Examiner Relevant Prior Art Not Cited in Office Action Patent

Abstruse

This paper empirically examines coincidences between "rejection citations" (i.e., those cited as grounds for rejections) added by the United States Patent and Trademark Part (USPTO) and "X/Y patent citations," which are too added as grounds for rejections at the European Patent Office (EPO) within the aforementioned patent family unit, based on more than than forty thousand families of triadic application sample. We consider the release timing of European search reports and the timing of rejection actions by the USPTO for the aforementioned family unit of patent applications. Nosotros find that the frequency of rejection (10/Y-equivalent) citation coincidences between the USPTO and the EPO co-ordinate to family-to-family citation criteria increases after the release of search reports past the EPO. It suggests that the US examiners capture spillovers of search efforts from the EPO, namely, the USPTO examiners rely on prior art data collected and disclosed past the EPO. The results likewise reveal that International Search Reports (ISRs) prepared for Patent Corporation Treaty (Per centum) applications, too as applicant-submitted citations, play important roles for the convergence of rejection citations between the two patent offices. We furthermore discover that the US examiners are less likely to add the same patent citations as the EPO examiners when rejections are persistently repeated at the USPTO. The methodology in this paper introduces the novel use of patent examiner citations to compare examiners' citing beliefs across jurisdictions.

Introduction

An internationally valuable patentable invention is often filed equally international patent applications and examined in many jurisdictions. A series of prior art searches for the aforementioned invention is conducted separately past different patent offices in each jurisdiction, except for those conducted through international agreements such as the European Patent Convention (EPC), the Patent Corporation Treaty (PCT), and Patent Prosecution Highways (PPHs). Equally a result, separate citations are added to the aforementioned family of patent applications in a sequential and/or parallel manner across patent offices. As Wada (2018) has revealed, patent examiners at the trilateral offices of the EPO, the USPTO, and the Nihon Patent Office (JPO) tend to cite dissimilar prior arts to turn down applications in the same patent families, even though the full general patentability criteria of novelty and inventive pace are shut together. "Rejection citation," namely, citations made by examiners to signal specific prior arts to reject applications, are widespread to the extent that, for case, approximately simply 20% of rejection citations employed at the USPTO coincide with those equivalent X/Y citations for rejections used at the EPO, fifty-fifty afterwards consolidating at family-to-family citation levels (Wada 2018). The discrepancies of rejection citations and 10/Y citations go larger when the technological complexity of an awarding increases (Wada 2018), which can be attributable to limited resources per application by examiners for each application (Marco et al. 2016; Wada 2016; Frakes and Wasserman 2017).

Such apparent discrepancies between rejection citations employed at unlike offices lead to positive research questions as well as normative questions for the institutional design of international patent examination systems, where a pregnant amount of effort is spent to review a family of international patent applications out of a single invention beyond dissimilar patent offices simultaneously or sequentially. Examiners can refer to the result of prior art search conducted at other offices, conditional on its availability. In other words, at that place are opportunities for post-obit examiners to exploit search effort conducted elsewhere, if a prior search event by a preceding examiner becomes bachelor for them. Then, a positive question can exist raised most whether the post-obit examiner who can discover previous search outcome is more likely to conclude with the aforementioned ready of previous citations than without a previous exam outcome. This is not obvious, since the post-obit examiner may instead discover it easier to generate a different set of citations if the follower can save effort on the revealed prior fine art and tin can redeploy search endeavour for other relevant prior arts that accept been looked over by previous examiners. ^{Footnote ane}

Across this positive question, a normative question can be raised further nigh whether the potential increase or decrease of citation discrepancies with sequential references betwixt examiners implies a more than "consummate" prior art search. The reply is indeterminate a priori considering the availability of an examination consequence might induce "shirking" ^{Footnote 2} by follow-on examiners, and subsequent examiners may requite up possibilities to discover a more relevant prior art past their contained search with amend admission to relevant information later on. More "lenient" exam at a later stage may result in more overlapped citations across different offices, although the results can be less comprehensive, compared to what could be potentially institute as a combined set of relevant prior arts.

There are no previous studies on patent citations and international patent test systems from such parallel or sequential perspectives with potential spillovers between patent offices. ^{Footnote three} As a direct policy analysis, information technology would be ideal if we can measure out the efficiency gains when an examiner can refer to search outputs prepared past another examiner. All the same, this normative question can be tackled only later we scrutinize in what instance and in what way examiner behavior is changed with the availability of previous search output. If an examiner does non change any behavior and always produces the aforementioned gear up of rejection citations regardless of the availability of a search report, the pick of examination sequence (parallel or sequential) does not matter as a normative question. Therefore, between positive and normative questions in a higher place, the positive question should come up under scrutiny first. This paper is intended to exist the first empirical pace toward the positive question. Only put, this newspaper tries to quantify spillovers from the EPO to the USPTO empirically by focusing on the convergence of rejection citations betwixt the two.

There is very express existing knowledge on how examiners in a patent role rely on prior citations generated by applicants and other offices (Cotropia et al. 2013). This paper proposes to track examiner citations used for rejections across patent offices. Generally, nosotros tin evaluate whether an examiner of one role utilizes the aforementioned prior art for rejecting the same patent application (i.due east., patent applications in the same patent family unit). When the aforementioned patent citation is more than likely to be employed at different patent offices if a preceding search event is bachelor for the following office, we can infer that there are spillovers between patent examination results. ^{Footnote 4} In this paper, we first summarize the coincidences of rejection citations at the aggregate level. Then, we study those patent family citations added by the USPTO for rejection (i.e., rejection patent citations, or X/Y equivalents). We examine whether each U.s.a. rejection citation coincides with X/Y cited families given past European search reports (ESRs) ^{Footnote 5} for the same citing patent family unit, with special attention to the timing of ESRs and function actions by the USPTO, along with several control variables. By style of comparison USPTO rejection citations (at the level of international family unit-to-family unit citations) with prior art search results conducted by the EPO before and after the release of the ESRs, we can first make a reasonable inference concerning the beingness of search issue spillovers from the EPO to the USPTO, leading to convergent citations.

