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- I’m going to do an in-depth study of a couple of art units to see the extent of “cherry-picking” of cases out of their usual order. Any suggestions for which art units should be the focus?
Dennis,
I think that this will be hard to tease out. Part of any “cherry picking” will be due to which cases are assigned by the SPE to a particular examiner. Without knowing the particular composition of a particular Examiner’s docket, you can’t tell whether the case was pulled out of turn or was simply the next case on the docket. This is particularly true for new examiners, who are likely to have newer cases than primaries. I bet that if you compare assistant versus primary examiners, primaries will generally have older cases (and any very new ones are likely cherry picked). However, one confounding factor will be primaries who were out for illness, pregnancy, details, or whose dockets went dry for some other reason. These primaries will probably be doing lots of first actions, and will quickly do any case assigned to them (to make their higher production requirement). They will also appear to be cherry picking.
Consequently, I bet that any differences you see between art units will be based upon differences in the composition of the art units, with art units with more childbearing women and older members will look worse than units with a bunch of young men.
Dennis: You might want to begin your search by looking at the 2-3 weeks right before the end of the PTO’s performance quarters, when examiners are trying to maximize their counts. There’s probably intense temptation to cherry pick around that time. You can probably learn a lot by observing changes in behavior at that time.
I once had a continuation application that had just been filed a month before, and I was leisurely preparing the IDS, content in knowing that we hadn’t yet paid the fees and that a Notice to File Missing Parts would be coming along. Much to my surprise, I got a Notice of Allowance instead. Because we hadn’t yet filed the IDS, I was forced to file an RCE to get the art in. The examiner got 4 counts out of it: 1 for picking up a new case (that she was already familiar with), 1 for allowing it, 1 for my RCE, and 1 for allowing it a second time. She had seen the newly-filed application in PAIR, pulled it and issued the allowance, knowing I’d jump on it. It was just before the end of the quarter, and she scored a “home run.”
link to uspto.gov
I think this link is about a “co-pending letter.”
Dennis,
I am assuming a co-pending letter is a note to the Examiner that refers to a previously filed or simultaneously filed related case that is neither a continuation or a divisional thereof.
Another suggestion of something to consider as you encounter cherry picking is cases where the US is the PCT search authority, and a clean search report is issued by the same examiner as has the US case. We have had a case that I believe was picked up and issued very early due to the examiner already knowing that the claims could be allowed.
I suggest 3696…have had some surprisingly early first OAs from them.
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Take a look at AU 2833, the electrical connectors portion (Class 439). When I was tracking down AE patents for analysis, I noticed that this art unit had more patents issued in less than 12 months for no apparent reason than were issued due to New App Queuer’s reasons noted above.
New App QR – Thanks for the comment. My suspicion is that I will find some cherry-picking, but not much.
What is an application with a “co-pending letter?”
Dennis – I can’t recommend particular art units, but I would caution you to at least take into account/distinguish among: Applications with petitions to make special (Acel Exam, PPH, Age, Basis, etc.); Applications that are CONS/DIVS; Applications with co-pending letters; and Applications with none of these. I would further ignore reissues and reexams.
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