A Patent Examiner offered the following perspective on the seeming rise in the number of restriction requirements:
The numbers cited in this article to indicate an enormous rise in restriction requirements within the biotech group since the early 90’s are misleading. While restrictions have risen since that time what has really changed is the percentage of biotech restriction requirements which are written compared to those which are done telephonically and thus included within the FAOM. I have been a biotech examiner for almost twenty years. In the early 90’s I would estimate that approximately 75% of all cases within my art unit required a restriction requirement but virtually all of these were done telephonically. Thus the only first actions which were only restriction requirements were those in which the attorney would not elect over the phone. Today I would estimate that somewhere close to 90% of all cases in my art unit receive an initial restriction requirement but almost all of these are now done as written requirements prior to the FAOM. There two main reasons for the change from telephonic to written restrictions. They are a large increase in complexity of the requirements (in the early 90’s most requirements included only 2-4 groups and restrictions with more than 10 groups were very rare while today the average requirement probably has more than 10 groups and cases with even more than 100 groups are not uncommon) and the PTO’s policy of granting 1 hour of other time for written restrictions but not for restrictions included within an FAOM. This policy essentially penalizes an examiner for doing a telephonic restriction even though this would reduce overall pendency of many cases.