbed from a PDF of the references) and a mention of each dependent claim.

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  73. It’s easy to be brief when you have a strong position. It is the weak or ridiculous position which needs to be thoroughly explained. The same thing is true of appeal briefs. The longer they are, the more likely it is that the claims are unpatentable.

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  74. Any examiner would know why: SPEs now require examiners to individually reject each claim rather than group them. An examiner gets away with a little grouping, but not that much anymore. I learned under one of the oldest SPEs in the office and he used to reject applications in a few paragraphs with a broad 1-20 grouping, etc. Some mechanical still do, due to their insane production requirements.

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  75. It should be but it isn’t. Mgmt (and old timer’s) position on the issue is “write shorter actions dummy” *wink* *wink*.

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  76. Length of the office action certainly is not a good measure of quality. I would imagine that the cause of this increase in number of pages is due to, as said above, an increase in number of claim but also that the examiners appear, to a large extent, cut and paste the claims into the office action with attached reference to column-line or reference numerals.
    What would be interesting to see is what percentage of office action caused applicant to amend the claims or not. I believe this would be some measure of or indicator of the quality. However, whether it measures the quality of the claim writing or the quality of the prior art found would be a matter of debate.

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  77. This is another reason for adjusting the count system?

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  78. There are probably other smaller reasons for this, claim length etc. But I assure you that whole pages being added to the avg needs a much bigger cause than the increase in claim numbers (and probably length as well) that we’ve seen in D’s other studies. It’s mainly because of the patent academy I’ll wager.

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  79. This is simply a result of more newbie examiners writting actions. Primary actions are nearly always much much shorter. All the newbies are taught to write lengthy actions pointing out every limitation for ez viewing (mainly, as I’ve been told, to help stop them from accidentally missing limitations). Soon, these examiners start writing shorter OA’s as the practice is largely unsustainable at higher levels of production.

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  80. Examiners are now trained to write better rejections

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  81. “Would be interesting to compare to the average number of claims per application over the same time period. Correlation?”

    + length of claims. I think you’ll see a very clear correlation.

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  82. As of late, increased section 101 rejections, but from 2007 onward, more verbiage in 103 rejections, perhaps in response to KSR, or more particularly the PTO’s rendition of KSR.

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  83. an increase in form paragraph length, lol.

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  84. Would be interesting to compare to the average number of claims per application over the same time period. Correlation?

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