They do receive bonuses for doing more work, not necessarily for granting a patent. And you’re dead wrong on the second part, it’s way way way way easier to write a rejection than issue a patent because there’s a good chance the applicant will file a continuation and you’ll get more counts for the same work for an application that you already know well and have done the legwork on. So no, examiners are not incentivized to grant bullshit parents in any way shape or form.
Source: former examiner, current patent attorney who works with examiners regularly.
There's sort of a lot of literature that suggests that the USPTO does have a number of incentives to grant invalid patents. Even if they are all mistaken, this suggests to me that the issue is not as clear-cut as you say.
> This means that the fastest way for an examiner to obtain two counts is to dispose of an application through a first-action allowance.
I think this is what you are saying.
> Disposing of an application through an abandonment or RCE usually requires working through a series of responses and amendments by the applicant and issuing a second office action, none of which earns the examiner any counts.18 As a result, it is more time consuming to earn the second count through a rejection than through a grant. As others have noted, the count system thus essentially rewards examiners for granting patents (Merges, 1999; Jaffe and Lerner, 2004; Lemley and Shapiro, 2005)
But this disagrees on whether the examiners get points for the rest of the work on the same application.
> legal scholars who have studied the patent prosecution process have pointed to structural problems that encourage the PTO to grant patents of doubtful quality, including high examiner turnover and an incentive system that rewards examiners for allowing but not for rejecting applications (Merges, 1999; Thomas, 2001). As a result, the overwhelming majority of patent applications in the United States, perhaps 85 percent, ultimately result in an issued patent—far more than in Europe and Japan (Quillen, Webster and
Eichman, 2003; NAS, 2004).
Thank you for replying with citations and data - very cool way to debate!
So I'm surprised at what these sources say, and I think it may come down to tech center / art unit differences. I worked in a very 'high technology' art unit, where first action allowances were unheard of. A SPE would laugh you out of their office if you proposed a first action allowance. I don't think I ever even heard of one in my art unit. So first action allowances just weren't on the table for us in any meaningful way. But, I suppose it's possible that examiners in some other art unit may look at it that way.
I also disagree with the statement about RCE's. Examiners definitely get (or used to get) a count for a first action after an RCE. That first action is a gimme in terms of difficulty, as the examiner already knows the application well and knows the applicant well. In fact, it seems like from the USPTO's website that they're working to incentivize first action allowances over examiners encouraging continuation practice, likely for this very reason:
The other thing I'll say is that all issued patents aren't the same. A patent with very narrow claims is harmless. So just incentivizing issuance isn't necessarily bad. In fact, most people don't realize it's very easy to get a patent issued, as long as your claim is super long and therefore super narrow. We used to call them 'two-handers' as in, it takes both hands to cover it up on a printed page. Encouraging more of those doesn't really harm anybody (except the applicant).
Source: former examiner, current patent attorney who works with examiners regularly.