just_n_examiner (just_n_examiner) wrote,

Examiners' Dockets

How do examiners decide which application they pick up and work on at any given time? (And more to the point, why isn't it your application they picked up?) It all has to do with the various dockets which examiners must manage.

Every examiner has a number of dockets, including

Regular New
These are applications waiting for their first action on the merits.

Regular Amended
These are applications for which the attorney/applicant has filed a response/amendment to a non-final rejection. Examiners are required to respond to these applications within 2 months, or they lose workflow points (discussed below).

Special New
These are applications that should have expedited initial examination. Applications are placed on this docket if they are continuations or divisionals (but not continuations-in-part), or a petition to make the application special has been approved. Applications on an examiner's Special New docket should generally be taken up for initial examination before those applications on an examiner's Regular New docket. Continuations are placed on this docket because in theory they have been pending since the filing date of their parent application. C-I-Ps are not placed on this docket because there is at least some new matter that has been added.

Special Amended
These are applications that for some reason require special attention. When an applicant files an amendment after final rejection, the application will end up on the examiner's Special Amended docket. 'After final' amendments must be turned around within 10 days, or the examiner will lose workflow points. Other applications end up here when a decision is rendered by the Board (BPAI), or when an attorney has filed an amendment/response for an application that has been made special (and thus requires a quicker turn-around than a normal amended application).

Applications are put on this docket when a rejection has been mailed out, but a response has yet to be received from the attorney.

So, given that background, how do examiners decide what application to work on next? It's dictated largely by workflow points.

Workflow points are a measure of how well an examiner manages their docket. If they process their applications quickly (meaning they get responses to amendments processed and mailed out quickly), then their workflow is going to be in good shape. The speed with which an examiner processes new applications does not factor into their workflow points; workflow measures only how quickly the examiner responds to amendments/responses received from the attorneys.

There are three situations that affect an examiner's workflow.

  • If an examiner fails to get an 'after final' amendment out within 10 days of it showing up on their Special Amended docket, they lose 2 workflow points.

  • If an examiner fails to send out a response to an amendment (from their Regular Amended docket) within 2 months, they lose 1 workflow point.

  • If an examiner manages to send a response to a regular amendment within 1 month, they are rewarded with .2 of a workflow point.

Workflow is an element in an examiner's performance appraisal. You do not want to end a fiscal year with negative workflow points, since this is when examiners' performance appraisals are done. That leaves examiners with lots of incentive to process amendments as quickly as possible. Dig yourself a workflow hole and it will take you a long time to get back out at .2 points a shot.

The importance of managing workflow means that examiners generally give any 'after final' amendments top priority. Regular amendments (especially once they start to bump up against that 2 month deadline) would be next. Applications on the Special New docket would generally be worked on before those on the Regular New docket, with any applications that have been made special given priority over the continuations and divisionals. Amongst new applications, examiners are directed to work on the oldest application on their Regular New docket. The Office keeps track of the oldest application on an examiner's Regular and Special New dockets and how long they've been there, to ensure that examiners can't cherry-pick easy applications while putting off doing the harder ones.

One of the things to keep in mind is that the rate at which examiners process applications from their Regular and Special New dockets varies wildly. Primary examiners will often have such a large number of applications on their Rejected and Amended dockets that between allowances and RCEs, they can maintain their production goals without picking up a new application for months at a time. Really.

On the other hand, if your new application is put on the docket of a newer examiner who has yet to accumulate a large number of applications on their Rejected and Amended dockets, you can count on it getting its first action on the merits in relatively short order. These examiners have very few amendments to work on, so most of their examining time is still dedicated to processing new applications.
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