Patenting for Inventors Ep. 171: Your Patent's First Judge: How the Patent Office Picks Your Examiner

When your patent application lands at the USPTO, who decides its fate—and how did they end up with your case? In Episode 171 of Patenting for Inventors, Adam Diament walks through the structured (and surprisingly strategic) world of examiner assignment. From art units and classification codes to GS levels and allowance rates, Adam explains why the language of your claims may be the most important factor in determining where your application lands—and why understanding your examiner is one of the most underrated tools in a patent attorney's playbook. Tune in for practical insights on interviews, analytics platforms, and how to navigate the system like a pro.

Patenting for Inventors Ep. 171:

Podcast Transcript:

Hello, and welcome to the Patenting for Inventors podcast. I’m your host, Adam Diament, a registered patent attorney and partner at the law firm of Nolan Heimann in Los Angeles, California. This episode is “Your Patent’s First Judge: How the Patent Office Picks Your Examiner” 

So let’s say you file your patent application with the USPTO, and then you wait. And wait. And then eventually, you get something back in the mail—or more likely through the Patent Center—and it’s a non-final rejection. And it’s got this examiner’s name on it. And you’re like… who is this person, and why are they the one deciding the fate of my invention? 

You might think the process of assigning examiners is like a spin-the-wheel situation. Like maybe there’s a big bingo cage at the USPTO and they just roll it and whatever number pops out, that’s your examiner. But it’s actually a lot more structured—and kind of fascinating in a bureaucratic way. 

The thing is, the USPTO is organized into what are called “Art Units.” Think of them as mini departments, and each one covers a certain type of technology. So if your invention is about, I don’t know, improving battery efficiency, it’s going to go into one art unit. But if it’s about a medical device that uses lasers, it might go into another. These art units are grouped into technology centers, which are like mega-departments. But for our purposes, the art unit is the main thing to care about. 

Now, how do they figure out which art unit your patent goes to? It’s not based on your title. It’s not based on the inventor’s resume. It’s based on the language in the claims. The classification system used by the USPTO is super technical—like thousands of different classification codes for all the kinds of technology you can imagine. It’s like if the Dewey Decimal System was written by engineers on a caffeine bender. 

So the examiner assignment process starts with classifying your patent based on your claims. Not the abstract, not the drawings—the actual words of the claims. The examiners don’t get to pick and choose what they want to examine. They’re assigned applications that match their technical area and level of experience. It’s kind of like academic peer review, except the stakes are higher and the tone is drier. 

Here’s where it gets interesting. Not all examiners are created equal. I’m not saying some are better than others, okay, actually I am. Some are faster. Some are more patent-friendly. Some are really tough. Some allow 90% of the cases they touch, others allow 30%. So knowing who your examiner is can totally change your strategy. 

You can even look up stats. There are tools out there—some free, some paid—where you can plug in an examiner’s name or their art unit and get their allowance rate, their average time to first action, how often they go to appeal. I use these all the time. Because let’s say your examiner has a super low allowance rate. That might tell you not to waste time arguing too hard in a written response, but maybe do an examiner interview or do an appeal to get it to a panel of patent judges. 

Or on the flip side, maybe your examiner is known to allow things quickly if the claims are reasonable. In that case, you might tighten up your claims proactively and shoot for an early allowance. The point is, this isn’t a faceless bureaucracy. It’s a system full of human beings, and understanding who’s reviewing your application can give you a serious edge. 

Now here’s a little wrinkle that people don’t always realize. The classification isn’t necessarily permanent. If your application is misclassified—maybe because the claims were too broad or vague—there’s a chance it ends up in an art unit that’s not the best fit. And sometimes, that’s bad news. You might get an examiner who doesn’t fully understand the nuances of your tech, or who handles a broader swath of subject matter and takes a stricter approach. 

So one strategy I use is to look at the classification codes before filing and write the claims in a way that steers the application toward a more favorable art unit. You’re not gaming the system—you’re just speaking the USPTO’s language a little better. You’re saying, “Hey, this invention fits better in this bucket,” and giving the classification algorithm some helpful nudges. 

Also, examiners are ranked by GS levels—GS-7 all the way to GS-15. That’s a government pay scale thing, but what it means for you is that junior examiners often have a primary examiner who reviews their work. So even if your correspondence is with someone at GS-9, they may be getting sign-off from someone more senior. That can affect how aggressive or cautious they are in rejections. 

And one more thing—sometimes, examiners get pulled off your case and replaced. It’s not super common, but it happens. They retire, switch departments, go on extended leave. And when that happens, the new examiner may come in with a different philosophy. That can be good or bad. I’ve seen cases get allowed just because the new examiner had a different read on the claims. It’s like a change in the weather. 