This paper contains several inquiry questions with regards to whether and how the convergence of rejection citation can exist, such as: (1) Is a USPTO office action subsequently the release of search reports by the EPO more probable to reflect the aforementioned family-level patent citations added by the EPO, compared with pre-ESR (prior to EPO's search reports) office deportment at the USPTO? Put differently, do nosotros observe a convergence of patent citations between the ii offices? (We focus on unidirectional spillovers from the EPO to the USPTO due to data limitations). (2) Do bidder-submitted citations contribute to the convergence of rejection citations? (3) Do we find any difference in the level of convergence with the geographical source of a patent awarding, and/or technological fields? (four) The PCT system requires that an International Search Report (ISR) should be prepared for a PCT application at the time of international publication. Whereas ESRs oft serve equally ISRs, practise ISRs (prepared also by other government such as the USPTO and the JPO) affect the coincidences of rejection citations between the EPO and the USPTO?

This newspaper proceeds as follows. Kickoff, prior literature is briefly reviewed. Examiner patent citations are at the frontier of research in this field, yet there are non many existing studies on rejection citations, peculiarly from international perspectives. Adjacent, the motivation of this written report is explained further apropos the positive question higher up on the convergence of rejection citations and international citation spillover. Since international patent examination systems are quite complex, the basic institutional construction relevant to this report including the international patent application routes, the PCT arrangement, search reports, U.S. function actions, and resulting rejection citations is summarized. The data used for this study is adjacent explained. Then, a simple aggregate comparing is presented, which suggests the existence of examination spillover. The distribution of the timing of US beginning role deportment relative to search reports issued by the EPO is highlighted as well. To incorporate other conditions, regression analyses are conducted and results volition exist presented. Determination follows.

Background on studies of patent citations

This newspaper focuses on the growing inquiry attention inside patent citation written report, with special attention placed on examiner citations used for rejections. The varieties inside patent citations, such as applicant citations and examiner citations, accept recently been studied (Alcacer and Gittleman 2006; Thompson 2006; Criscuolo and Verspagen 2008; Hegde and Sampat 2009; Lemley and Sampat 2012; Cotropia et al. 2013; Cotropia and Schwartz 2018, Azagra-Caro and Tur 2018; Kuhn et al. 2020). One of the recent inquiry frontiers is the distinction within examiner citations. Whereas examiner citations are considered to be noisy equally a means for measuring knowledge flow between inventors, examiner citations have been shown to have an advantage over inventor citations for measuring the value of patents (Hegde and Sampat 2009). Recently, examiner citation as a basis of rejection gains attention as an even improve indicator of patent values (Cotropia and Schwartz 2018).

US examiners should point specific prior art on which they rely as the reason for rejections, if they decline, in particular, the U.s.a. Lawmaking Title 35 "102" novelty rejections, "103" obviousness rejections, and statutory double patenting rejections. Namely, they must clearly bear witness the reasons for an bidder's rejection if it is attributable to the prior art. At the USPTO, Sect. 706 "Rejection of Claims" of the Manual of Patent Examining Procedure (MPEP) states that "In rejecting claims for want of novelty or for obviousness, the examiner must cite the best references at his or her command." There is no official name for this category of citations, ^{Footnote 6} but recent work (Cotropia and Schwartz 2018) calls information technology as "rejection citation," or "rejection patent" if a corresponding prior art is a patent. This data has been made available and draws attending by the recently released role activeness database of the USPTO (Lu et al. 2017). Still, to the best knowledge of the writer, in that location has been no previous piece of work that tries to combine examiner patent citation data beyond different jurisdictions, except the above-mentioned article (Wada 2018).

Examiner citations for refusals, which are assigned special categories of "Ten" and "Y" ^{Footnote 7} at the EPO and other offices such as the JPO, flags the aforementioned meaning for Usa rejection citation. This is because examiners are required to follow exact standards to add special citation categories, such as the EPO's Guidelines for Examination. According to the manual, examiners must indicate specific reasons to refuse patent claims, eastward.1000., lack of novelty or inventive step. ^{Footnote 8} Considering the standards of novelty and inventive step are similar ^{Footnote 9} between the offices, the commendation categories tin be the common ground for comparisons of citations across offices. Although there are differences of patentability standards betwixt the EPO and the USPTO in a limited number of technological fields, such as in software patents and biological patents, we move on to analyses on the assumption that the EPO Ten/Y citation categories are essentially identical to rejection citations at the USPTO. ^{Footnote x}

Given that rejection criteria are very shut together between the EPO and the USPTO and given also that important inventions pb to multiple patent applications in many jurisdictions including the two, a question can be raised concerning the determinants of discrepancies ^{Footnote eleven} betwixt rejection citations made to the same family unit of patent applications (Wada 2018). This adds a viewpoint to the growing number of comparative studies on patent prosecution systems (Azagra-Caro and Tur 2018; Gimeno-Fabra and van Pottelsberghe de la Potterie 2020). Moreover, another question should be raised nigh interdependence, if any, between citations for rejections between the ii offices. This involves a combined perspective on international patent examination systems, which is different from international comparisons in a simple parallel way.

Groundwork on international patent applications and prosecutions

The bones empirical question is whether and how examiner citations for rejections could alter if a prior search event is available from another office for the same family of a patent awarding. International application and prosecution systems are complex, and the institutional details thing. In particular, even only betwixt the EPO and the USPTO, at that place are several potential channels for the post-obit examiner to have access to a preceding search outcome in a multifariousness of ways, and therefore we need to specify routes of international applications and document sources for our inquiry purpose. Kickoff, the stardom between applications based on the Paris convention and applications through the Per centum ^{Footnote 12} should be noted, as the Percent specifies dissimilar stages of international prosecutions, and also provides international search reports. Second, the EPO has three major document types that adjust search reports prepared past the EPO, whereas the USPTO does non effect search reports separately from its test outcomes. The USPTO reports examiner citations on a specific form chosen PTO-892, but the examiner citations exercise not necessarily found reasons for rejections. Instead, rejection citations at the USPTO are available from the rejection documents in file wrappers on the Public Patent Awarding Data Retrieval (Public PAIR) database. Finally, the EPO has its test phase, where additional citations tin can be added to citations revealed on search reports. However, citations added in the European exam phase are not fully covered in the PATSTAT database, as volition be explained in the "Information source" section. Therefore, exam spillover from the USPTO to the EPO cannot exist reliably analyzed at this fourth dimension. We briefly review these weather condition beneath.

