Do you like to drive without a map? If you know the city really well, you usually do not need a map. But if you visit a lot of cities, you probably don’t know every road and address and use a map (or a navigation tool on your smartphone). Most would agree maps are pretty useful to help navigate, which is a separate question from whether someone is a good driver. Even if someone is a fantastic driver, they still use maps to help navigate through certain areas. While driving experience can reduce the chances of getting lost,there is nothing like having a map when the inevitable happens.
Examiner statistics are somewhat like using a map. They can help you navigate your patent application through the Office. The map does not, by itself, make you a better driver. For example, the map does not usually tell you exactly how to drive, but it does tell you very useful information. There are various options available with regard to examiner statistics, and many patent practitioners make use of the information to help steer their decisions in prosecution.
One question that comes up is whether an applicant should cite the examiner’s (or art unit’s) statistics to the Office when responding to, or appealing, or petitioning, rejections or objections. A blog post at bigpatentdata.com discusses this idea and provides an example where someone took this approach and seemed to be successful. While it is more likely that the reason for the allowance was related to the strength of the substantive arguments, the example raises the strategic question of whether an applicant should let the examiner know that they have a map and are not wandering around aimlessly with only their gut instinct and experience to guide them.
Most applicants seem not to be citing examiner statistics. This has various strategic advantages. For example, an applicant may be counting on an examiner to follow their typical pattern, and so telling the examiner that you know their M.O. might cause erratic behavior. Also some may argue that citing statistics to an examiner might only entrench them in their position.
On the other hand, if the typical pattern of the examiner is so bad that any variation could be helpful, perhaps there are some situations where it might be helpful. Further, maybe “shaming” the examiner with their 6-sigma data will cause them to reconsider their actions.
However, if the applicant is able to use data to show some sort of implicit bias, then it seems the examiner (and the Office) would be remiss not to take the information seriously. The Office typically treats claims of bias by an applicant harshly. Generally an applicant must show overt and explicit bias in order to receive any action from the USPTO. This response is somewhat understandable as most examiners are trying their best to be fair and the USPTO does not want to open the floodgates to bias claims from every applicant whose application is rejected. But, this situation raises the question about whether there is any recognition of the possibility of implicit bias, and whether there is any remedy available.
The idea of implicit bias of patent examiners relative to the applicant appears to have received little attention. The USPTO has various programs regarding implicit bias and diversity in the workforce (see, e.g., here and here). These are excellent actions, but do not seem to address the applicant-examiner dynamic. As the USPTO’s own data shows, there are still significant disparities in inventorship in the US.
As an applicant, it is important to be keenly aware of implicit biases, and be proactive in this area, in order to have effective interaction with the examiner. And if the applicant has data showing bias by an examiner or supervisor, the USPTO should welcome that data in order to ensure that it is providing a fair and unbiased examination for all applicants.