Patent examiner

• 1. Introduction

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  Albert Einstein once held a desk at the Swiss Federal Office for Intellectual Property, now called the Swiss Federal Institute of Intellectual Property. His job there was patent examiner. That is a civil servant who studies inventions and decides whether they can be patented. In older usage the same worker was called a patent clerk. Most examiners come from science or engineering, and they work inside a national or regional patent office. The role sounds quiet and bookish. Yet it has employed some surprising people, and it is also a job that burns through its own staff. What does an examiner actually decide, and under what kind of clock? How do the big offices in Europe and America build their workforces? And why would a profession with such famous alumni struggle to keep ordinary employees?

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• 2. The Ticking Clock

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  Every examiner works beneath a pile of unexamined applications that has grown for a long time and keeps growing. Because of that backlog, each examiner has very little time to judge whether a described invention can be patented. Some applications are easy to assess. Others demand far more time, and the system does not always make room for the difference.

  The human cost shows up in who stays. Over half of newly hired examiners leave within four years, and most of those departures are involuntary. The problem is especially sharp at the USPTO. Critics point to vaguely defined tenure rules and to production quotas that push people into overtime. The attrition is so heavy that, in some years, the USPTO loses more examiners than it hires.

  The examiners themselves have spoken up. On the 13th of April 2007, a group calling itself the Coalition of Patent Examiner Representatives issued a warning. It said that in many patent offices, the pressures on examiners and the methods of allocating work had reduced their capacity to provide "the quality of examination the peoples of the world deserve". The coalition added that rising productivity demands, more complex applications and an ever-growing body of patent and non-patent literature could push things to a point where "meaningful protection of intellectual property throughout the world may, itself, become history." The warning named no single office, but one European office handles applications from every corner of the globe.

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• 3. The European Desk

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  At the European Patent Office, examiners handle two kinds of work: examining applications and running opposition procedures. The applications can come from anywhere in the world. What they share is a request for protection in one or more member states of the European Patent Organisation.

  Candidates must clear three minimum requirements. They need nationality of an EPO member state. They need a degree in engineering or science. And they need good knowledge of two languages out of German, English and French, along with a willingness to learn the third. Some reports go further and say examiners must speak three languages fluently.

  Industry experience helps but is not demanded, so some examiners arrive straight from study and others from companies. Most are represented by a trade union called SUEPO. Across the Atlantic, the job comes with a ladder of numbered grades.

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• 4. Climbing the Grades

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  New examiners at the USPTO are hired at grade GS-5, GS-7, GS-9 or GS-11, depending on their background. Their duties scale with that grade. The work itself is to judge claims of new inventions, following agency policy and guidance together with federal law, specifically Title 35 of the United States Code, plus rules and court precedents.

  Promotions from GS-7 up to GS-14 are non-competitive. The real gate comes at GS-13, where an examiner may enter the Partial Signatory Authority program. It tests whether the person can apply concepts such as obviousness and novelty, along with the law in Title 35. Passing it lets the examiner sign their own non-final rejections and other non-final communications to applicants.

  After a waiting period comes a second test, the Full Signatory Authority program. Passing it means an examiner can sign every kind of office action, including allowances and rejections, without a supervisor's approval. They can also review and sign the actions of junior examiners, who lack signing power. Completion moves them from GS-13 to GS-14, and they are then called a primary examiner. All along the way, the USPTO says each examiner is measured entirely by their own performance, without regard to anyone else's.

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• 5. Citizens, Commuters and Politics

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  To examine patents at the USPTO, a person must be a United States citizen and pass a background investigation. Once past that hurdle, the job can eventually leave the office behind. In 2006 the agency introduced a hoteling program, which lets experienced examiners work mainly from home.

  A study published in 2023 asked whether an examiner's politics shape their decisions. It looked at how the political preferences of USPTO examiners affect their tendency to allow patent claims. Across most of the work, it found no statistically significant difference. The exception involved the most politically active examiners, meaning those who donate to political campaigns.

  That exception appeared in software patents, in the art units where examiners have the most discretion. There, Republican-leaning examiners were more likely to issue patents than Democrat-leaning examiners.

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• 6. Famous Names at the Desk

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  Thomas Jefferson, who lived from 1743 to 1826, is listed as the first patent examiner of the U.S. Patent Office. A very different figure, Clara Barton, who lived from 1821 to 1912, also worked at that same office, which is now the USPTO.

  Henry E. Baker, who lived from 1857 to 1928, entered the U.S. Naval Academy in 1874. He was only the third Black person ever to attend. He later became Second Assistant at the U.S. patent office. He was also the first person to record the work of Black American inventors, and he published several works on those inventors and their contributions to society.

  Genrich Altshuller, who lived from 1926 to 1998, was a Soviet engineer, inventor, scientist, journalist and writer. Arthur Paul Pedrick worked as an examiner at the UK Patent Office and was a prolific inventor. He died in 1976, and his birth year is uncertain, though it was later than 1918. A man who spent his days judging other people's inventions was busy producing his own.

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