First, international applications through the PCT and the Paris convention take major differences in the timing of foreign entries and the availability of ISRs. As can be evident from Fig. i below, merely 1 year lag is allowed for international applications through the Paris convention, whereas a PCT application is given a xxx-month filibuster before information technology enters into its national phase. Besides, an ISR should be prepared for a PCT awarding past an International Search Authority (ISA), which may be EPO or USPTO or some other patent part, and the ISR is published with the international publication by the World Intellectual Property Organization (WIPO). An ISR for a Pct application is transmitted to designated offices, such every bit the EPO and the USPTO, for national stage prosecution. Therefore, when the EPO is the ISA, i.e., the EPO prepares an ISR, the report transmitted to another function, including the USPTO, is one of the channels of information flows from the EPO.

Fig. 1

Source: WIPO

International applications through the Paris Convention and the Per centum.

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Second, the EPO has three major document types, A1, A3, and A4, which accommodate European search reports. The EPO A1 document is a European patent application published with a European search report. A3 certificate is a carve up publication of the European search written report, issued in a case where the search written report is non bachelor at the publication date. A4 is a supplementary search report, which is typically issued for PCT applications with ISRs prepared by other ISAs.

Fig. two

Potential spillover channels between EPO and USPTO, the Paris Convention route

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Figure 2 below illustrates how EPO A1 and A3 documents tin can provide spillovers onto the USPTO for an awarding through the Paris convention (not through Percentage). A family of international applications based on the Paris convention is a set of applications claiming a priority in a local jurisdiction. Each application in a family is reviewed separately at each part without a formal data channel as specified in Per centum. However, a European search report, either A1 or A3, is to exist issued for a European awarding within an international family unit of applications. Therefore, when a European search study is available for an examiner at another office who examines its local application in a family unit, the information tin be spillovers from the EPO to some other part, including the USPTO. The duty of disclosure and candor is required at the USPTO, which implies a requirement to disclose to the USPTO all information known to an applicant regarding an application, and the data revealed past a European search written report becomes a part of the duty. In add-on to the applicant's information disclosure statement (IDS, USPTO course 1449) at the time of Usa application, additional IDS out of a European search report ^{Footnote xiii} may thus be reported to the USPTO later. From the main text of ''CTNF'' (nonfinal rejections) and ''CTFR'' (concluding rejections) documents available on the file wrappers of the USPTO Public PAIR database, we can find citations recognized and employed for rejections by USPTO examiners, mayhap as a issue of spillovers. These rejection citations institute a role of examiner citations, which is usually divers by PTO-892 (notice of references cited by examiners) form in statistical analyses.

Next, Fig. iii illustrates PCT cases, i.e., how ISRs prepared past diverse ISAs every bit well as EPO A4 supplementary search reports can provide search results for afterward examinations. Whereas applicants from the EPC countries cannot choose ISA exterior Europe, in many other countries, ISAs tin be chosen by applicants globally. For example, United states applicants oft cull the EPO as ISA for their PCT applications, but sometimes choose to rely on the Korean Intellectual Property Office or the Russian Patent and Trademark Part as an alternative ISA. Equally stated before, ISRs are transmitted to another function through WIPO, which tin be interpreted as flows from ISAs for national (or regional) test stages. In addition, the EPO prepares A4 supplementary search reports on elevation of ISRs prepared past other ISAs ^{Footnote 14}. When an applicant receives the effect of the EPO A4 supplementary search study, the bidder must notify the USPTO via IDS according to the duty of disclosure for its US counterpart awarding. This tin can be some other potential aqueduct ^{Footnote 15 , Footnote 16} of spillovers from the EPO to the USPTO.

Fig. 3

Potential spillover channels between EPO and USPTO, the Pct route

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Data source

Equally indicated above, this written report takes reward of a novel large-scale dataset of US rejection patents obtained from rejection documents (the "CTNF" and "CTFR" documents that denote non-last and last rejections, respectively; Graham et al. 2015) available as file wrappers on the "Public PAIR" database of the USPTO to compare patent citations employed by examiners as specific reasons for rejections (Wada 2018). In other words, by manner of approximating citation categories of 10/Y for the USPTO, we are now able to measure convergence and divergence of individual rejection reasons used by the two patent offices through family-to-family citations. A like US Ten/Y-equivalent database was adult independently past Jeff Kuhn (Thompson and Kuhn 2017), and yet another comprehensive database has at present been made available by the USPTO (Lu et al. 2017), which helped to disseminate the idea of rejection citations, or Ten/Y-equivalent citations. However, neither of these focuses on international citations. International matching and comparisons at the level of family-to-family unit citations remain unfeasible with those databases. We implemented ^{Footnote 17} optical character recognition and tongue processing to extract X/Y equivalents, including international citations, from the file wrapper data at the University of California, Berkeley, by Guan-Cheng Li. We are thus able to evaluate whether the availability of EPO's search reports, which encompass nigh EP citations, influences the prosecution reasons applied by the USPTO through an X/Y equivalent in the U.s.. Combined with the The states rejection patent database, the EPO PATSTAT database (Jump 2016) and EPO DOCDB (Backfile 2017 January version) have been used.

