The USPTO Just Quietly Made Interviews Harder, and That’s a Problem

Previously, examiners earned an hour of credit for each interview, with no real cap, so long as the discussions were productive. Under the new system, any additional interview after the first interview now requires supervisory approval and a showing that the second or subsequent interview will “advance prosecution.” Here, the first interview is any interview that occurs between the first Office Action and the filing of a Request for Continued Examination (RCE). The counter resets after filing an RCE.

Here’s a quick primer in case a patent attorney isn’t reading this. Note, this is a very watered-down primer. After a patent application is filed, the examiner usually issues an initial rejection based on prior art. The patent practitioner then responds, explaining why the claims differ from that art, often through arguments and/or claim amendments. The examiner reconsiders, possibly citing the same or new references, or may allow the application. If the examiner issues another rejection, it becomes a Final Office Action. At that stage, further amendments or arguments can be filed, typically with an RCE for them to be considered. The process restarts after the RCE.

Much of the back-and-forth can be avoided by simply calling the examiner. For example, suppose your claim covers a self-driving car that finds an “alternative route” to avoid bad weather. The examiner cites prior art where the car just pulls over until the weather clears. Technically, that’s an “alternative route.” Instead of exchanging lengthy written arguments, a quick call can clear it up. The examiner might suggest clarifying the claim to say “an alternative route that includes a road different from the original route.” A short conversation like this can make the process far more efficient.

The new shift appears to clash with long-standing Manual of Patent Examining Procedure (MPEP) guidance, which recognizes that interviews are central to advancing prosecution. As MPEP § 713 states:

“Discussions between an applicant and an examiner are often indispensable to advance the prosecution of a patent application. Generally, interviews that improve the mutual understanding of specific issues in an application should be promoted. Properly conducted, an interview can bridge the gap between an examiner and an applicant with regard to the substantive matters at issue in an application. Interviews often help to advance prosecution and identify patentable subject matter. The applicant and the examiner should consider the advantages of conducting an interview to advance the prosecution of a particular patent application. Positions presented during an interview should be advanced with decorum and courtesy.”
— MPEP § 713 (Interviews)

MPEP § 713.01 makes after-final interviews discretionary, meaning examiners may deny them if they believe the discussion will not materially advance prosecution. Now, with the new PAP rule, examiners have a further disincentive: no compensation unless they secure supervisory approval.

In practice, this means we’re likely to see more denied after-final interviews, especially if one already took place post–first action, and fewer examiner-initiated interviews, which have historically helped applicants and examiners clarify issues early and move toward allowance. One examiner noted that their Supervisory Patent Examiner (SPE) already said they’ll automatically approve all requests, so we’ll have to wait and see if that becomes the norm (fingers crossed).

In practice, I’ve only had a small minority of examiners deny interviews. It’s fine, my feelings weren’t hurt. Okay, maybe a little. Most have been collaborative, willing to take an extra call when an application was complex or when a discussion could break an impasse. That flexibility just got harder to exercise.

Interviews have always been one of the most effective tools to move prosecution forward efficiently. They humanize the process, prevent misunderstandings, and often avoid unnecessary RCEs.

Now, that collaboration comes with friction. In a world where even dating is digitized, interviews were one of the few chances to actually “reach out and touch someone.” They reminded us that behind every action and amendment are two people trying to reach understanding. Taking that away does not make the process more efficient; it makes it slower, less personal, and ultimately more costly in the long run.

I used to joke with examiners and say, “I hope this is the last time we speak, since allowance is next.” Now it’ll be, “I hope this is the last time we speak, since allowance is next. If not, I hope we can speak again—with discretionary approval.” A little human connection still goes a long way, even in patent law.