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Imagine you are on the verge of securing a patent for your latest innovation. You can see the finish line, but there is a small misunderstanding regarding a prior art reference standing in your way. For decades, the solution was simple: pick up the phone, schedule an interview with the patent examiner, and talk it through. These conversations often bridged the gap between a rejection and an allowance, saving time, money, and frustration.
But recently, the line has gone dead.
If you are an entrepreneur or business leader relying on intellectual property to fuel your growth, you need to be aware of a quiet but significant shift happening at the United States Patent and Trademark Office (USPTO). Just this week, I experienced a jarring change in procedure that contradicts decades of standard practice—and even the USPTO’s own public messaging.
Is the system broken, or just changing? More importantly, how does this affect your ability to protect your groundbreaking ideas? Let’s break down exactly what is happening, why it is happening, and the strategic pivot you need to make to ensure your intellectual property remains secure.
The Power of the Personal Touch
For years, my strategy for overcoming stubborn rejections has been straightforward and highly effective. When an application hit a “Final Rejection”—usually the second rejection in the process—I would schedule an interview with the examiner.
These aren’t just casual chats. They are critical strategic sessions. They allow us to clarify the invention’s unique features, clear up misconceptions about the technology, and explain exactly why the invention is patentable over the cited prior art and more recently over the “abstract invention” 101 rejections. In my experience, these human-to-human interactions made a massive difference. They turned “no” into “yes” and moved applications from the rejection pile to the issue fee pile.
Communication fosters understanding. When an examiner hears the passion and the logic behind an invention directly, it cuts through the dry legalese of written responses. It facilitates a collaborative path forward.
A Sudden Shift in Protocol
However, the collaborative atmosphere seems to be evaporating. Just this week, I encountered a roadblock that I haven’t seen in decades of practice. I requested interviews for two separate patent applications, both of which were facing final rejections. In both cases, the examiners declined the request.
The refusal wasn’t just a scheduling conflict; it was a procedural wall. One examiner was surprisingly candid, suggesting that if I wanted to talk, I should file a Request for Continued Examination (RCE) with a response and then schedule an interview.
For those not fluent in patent-speak, filing an RCE essentially means paying a substantial fee to reopen prosecution. It resets the clock. The examiner was effectively saying, “If you want to speak to me, you have to pay for another round of examination first.”
We followed this advice, filed the response and the RCE, and—like magic—the interview was scheduled. While this strategy worked, it signals a troubling “pay-to-play” dynamic that adds friction and cost to the innovation lifecycle.
The Disconnect: What Management Says vs. What Examiners Do
Here is where the situation gets confusing. Just yesterday, I attended a “USPTO Hour” webinar, a session designed to update practitioners on current procedures. The presenters, including high-level officials, assured us that examiners can indeed conduct interviews after final rejections. They spoke about applicant best practices and the value of communication.
Yet, the reality on the ground tells a different story.
There is a glaring disconnect between the official agency line and the behavior of the examiners in the trenches. While leadership promotes communication, the examiners are putting up barriers. Why?
The Root Cause: New Performance Incentives
The answer likely lies in bureaucracy and compensation. The USPTO has quietly rolled out substantial changes to the examiner Performance Appraisal Plan (PAP) for Fiscal Year 2026. This is the framework used to rate and pay examiners.
According to recent reports from industry watchdogs and legal experts, the new PAP caps the compensation examiners receive for interviews. Previously, examiners earned credit for time spent in interviews, incentivizing them to work with applicants to resolve issues.
Under the new rules, examiners are reportedly compensated for only one hour of interview time per round of prosecution. Any interview beyond that first one—or any interview after a final rejection — now requires supervisory approval. The examiner must prove that the conversation will “materially advance prosecution.”
This creates a massive disincentive. Why would an examiner spend time on a call if they aren’t getting credit for it, or if they have to jump through administrative hoops to get permission? It is far easier for them to simply deny the request or force the applicant to file an RCE, which resets the prosecution round and the interview clock.
The Impact on Your Innovation Strategy
Why does this matter to you? Because these bureaucratic tweaks have real-world consequences for your business strategy and budget.
1. Increased Costs
If examiners refuse to speak until an RCE is filed, obtaining a patent just got more expensive. You are no longer just paying for legal time; you are paying additional government fees just to get a hearing.
2. Slower Grant Times
Written responses take time to draft, file, and review. Interviews are often the shortcut that resolves issues in minutes rather than months. If interviews are restricted, the back-and-forth of written prosecution will drag on, delaying the issuance of your patent.
3. Higher Risk of Abandonment
Without that personal connection and the ability to clarify complex technical nuances, valid inventions risk being abandoned due to simple misunderstandings. If an examiner doesn’t “get it” and won’t talk to you, the path to allowance becomes steep and rocky.
Navigating the New Landscape
Despite these hurdles, innovation must go on. We simply need to adapt our tactics. The goal remains the same: minimizing risk while maximizing the value of your intellectual property.
If the USPTO is changing the rules of engagement, we change our strategy. This might mean prioritizing interviews much earlier in the process—before a final rejection is even on the table. It means making written responses even more robust, anticipating that we might not get the chance to verbally explain the nuances later. And yes, it means budgeting for the possibility of an RCE as a strategic tool to unlock access to the examiner.
Don’t Let Bureaucracy Stifle Your Vision
These changes at the USPTO are a hurdle, not a dead end. Your ideas are too valuable to be stalled by administrative red tape. At Sagacity Legal, we pride ourselves on staying ahead of these curves. We monitor the shifts in policy so that we can navigate the maze effectively for our clients.
For entrepreneurs and visionary leaders, every delay matters. Sagacity Legal is committed to ensuring that your path to patent protection is as smooth and successful as possible, regardless of how the examiners are graded.
Do you have a patent application stuck in limbo? Are you worried about how these changes might affect your intellectual property portfolio? Let’s talk.
Schedule a time to chat with me directly from our contact page or at meetwithrandi.com. Let’s develop a unique strategy to ensure your patent grants are successful and your business continues to grow.
About
Hi, I’m Randi.
I’m an IP attorney
My goal is to make legal guidance easy to understand, providing a supportive environment so you can feel confident securing your business’s future and focusing on what you do best.
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