The domain of statistical analysis is the fix of Ten/Y citations and equivalent rejection citations (cited by 40,557 families), for triadic applications through the PCT and non-Percentage applications. Triadic patent applications are divers here equally EPO DOCDB families ^{Footnote 18} that comprise all of the EPO, USPTO, and JPO applications recorded on EPO'south PATSTAT database. The domain of triadic applications was formerly regarded equally a standard way of representing patent applications with loftier economical value (Dernis and Khan 2004) for cross-national comparisons. This is because single-country patenting statistics cannot provide an unbiased measurement in consideration of regional specificities in patent applications and prosecutions around the world. Recently, triadic patents are criticized as a standard (Frietsch and Schmoch 2010), partly because the JPO applications are highly biased toward domestic applicants, and also because the Chinese and Korean shares of international families take recently increased rapidly. Yet, triadic applications are used in the following analyses for different reasons. Get-go, we demand a set of applications where they are examined and given function actions at least both at the EPO and USPTO. Second, we also need a gear up of applications from exterior the 2 offices, because applicants from Europe and the US tend to have local advantages, for example, as prosecution tactics, from which spillovers between the EPO and the USPTO may be affected. By way of adding a region with many applications, we can evaluate how applications from outside Europe and the US are examined, with possible spillovers between the EPO and the USPTO. The number of applications in Japan was inside the top three throughout ascertainment in this study, and then the triadic sample is chosen as "EPO and USPTO plus one large patent and trademark office," where the additional function happened to be the JPO.

The citations in this written report business concern an EPO DOCDB family unit where just a unmarried DOCDB family ID is observed and where X/Y citations (and equivalents) are added by all of the trilateral offices, representing "twin applications approach (de Rassenfosse et al. 2019)." The domain of the study is comprised of 274,100 family citations recorded as rejection citations at the USPTO, found for xl,557 triadic families that take single DOCDB family IDs and priority years 2003–2010. Note that nosotros have oversampled applications from Japan.

Several caveats should be mentioned concerning the data. First, all citation information are patent citations, considering of the availability of DOCDB family-to-family citations. Thus, the accuracy of international families depends entirely on the DOCDB family table on PATSTAT. Moreover, PATSAT, our chief data source, records non-patent literature in not-standardized formats, and so we could not consolidate the same non-patent literature across unlike records. For this reason, we have only employed patent citations at this fourth dimension. This is a weakness, although well-nigh observed examiner rejection citations business patents only.

Second, simply the dates of search reports at the EPO, non those of post-report examinations, are reliably bachelor at present, even on the EPO DOCDB database, which is the mother database for PATSTAT. Also, the EPO citation data during the examination phase are incomplete on DOCDB and PATSTAT. Therefore, nosotros do non employ examination timing information at the EPO. Search written report dates for this study are combined, compared, and checked with the EPO DOCDB backfile and are confirmed to exist accurate. We are unable to reliably analyze spillovers from the USPTO to the EPO due to these data limitations.

Third, triadic patent applications are defined here equally DOCDB families that comprise simply one recorded DOCDB citing family. Therefore, any divisional or continuation applications that produce more than one DOCDB family unit ID exclude the family from the sample. Every bit the economic value of a patent application depends on the probability of the use of bounded or continuation applications, this constitutes a bias in the sample selection.

Measurement and uncomplicated comparison

A simple amass measurement for a particular citing family is the "EPO–USPTO family-to-family unit rejection citation coincidence ratio," i.e., the ratio of coincidence of X/Y citations by the European search reports ^{Footnote 19} over all rejection citations added by the USPTO to the aforementioned citing family. To obtain this "EPO–USPTO rejection family-to-family commendation coincidence ratio" for an application, nosotros first list X/Y-equivalent The states rejection citations added to the application in chronological guild during its prosecution history. The number of repeated rejections in its prosecution history at the USPTO is likewise recorded. The aforementioned patent commendation is often used repeatedly in the same prosecution history at the USPTO, so there tin be multiple records of the same citation pair with different US office activity timing. We take the number of all these X/Y-equivalent US examiner citations for the application every bit the denominator of the ratio for the family of the application. For each US citation, we obtain a citation mapped onto a DOCDB citation pair from the PATSTAT data. We obtain a dichotomy on whether a commendation is besides coded as 10/Y category at the EPO within the aforementioned family-to-family unit commendation. When the EPO's search written report records the citation equally X/Y, we define the citation as a coincidental Ten/Y EPO citation pair with the USPTO Ten/Y equivalent. And so, nosotros take the number of all coincidental Ten/Y EPO search report citations for the citing family unit as the numerator of the ratio.

The ratio equals one if all of the X/Y-equivalent rejection citations at the USPTO are also coded as X/Y at the EPO in the same family unit. The ratio is zero if none of the rejection citations at the USPTO for an application are recognized as X/Y past search reports prepared by the EPO. In summary, this measurement indicates the proximity of a set of rejection citations employed by the USPTO to those Ten/Y citations indicated past the EPO, within a single family of applications. Figure 4 shows the averages of the commendation coincidence ratio over different sets of the sample, comprised of triadic applications with priority in the EPC countries, those with priority in Japan, and those with priority in the U.s. (i.e., geographical sources of applications from each of the trilateral offices). Each of the ratios is calculated according to two stages of US citation timing: pre-ESR (or in PCT applications, pre-ISR prepared by EPO) and post-ESR (or post-ISR prepared by EPO). As is axiomatic from the figure, the ratio increases later the release of EPO'south search reports, although the consequence is not very obvious for applications from the US. Apropos the basic questions stated at the beginning, the respond for the beginning one seems to be positive. A simple interpretation of this would be that the US examiners have advantage of the upshot of EPO's search, ^{Footnote twenty} specially if an application is first fabricated outside the US. Even so, because this aggregate ratio does not reflect the deviation betwixt PCT and non-Percent applications, and also considering this ratio is a simple and amass comparison irrespective of European bidder citations or pendency length, we demand to clarify at more micro-analytic level, along with control variables. In the next section, we consider the timing of search reports prepared by the EPO relative to USPTO get-go office deportment.

Fig. 4

Boilerplate EPO–USPTO 10/Y family-to-family unit citation coincidence ratios

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Timing of The states first part deportment versus European search reports and ISRs

Albeit the sequence between international and national stage prosecutions was already explained, the bodily timing of the search report and US office actions should be further explained. The following Fig. 5 shows the lag distribution (histogram in days) between U.s.a. first office actions (rejections only) and ESRs or ISRs, namely, European A1, A3, A4, or ISRs prepared by the EPO, for the full sample of this study. The horizontal axis is positive when the US starting time office activity date (mailing-out date) lags behind the publication dates of search reports prepared by the EPO. When European A1, A3, A4, or ISRs prepared by the EPO are all included, US starting time office actions lag on the average. At the aforementioned fourth dimension, nosotros observe significant overlaps between the office activeness timings between the ii.

