September 16, 2026|Publications
Intellectual Property & Technology Law Journal
By Madhumita “Mita” Datta and Kaelyn Shinbashi
“The United States Patent and Trademark Office (USPTO) employs nearly 9,000 patent examiners to examine the utility patent applications, with provisions in the Fiscal Year 2026 (FY26) budget for hiring 1,500 more. However, the agency also set stricter production goals for the examiners by implementing FY26 Examiner Performance Appraisal Plan (PAP) on October 1, 2025. Under the FY 26 PAP, the performance standard for the examiners is raised to 100% of production goal compared to the previous standard of 95%. FY 26 PAP automatically allots one hour of time to the examiners for an interview in a new case or an existing case with a newly filed Request for Continued Examination (RCE). But second or subsequent interviews require additional discretion and and supervisory approval. We anticipate that this additional burden at the examiners’ end would translate to at least some effect on the prosecution strategy at the patent practitioners’ end too. “
During a recent examiner interview for a particular case, one examiner noted that since the rule changes, interview requests are being granted more selectively than in the past, compared to prior practice when nearly all requests were approved. The examiner further reported that most examiners are avoiding examiner-initiated interviews except when an application is near allowance, due to uncertainty over whether such interviews are credited against allotted interview time. Although anecdotal, these observations are consistent with our anticipation that examiner interview practices have shifted following implementation of the FY26 PAP. Using publicly available data from the USPTO database gleaned and analyzed by Juristat, we attempted to quantify how any such shift may affect prosecution outcomes. To assess that possibility, interview and allowance data from the pre-PAP and post-PAP periods were compared.”
