A patent examiner (or, historically, a patent clerk[1]) is an employee, usually a civil servant, working at a patent office. Major employers of patent examiners are the European Patent Office (EPO), the United States Patent and Trademark Office (USPTO) and the Japan Patent Office.
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Patent examiners review patent applications to determine whether the claimed invention should be granted a patent. The work of a patent examiner usually includes searching patents and scientific literature databases for prior art, and examining patent applications substantively by examining whether the claimed invention meets the patentability requirements such as novelty, "inventive step" or "non-obviousness", "industrial application" (or "utility") and sufficiency of disclosure.
In most countries, Examiners are high level employees with clerical staff working under their supervision in supporting roles. For example, in the Indian Patent Office, an entry level Examiner (official designation: Examiner of Patents & Designs) is a Group A (Class 1) gazetted officer. This is the highest post in the set-up of the Indian Government service.
On April 13, 2007, a "Coalition of Patent Examiner Representatives" expressed concern that
in many patent offices, the pressures on examiners to produce and methods of allocating work have reduced the capacity of examiners to provide the quality of examination the peoples of the world deserve [and that] the combined pressures of higher productivity demands, increasingly complex patent applications and an ever-expanding body of relevant patent and non-patent literature have reached such a level that, unless serious measures are taken, meaningful protection of intellectual property throughout the world may, itself, become history.[2]
According to Indian newspaper Mint, Indian patent examiners have the world's highest workload and lowest pay. While a patent examiner in the European Patent Office would handle less than seven patent applications per month and a USPTO examiner would handle eight applications per month, an Indian examiner reportedly handles at least 20 applications a month. However an Indian examiner’s monthly salary is less than a third of his/her counterparts in other foreign patent offices.[3]
Patent examiners at the European Patent Office (EPO) carry out examination and opposition procedures for patent applications originating anywhere in the world and seeking protection in any of the member states of the European Patent Organisation. The process involves a search for existing documentation in the technical area of the application (prior art) and communication with the applicant in order to bring the application in line with the legal requirements of the European Patent Convention. For every patent application, a division formed by three examiners must decide whether the application is granted or not, and in which scope.
EPO examiners are organized in a branched structured by their technical field of expertise and examine patent applications in three official languages, English, French, and German. They are recruited among nationals of the member states and work in one of the EPO offices in Munich, The Hague and Berlin.
Candidates for examiner positions must meet certain minimum requirements:
Some examiners have work experience in industry, but such experience is not required.[4] EPO examiners are also reportedly required to speak three languages fluently.[5][6]
Examiners may be represented by trade unions, FFPE-EPO and SUEPO.
Patent examiners at the United States Patent and Trademark Office (USPTO) prosecute applications for patents. Examiners make determinations based on federal codes, rules, and judicial precedents. These determinations are appealable through the U.S. Courts. An appeal of these determinations is three steps away from the U.S. Supreme Court. Responsibilities for a patent examiner at the USPTO include:
Examiners are hired at the GS-5, GS-7, GS-9 or GS-11 grade levels[7][8] and are currently eligible for two accelerated promotions after six and twelve months of service when they meet the performance of a new examiner. As of July 2007, new examiners are granted a recruitment bonus of $20,000 to $39,600 spread out over four consecutive years of fully successful service.[9] Subsequent promotions are yearly and noncompetitive up to the GS-12 level, provided satisfactory performance is maintained.
Patent examiners in the US have responsibilities that are commensurate with their GS level. Promotions from GS-7 to GS-14 are non-competitive. At GS 11 or 12 they are expected to take a test equivalent to the Patent Bar in order to be eligible for promotion to GS-13. At GS-13 they are eligible to start the signatory program, a testing phase to see if an examiner can apply patent concepts (e.g. obviousness and novelty) laws (35 USC). When a patent examiner has passed program and been given signatory authority, that examiner has earned the title Primary Examiner and can sign their own office actions (e.g. allowances, rejections) without review and approval by a supervisor and is able to review and sign actions of junior examiners (patent examiners without signatory authority).
Supervisors at the USPTO are GS-15 employees who are necessarily primary examiners called Supervisory Primary Examiners (SPE colloquially called "spee"). They apply for positions competitively and receive management training inside the office. They are responsible for an Art Unit of patent examiners, typically 8-15 examiners who examine cases in the same area of technology (e.g. GPS devices and aircraft are handled by different art units). Responsibilities include training new examiners, reviewing and signing office actions of junior examiners and acting as an advocate of the examiners they are responsible for to a variety of parties (e.g. other managers in the office, patent applicants and their attorneys). They are the lowest rung of the USPTO's management chain of command, and the only part of management that is paid as part of the general schedule (GS). Higher paid managers are part of the Senior Executive Service and are technically political appointees. For example, a primary examiner (GS-14) and her SPE (GS-15) are part of the general schedule and cannot be fired as part of an administration change, but the SPE's boss (a technology center director paid at SES-1), can be asked to resign by the president, at his pleasure.
According the USPTO, an examiner is measured entirely by his own performance, without regard to the performance of others.[10] Legal, technical and automation training is provided to examiners at the USPTO. Experienced examiners have an option of working primarily from home through a hoteling program implemented in 2006 by the United States Patent and Trademark Office (USPTO).[11]
To work as an examiner with the USPTO, a person must be a U.S. citizen.[12] Most patent examiners working at the USPTO have a bachelor’s or master’s degree in engineering or science.[12]
| Name | Birth year | Death year | Description |
|---|---|---|---|
| Genrich Altshuller[13][14] | 1926 | 1998 | a Soviet engineer, inventor, scientist, journalist and writer. |
| Clara Barton[15][16][17] | 1821 | 1912 | worked at the United States Patent Office (Currently the USPTO) |
| Albert Einstein[18] | 1879 | 1955 | worked at the Swiss Federal Institute of Intellectual Property |
| Thomas Jefferson[19] | 1743 | 1826 | first patent examiner of the U.S. Patent Office |
| Arthur Paul Pedrick[20] | ? (>1918) | 1976 | UK Patent Office examiner and, subsequently, prolific inventor |
| R S Praveen Raj[21] | 1979 | Indian patent examiner and subsequently scientist and social activist |