Fig. 5

Fourth dimension lag (in Days) of U.s. kickoff Office Actions from EPO search written report dates (incl. ISRs), all of European A1, A3, A4, and ISRs prepared by EPO being included

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On the other hand, as in Fig. six beneath shows, when only European A3 and A4 reports are included and compared, US get-go office actions take place before on the average. At that place are withal significant overlaps, and the mode is effectually nada, implying that the most frequent occurrence of US first rejections is around the dates of EPO A3 or A4 written report issuance.

Fig. half dozen

Time lag (in Days) of United states of america offset Office Deportment from EPO search report dates (A3 and A4 but)

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The two charts to a higher place imply that applicants by and large find it difficult to predict whether US get-go office actions accept identify before search reports by the EPO. From another perspective, PCT applications from Europe or the United states have different typical patterns. As is shown by Fig. 7 below on Pct applications from Europe, US office actions are about likely to occur after ISRs prepared by the EPO. This is considering the EPO prepares ISRs in time for publications of PCT applications from the EPC countries. From this distribution, we can predict that US examiners expect the availability of ISRs prepared past the EPO for applications from Europe. Given that US commencement office actions take approximately four years (3.98 years from U.s.a. filing) in this entire sample, US examiners unremarkably take an advantage of information discovered later on than publication concerning relevant prior arts, in improver to the result of European search.

Fig. 7

Fourth dimension lag (in Days) of United states of america outset Office Deportment from ISR by EPO as ISA (sample: Percentage from EPC countries merely)

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On the reverse, as is shown by Fig. 8 below on PCT applications from the Us only where the USPTO is the ISA, U.s.a. office actions are near probable to occur before European supplementary search reports (European A4 document). Usa applicants can choose the EPO as the ISA, but if they choose the USPTO as the ISA, European supplementary search reports are most likely to come later than US first office actions. We can expect that the chance of spillovers from the EPO A4 document to the USPTO outset office deportment is slim.

Fig. 8

Time lag (in Days) of US first Function Action from European supplementary search reports (A4) (sample: Percent from the US only)

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Regressions

Methodology

To obtain more than micro-level insights, nosotros adjacent focus on the dichotomy describing whether or not a US X/Y-equivalent rejection citation is coded as belonging to the X/Y category at the EPO besides. By taking this dichotomy as a dependent variable in logit regression, we can clarify correlating factors and their signs. The unit of analysis is a family-to-family citation given at the USPTO as a rejection commendation, with office activity sequence data and other awarding-level attributes as explanatory variables. Specifically, allow united states of america define y _i as a dichotomy taking a value of one when a family of a rejection citation by the USPTO examiners to a triadic awarding family i coincides with a family of 10/Y commendation added by the EPO search written report. And then, the post-obit model tin can be estimated assuming that the function F() is a logistic cumulative distribution function. Vectors of explanatory variables are represented by X _j andβ is a coefficient vector such as:

$${\text{Pr}} (y_{i} = i) = F (X_{j}\beta)$$

Explanatory variables Ten_j and chief predictions

Nosotros focus on fundamental explanatory variables to analyze convergence and difference of Ten/Y citations. Ane variable is another dichotomy, US_action_after_EP_SEA_date. It takes a value of i when US rejection citation was given at the USPTO later on the release of the European search written report (abbreviated as "EP SEA" on PATSTAT, and besides ISRs prepared by the EPO) for its EP family member application, where applicable. Considering of a "search result spillovers" effect, we predicted that the coefficient would be positive. Along with this "before ESR" and "postal service ESR" distinction, we also utilize a dichotomy concerning whether the citation pair is recorded as an applicant citation at the EPO, which can be distinguished every bit category "D ^{Footnote 21}" citation at the EPO. If a commendation is submitted past an applicant at the EPO, the applicant is likely to submit the same prior art to the USPTO because of the duty of disclosure in the The states. Therefore, citation coincidence between the two offices will increment for European applicant citations. Applicant-submitted citations in the US, typically defined by PTO-1449 form at the USPTO, are non assigned a variable here, considering they are applicant-submitted at the USPTO merely not necessarily applicant-originated (Meet footnote 13 before).

Controls

We use a number of control variables. We first employ another variable of the number of rejection actions at the USPTO. This measures the total number of Usa rejections for a particular rejection citation within a prosecution history. Spillovers from the EPO search report to the USPTO, if whatever, should occur simply once in a prosecution since typically one report past the EPO is issued for an awarding. In contrast, rejection reasons could migrate through exchanges of deportment (e.m., amendments as responses to past rejections), especially at the USPTO. To incorporate these processes, we employ a variable, US_rejection_counts, which is the number of rejections (non-final and final) in a USPTO prosecution history. Considering longer exchanges of rejections and responses mean the development of bargaining issues in prosecution, we expect the coefficient for this variable to exist negative. In order to incorporate a longitudinal outcome further, we also utilize "us_action_lag_from_appyear" which means the lag in years between filing year and role action year. Nosotros also predict the coefficient to be negative.

The Per centum requires that a PCT application should be given an international search report prepared by a patent office. If a citation pair is given on an ISR, it will be transmitted to national offices. When an application in a sample is a PCT application and a commendation pair is cited in its ISR, a dichotomy isr_cited_dummy is added equally indicating that a citation is likewise listed in ISRs. Since a citation given on an ISR is visible at national and regional offices, we tin wait that citations listed on ISRs have a college probability of coincidence between the EPO and the USPTO, implying a positive coefficient for this variable.

When an application in the sample is not only a PCT awarding only too has its International Search Authorization (ISA) equally the EPO, we give a value of one for a dummy variable ISA_EP, which means that a family has the EPO as its ISA. Past including this variable, we can evaluate if information from the ISRs from the EPO has whatsoever difference. It should be noted that European applicants are required by their rule to ask for search reports from the EPO merely (so this variable is always one) if the EPO is the receiving office. Approximately half of the PCT applications from the US choose the EPO as their ISA, whereas most of PCT applications from Nippon relies on the Nippon Patent Office for their ISA. When a PCT application is given an ISR by other than the EPO, the EPO volition issue supplementary search reports (EPO A4 document). Therefore, European search reports are issued for all triadic applications, but the A4 supplementary issuance timing tends to be late when an international search report is already issued by some other (non-EPO) ISA.