Something else to keep in mind is that examiner behavior can shift over time. Just because someone had a high allowance rate last year doesn’t mean they’re still operating the same way now. They could’ve been promoted, moved into a supervisory role, taken on new types of cases, or—who knows—just decided to be a little stricter this quarter. So if you’re basing your prosecution strategy on examiner analytics, make sure you’re looking at recent data, not stuff from ten years ago. 

Now, let’s talk a little more about those examiner analytics, because I think this is one of the more underrated tools patent attorneys can use. There are services—LexisNexis PatentAdvisor, Juristat, and others—that give you detailed stats about not just art units but individual examiners. You can see how often they grant after an interview, how many office actions it usually takes to get to allowance, and even which arguments tend to work. And look, these tools aren’t magic. They’re not going to write your reply for you. But if you know that an examiner never budges on obviousness rejections without an amendment? That’s good to know.  

In fact, this is one of those things I sometimes explain to clients. Because from their perspective, they just want to know—am I getting a fair shake here? And when I can say, “Hey, your examiner tends to allow stuff after one amendment and an interview,” that gives them some peace of mind. Or if I say, “Look, we’re up against someone who’s got a 25% allowance rate and takes two RCEs on average,” then at least we go in eyes open. It’s not personal. It’s just how the system works. 

Now, occasionally I get asked, “Can I request a different examiner?” And the answer is… basically no. There’s no polite way to say, “Thanks, but I’d like a different bureaucrat.” Unless there’s some very strange ethical issue—which almost never happens—you’re stuck with the one you get. It’s not like school where you can drop the class and sign up for a different professor. You’re in it. But you can adapt. That’s the key. 

And this brings us to the topic of examiner interviews, which, honestly, I think are one of the most underutilized parts of prosecution—especially by inventors who try to go it alone. Because if you’ve got a human being on the other end, and you’re allowed to talk to them—why wouldn’t you? It’s not adversarial. It’s not a courtroom. It’s a phone call. Or a video call these days. You explain your position, they explain theirs, and you get a read on where things stand. Sometimes you get lucky and they say, “You know what? If you just added this limitation, I’d allow it.” Boom. Done. 

But—and this is important—not all examiners are equally receptive to interviews. Some welcome them. Others are… let’s say less enthusiastic. And again, knowing that up front helps you plan. I’ve had examiners tell me straight up, “I don’t do interviews unless the applicant has already filed a response.” Fine, that’s your style. But some will talk to you before first action, which can be hugely helpful. If you catch them before they’ve made up their mind, you might shape the entire direction of the case. 

And by the way, if you ever file a continuation or a divisional application, there’s a decent chance you’ll get the same examiner again. Which can be great, because now you’ve got some rapport. They’ve seen your invention before. They know the backstory. Sometimes they’ll even remember what they allowed last time and be a little more flexible. But on the flip side, if they didn’t love your application the first time, well… they’re probably not going to love the sequel. 

One thing I didn’t mention earlier is that some art units are just straight-up overloaded. There are certain areas—especially things like software, business methods, and AI—where the backlog is just brutal. You could be sitting in line for a year or more before your application even gets looked at. And that’s not necessarily the examiner’s fault. It’s just a matter of supply and demand. Too many filings, not enough reviewers. That’s one reason why sometimes it’s worth considering Track One prioritized examination. It costs more, but you skip the line. And that can mean a different examiner altogether if your case jumps ahead of someone else’s. 

So let’s step back for a second. Why does any of this really matter to inventors? I mean, isn’t it the attorney’s job to worry about the examiner stuff? Sure, to a point. But the more you understand about how your application gets assigned and who’s reviewing it, the better decisions you can make. Maybe you think about adjusting your claims before filing to hit a better classification. Maybe you’re more strategic about when to request an interview. Maybe you file a continuation instead of appealing. These are all things that depend on who’s sitting across the metaphorical table. 

And look, I get it—this stuff can sound kind of dry. Government classification codes, examiner IDs, GS levels. It’s not exactly a Marvel movie. But if you’re putting real time and money into getting a patent, wouldn’t you want to know how this system actually works? Wouldn’t you want to know how to play the game a little smarter? 

That’s really what it comes down to. The USPTO isn’t just a black box where you throw in an invention and hope something comes out the other end. It’s a system. It has rules. And once you understand who’s examining your patent and how they got assigned to it, you’re not just crossing your fingers anymore. You’re navigating it like a pro. 

That’s it for today’s episode. I’m Adam Diament, and if you need help filing a patent application, or other intellectual property, give me a call at 424-281-0162. Until next time, I’m Adam Diament, and keep on inventing!