The location dummies for the priority land, first_EP, first_US, and first_JP, are employed in the full sample estimation. We also controlled for priority years (2003–2010) and the World Intellectual Property Organization (WIPO) 35 technology fields (WIPO 2017) of each family. The variable techn_field_nr_counts is the number of WIPO technology fields covered past the family, representing the latitude of the technology.

We first run linear and logit estimations on the full sample. Then, the Pct sub-sample and Paris sub-sample are used. Next, further sub-samples of applications from the EPC countries, Japan, and the US are used, both for Pct and Paris routes.

Results

Tabular array ane shows the results for the full sample, Per centum sample, and non-PCT sample over the triadic regions. The first column (Model one) employs a linear regression, whereas the second row (Model 2) employs LOGIT. Model three limits sample range to Percent triadic applications just and Model iv limits range to not-PCT (Paris-route) sample merely. As the kickoff row of the estimation results in Table i shows, EPO–USPTO family-to-family rejection commendation coincidences are consistently more likely to occur after a release of an EPO's search report. That is, we observe positive and pregnant coefficients for the explanatory variable, US_action_after_EP_SEA_date, indicating the convergence of US rejection citations to EPO X/Y citations afterwards the release of search reports by the EPO.

Table i Linear and Logit regression, dependent variable: coincidence dichotomy between rejection citations at the EPO and USPTO. Unit of measurement of analysis: DOCDB family unit citation pairs

Total size table

The coefficients for EP_applicant_cite are positive and pregnant. As predicted, applicant-submitted citation at the EPO is positively correlated with the coincidence of rejection citations and X/Y citations at the two offices.

The coefficients for us_rejection_counts are consistent throughout the results, being negative and meaning. As predicted, US examiners employ different rejection reasons from those used by the EPO on average, equally prosecution takes longer. Therefore, nosotros notice that the longer pendency results in divergence of U.s. rejection citations from EP X/Y citations. The additional pendency variable "us_action_lag_from_appyear" is also negative and pregnant for the full sample, just non e'er meaning for subsamples.

The coefficient for the dummy isr_cited_dummy is consistently positive and significant, and its coefficient value is very loftier compared to other variables. When an ISR is issued, patent offices can easily have access. Therefore, the coincidence is a necessary outcome. Put differently, fifty-fifty after decision-making for this ISR effect, US_action_after_EP_SEA_date has a positive and meaning sign, suggesting a stable spillover effect from the EPO to the USPTO. The coefficients for ISA_EP (EPO as an ISA) added for the PCT sample has a positive and significant coefficient, which also suggests spillovers from the EPO through its ISRs.

The location dummies for the priority country show that applications from the The states have lower coincidence ratio on the average, except PCT only sample. Whereas ISRs work in favor of convergence of rejection citations for PCT applications, applications through the Paris convention practise not have similar spillover channels. The negative coefficient might propose that U.s.a. applicants are likely to accept local advantages at the USPTO concerning prosecution strategy, which in turn leads to more divergent rejection citations. Concerning technological fields, we do not discover consistent patterns. The technological latitude variable techn_field_nr_counts seems also not relevant.

Now we limit sample ranges to each get-go filing region of the EPC countries, Japan, and the US, as is shown in Table 2. According to the kickoff row, US_action_after_EP_SEA_date has a positive and pregnant sign, except in Model 9 (PCT from EPC countries only) and Model 11 (Percentage from the Us only). It may seem to indicate the USPTO examiners do not incorporate information from EP search reports, only considering the timing of search reports and office actions, they are consistent with spillovers, as explained below.

Table 2 Logit regression on subsample, dependent variable: coincidence dichotomy between rejection citations at the EPO and USPTO. Unit of analysis: DOCDB family citation pairs

Full size table

The Model 9 is a variant of Model 8, with the aforementioned sample range (Percentage from EPC countries only), just with an added dichotomy isr_cited_dummy. As was discussed earlier, ISRs for Pct applications from the EPC countries are prepared past the EPO. Therefore, this variable isr_cited_dummy is very close to the dependent variable when nosotros focus only on Pct applications from the EPC countries. We withal can translate the result, with a very large positive coefficient on this isr_cited_dummy variable with significance in Model 9, as the USPTO examiners follow search reports prepared by the EPO.

Model 11 employs the Per centum sample from the US only. In this model, both isr_cited_dummy and ISA_EP have a positive and significant coefficient. Every bit was discussed with charts, PCT applications from the US are well-nigh likely to receive get-go role actions earlier, particularly when the USPTO is the ISA, where European supplementary search reports are issued typically after first US office actions. Yet, even so, a positive ISA_EP coefficient can be interpreted in a way that the EPO has spillovers from its ISRs onto the USPTO. More specifically, when The states Percent applicants choose the EPO as their ISA, we can interpret the result equally the likelihood of the commendation coincidence between the two offices is higher than the case where the USPTO acts as ISA. Controlling for the ISA_EP variable, the coefficient for US_action_after_EP_SEA_date shows whether a supplementary search written report (not ISRs by the EPO) prepared past the EPO has a convergence effect. The coefficient is non significant, which is not inconsistent with the general tendency for USPTO examiners to follow the EPO. This is because, in these cases of ISRs for U.s.a. PCT applications, the EPO issues supplementary search reports, just the supplementary search report is likely to be issued later US starting time function action (Fig. 8), and therefore the spillovers are unlikely to exist captured by the coefficient for US_action_after_EP_SEA_date. Moreover, the number of citations newly added past the supplementary is modest. ^{Footnote 22}

The coefficients for EP_applicant_cite are positive and significant, except Model 6 (applications from Japan through the Paris Convention). Again, applicant-submitted citation at the EPO is positively correlated with the coincidence of rejection citations and 10/Y citations at the ii offices, although applicants from Nihon may take different practices to written report citations.

The coefficients for us_rejection_counts are again consistently negative and significant throughout the results. The additional pendency variable "us_action_lag_from_appyear" is not consistently significant for subsamples.

The overall results are consistent with the being of spillover event from the EPO to the USPTO, subsequently controlling for many factors. In the express cases of PCT applications from the Us with the USPTO acting equally ISA (Model xi), the positive and significant signs of isr_cited_dummy even so indicate that ISRs facilitate the convergence of rejection citations at the USPTO and X/Y at the EPO.

Conclusions

Nosotros notice EPO–USPTO convergence of citations after the search report release past the EPO, implying the existence of spillovers from the EPO to the USPTO. The results also bear witness that ISRs facilitate the convergence of rejection citations between the two offices. Also, applicant-submitted citation at the EPO show positive coefficients, implying that they are facilitating the coincidence of rejection citations and 10/Y citations at the two offices. Thus, the positive question presented at the beginning of this article, namely, whether the following examiner who can observe previous search outcome is more likely to conclude with the aforementioned set of previous citations than without a previous test outcome, clearly has affirmative results.

The results obtained hither notwithstanding, we cannot immediately conclude with the normative question presented at the beginning, namely, whether the increased commendation concordances between examiners at different offices e'er imply a more "complete" prior art search. The convergence of citations after the release of EPO's search reports may imply that there is "do good" by saving search try by the USPTO. If less search endeavor at the following function always ways "more efficiency," collaborative search mechanisms between patent offices are always beneficial, which have policy implications. Notwithstanding, a combined set of search results can be less comprehensive. What is potentially establish past multiple independent searches rather than sequenced and dependent searches is one of the unlike inquiry topics. This is reserved for future research and may be assessed, for example, by comparison opposition outcomes.

Bated from normative questions, we detect other findings, such as the convergence of citations through bidder-submitted prior arts and divergence of citations when prosecution takes longer. Namely, we detect that European applicant-submitted ("D" category) citations lead to convergence of rejection citations. Nosotros also observe the deviation of US rejection patent citations from those at the EPO as the process of prosecution becomes longer, which is typically caused in the United states of america by persistent challenges from applicants appealing repeated rejections.

The results apropos the interdependence of patent prosecutions between major patent offices have been found by a novel use of examiner patent citations, though this can be regarded every bit just an initial step toward the international pattern of interdependent institutions. From a theoretical viewpoint, the approach of this study shows potential beyond the narrow field of patent citation studies, in that sequential reviews of prior arts relevant to the same citing documents could result in dissimilar commendation network structures, dependent on the possibility of data sharing between dissimilar citing entities.

Modify history

• 30 October 2020

  The missing funding note "Open up Access funding enabled and organized by Projekt Bargain." has been added at present.

Notes

1. A hypothetical bookish refereeing procedure can exist illustrative. If 2 reviewers assigned for the same manuscript are given a sequence where the post-obit reviewer has an opportunity to refer to an before recommendation prepared by a preceding referee, the post-obit referee, who is supposed to take different expertise and viewpoints, can rely on the existing evidence, but may even so try to provide a unlike perspective or a prior fine art with better relevance, as it is the expected value-added as a second referee.

2. The EPO Examination Guidelines land that supplementary search reports must in most cases be prepared on peak of international search reports drawn upwardly elsewhere. The Guidelines as well explicitly country that "As a general dominion, the EPO tries to avoid any superfluous piece of work and duplication of work and relies on the efficiency and quality of the international searches to the largest extent possible" (EPO Guidelines for Examination, Part B, Chapter II, 4.3.2). It suggests a difficult balance between trying more than complete search with additional effort and saving duplicative search endeavor.

3. A recent article acknowledges the demand to study spillovers betwixt patent offices as a future topic (Gimeno-Fabra and van Pottelsberghe de la Potterie 2020).

4. Note that existence of spillover does not always mean reduction in citation discrepancies, considering a subsequent examiner may be able to add together different citations by redistributing resources to issues that tin can be ignored previously.

5. European search reports in this article include ISRs drawn up by the EPO. Although this is inaccurate in a legal sense, this definition is consistent with the focus of this article, which is (potential) information spillovers from the EPO to the USPTO.

6. At that place have been studies focused on the category of examiner citations. For example, "For certain statutory rejections, the examiner volition cite in the Function action the previous patent documents and/or non-patent literature references to support the rejection" (Lu et al. 2017), without naming the verbal type of examiner citations in a compactly and inclusively. "Citations used past examiners in rejections" (Cotropia et al. 2013) refer to the aforementioned meaning, which is later called as "rejection citation" in another commodity (Cotropia and Schwartz 2018). They are virtually equivalent to a combined set of Ten or Y citations at the EPO, in the sense that specific prior arts plant the reason to reject.

7. X and Y indicate "Particularly relevant documents," as specified by the EPO Guidelines for Examination (Part B, Chapter X, nine.ii.one).

8. See, for example, the EPO Guidelines for Examination Function C, Chapter III, iv. Showtime communication, Office B, Chapter Iii, one.1 Opinions in relation to the search written report, and Part B, Chapter II, 2 Objective of the search. ESRs provide patentability information for applicants, as Role B, Chapter II, 2 specifies that the "objective of the search is to find the state of the art which is relevant for the purpose of determining whether, and if so to what extent, the claimed invention for which protection is sought is new and involves an inventive footstep." Thus, X/Y citations constitute articulate reasons to turn down.

9. The term "novelty" is identical between the EPO and the USPTO, and "inventive step" at the EPO is usually interchangeable with "nonobviousness" at the USPTO. For case, the Patent Cooperation Treaty (PCT), Article 33, states that "The objective of the international preliminary examination is to formulate a preliminary and non-binding stance on the questions whether the claimed invention appears to be novel, to involve an inventive stride (to be nonobvious), and to be industrially applicable."

10. This idea of international citation comparison was beginning proposed at the ISSI Wuhan briefing by Wada (2017).

11. The determinants of discrepancies betwixt rejection citations internationally were partially analyzed in a previous study (Wada 2018), but more piece of work is needed with additional perspectives. For example, examiners have been relying on different patent classification systems, such as the International Patent Classification (IPC), the European Classification (ECLA), and the U.s. Patent Classification (USPC). The EPO and the USPTO take developed a articulation nomenclature arrangement, the Cooperative Patent Classification (CPC), every bit a means to harmonize classification systems. Since the CPC facilitates a standardized mode of storing data, the two offices are expected to converge on how to retrieve prior art information. Although we tin can expect the effect, i.east., a reduced deviation of rejection citations betwixt the ii subsequently implementation of the CPC, the sample period of this study until 2013 does not allow analysis on information technology. This viewpoint is worth noting, withal, and the author thank you a referee for pointing out this perspective.

12. The Patent Cooperation Treaty (PCT) is consistent with the Paris convention, and the former does non supersede the latter (Patent Cooperation Treaty, Commodity one (2)).

13. USPTO bidder citation has been defined by this IDS in many statistical studies and so far. However, some of the information on IDS originates from search activities past other offices. This category is indeed applicant-submitted, but not bidder-originated.

14. EPO Guidelines for Examination (Role B, Chapter II, 4.three.2).

15. In a pocket-sized number of cases, the EPO may act as the Supplementary International Searching Dominance equally a part of the international stage under Pct, according to the request by applicants. In that example, no supplementary European search study volition be fatigued upwards in the European stage ("Euro-Percent Guide": PCT procedure at the EPO, 3.iv.005). All the same, in both cases, supplementary search results conducted past the EPO will be made visible by the USPTO.

16. In improver to supplementary searches, an additional citation by the EPO tin be added when EPO acts every bit an International Preliminary Examining Say-so (IPEA). This is omitted in this Fig. iii.

17. Run across Wada (2018) for details of the data set, equally the data structure and sources are identical to this article. Parsing algorithm is quite like to Lu et al. (2017), where cardinal phrases are used as triggers. For example, 1 or more than claims are "rejected" on legal grounds (e.thou., "under 35 U.S.C. 102(a)"), with a phrase specifying prior art references, eastward.1000., "as being unpatentable over Kanda (2009/0239176) in view of Nozaki et al. (1,608,386)."

18. There is more than than one definition of patent families. We primarily rely on the DOCDB family, considering of the clarity of patent family ranges to exist compared. This approach is identical to the "twin awarding" thought to report the differential results of patent grants from the triadic offices of the Usa, the EU, and Japan (Jensen et al. 2005; Webster et al. 2007, 2014; de Rassenfosse et al. 2019). According to the latest PATSTAT Data itemize (2020 Jump), DOCDB family means that "every application belongs to exactly one simple family on PATSTAT" and "all applications which are fellow member of the same simple family practise accept the same priorities."

19. Again, ESRs here include ISRs prepared by the EPO.

20. The opposite can be truthful and non inconsistent with the result. Namely, US office deportment may exist conducted earlier than search reports by the EPO, and EPO examiners may take access to the search results prepared by the USPTO. This will increment the commendation coincidence ratio. The credible gap in the coincidence ratios before and later the release of search reports by the EPO can be interpreted in a way that spillovers from the search reports of EPO to the USPTO function actions are more than the spillovers in the opposite management.

21. The category "D" citations can sometimes be establish along with Ten or Y citations at the EPO on PATSTAT.

22. It may be possible that United states examiners may not discover the upshot of EPO'south search for US-based applications as valuable as those for applications from outside the Usa, mayhap because examiners take a local reward in noesis concerning local applications. Data on examiner characteristics and feel will add value to the analyses here, which is beyond the scope of this article.

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Acknowledgements

The nowadays study is an extended version of an article (Wada 2019) presented at the 17th International Conference on Scientometrics and Informetrics, Rome (Italy), 2–5 September 2019, with additional materials prepared for a short-term research project "International spillovers between patent test results" past the Institute for Intellectual Property, Tokyo (Wada 2020). This report has benefited from a research project for the Enquiry Plant of Science and Technology for Society (RISTEX) and the Japan Scientific discipline and Technology Bureau (JST), and also from the project "Building upwards Innovation Capability and the Design of Incentives: Evidence from Micro-data," undertaken at the Research Institute of Economy, Trade and Manufacture (RIETI). The writer is grateful for helpful comments from the bearding referees of this journal and Setsuko Asami, Stuart Graham, Bronwyn Hall, Dietmar Harhoff, Yoshiaki Kodachi, Alan Marco, Sadao Nagaoka, Yoshimi Okada, Alfons Palangkaraya, Kazuyuki Tanji, Andrew Toole, Stefan Wagner, and the audience at the 13th Almanac Conference of the European Policy for Intellectual Holding (EPIP) and the Max Planck Innovation and Entrepreneurship Seminar. The author acknowledges financial support from the Nippon Society for the Promotion of Science (JSPS) KAKENHI Grant Numbers 18H00889 and 16KT0092.

Funding

Open Access funding enabled and organized by Projekt DEAL.

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Affiliations

1. Faculty of Economics, Gakushuin University, ane-5-1 Mejiro, Toshima-ku, Tokyo, 171-8588, Nippon

   Tetsuo Wada

2. Max Planck Found for Innovation and Competition, Marstallplatz i, 80539, Munich, Germany

   Tetsuo Wada

Corresponding writer

Correspondence to Tetsuo Wada.

Additional data

No commodity note with the text "Fig. 1 has been replaced." is necessary.

Appendix

Appendix

See Table 3.

Table 3 WIPO technology fields

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Wada, T. When do the USPTO examiners cite as the EPO examiners? An analysis of examination spillovers through rejection citations at the international family-to-family level. Scientometrics 125, 1591–1615 (2020). https://doi.org/ten.1007/s11192-020-03674-4

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• Received: sixteen Dec 2019

• Published: 14 September 2020

• Issue Date: Nov 2020

• DOI : https://doi.org/x.1007/s11192-020-03674-iv

Keywords

• Rejection citation
• Examiner citation
• Patent citation
• Exam spillovers
• Ten/Y citations
• DOCDB patent family
• Family-to-family citations
• Trilateral offices
• Triadic patent

JEL Classification

• K29
• O33
• O34

Mathematics Subject Classification

• 91D30

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